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S. Hrg. 111–973 

IMPROVING SOCIAL SECURITY DISABILITY 

INSURANCE CLAIM PROCESSING IN OHIO 

HEARING 

BEFORE THE

OVERSIGHT OF GOVERNMENT MANAGEMENT, 

THE FEDERAL WORKFORCE, AND THE 

DISTRICT OF COLUMBIA SUBCOMMITTEE 

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

FIELD HEARING IN AKRON, OHIO 

NOVEMBER 15, 2010 

Available via the World Wide Web: http://www.fdsys.gov 

Printed for the use of the Committee on Homeland Security 

and Governmental Affairs 

( 

(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

ROLAND W. BURRIS, Illinois 

CHRISTOPHER COONS, Delaware 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

SCOTT P. BROWN, Massachusetts 

JOHN MCCAIN, Arizona 

GEORGE V. VOINOVICH, Ohio 

JOHN ENSIGN, Nevada 

LINDSEY GRAHAM, South Carolina 

MICHAEL L. ALEXANDER, Staff Director 

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

TRINA DRIESSNACK TYRER, Chief Clerk 

JOYCE WARD, Publications Clerk and GPO Detailee 

OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL 

WORKFORCE, AND THE DISTRICT OF COLUMBIA SUBCOMMITTEE 

DANIEL K. AKAKA, Hawaii, Chairman 

CARL LEVIN, Michigan 

MARY L. LANDRIEU, Louisiana 

ROLAND W. BURRIS, Illinois 

CHRISTOPHER COONS, Delaware 

GEORGE V. VOINOVICH, Ohio 

SCOTT P. BROWN, Massachusetts 

LINDSEY GRAHAM, South Carolina 

LISA M. POWELL, Staff Director 

CHRISTINE S. KHIM, Counsel 

JENNIFER A. HEMINGWAY, Minority Staff Director 

AARON H. WOOLF, Chief Clerk 

(III) 

C O N T E N T S 

Opening statement: Page 

Senator Akaka .................................................................................................. 1 

Senator Voinovich ............................................................................................. 2 

Prepared statement: 

Senator Brown .................................................................................................. 35 

WITNESSES 

MONDAY, NOVEMBER 15, 2010 

Hon. Michael J. Astrue, Commissioner, Social Security Administration ............ 5 

Hon. Patrick P. O’Carroll, Jr., Inspector General, Social Security Administration ........................................................................................................................ 7 

Richard E. Warsinskey, Manager, Cleveland Downtown District Office, and 

Past President, National Council of Social Security Management Associations ....................................................................................................................... 20

D. Randall Frye, President, Association of Administrative Law Judges ............ 22 

ALPHABETICAL LIST OF WITNESSES

Astrue, Hon. Michael J.: 

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

Prepared statement .......................................................................................... 37 

Frye, D. Randall: 

Testimony .......................................................................................................... 22 

Prepared statement .......................................................................................... 70 

O’Carroll, Hon. Patrick P., Jr.: 

Testimony .......................................................................................................... 7 

Prepared statement .......................................................................................... 53 

Warsinskey, Richard E.: 

Testimony .......................................................................................................... 20 

Prepared statement .......................................................................................... 58 

(1) 

IMPROVING SOCIAL SECURITY 

DISABILITY INSURANCE CLAIM 

PROCESSING IN OHIO 

MONDAY, NOVEMBER 15, 2010 

U.S. SENATE,

SUBCOMMITTEE ON OVERSIGHT OF GOVERNMENT

MANAGEMENT, THE FEDERAL WORKFORCE,

AND THE DISTRICT OF COLUMBIA,

OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS,

Washington, DC. 

The Subcommittee met, pursuant to notice, at 9 a.m., in Main 

Place Building, Third Floor Conference Room, 121 South Main 

Street, Akron, Ohio, Hon. Daniel K. Akaka, Chairman of the Subcommittee, presiding. 

Present: Senators Akaka and Voinovich. 

OPENING STATEMENT OF SENATOR AKAKA 

Senator AKAKA. This hearing will come to order. 

Aloha and good morning. Let me tell you what I meant when I 

said, ‘‘Aloha’’ and begin by saying we share such a deep Aloha between Senator Voinovich and me. And ‘‘aloha’’ is a Hawaiian word 

that has a simple meaning, and that meaning is ‘‘love.’’ And as you 

know, our State is known as the Aloha State, and that word for me 

and for many others is a spiritual word. 

But you know what love does to people. It brings about changes, 

and normally the changes are towards a positive direction and one 

that continues to look for better ways of helping people, working 

with people, and taking care of people’s problems. And so in the 

State of Hawaii, we call it the ‘‘aloha spirit.’’ And so that pervades, 

and we are proud of that. We try to live it. And so I thought I 

would take the time to explain what that word means and why I 

said it, because whenever there is aloha, people come together to 

try to do what is best. And for me, that is what we are doing here 

today. So this is why I said, ‘‘Aloha and good morning.’’ 

Thank you so much for joining us as the Subcommittee on Oversight of Government Management, the Federal Workforce, and the 

District of Columbia meets to examine the Social Security disability process in Ohio. My very dear friend and Ranking Member 

of this Subcommittee, Senator Voinovich, has spent many years 

working on this issue, and I am very pleased to join him here today 

in this new facility that is open thanks in no small part to his efforts. 

2 

Over the past years, Social Security disability claims have risen 

across the Nation. As baby boomers nearing retirement experience 

high levels of disability, a tough economy discourages workers with 

health problems from continuing to try to keep working. The high 

number of claims combined with limited resources and an insufficient number of administrative law judges (ALJs) and other staffing challenges have led to an unacceptably low and slow claims 

process. 

Additionally, some States like Ohio and my home State of Hawaii have furloughed Disability Determination Services (DDS) employees, causing further delay. Average Ohioans must wait 479 

days for their disability claims to be processed. 

At the end of fiscal year 2010, the Social Security Administration 

(SSA) had a backlog of almost 850,000 initial claims and over 

700,000 claims waiting to be heard on appeal. These are staggering 

numbers. However, over the past year, SSA has made a serious 

commitment to addressing the backlog. Some of the credit for this 

work, I want to tell you, is due to Senator Voinovich’s sustained 

focus on the issue. 

Senator Voinovich shed light on this issue back in 2004 when he 

held a field hearing in Cleveland on Social Security Disability Insurance (SSDI) claims processing. The hearing looked not only at 

workforce and administrative challenges in Ohio, but also at Social 

Security Administration’s systemwide approach and strategy for resolving disability cases. Recommendations from this hearing served 

as a starting point for SSA as it worked to refine its staffing needs 

and goals. Senator Voinovich continued to focus on this issue for 

several years, working with General Accountability Office (GAO) 

and the SSA Inspector General to improve the claims system and 

with Senate colleagues to provide SSA with the resources needed 

to make lasting changes. Senator Voinovich has been a tireless advocate for the Social Security Administration and people of Ohio. 

I am encouraged that people like George Voinovich have chosen a 

life of public service, and I am very sad by his departure from the 

Senate. I value the years we have spent working together on the 

complicated management challenges our country faces, including 

these types of Federal benefits issues. 

I believe our teamwork has made a difference. Although the 

issues we work on often do not receive front-page attention, they, