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ROLE OF SOCIAL SECURITY 

ADMINISTRATIVE LAW JUDGES 

JOINT HEARING 

BEFORE THE

SUBCOMMITTEE ON COURTS, COMMERCIAL 

AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

AND THE

SUBCOMMITTEE ON SOCIAL SECURITY 

OF THE

COMMITTEE ON WAYS AND MEANS 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

JULY 11, 2011 

Serial No. 112–67 Serial No. 112–SS8

(Committee on the Judiciary) (Committee on Ways and Means) 

Printed for the use of the Committee on the Judiciary and 

the Committee on Ways and Means 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

[Vacant] 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON COURTS, COMMERCIAL AND ADMINISTRATIVE LAW

HOWARD COBLE, North Carolina, Chairman 

TREY GOWDY, South Carolina, Vice-Chairman 

ELTON GALLEGLY, California 

TRENT FRANKS, Arizona 

DENNIS ROSS, Florida 

[Vacant] 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

MELVIN L. WATT, North Carolina 

[Vacant] 

DANIEL FLORES, Chief Counsel 

JAMES PARK, Minority Counsel 

(III) 

COMMITTEE ON WAYS AND MEANS 

DAVE CAMP, Michigan, Chairman 

WALLY HERGER, California 

SAM JOHNSON, Texas 

KEVIN BRADY, Texas 

PAUL RYAN, Wisconsin 

DEVIN NUNES, California 

PAT TIBERI, Ohio 

GEOFF DAVIS, Kentucky 

DAVE G. REICHERT, Washington 

CHARLES W. BOUSTANY, JR., Louisiana 

PETER J. ROSKAM, Illinois 

JIM GERLACH, Pennsylvania 

TOM PRICE, Georgia 

VERN BUCHANAN, Florida 

ADRIAN SMITH, Nebraska 

AARON SCHOCK, Illinois 

LYNN JENKINS, Kansas 

ERIK PAULSEN, Minnesota 

KENNY MARCHANT, Texas 

RICK BERG, North Dakota 

DIANE BLACK, Tennessee 

TOM REED, New York 

SANDER LEVIN, Michigan 

CHARLES B. RANGEL, New York* 

FORTNEY PETE STARK, California 

JIM McDERMOTT, Washington 

JOHN LEWIS, Georgia 

RICHARD E. NEAL, Massachusetts 

XAVIER BECERRA, California 

LLOYD DOGGETT, Texas 

MIKE THOMPSON, California 

JOHN B. LARSON, Connecticut 

EARL BLUMENAUER, Oregon 

RON KIND, Wisconsin 

BILL PASCRELL JR., New Jersey 

SHELLEY BERKLEY, Nevada 

JOSEPH CROWLEY, New York 

JON TRAUB, Staff Director 

JANICE MAYS, Minority Staff Director 

SUBCOMMITTEE ON SOCIAL SECURITY

SAM JOHNSON, Texas, Chairman 

KEVIN BRADY, Texas 

PAT TIBERI, Ohio 

AARON SCHOCK, Illinois 

RICK BERG, North Dakota 

ADRIAN SMITH, Nebraska 

KENNY MARCHANT, Texas 

XAVIER BECERRA, California 

LLOYD DOGGETT, Texas 

SHELLEY BERKLEY, Nevada 

FORTNEY PETE STARK, California 

———— 

*Rep. Charles B. Rangel (D-NY) will serve as an ex officio member sitting on all 

of the Subcommittees without voting rights in the 112th Congress. 

(V) 

C O N T E N T S 

JULY 11, 2011 

Page 

OPENING STATEMENTS 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Courts, Commercial 

and Administrative Law, Committee on the Judiciary ..................................... 1 

The Honorable Sam Johnson, a Representative in Congress from the State 

of Texas, and Chairman, Subcommittee on Social Security, Committee on 

Ways and Means .................................................................................................. 2 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 29 

The Honorable Xavier Becerra, a Representative in Congress from the State 

of California, and Ranking Member, Subcommittee on Social Security, Committee on Ways and Means ................................................................................. 30 

The Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress 

from the State of Georgia, and Member, Subcommittee on Courts, Commercial and Administrative Law, Committee on the Judiciary .............................. 32 

WITNESSES 

Michael J. Astrue, Commissioner of Social Security, Social Security Administration 

Oral Testimony ..................................................................................................... 35 

Prepared Statement ............................................................................................. 37 

Christine Griffin, Deputy Director, U.S. Office of Personnel Management 

Oral Testimony ..................................................................................................... 48 

Prepared Statement ............................................................................................. 50 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Sam Johnson, a Representative in Congress from the State of Texas, and Chairman, Subcommittee on Social 

Security, Committee on Ways and Means ......................................................... 4 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from Judge Richard A. Pearson, President, The Federal Administrative 

Law Judges Conference ....................................................................................... 76 

Prepared Statement of the Honorable Randall Frye, President, the Association of Administrative Law Judges (AALJ) ....................................................... 79 

Prepared Statement of the Association of Administrative Law Judges (AALJ) . 81 

Prepared Statement of Nancy G. Shor, Executive Director, and Ethel 

Zelenski, Director of Government Affairs, the National Organization of 

Social Security Claimants’ Representatives (NOSSCR) .................................... 91 

(1) 

ROLE OF SOCIAL SECURITY 

ADMINISTRATIVE LAW JUDGES 

MONDAY, JULY 11, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, COMMERCIAL AND ADMINISTRATIVE LAW, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittees met, pursuant to call, at 3:30 p.m., in room 

2141, Rayburn House Office Building, the Honorable Howard Coble 

(Chairman of the Subcommittee on Courts, Commercial and Administrative Law, Committee on the Judiciary) presiding. 

Members Present from the Subcommittee on Courts, Commercial 

and Administrative Law, Committee on the Judiciary: Representatives Coble, Gowdy, Ross, Johnson of Georgia, Watt, and Smith of 

Texas (ex officio). 

Members Present from the Subcommittee on Social Security, 

Committee on Ways and Means: Johnson of Texas, Smith of Nebraska, and Becerra. 

Staff Present from the Subcommittee on Courts, Commercial and 

Adminstrative Law, Committee on the Judiciary: (Majority) Daniel 

Flores, Subcommittee Chief Counsel; John Hilton, Counsel; Allison 

Rose, Professional Staff Member; Ashley Lewis, Clerk; and (Minority) Edward Salinas, Counsel. 

Mr. COBLE. Good afternoon, ladies and gentlemen. The Subcommittee hearing on the ‘‘Role of Social Security Administrative 

Law Judges’’ will be convened. Good to have each of you here 

today. Let me give my opening statement here. 

I think Mr. Johnson is on his way. Otherwise Mr. Becerra and 

Mr. Johnson are here. And the other Mr. Johnson from Georgia, I 

am told, is on his way down. I want to thank Sam Johnson for his 

leadership on this issue, thanks to the Chairman as well for his 

participation in this important hearing. Finally, I want to thank 

our witnesses for their testimony and for their attendance today. On average Administrative Law Judges (ALJs) make $153,000 

per year, including flexiplace provisions that allow them to work oftentimes from their homes. Becoming an ALJ is effectively an appointment for life on good behavior, comparable to an Article III 

Federal judge. An ALJ can be removed by misconduct by the Merit 

System Protection Board, but oftentimes this is a lengthy process. 

Meanwhile the ALJ will continue to earn his or her full salary. No 

doubt many, if not most ALJs are conscientious, hardworking people who process their dockets efficiently while giving each claimant 

2 

the full attention he or she deserves. Commissioner Astrue assures 

us of that fact. 

But cases like the one recently reported from West Virginia 

starkly reveal how the near complete lack of accountability offers 

an abundance of chances for abuse. Meanwhile it is the claimants 

who suffer, not to mention the American taxpayer who, like always, 

gets stuck with the bill. 

In addition to these larger questions of efficiency, accountability 

and professionalism in the Federal ALJ corps, there remains the 

issue of SSA’s backlog. Although Commissioner Astrue assures us 

that SSA is making progress on discharging its backlog, he adds 

that this progress will be jeopardized without full funding from the 

President’s fiscal year 2012 budget request. 

Whenever we in the Congress confront a problem, we should ask 

if it can be resolved without adding to the Federal budget deficit. 

Instituting some kind of peer review among ALJs may well be one 

option to consider. Creating tiers, other than a career appointment 

would be another option that could be made available perhaps. 

Improving the pool of applicants from which SSA has to choose 

when hiring ALJs also can go a long way, it seems to me, toward 

solving or resolving the problem. I am sure Deputy Director Griffin 

can speak to this issue and apprise the Subcommittees of specifically what steps OPM is taking or will take to address the issues 

raised in today’s hearing. 

I look forward to the witnesses’ testimony and reserve the balance of my time. I am pleased to recognize the distinguished gentleman from Texas, Mr. Sam Johnson, for his opening statement. 

Mr. JOHNSON OF TEXAS. Thank you, Mr. Chairman. I appreciate 

it. I am pleased to be cochairing this hearing with my colleague 

Howard Coble and his Subcommittee colleagues. And I thank you 

for hosting this important event. 

The Social Security and Supplemental Security Income Disability 

programs are the largest of Federal programs that provide assistance to people with disabilities, both administered by the Social Security Administration, and only individuals who have a disability 

may qualify for benefits under either program. Social Security Disability Insurance pays benefits to workers and their families if they 

work long enough and recent enough, generally 10 years, 5 of 

which were in the last 10, and paid Social Security taxes. Supplemental Security Income, or SSI, pays benefits based on financial 

need and is funded by general revenue. 

According to the CBO, over $123 billion in disability insurance 

benefits were paid to 10.2 million disabled workers and their families in 2010, though the current system makes it difficult, if not impossible to know if that is an accurate number of Americans who 

are truly disabled and truly deserving. Nonetheless, these are the 

numbers we have and CBO projects that by 2021 the number of 

beneficiaries will increase by close to 20 percent, to 12 million, and 

benefits will increase 57 percent to $193 billion. 

In 2010, 61⁄2 million disabled SSI recipients received $41.8 billion 

in benefits. By 2021 CBO projects 7.1 million disabled SSI recipients will receive $56 billion in benefits. Request for benefits have 

increased with the aging of the Baby Boomers and the recession, 

the latter suggesting that people in some cases file for disability 

3 

not because they are unable to work, but because they are unable 

to find work. 

Since 2007, disability insurance awards have increased 18 percent to 1.1 million people in 2010, while SSI disability awards have 

increased 28 percent to 938,000. According to 2011 trustees report, 

disability program revenue will only cover 86 percent of the benefits in 2018. 

At the center of Social Security’s disability programs is the disability process that determines whether claimants are entitled to 

benefits. Pivotal to that process is a hearing before an administrative law judge, or ALJ, at which many of the difficult cases denied 

at early stages in the process are newly reconsidered and awarded 

benefits. 

The Ways and Means Subcommittee on Security has long focused 

on ALJ and hearing office performance on a bipartisan basis. A 

September 2008 Subcommittee hearing highlighted the agency and 

agency’s Inspector General’s work to address hearing office and 

ALJ performance. Some progress has been made. 

Commissioner Astrue, who is here today, has implemented close 

to 40 initiatives to boost adjudication capacity, improve performance and increase efficiency. Also agency hiring efforts have focused on increasing the number of ALJs and their support staff. 

The waiting time for a hearing decision has been reduced from a 

high of 500 days in August, 2008 to 350 days in June, 2011. Now 

74 percent of ALJs are meeting their requested threshold of 500 decisions, up from 47 percent when the request was first made. The 

appeals processing statistics are posted online. 

Now the public is rightly paying attention and raising questions 

about the integrity of the judges, and recent press articles have 

highlighted judges awarding benefits 90 percent or more of the 

time in comparison to a national average that hovers around 60 

percent, judges who decide extremely high numbers of cases in 

comparison to their colleagues, awards that are made without a 

hearing based on whatever medical evidence may be in the file, disparities from office to office and State to State where an outcome 

can be predicted based on the ALJ assigned the case, and assignment of cases outside a random rotation, raises the specter of inappropriate relationships with counsel. 

At the bipartisan request of this Subcommittee the agency’s Inspector General is investigating the most egregious of these examples now. At a minimum these articles raise serious questions 

about the fundamental fairness of this appeal system. 

Our Members have been provided copies of these press articles 

and, without objection, the articles will be inserted into the hearing. 

[The information referred to follows:] 

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Mr. JOHNSON OF TEXAS. So why do these judges get away with 

this? Under the law ALJs have judicial independence, which seems 

to mean they operate with little or no accountability. Simply put, 

the agency can’t question their decisions even if they grant approval in most of their cases or deny most of them. 

ALJs who produce extraordinary numbers of decisions or who do 

very little are hard to hold accountable. Their collective bargaining 

agreement affords ALJs additional layers of protection and the ALJ 

union has fought long and hard to keep those protections in place. 

While the laws that protect ALJs give the agencies the ability to 

pursue the most egregious cases, it is a costly and time consuming 

project. 

No one should have to wait months or even years longer than 

their hearing decision because of the office or the ALJ the appeal 

is assigned to, nor should the taxpayer have to foot the bill. That 

is plain wrong. Those who aren’t performing up to expectations 

must be held accountable. 

Social Security must work fairly for all Americans and protect 

our hard earned taxpayer dollars, and we need to find out what is 

going on in this program and fix it. And if current law allows this 

to happen we need to change the law. Preserving the public trust 

demands no less. 

Mr. COBLE. I thank the gentleman. I see the Chairman of the full 

Committee is here, Mr. Smith, and then I will recognize Mr. Becerra and Mr. Johnson in that order. Mr. Smith, you are recognized 

for 5 minutes. 

Mr. SMITH OF TEXAS. Thank you, Mr. Chairman. The first thing 

to say is that this is the first joint hearing that the Judiciary Committee has held with any other Committee this year, and it is well 

worth our doing so. 

Today Social Security is stretched to it the limit. There is no 

margin of error for waste, fraud or abuse in our Social Security system, but administrative law judges who work at the Social Security 

Administration apparently have little accountability for their performance. 

Last May the Wall Street Journal reported on an administrative 

law judge in West Virginia who awarded Federal disability benefits 

in every single case, 729 all together, that came before him in the 

first half of fiscal year 2011. This judge is now on indefinite administrative leave but still draws his full salary while not doing any 

work for the American taxpayer. This case raises serious questions 

about how ALJs are held accountable for their performance. 

Why did we need to wait for the Wall Street Journal to expose 

this case? Were there no red flags along the way? How can we be 

sure that this is an isolated case and not a symptom of a systemic 

problem for the entire Federal ALJ corps, 85 percent of whom work 

for the Social Security Administration? 

In his written testimony Commissioner Astrue describes another 

ALJ who also was working full-time for the Department of Defense. 

Commissioner Astrue alludes to yet another ALJ who was arrested 

for domestic violence. Meanwhile, SSA continues to struggle to gain 

control of its backlog. More than 746,000 cases currently are pending. Last month it was reported the number of pending cases increased by another 5 percent in just 1 month. 

30 

I hope that today we can have a frank discussion about whether 

more money is the only answer or if other reforms would solve the 

problem more efficiently. Commissioner Astrue insists that most 

ALJs are dedicated and conscientious public servants, but he acknowledges that there are a certain number who under perform, 

approve or deny a suspiciously high number of cases or otherwise 

misbehave in office. 

Perhaps the Office of Personnel Management can shed some light 

on this issue. As Deputy Director Griffin explains in her testimony, 

the OPM accepts applications, administers the ALJ exam, and 

maintains the register from which agencies hire their ALJs. But 

according to Social Security Commissioner Astrue, more than onefourth of administrative law judges assigned to the Social Security 

Administration do not meet even their minimum annual benchmark of deciding 500 cases. This may be progress from the abysmal 

levels recorded in 2007 when far fewer administrative law judges 

met their benchmarks and claimants sometimes had to wait 46 

months, almost 4 years, for their claims to be decided, but the Social Security Administration has still not made enough progress. 

Last year a claimant still had to wait 27 months, well over 2 years. 

To clear the remaining backlog in cases, Commissioner Astrue 

states that he needs increased funding to hire more administrative 

law judges. Ms. Griffin states, ‘‘It is the responsibility of the agencies to hire ALJs,’’ but agencies can only hire administrative law 

judges from OPM’s register. It is incumbent upon OPM to properly 

screen applicants and maintain the administrative law judge register. 

Commissioner Astrue’s agency will pay OPM $2.7 million this 

year for personnel services related to administrative law judges. 

The American taxpayer has the right to know whether the Social 

Security Administration is getting its money’s worth from OPM. 

Any human system is only as good as the people running it. If 

the wrong people become administrative law judges, then we 

shouldn’t be surprised when the system fails. 

I want to thank Congressman Johnson, my Texas colleague and 

Chairman of the Social Security Subcommittee, for his efforts on 

this important issue. And believe me, he has been talking to me 

about this issue for months, if not years. And I also want to thank 

the Chairman of this Committee, Mr. Coble, for trying to address 

this issue in today’s hearing, and I yield back. 

Mr. COBLE. I thank the gentleman. The Chair now recognizes the 

distinguished from California, Mr. Xavier Becerra, who, Sam, I told 

you that I was pretty sure you used to be an alumnus of the Judiciary Committee. Good to have you back with us, Xavier. You are 

recognized for 5 minutes. 

Mr. BECERRA. Mr. Chairman, it was always a pleasure to be in 

this room, and I am pleased we are doing this hearing. So to you, 

and to Chairman Johnson, the Chairman of my Subcommittee on 

Social Security, I say thank you to the two of you for this hearing. 

I am pleased to join my colleague, the ranking Democrat on the 

Committee on the Judiciary side, Mr. Johnson, as well. 

Mr. Chairman, Social Security disability benefits are an earned 

benefit that is a vital source of income for severely disabled workers in this country. Only workers who pay into Social Security are 

31 

eligible to receive these disability benefits. These benefits are modest, less than $13,000 a year for the average beneficiary. For more 

than 4 of the 10 disabled workers who are getting the benefits, 

those benefits provide almost their entire income. Three-quarters of 

disabled workers live in families with total family income of less 

than $15,000. That is a statistic that is a little dated from 2001 but 

one of the best measures that we have, and some 20 percent of 

those individuals are living below the poverty level. 

Although it often takes the Social Security Administration longer 

than is reasonable to make a decision, our Social Security Disability Program generally ensures that disabled workers get the 

benefits they have earned and that those who do not qualify are 

denied the benefits. Social Security has extremely strict eligibility 

rules. 

Last year SSA made decisions on approximately 3 million initial 

applications for disability benefits and reviewed 1.4 million appeals 

of denied claims, including 620,000 determinations by SSA’s independent ALJs, the administrative law judges. About 35 percent of 

applicants were awarded benefits based on their initial application. 

Of those who are denied, historically about half accept the decision 

and do not file an appeal and it ends there. Sixty-one percent of 

those who do appeal were able to present evidence proving that 

they were entitled to benefits. 

Without Social Security’s independent appeals process, those individuals and their families would have been denied benefits that 

they had earned through their work. The remaining 39 percent 

were not awarded benefits. Of the people who apply for disability 

benefits each year, therefore, about half eventually are awarded 

benefits. Only about half of those who claim benefits get them. 

As the backlog of disabled workers waiting for appeals hearing 

shows, budget cuts for SSA have consequences. The latest round of 

Republican budget cuts will have consequences, too. One particular 

problem area in the Social Security Disability Program has been 

the long delays claimants experience while waiting to hear if they 

will receive disability benefits, particularly for those who appeal. 

SSA has been able to use the resources our Committee and on 

the Ways and Means side worked on a bipartisan basis to provide, 

starting in 2008, to significantly reduce waiting times for disability 

appeals. Waiting times have dropped from a high of 535 days delay 

in 2008 to an average of 354 days in May 2011. Instead of helping 

SSA continue reducing waiting times, my colleagues on the Republican side this year chose to cut SSA’s operating budget by $1 billion below what the agency needed to keep up with incoming 

claims and continuous efforts to reduce wait time. I am increasingly worried that these cuts will undo the hard won progress and 

worsen the hardship and suffering of very ill and disabled people. 

As this chart will show, already the Social Security Administration has had to abandon its plan to open eight new hearing offices 

this year, offices that could process thousands of appeals to ensure 

that deserving applicants are paid the benefits they are due. SSA 

is also losing personnel who help process and approve claims because those budget cuts mean SSA can’t replace workers who retire 

or otherwise leave. 

32 

We should be very cautious about making changes that might 

deny claimants due process, especially since we have mechanisms 

in place that can address those ALJs who are found not to be complying with SSA’s rules and regulations. SSA today has the authority to remove an ALJ who is not complying with the rules and regulations. Commissioner Astrue has increased SSA’s use of the 

Merit System Protection Board to remove judges that flagrantly 

violate the rules, as is appropriate, and we applaud you for that, 

Mr. Commissioner. 

Last month Chairman Johnson and I wrote to the Social Security 

Inspector General asking him to review SSA’s management and 

oversight of ALJs, with a particular focus on judges whose productivity or decision making appears to differ greatly from their peers. 

Rather than rushing to judgment based on news reports, we should 

wait for the results of that review. 

We also asked the Inspector General to evaluate whether SSA is 

effectively using management controls to ensure that ALJs follow 

agency policies as they are required to do. I know we are all looking forward to receiving those recommendations on how we can remove the anomalies in an otherwise fundamentally effective Social 

Security Disability system. 

Mr. Chairman, I look forward to the testimony of the witnesses, 

and I yield back the balance of my time. 

Mr. COBLE. I thank the gentleman. The Ranking Member for our 

Subcommittee is not here, but Mr. Johnson, the distinguished gentleman from Georgia, will fill in for Mr. Cohen. You are recognized 

for 5 minutes. 

Mr. JOHNSON OF GEORGIA. Thank you, Mr. Chairman. Social Security is the bedrock of the social safety net that Americans have 

been committed to providing for one another since the New Deal. 

That commitment reflects the kind of people we are and our longstanding and fundamental values that, alongside our commitment 

to individualism and self-reliance, is our belief that we are our 

brothers and sisters’ keepers. 

The guarantees of social insurance unfortunately have come 

under attack, severe attack over the last 30 years by those who believe that all the risks in life should be borne by ordinary people 

and that government has no obligation to mitigate those risks, even 

to a minimal extent. Such a Darwinian view is easy to hold when 

one has the wealth and resources to mitigate one’s own life risks. 

Most people, however, are not lucky enough to have such resources. 

Most people will need what we have prepared for them, which is 

Social Security and other social insurance programs. 

While the focus of today’s hearing is on the role of administrative 

law judges, or ALJs, at the Social Security Administration, I feel 

that this hearing is really just a back door attempt to undermine 

Social Security by those opposed to having a social safety net. The 

ALJs are being used as whipping boys and girls. 

We should see this hearing in light of the majority’s broader antisocial safety net agenda, especially as illustrated by Representative 

Paul Ryan’s budget that eliminates Medicare and by the majority’s 

repeated attempt to push for cuts to social insurance programs during the debt ceiling negotiations. 

33 

What these opponents of the social safety net may not accomplish outright, they seek to do on a piecemeal basis, in this case 

by pushing to undermine the independence of ALJs from the political pressure to deny benefits, including those to deserving claimants. 

ALJs decide the appeals from denials of Social Security disability 

benefits. As such, they are bulwarks against politically motivated, 

mistaken or otherwise unjustified denials of disability benefits by 

the SSA. To ensure that claimants who appeal a denial of disability 

benefits are given due process, ALJs are insulated from potential 

political pressure to deny benefits. This insulation comes in the 

form of certain salary and tenure protections that are not afforded 

to other employees of SSA. 

It is for this reason that any attempt to undermine the independence of security ALJs, including proposals to replace them with less 

independent hearing examiners, should be met with strong skepticism. In addition to the measures designed to ensure their 

decisional independence, ALJs are distinguished from other SSA 

employees in other ways that ensure the quality and fairness of 

their decisions. 

For instance, ALJs must be licensed lawyers, have a minimum 

of 7 years of administrative law or trial experience before local, 

State or Federal administrative agencies, courts or other adjudicative bodies. These professional qualifications, these requirements 

further help ensure that decisions concerning disability benefits are 

approached with analytical rigor and legal sufficiency and are not 

based on politics or ideology. 

I also find it telling that the majority is training its guns on Social Security Administration ALJs at the very moment that it is 

also seeking to undermine health and safety regulations. Lax regulation of workplace, environmental, food and drug, and financial 

safety and security potentially give rise to greater numbers of Social Security disability claims. If the majority has its way, people 

will be less protected from harm in the first instance because of a 

lack of adequate regulation, and they will be less protected should 

harm befall them because there will be a weakened safety net to 

catch them if they fall. 

The majority’s message to the American people is you are on 

your own if you get injured at work, get sick because of contaminated food, or lose your job because of reckless corporate behavior. 

Finally, I am deeply concerned that the minority was not given 

an opportunity to invite a witness. At a minimum, a representative 

of the Social Security ALJs should have been invited in order for 

Members of our respective Committees to have a more complete 

picture on the issues before us. The majority has been a little too 

cute with its claim that the witnesses represent the Administration. 

With all due respect, the reality is that Social Security Commissioner Michael Astrue is a George W. Bush appointee serving out 

a fixed 6-year term. His views reflect the political agenda of the Republican party and others who are hostile toward the idea of a social safety net. 

Everyone observing this hearing should bear those facts in mind. 

The backlog in disability benefits determinations is troubling. This 

34 

backlog, however, may stem more from a lack of adequate resources than from delinquent ALJs. When Congress has given SSA 

more resources, the backlog has been reduced. I fear that in the 

current political atmosphere that fetishes budget cuts, above all 

else cuts in resources to Social Security Administration, will result 

once again in an increased backlog of cases. 

Ultimately no one wants bad ALJs who do not do their jobs. SSA, 

however, already has tools at its disposal to take adverse employment actions against ALJs for cause, and I wonder just how many 

times that has been done. 

I view the thrust of today’s hearing with great concern for the 

reasons I have outlined, and so should you. 

I yield back. 

Mr. COBLE. All other Members may submit opening statements 

for the record. Mr. Johnson, I am told that the Democrats were 

asked to invite a witness but that was declined. Much of what you 

say I don’t embrace, but you and I can talk about that another day. 

The best laid plans of mice and men oftentimes go awry. Today 

is no exception. I did not know I was scheduled to Chair this hearing until Friday afternoon. That was my fault, no one else to 

blame. But Mr. Smith has given me an excused absence when I 

have to abruptly depart subsequently, and I thank the distinguished gentleman from South Carolina, Mr. Gowdy, for agreeing 

to assume the gavel when that time comes. 

We are pleased to have two outstanding witnesses before us 

today. Michael Astrue is Commissioner of Social Security and has 

had a distinguished career in both public and private sectors. He 

is an honors graduate of Yale University and the Harvard School 

of Law. After law school he clerked for Judge Walter Skinner of the 

U.S. District Court in Massachusetts. Mr. Astrue has a lengthy career in public service, serving as Acting Deputy Assistant Secretary 

for Human Services Legislation at the U.S. Department of Health 

and Human Services, Counselor to the Commissioner of Social Security, Associate Counsel to Presidents Reagan and George H.W. 

Bush, and General Counsel of the U.S. Department of Health and 

Human Services. We welcome Mr. Astrue and look forward to his 

insights. 

Ms. Christine Griffin is Deputy Director of the U.S. Office of Personnel Management where she manages the Federal Government’s 

1.59 million employees. Prior to OPM, Ms. Griffin was a Commissioner of the U.S. Equal Opportunity Commission and has worked 

in labor and employment law positions in both public and private 

sectors. Ms. Griffin earlier served as the attorney adviser to the 

former Vice Chair of the EEOC. Ms. Griffin earned her undergraduate degree from the Massachusetts Maritime Academy and 

her law degree from the Boston College School of Law. Ms. Griffin 

is also a veteran of United States Army. We appreciate her willingness to share her expertise with the Subcommittee today. 

Commissioner, we will start with you. And if you witnesses could 

confine your statements to as near 5 minutes as possible, there will 

be a green light that assures you the ice on which you are standing 

is thick. The light then turns to amber and then the ice becomes 

less thick. If you could wrap up when the red light appears, we 

would appreciate that. Good to have you both with us. 

35 

Commissioner, you may proceed. 

TESTIMONY OF MICHAEL J. ASTRUE, COMMISSIONER OF 

SOCIAL SECURITY, SOCIAL SECURITY ADMINISTRATION 

Mr. ASTRUE. Thank you, Chairman Smith, Chairman Johnson, 

Chairman Coble, Ranking Member Becerra, and Members of the 

Subcommittees. Thank you for this opportunity to discuss what the 

Supreme Court has called probably the largest adjudicative agency 

in the Western world. 

This year about 1,400 administrative law judges will decide 

about 832,000 disability appeals. When I first testified before the 

Social Security Subcommittee on my second day as Commissioner, 

our backlog situation was bleak. Backlogs had risen steadily 

throughout the decade, and the reform initiative that I inherited, 

known as Disability Service Improvement, or DSI, was aggravating 

the problem rather than helping it. 

We took swift action to end the failures of DSI and to accelerate 

its few successes. Then we went to work to manage our hearing operations nearly 10,000 employees with unprecedented rigor. As a 

result, we have reduced the time for deciding a hearing request 

from an average of 532 days in February 2008 to 353 days last 

month. We have achieved this success despite recent budget constraints and almost 1.5 million more applications for benefits 

caused by the economic downturn. 

Hundreds of small but important initiatives, including management information systems, uniform business processes, smarter use 

of support staff, better training, better allocation of resources, and 

decisional templates have steadily brought us near our original 

goal of an average of 270 days to decide a case. 

An essential element of our progress has been improved judicial 

productivity. Since 2007, when Chief Judge Cristaudo issued his influential memo establishing 500 to 700 decisions per year as our 

expectation for each judge, our judges have improved from 2.19 decisions per day in fiscal year 2007 to 2.43 decisions per day so far 

this fiscal year. In fiscal year 2007, 46 percent of our judges met 

this expectation. In fiscal year 2010, 74 percent met it, and we expect to do slightly better this year. 

Let me echo Mr. Coble and emphasize that most of our ALJs responsibly handle their cases. However, recent Wall Street Journal 

articles by Damien Paletta have provoked constructive debate 

about an issue I have raised several times before Congress—the 

small number of judges who do not properly apply the statute. 

It is critical that all Members of Congress understand what our 

Subcommittee understands. We have not taken action against 

judges based strictly on allowance or denial rates because Congress 

has put great weight on an ALJ’s qualified decisional independence. 

The Administration is open to exploring options for addressing 

these situations in consultation with ALJs, other Federal agencies, 

and other stakeholders. Areas to explore could include examining 

statistical evidence showing very significant variations between the 

decisions of a small number of ALJs and the decisions of other 

agency ALJs, whether in the direction of approving or denying 

claims. 

36 

We are doing what we can under the current law. With the promulgation of our time and place regulation, we have eliminated arguable ambiguities regarding our authority to manage scheduling, 

and we have taken steps to ensure that judges decide neither too 

few nor too many cases. By management instruction, we are limiting assignment of new cases to no more than 1,200 annually. 

On my watch we have raised the standards for judicial selections. Four years ago, we had an OPM list of judicial candidates 

that was 10 years old, and nobody was doing background checks on 

candidates. The 685 judges we have hired since 2007 using a more 

rigorous internal hiring approach have been productive and respectful of the statute. We have not had a single case of serious 

misconduct by any of these new judges. Insistence on the highest 

possible standards in judicial conduct is a prudent investment for 

taxpayers, especially since these are lifetime appointments. 

Our efforts continue. I understand that later this month, we expect to file a termination action with the Merit Systems Protection 

Board based on the poor performance of an ALJ who is deciding 

very few cases. 

I know that you understand that I cannot comment on pending 

investigations and personnel actions, but I am happy to answer 

any other questions that you may have.Thank you very much. 

[The prepared statement of Mr. Astrue follows:] 

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Mr. COBLE. Thank you, Commissioner. You beat the red light. 

Kudos to you for that. 

Ms. Griffin, good to have you with us. You may proceed. 


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TESTIMONY OF CHRISTINE GRIFFIN, DEPUTY DIRECTOR, 

U.S. OFFICE OF PERSONNEL MANAGEMENT 

Ms. GRIFFIN. Thank you. Chairman Johnson, Chairman Coble, 

Ranking Member Becerra, Mr. Johnson, and Members of the Committee. I am pleased to have the opportunity to appear before you 

this afternoon to discuss OPM’s role in the hiring process used for 

the administrative law judges. 

The administrative law judge function was created by the Administrative Procedure Act of 1946 to ensure fairness in administrative proceedings before Federal Government agencies. The Federal Government employs administrative law judges, called ALJs, 

at a number of agencies across the Federal Government. 

As of December 2010 there were 1,704 ALJs assigned to Federal 

agencies across the Federal Government. According to statistics 

compiled by OPM, the Social Security Administration employs 85 

percent of all the ALJs. 

Consistent with the Administrative Procedure Act (APA) and 

Civil Service law, OPM is responsible for establishing ALJ qualifications, establishing classification standards for determining ALJ 

pay, developing and administering the ALJ examination, and maintaining a listing of qualified ALJ candidates for ALJ employment 

by Federal agencies. OPM also approves noncompetitive personnel 

actions affecting current ALJs, such as promotions. 

By law OPM cannot delegate the ALJ examination to any other 

agency. The qualification standards developed by OPM prescribes 

minimum requirements for ALJ positions. In order to be considered, an applicant must meet both the licensure and experience requirements and place among the more highly qualified applicants 

at the conclusion the first segment of the examination. 

Applicants who are among the more highly qualified group must 

then complete additional components of OPM’s ALJ competitive examination. The current qualification requirements, which were updated in 2007, are defined in the qualification standard for administrative law judge positions. 

Periodically open periods for the ALJ examinations are posted by 

a job opportunity announcement on OPM’s Web site. The examination has been administered three times since 2007. The last general administration of the ALJ examination occurred in 2009 to 

2010. Further, OPM continues to periodically administer the examination to 10 point preference eligible veterans upon request. 

It is the responsibility of the agencies to ultimately hire the 

ALJs. Agencies must make selections from the certificates that are 

consistent with the applicable merit principles and veteran’s preference rules regarding the order of selection. However, it is OPM’s 

responsibility to ensure that the ALJ register maintains a sufficient number of qualified ALJ applicants that meet the projected 

hiring needs of agencies, including giving agencies an adequate 

number of choices for each position to be filled. 

Once an ALJ is appointed by an agency, the ALJ receives a career appointment and is not subject to a probationary period. The 

hiring agency is further prohibited by statute and regulation from 

rating the job performance of the ALJ, including from awarding the 

ALJ monetary awards, honorary awards, or any other kind of incentive. The restrictions on agency performance ratings are in 

49 

place in order to ensure that the ALJs are not influenced by an 

agency when performing their judicial functions. 

Nonetheless, ALJs not unaccountable to their agency. Misconduct 

by an ALJ is subject to sanction. And an agency may take actions 

against an ALJ for good cause as established and determined by 

the Merit System Protection Board. 

Members of the Subcommittee, thank you for having me here 

today to explain the role of OPM in the selection of ALJs, and I 

will be happy to address any questions you may have. 

[The prepared statement of Ms. Griffin follows:] 

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Mr. COBLE. You even beat the amber light. 

Ms. GRIFFIN. I was going fast. 

Mr. COBLE. I appreciate that. Ladies and gentlemen, we try to 

comply with the 5-minute rule against ourselves as well, so if could 

you keep your questions tersely. 

Commissioner, it gets one’s attention when an ALJ is granting 

on the one hand or denying on the other hand a disproportionate 

number of claims in his or her cases. How do you track this, A? 

And B, what do you with the data? 

Mr. ASTRUE. Mr. Chairman, we have better tracking than we had 

before because we use more precise management data than we did 

in the past. We use this primarily for training initially and then 

for counseling if the training does not work. Our hands are substantially tied in terms of using a lot of that data for discipline by 

a 1998 regulation that in my understanding, was done in large part 

at the insistance of the Congress at the time. So I can’t use statistical deviation very easily as a basis for removal or even to look 

more closely at a judge. So we use that data now the best way we 

can, which is for training and then for counseling. And I think it 

has been somewhat effective. 

Mr. COBLE. I thank you for that. 

Since 85 percent of the ALJs in the Federal Government are employed by SSA, would it be helpful to you in your opinion, sir, if 

OPM created a separate exam and ALJ register for SSA? You can 

weigh in on this, too, Ms. Griffin. 

Mr. ASTRUE. I don’t think a separate exam is necessary. I do 

think that there needs to be better consultation between OPM and 

SSA than in the past. It is better under Director Berry, but at the 

staff level when you try to engage, typically we hear, well, there 

is litigation risk, and we are not allowed to discuss those things. 

And it is frustrating historically to have 85 percent of the administrative law judges and essentially no input into how they are rated 

and selected. 

Mr. COBLE. Ms. Griffin, you want to be heard on that? 

Ms. GRIFFIN. I would just say, too, I don’t think it is necessary 

to have a separate exam. I think what we are looking for is a register of really good people that can be used across a variety of Federal agencies. And as the Administrative Procedure Act stated and 

was passed, it was to support the fact that we could have independent decision makers at the agencies so that we were being fair. 

So I agree that I don’t think it is necessary. 

And I do know that Director Berry and Commissioner Astrue 

have had several talks since Director Berry has been there. And he 

is committed, as I am, to continuing discussions. We do every time 

the exam is open and we go through the process of trying to evaluate and get really better at job analysis of ALJs so that we are 

making sure the exam reflects what is needed. We have consulted 

with the Commissioner and other people at Social Security and will 

continue to do so. 

Mr. COBLE. Thank you. 

Ms. GRIFFIN. We are in the process of doing that again right now. 

Mr. COBLE. I thank you for that. 

Ms. Griffin, let me ask you this. When an ALJ is placed on administrative leave, why would it not be fair for him or her not to 

54 

be paid during this time but rather to receive backpay, including 

interest, maybe even attorney’s fees if he or she prevails before the 

MSPB? 

Ms. GRIFFIN. I actually don’t—I don’t know the answer to that 

question. It was interesting to note that the ALJ in question you 

referred to is being paid while on administrative leave. I don’t 

know exactly why that is and what rule governs that, but I would 

be happy to find out. 

Mr. COBLE. You all think about that and get back to us. 

[The information referred to follows:] 

Mr. ASTRUE. If could I just address that briefly, Mr. Chairman. 

I actually would have some qualms about taking salary away on 

administrative leave. Administrative leave in these situations is 

usually for a brief period of time when you are trying to get a handle on the situation. You have found out there is a problem, and 

you are trying to freeze the situation to decide what to do. It is not 

uncommon for someone to be put on administrative leave and then 

we discover it is a false alarm. 

I do think something that the Committee should be considering 

very closely is that once we have done that and we have made a 

decision that someone should be removed, for judges but not for 

other employees, the whole time an MSPB process is continuing, 

which can take 2 to 3 years, full salary is paid even after a removal 

order at the first level of determination. 

Mr. COBLE. I thank you, sir. 

I want my colleagues to know I just barely missed the red light. 

I almost beat it. You all set a good pattern. Mr. Johnson is recognized for 5 minutes. 

Mr. JOHNSON OF TEXAS. Thank you, Mr. Chairman. Commissioner Astrue, it is my understanding the Administrative Procedure 


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Act protects what an ALJ decides to do because of judicial independence. So whether a judge grants approvals in most cases or denies most claimants or handles too few or in some cases well above 

the average, the APA prevents Social Security from questioning 

their decision making, is that true? 

Mr. ASTRUE. Mr. Chairman, I think it is a somewhat debatable 

proposition. I think that our authority is not 100 percent clear. In 

fact as a technical matter, APA decisions in the court don’t apply 

to us because we are not under the APA. The courts have ruled in 

the past that the APA was modeled after the Social Security Act 

and, to a large extent, the systems are parallel and the same rules 

should apply, but our decisions are made under the Social Security 

Act. 

Mr. JOHNSON OF TEXAS. And you and I have talked about my 

concerns about low producing and overly generous ALJs for a long 

time. And our staffs have been working together to determine the 

impact on the Disability Insurance Program. Of judges whose allowance rates are above 85 percent and judges whose allowance 

rates are below 20 percent, would you discuss your staff’s findings 

and tell me what effect the union has on that? 

Mr. ASTRUE. Sure, Mr. Chairman. We had—and I apologize for 

the lateness of this—we had some technical issues, and right before 

the hearing, the actuaries completed those numbers in response to 

your request. We will be attaching those for the record. But by the 

standards that you indicated, the 20 and the 85 percent, roughly 

the savings to the taxpayers on the less generous side is about 

$200 million a year. The cost on the more generous side is approximately a billion dollars annually. We have it in all its complex 

glory for you, and we will attach it for the record. But the short 

version is that there is a substantial cost to the trust funds if you 

look at it with the standards that you asked us to look at it at. 

[The information referred to follows:] 

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Mr. JOHNSON OF TEXAS. Since people don’t appeal awards there 

is no way to know which appeals were wrongly awarded, is there? 

Mr. ASTRUE. As of fairly recently, we are looking at them and are 

using that data for training and counseling, but in terms of reversing decisions you are correct, Mr. Chairman. 

Mr. JOHNSON OF TEXAS. Do you look at every decision? Review 

it, somebody? 

Mr. ASTRUE. Not me personally. We look at a statistical sample 

from the point of view of trying to identify patterns of disconnect 

with the law. Again, that is fairly recent, and we only look at a relatively small sample. We don’t have the resources to look at very 

many, but we do look to find the most extreme cases of noncompliance with the statute and try to address them through training 

and then, if training doesn’t work, through counseling. 

Mr. JOHNSON OF TEXAS. When a new judge is hired can you put 

them on probation? If not, why not? 

Mr. ASTRUE. No, the statute doesn’t allow me to do that, Mr. 

Chairman. 

Mr. JOHNSON OF TEXAS. Does OPM do background checks on candidates before they are placed on the register for you to interview 

and have you ever asked them to do that? 

Mr. ASTRUE. The answer to the first question is no, they don’t. 

Yes, we have asked them to do it in the past. We have gone ahead 

and done it on our own. 

Mr. JOHNSON OF TEXAS. What is their response? 

Mr. ASTRUE. We have actually used contractors to do it as opposed to having agency officials do it. 

Mr. JOHNSON OF TEXAS. What was their response to you? 

Mr. ASTRUE. They declined to do it. 

Mr. JOHNSON OF TEXAS. You want to respond? 

Ms. GRIFFIN. This is in preparation for this hearing, this is something that we looked at. And we have right now, I think there are 

approximately 900 ALJs on the list. So in order to do a suitability 

background check on every single one of these people when the majority of them aren’t going to end up being ALJs given the number 

that are hired each year is cost prohibitive. It would actually cost 

the Commissioner and all the other agencies that pay for this service a lot more. What we do suggest and what we do with all Federal employees is that they have a suitability check when they are 

offered the job. So the offer is always conditional on a background 

check of some type, depending on the level of work they are going 

to be doing, all the way up to—depending on the type of clearance 

we need. So I think the appropriate time to do is before they are 

offered and before they actually begin the job. 

Mr. ASTRUE. Just to be clear, we do not in the agency check everyone on the list. It is only when they are sent to us by OPM for 

potential hire. It is at that time when we do the background check. 

Mr. JOHNSON OF TEXAS. Thank you. 

Mr. GOWDY. [Presiding.] Thank you. The gentleman from Georgia, Mr. Johnson. 

Mr. JOHNSON OF GEORGIA. Thank you, Mr. Astrue, there have 

been a number—or there has been some additional funding provided by earlier Congresses and based on that additional funding 

and very hard work by SSA judges and hearing office staff, the 

60 

wait times have gone down from a peak of 18 months and that was 

in 2008 to just below the 1 year mark last month; is that correct? 

Mr. ASTRUE. Yes. 

Mr. JOHNSON OF GEORGIA. And unfortunately Republicans this 

year chose not to continue helping SSA bring down wait times by 

cutting the agency’s budget by $1 billion below what was requested 

to keep up with incoming claims and drive down waiting times. 

What will be the impact across the agency of this kind of cut? 

Mr. ASTRUE. Well, certainly this year halfway through the fiscal 

year we started implementing—— 

Mr. JOHNSON OF GEORGIA. This is going to hurt, isn’t it, in terms 

of your ability to quickly—— 

Mr. ASTRUE. I am trying to get to that, Mr. Johnson. Yes, it has 

hurt. As one of the Members, I don’t remember who mentioned— 

I think it was Mr. Becerra—we have canceled office openings, we 

have closed the McLean case assistance center, and that is in the 

area which is our number one priority. I have heard complaints 

from many of you because we closed remote offices. 

Mr. JOHNSON OF GEORGIA. I don’t want to go that far now because I only have 5 minutes and I don’t want you to filibuster me. 

Mr. ASTRUE. I am not filibustering you. I am trying to be responsive, Mr. Johnson. 

Mr. JOHNSON OF GEORGIA. Let me ask this question. Have you 

noticed a tsunami of ALJs recently who seem to go too far in allowing awards or who are nonproductive in terms of low producers? 

Mr. ASTRUE. We are actually as—— 

Mr. JOHNSON OF GEORGIA. Has there been an avalanche or has 

it been just a trickle? 

Mr. ASTRUE. Well, in fact there has been slight improvement in 

both categories and I think a lot of that is because we have hired 

685 ALJs on my watch. And if you look at the performance of those 

685, there are fewer of them at the extremes in decision making, 

and there are fewer of them on the nonproductive end. So I think 

it bears out what I said in my testimony, committing to excellence—— 

Mr. JOHNSON OF GEORGIA. I am sorry. 

Mr. ASTRUE. It is a better product. 

Mr. JOHNSON OF GEORGIA. Sorry for interrupting. I did want to 

just continue with my questions. So we are having a hearing on 

ALJs today and it appears to be no real problem that we should 

be having a hearing on; is that fair to say? 

Mr. ASTRUE. I think if you look at this historically, this is an 

issue that has been periodically before the Congress for 35 years. 

Mr. JOHNSON OF GEORGIA. It—— 

Mr. ASTRUE. It has been a source of concern of Members of both 

parties for a long period of time. 

Mr. JOHNSON OF GEORGIA. We should not cause any panic among 

the public insofar as the abilities of our ALJs is concerned handling 

the Social Security claims. There is no real need to make them a 

whipping boy or girl, is it? 

Mr. ASTRUE. I have never made anyone a whipping boy or a 

whipping girl. I think what is important is that judges perform an 

important public function. They should work hard, they should beVerDate Aug 31 2005 11:02 Jan 24, 2012 Jkt 000000 PO 00000 Frm 00066 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\071111\67308.000 HJUD1 PsN: 67308
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have properly, and they should decide cases in accordance with the 

law. 

Mr. JOHNSON OF GEORGIA. How many of those types of judges 

who have not met that benchmark have you had to compel to go 

into training or counseling during your tenure? 

Mr. ASTRUE. Well, during my tenure we have disciplined 58 

judges. 

Mr. JOHNSON OF GEORGIA. Fifty-eight have been disciplined out 

of 85 percent of 1,704? 

Mr. ASTRUE. When I first started, we had about a 1,000 ALJs. 

We have about 1,400 now. 

Mr. JOHNSON OF GEORGIA. And they were disciplined for being 

excessive in terms of one way or the other which way they ruled? 

Mr. ASTRUE. No, we haven’t disciplined any judges for that. 

Mr. JOHNSON OF GEORGIA. Disciplined because of failure to decide cases? 

Mr. ASTRUE. We have had some disciplined for failure to decide 

cases, yes. 

Mr. JOHNSON OF GEORGIA. About how many? 

Mr. ASTRUE. After repeated warning, one certainly comes to 

mind, and I will answer for the record how many others fell in that 

category. 

[The information referred to follows:]* 

Mr. JOHNSON OF GEORGIA. And the others were for things other 

than the substance of the cases that they decided? 

Mr. ASTRUE. We haven’t disciplined any judges yet on the substantive cases. 

Mr. JOHNSON OF GEORGIA. Thank you. 

Mr. GOWDY. I thank the gentleman from Georgia. The Chair now 

recognizes the gentleman from Nebraska, Mr. Smith. 

Mr. SMITH OF NEBRASKA. Thank you, Mr. Chairman. Commissioner, you have asked the ALJs to make approximately 500 to 700 


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decisions every year, and why would you say that it was necessary 

to establish that expectation? 

Mr. ASTRUE. We decided that you can’t do everything by rules 

and directives, that a part of change is cultural change. And so one 

of the interesting things about this very effective memo is that 

there are no sanctions attached to it. So the combination of saying 

this is what we expect and being much more open about performance, I think a significant number of judges to their credit said, I 

am being challenged by the Commissioner to do better, and I am 

going do better, and I applaud those judges who have done that. 

Mr. SMITH OF NEBRASKA. So how would you describe the analysis 

that the agency used in deciding on that number—those numbers? 

Mr. ASTRUE. We had old data that I don’t think was very relevant that suggested that a number a little bit below 500 might be 

appropriate. We relied on the professional judgment of our management judges saying, among the people who are doing the best, what 

are they doing, what is a reasonable expectation? We relied heavily 

on former Chief Judge Frank Cristaudo and decided that 500 to 

700 cases as a benchmark was a fair and reasonable benchmark. 

Mr. SMITH OF NEBRASKA. Okay. So, if my math is correct, approximately 350 judges are not meeting the expectation? 

Mr. ASTRUE. Yes. 

Mr. SMITH OF NEBRASKA. And what do you think is necessary to 

ensure that the expectations can be met? 

Mr. ASTRUE. There are some judges who haven’t met the 500 but 

seem to be trying in good faith and are close. There are some that 

have had health or other issues that are reasonable excuses. We 

have, I believe, 118 judges who are eligible for reduced time because they are union representatives. 

If you look at the few judges apart from those categories, who are 

not fully carrying their weight, it is a relatively small number, but 

we will be taking an increasing amount of action there. We have 

clarified our regulatory authority with the time-and-place regulation. And, as I indicated in my testimony, we will be filing shortly 

against a judge purely for nonperformance based on the total lack 

of productivity. 

Mr. SMITH OF NEBRASKA. Okay. Now, their compensation is 

based on a salary schedule type of approach, is that accurate? 

Mr. ASTRUE. Yes, that is right. 

Mr. SMITH OF NEBRASKA. And so it is conceivable that some 

judges would be paid the same as those they supervise? 

Mr. ASTRUE. Yes, that is right. There is pay compression there, 

and I think that is an issue that OPM and the Congress should be 

considering. Because, right now, there is no incentive to be a management judge. And believe me, there is a lot of heartache, I was 

a general counsel for over 10 years in government and outside government. There is a lot of heartache managing lawyers in any area. 

And I think that some differential for the added management responsibilities is an appropriate issue to consider. 

Mr. SMITH OF NEBRASKA. And what, specifically, do you think 

would work that we could implement via statute or however? 

Mr. ASTRUE. My understanding is that it may require a statutory 

change. So that is one of the things where we would like to work 

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with OPM and with you, the Members of Congress, to see if there 

is a better way moving forward. 

Mr. SMITH OF NEBRASKA. Okay. All right. Thank you. 

I yield back. 

Mr. GOWDY. The Chair thanks the gentleman from Nebraska and 

recognizes the gentleman from California, Mr. Becerra. 

Mr. BECERRA. Thank you for your testimony here. 

Commissioner, thank you for the work that you have been doing 

to try to address this issue of outlier judges. And I hope that we 

are able to hear soon the results of some of these investigations 

and examinations that are under way so we can deal with that. 

I also know that a lot of these judges are under extreme stress. 

They are dealing with a huge number of cases on a daily basis that 

they must dispose of and do so in a not just reasonable way but 

in a legal way. 

I know that you say in your testimony, your written testimony, 

you mention that your number-one priority is trying to relieve this 

backlog. And I know you have made some progress. You state specifically—I am quoting you—‘‘Eliminating our hearings backlog and 

preventing its reoccurrence remains our number-one priority.’’ 

You go on to cite on page 4 of your testimony, ‘‘Due to the economic downturn and the aging of the baby boomers, our workloads 

have been skyrocketing. We received 130,000 more hearing requests in 2010 than we received in 2008, and we expect to receive 

114,000 more requests in FY 2011 than we did in FY 2010. Without our hearing backlog reduction plan, our national average processing time would be approaching at least 600 days and we would 

be well on our way to 1 million people waiting for a decision.’’ 

Now, we all remember the bad old days back in 2005, 2006, 2007. 

In your testimony, you go on to say, ‘‘In 2007, we had claimants 

who waited for a hearing decision for as long as a staggering 1,400 

days.’’ I don’t think any of us wants to go back to those days again. 

You then go on in your testimony on page 6 to say, ‘‘However, 

to continue our progress, we need Congress’ help. We must receive 

full funding of the FY 2012 President’s budget request,’’ which, by 

the way, is $12.5 billion. Let me repeat your words: ‘‘We must receive full funding of the FY 2012 President’s budget request.’’ 

You go on to say, ‘‘Unless Congress provides us with the President’s budget, we will not be able to meet Congress’ goal and our 

commitment to the American public to eliminate the hearing backlog in 2013. The gains that we achieved will vanish. The additional 

funding we received in recent years was critical to achieving our 

success to date.’’ 

Now, I mentioned previously that you got more money in 2008, 

you got more money, much of it through the economic recovery 

package in 2009 for 2010 as well. But last year, your budget was 

cut from what you needed, a billion dollars less. Now, you have 

done, I don’t know how, but an admirable job of doing without that 

billion dollars that you needed. I am hearing you now that you are 

saying, we got to get what the President said, 12.5 billion. 

Now, I know you had to spend some of your reserve money in 

order to boost up the amount that you got from Congress for 2011 

funding. That means you have less money in reserve to do some 

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of those things that sometimes you are able to do because you have 

the reserve. 

Mr. ASTRUE. Actually, Congress took the reserve money away. So 

we don’t have that anymore either. 

Mr. BECERRA. That is correct. The 2011 budget also took from 

you several hundred million dollars. 

The results? Well, you have mentioned the eight offices, hearing 

offices, that you were planning to open—no longer. I suspect that 

if you don’t get the money that the President has requested on your 

behalf, you likely will have to look at a hiring freeze? 

Mr. ASTRUE. We have been in a full hiring freeze for this entire 

fiscal year. We actually started a substantial hiring freeze even before the start of the fiscal year, being concerned that—— 

Mr. BECERRA. Furloughs? Will you have to consider furloughs? 

Mr. ASTRUE. Well, we were very close. In April, we believed that 

we were looking at 8 to 12 furlough days. 

Mr. BECERRA. Had you not used some of your reserves to cover 

some of your expenses, would you have had to consider furloughs? 

Mr. ASTRUE. I don’t want to make a mistake on an important 

question. Let me supply that analysis for the record. 

Mr. BECERRA. Okay. 

[The infromation referred to follows:]* 

Mr. BECERRA. Is it possible for you to tell us today that you will 

continue to make progress in reducing the backlog—the backlog 

that obviously impacts the workload of each one of those administrative law judges, and certainly it impacts the American workers 

who are making the requests for the benefits that they believe they 

are entitled to. Does not getting the money that the President and 

you have requested impact your ability to meet that process? 

Mr. ASTRUE. Absolutely. The Congress has, quite understandably, wanted to verify that we were making the progress that we 

told you we were making. So GAO told you a couple of years ago 

that we were 78 percent likely to make the goal. More recently, the 


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IG said that we were on target but we were very fragile, that 1 percent either way and we would miss the goal. 

Right now, with the budget numbers that I am hearing from the 

Hill, which are another absolute reduction in numbers, I can guarantee you that we will miss at that level. I also close to guarantee 

you that we will make it with the President’s budget. We are still 

in the game on that. 

So, really, you know, my view is, it is up to Congress to decide 

how important is backlog reduction. I came here to do this 5 years 

ago and said I would do it. Not many of you believed me. We are 

on the verge of getting there. And if we miss it, it is not because 

I failed. It is not because any of the people sitting behind me or 

any of the 85,000 people who work for us have failed. It is because 

Congress chose to fail. And it is up to all of you. 

Mr. BECERRA. Thank you, Mr. Chairman. 

Thank you for your testimony. 

Mr. GOWDY. I thank the gentleman from California. 

The Chair would now recognize the gentleman from Texas, Mr. 

Brady. 

Mr. BRADY. Thank you, Mr. Chairman. I appreciate you all holding this joint hearing today. 

Just to sort of correct the record, it sounds like the 2011 budget 

was devastating to Social Security. First, you have to ask, which 

President signed that bill? It was President Obama, if I recall. And 

which Senate passed that bill? It sounded like it was the Senate 

Democrats. If I recall—— 

Mr. ASTRUE. So—— 

Mr. BRADY. Commissioner, just hold on. 

Mr. ASTRUE. Okay. 

Mr. BRADY. If I recall, it passed that funding bill, bipartisan, 

passed 260 to 167, with 81 Democrats in the House, including the 

Ranking Member of Ways and Means, supporting that bill. It was 

a bipartisan effort to try to get this terrible deficit under control. 

And I would also point out that in the past decades, the Social 

Security Administration stockpiled over $1.3 billion in the information technology fund, reserve fund. In a bipartisan way, Congress 

agreed to rescind about less than half of that, $500 million, of the 

unused fund. Clearly, resources matter. But it is not the only reason for the progress that is being made at SSA. 

I think, looking overall, that you are making progress in speeding up the hearing times, increasing the productivity of judges. And 

that is to be commended in a major way. But a lot of concerns still 

remain: the variations between the States’ DDS. I still question the 

value of the reconsideration process at the DDS level, and I would 

be curious to hear what the 10 prototype States—what the impact 

of skipping that step has been. 

I still think too many cases go to the ALJ hearing levels. It increases the cost by three times, lengthens those decisions dramatically. Still has to be a better way of resolving these cases before 

they get to that level. 

There continue to be dramatic variances between offices, some in 

the same community. In the Houston area, the difference between 

our downtown office and our Bellaire office is dramatic. 

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And I still heard, over the holidays, two complaints from claimants about their representatives who, they believe, were actually 

slowing down the process of resolving their claims. And I still am 

concerned we don’t have the right incentives in place to move—for 

the claimants’ representatives to help resolve these processes sooner rather than later. 

So, Commissioner, starting with making sure we have good candidates and a good registry for our administrative law judges—I 

disagree with the thought that we ought not have a specific test 

that tests specific substantial knowledge of the technical aspects of 

Social Security Disability. 

So I would ask you, Commissioner, have you found candidates 

who pass the exam and make the register but who aren’t suited to 

handle a high caseload or aren’t suited to dealing with the public? 

Mr. ASTRUE. Absolutely. We have had people with criminal 

records, failure to pay taxes. The reason we spent a substantial 

amount of money on the background checks is that it is cost-beneficial. It is much better to screen out the bad actors early and not 

allow them on the bench than to chase them down years later, 

spending millions going before the Merit Systems Protection Board. 

So, as I said, the background checks that we do on judges are 

one of the most cost-efficient things that we do in the entire agency. 

Mr. BRADY. Since we are—we select the majority of those on the 

registry, have you asked OPM for a separate test related to SSA 

Disability for those candidates? 

Mr. ASTRUE. No, I have not. 

Mr. BRADY. Will you? 

Mr. ASTRUE. I would like the testing of the judges to be more of 

a partnership than it has been in the past. I think that Director 

Berry is trying to move it in that direction, but we are not where 

I would like to see us be yet. I think that is more important than 

a separate test. 

Mr. BRADY. Okay. 

Deputy Director Griffin, why doesn’t OPM have a separate performance management system for ALJs, one that, obviously based 

on law, applies to all within the system, but that helps us identify 

those performance measures quicker and more clearly? 

Ms. GRIFFIN. Well, I know that OPM is very interested in performance management and getting good Federal employees hired 

and have them perform appropriately and do their job very well 

while they are working for the Federal Government. But we are a 

little hamstrung with regard to the ALJs and what is allowed by 

law and what our role can really be. 

Our role is actually to develop the list, get good, qualified people, 

the best that we can find, to put on that list so that the other agencies can hire them. It is really the agency’s responsibility to then 

develop what the measures of performance should be for whoever 

their Federal employees are. 

Mr. BRADY. Wouldn’t you think it would be helpful to know, as 

you are developing that registry, who and who has not worked out 

so that your screening and your testing and your application process can better reflect those who are likely to succeed, correct? 

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Ms. GRIFFIN. Well, we have a process by which we try and do exactly that. So we try and make sure that we have people that are 

qualified to do this work, that have experience and licensing to do 

the work. Every time we have changed the exam, we do engage 

with Social Security. And, again, we have just begun in the last 

few months to do that. That was one of the recommendations in the 

GAO report, that we do another analysis, job analysis. 

So every time I think we do that, we do get better at providing 

an examination that really, hopefully, gives us the best ALJs on 

that list that the other agencies can choose from. 

However, again, the specific criteria by which someone should be 

judged as to whether they are doing their job well or not is really 

left up to the agency. We are developing a list that is available to 

27 different agencies that hire ALJs. So we are trying to find the 

best people that have the best legal skills to do that work. 

Mr. BRADY. Sure. Thank you. 

I yield back. I have exceeded my time, Chairman. 

Mr. GOWDY. I thank the gentleman from Texas. 

The Chair would now recognize the gentleman from North Carolina, Mr. Watt. 

Mr. WATT. Thank you, Mr. Chairman. 

I came back early for this hearing because I think this is perhaps 

among the most important areas that we do work in. There is nothing more frustrating for me, as a Member of Congress, than looking 

at an applicant for Social Security, or Social Security Disability in 

particular, and telling him or her that he or she has to wait 18 

months, 3 years sometimes, get in a queue, because we can’t get 

decisions. 

I thought this hearing was going to be about trying to diminish 

that waiting time further and that we—I am encouraged to hear 

that we are moving in the right direction. I am discouraged to hear 

that we may be in the process of blaming the backlog and the failure to diminish the backlog on some bad apples in the administrative law judge ranks. I think that is a problem, and if it is a problem, we certainly need to address it. I am not sanctioning bad decisions, disproportionality in outcomes. 

But if Congress is making decisions to diminish the funding for 

this agency and then turning around and blaming the increase in 

the backlog on, what, 50-some administrative law judges out of 

1,400 that may not be performing up to standards, then I am disappointed that that is where this hearing is headed. 

So I am hopeful that out of this won’t come our going out and 

saying that the reason that we have this massive backlog in Social 

Security Disability claims is because we have bad judges. And, you 

know, we have some bad judges, and I think we need to deal with 

that. But if anybody is telling the American people that that is the 

only problem that is creating our backlog, then I think we are 

doing a disservice. 

And if we are going to walk out of here and say, you know, we 

cut the budget by a billion dollars and we are getting ready to take 

the reserves and cut the budget even further, and all of a sudden 

the problem is we have some bad judges over there, I can’t help 

you message that. If you want to deal with the bad judges, I want 

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to help the message that we need to deal with the bad judges, but 

we have to step up and live up to our responsibilities, too. 

I heard Mr. Brady say that there is a disparity within inner cities and Bellaire. That probably means the people out in Bellaire 

are getting better medical care and better decisions from their doctors about what their problem is than—and that is a real problem 

in this process. 

So I stayed here to try to clarify the record. I don’t have a dog 

in the fight between whether it is a budget issue or bad judges. I 

think it is both of them. And I think it is inexcusable to have people who are eligible, qualified for Social Security Disability die before they can get the determination made because of this backlog. 

And I am a lot more concerned about that aspect of the disparity 

in our system than I am about the judges that are not performing, 

although I am not excusing them, and I think we need to deal with 

that too. 

But we need to be honest with the American people that we are 

not doing what we need to do to solve this backlog, and not blaming it on somebody else. We have to step up to the plate and give 

these people fair hearings by good judges who work, and we have 

to fund more judges to get this backlog down. 

So I didn’t ask a question, but I got that off of my chest. 

And I thank you, Mr. Astrue, for getting this backlog down and 

continuing to work on it and being straightforward in your testimony, written testimony, about the fact that you need this funding 

if you are going to keep moving it in the right direction. Because 

if we don’t move it in that direction, we will be back here blaming 

somebody else for what we didn’t do. 

Mr. Chairman, I yield back. Thank you. 

Mr. GOWDY. I thank the gentleman from North Carolina. 

The Chair would recognize himself for questions. 

The gentleman from North Carolina made reference to fair hearings, and I want to ask you about that, some systemic things that 

ideally could be done to streamline and improve the system. 

The adversarial system seems to work for everything from shoplifting cases to capital murder cases. Why not here? 

Mr. ASTRUE. It has been tried, and it was extremely expensive 

and not very successful. There was a government representative 

project that was actually terminated when I was working for the 

Commissioner almost 25 years ago. It didn’t change outcomes very 

much. You would need to add another 1,500 employees or so at a 

time when we don’t have the resources to do that. 

And I think that we in the agency and I think the Congress, at 

least implicitly at the time, agreed that the non-adversarial model, 

given the nature of disability, while not perfect, was the best way 

to proceed. And that is what I believe. 

Mr. GOWDY. Well, who cross-examines the physicians that assign 

some level of disability to a claimant? 

Mr. ASTRUE. That is what the judges do. 

Mr. GOWDY. They cross-examine a physician or they cross-examine an affidavit? 

Mr. ASTRUE. No, it is a live hearing. The first two levels—or first 

level in a prototype state—are an entirely paper process. At a hearing—and the judges have latitude, and they do it—— 

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Mr. GOWDY. What is the standard of proof required at the first 

two stages? Preponderance? 

Mr. ASTRUE. I believe that is correct. I don’t want to make a mistake on that, so I will supply that information for the record. But, 

yes. 

[The information referred to follows:]* 

Mr. GOWDY. So if it is approved at the initial stage, can it ever 

be reversed in one of the three subsequent appellate stages? 

Mr. ASTRUE. No, not under the current process. 

Mr. GOWDY. And there are four stages by which it can be granted, correct? 

Mr. ASTRUE. Substantially true. We have 10 States—one of the 

Members, I believe it was Mr. Brady, mentioned before that there 

are 10 prototype States, where the reconsideration stage has been 

dropped. But in most of the country, yes, there are four levels. 

Mr. GOWDY. So there are four stages at which it can be granted 

and one stage at which it can be denied? 

Mr. ASTRUE. Well, it can be denied at any point. I mean, people 

bring denials up. 

Mr. GOWDY. But nobody appeals it. 

Mr. ASTRUE. Yes, that is right. If you are saying, is there a tilt 

in the system in the direction—— 

Mr. GOWDY. That is sort of what I am suggesting. 

Mr. ASTRUE. Yes, that is right. 

Mr. GOWDY. So judges are in the unique position of both being 

questioner and final arbiter. Is there any other system, justice system, administrative system—I am not familiar with that model, 

where the judge is the questioner and then ultimately the finder 

of fact. 

Mr. ASTRUE. I am a little bit away from my hardcore administrative law work. I believe that there are parallel systems, some of the 

continental systems. But it is an unusual system here in the 

United States. 

Mr. GOWDY. All right. 

There are four levels of appeal. Why so many? 

Mr. ASTRUE. It is a decision by the Congress— 

Mr. GOWDY. Would you support a decision to shorten it to two? 

Mr. ASTRUE. Well, I have to get to three first. And I think that, 

in recent years, I have generally been supportive of bringing reconsideration back, because I think that the first level wasn’t accurate 

enough to get rid of reconsideration. But I do think there is some 

reason to hope that, after I am gone, that you may decide that it 

is appropriate to do that. 

And a couple things are changing. We have much better systems 

in the DDSs. Our quality rate—because we are very dedicated to 


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quality—had plateaued at about 96 percent at the DDSs. We have 

climbed up to 98 percent, largely because of these expert systems 

that are cueing largely inexperienced examiners on what they need 

to know, what they need to do. 

But I think the next step—and this is really important for us— 

is when health IT comes. We spend an enormous amount of time, 

money, and energy, and we make a lot of our mistakes because of 

incomplete medical records. It is going to take a while for it to 

come, and it will take a while to get the kinks out of the system. 

But I think with the combination of the quality improvements that 

we have made, when the health IT comes in about 2 or 3 years, 

I think it will be realistic to talk about eliminating reconsideration 

at that stage. 

Mr. GOWDY. And I have about 30 seconds. Are private attorneys 

used, and in what percentage of the cases? 

Mr. ASTRUE. About 75 percent of the claimants use attorneys. 

About another 10 percent use lay representatives. 

[Additional information follows:]* 

Mr. GOWDY. And how were those attorneys compensated? 

Mr. ASTRUE. It gets a little complicated. But, basically, up to certain limits, they take a percentage of the back due payment from 

the claimant. 

Mr. GOWDY. But the claimant needs that money, right, for medical bills or expenses? 

Mr. ASTRUE. Yes, these kinds of things are a tradeoff between access to the benefit and—— 

Mr. GOWDY. Right. And the other tradeoff is despite the fact that 

we may not think it is fiscally responsible to have another person 

in the room advocating on behalf of the taxpayer. That would be 

another fiscal tradeoff, wouldn’t it? 

Mr. ASTRUE. It is reasonable to take a look at, but, again, I 

would urge you to go back—we have run this experiment once before, and the agency, I believe in 1987, terminated it. And I think 

there were some valid reasons for why it was terminated. 

Mr. GOWDY. The Supreme Court just decided that there will be 

attorneys at all magistrate-level criminal cases, where the most 

you could get is a fine. And the counties and the States have to 

provide for public defenders in magistrate-level cases. So, apparently, justice has no price tag. And I can’t help but think that an 

adversarial process might result in something other than a 100 

percent approval rate, like the one we had in West Virginia. 

I have a colleague who is on his way. I would ask you for your— 

the gentleman from Florida, Mr. Ross. 


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Mr. ROSS. Thank you, Mr. Chairman. I appreciate your patience 

here. 

Commissioner Astrue, these are non-adversarial proceedings, 

right? 

Mr. ASTRUE. That is correct. 

Mr. ROSS. So the judges really take the role of almost being an 

advocate for the petitioner. Is that correct? 

Mr. ASTRUE. Yes, that is correct. 

Mr. ROSS. Interesting, I guess the statistics are such that, in 

2010, almost 22 percent of cases appealed to the appeals court were 

remanded back to the hearing level, and 45 percent of cases appealed to the Federal courts were remanded back. 

It doesn’t sound like the best batting average for them, does it? 

Mr. ASTRUE. No, I agree. And we have been working to try to reduce the remand rate at both levels. We haven’t made the progress 

yet that I would like to see. 

Mr. ROSS. And what has been the basis for the remands? I mean, 

has it been just a misapplication of law? 

Mr. ASTRUE. We believe that the standard seems to have 

changed. The Federal district court judges are not hearing as many 

of these cases. They are being delegated to magistrate judges. And 

they seem to be applying a different standard than historically. 

And they seem to be much more likely to remand cases than Article III district court judge. 

Mr. ROSS. I was going to say, close to 50 percent are being remanded. Not a good record. 

Now, I understand also that the ALJs are unionized? I mean, 

they—— 

Mr. ASTRUE. Yes, that is correct. 

Mr. ROSS [continuing]. Have their own union. Have there been 

any conversations with the union as to probably performance assessments, things of that nature, to try to enhance or at least increase the performance level of the ALJs? 

Mr. ASTRUE. My understanding is we are statutorily barred from 

doing that. 

Mr. ROSS. Why is that? I mean, you are statutorily barred from 

having any performance evaluations whatsoever? 

Mr. ASTRUE. Performance reviews, yes, that is correct. That is 

your decision, not mine. 

Mr. ROSS. Okay. Because when I was here for the openings and 

Ms. Griffin commented that the accountability, that I guess they— 

how do you create accountability? 

Ms. Griffin? 

Ms. GRIFFIN. There is a variety of ways you can do it. And I 

think you can look at some of the other agencies that have ALJs 

that look at—they look at error rate. 

And I think some of what Commissioner Astrue is doing is looking at a variety of things—giving people training, giving them 

chances to become better ALJs. And then, at some point, if somebody can’t, you take the actions that are appropriate. 

Mr. ROSS. But has the union made any comment on how to enhance performance? Have they come up with any suggestions? Internally, obviously, you know, not from others. 

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Mr. ASTRUE. They have made suggestions about adopting certain 

ethics rules and things like that. But in terms of actual performance reviews, my understanding has always been that they are opposed to that. 

Mr. ROSS. And flexiplace or flex-place? That is one of the options 

where they can work out of the home? 

Mr. ASTRUE. Yes, that is an option that they have now. 

Mr. ROSS. So how would that work? Would they still conduct 

hearings out of their home through videoconferencing? 

Mr. ASTRUE. Right now, as I understand it—if I am making a 

mistake on the collective bargaining agreement, I apologize and 

will correct it for the record—but they are entitled under the collective bargaining agreement that I inherited to do a minimum of 4 

hours of flex-place each week and possibly have more than that, depending on the negotiation within the hearing office. 

[Additional information follows:]* 

Mr. ROSS. Now, I guess there is, what, 26 percent of the ALJs 

who are not meeting the minimum performance standards; is that 

correct? Has the union offered in any way whatsoever to help correct that? 

Mr. ASTRUE. No. 

Mr. ROSS. Has it even been a topic of conversation within the 

union? 

Mr. ASTRUE. No. 

Mr. ROSS. Don’t you think that that is something that ought to 

be addressed? I mean, if the efficiency and performance of the ALJs 

really is at issue here, would not it be in the best interest of the 

union that represents them to want to at least suggest and even 

advocate such a process? 

Mr. ASTRUE. Yes. 

Mr. ROSS. But nothing is coming about? 

Mr. ASTRUE. No. 

Mr. ROSS. You have 27 months for a hearing to be resolved—— 

Mr. ASTRUE. Well, not now. We have brought that down to—we 

are under 12 months now, 353 days, as of June of this year. 

Mr. ROSS. And your goal is for cases to be decided within 270 

days? 

Mr. ASTRUE. Two-seventy is the goal, yes. 

Mr. ROSS. And, again, I have to ask with regard to the union’s 

position on this, do they have any position on your timetable of getting it out at 270? 

Mr. ASTRUE. Well, I think for a long time they have been denying 

that we have been succeeding in backlog reduction at all through 

a rationale that, I have to be candid, I don’t understand. 


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Mr. ROSS. I appreciate that, because that helps me understand 

too, because I don’t understand why it is that way. 

Ms. Griffin, any comments with regard to whether you feel the 

union is doing anything to help the ALJs meet the minimum performance standards? 

Ms. GRIFFIN. I couldn’t actually speak to that whatsoever because I have no knowledge of Mr. Astrue’s and Social Security’s relationship with the union. 

But I would say this. I think if the ultimate goal is to actually 

reduce the backlog—and, actually, Chairman Johnson alluded to it 

in his opening, about some people getting on the rolls because—not 

because they don’t want to work—because they want to work and 

there aren’t opportunities. 

We have the ability in the Federal Government, here in Congress 

too, to hire more people with disabilities. We have a President that 

actually signed an Executive order last July saying the Federal 

Government should hire more people with disabilities. And, frankly, if we did a better job of this overall in society and gave people 

more opportunities, we wouldn’t have that many people applying 

for Social Security, either SSI or SSD. 

Mr. ROSS. I see my time is up. 

Ms. GRIFFIN. So there is a fix, and we need to do that. 

Mr. ROSS. I yield back. Thank you. 

Mr. GOWDY. I thank the gentleman from Florida. 

I thank both of our witnesses. All of us do, on both sides of the 

aisle. 

I note our colleague, Mr. Berg, wanted very much to come back. 

He has been detained in another hearing. 

So, with that, let me thank our witnesses. 

And, without objection, all Members will have 5 legislative days 

to submit to the Chair additional written questions for the witnesses, which we will forward and ask the witnesses to respond to 

as promptly as they can so their answers may be made part of the 

record. 

Without objection, all Members will have 5 legislative days to 

submit additional materials for inclusion in the record. 

With that, again, I thank both of our witnesses. 

The hearing is adjourned. 

[Whereupon, at 5:02 p.m., the Subcommittees were adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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Letter from Judge Richard A. Pearson, President, 

The Federal Administrative Law Judges Conference 


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Prepared Statement of the Honorable Randall Frye, President, 

the Association of Administrative Law Judges (AALJ) 


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Prepared Statement of the Association of Administrative Law Judges 

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Prepared Statement of Nancy G. Shor, Executive Director, and Ethel 

Zelenski, Director of Government Affairs, the National Organization of 

Social Security Claimants’ Representatives (NOSSCR) 


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Æ 


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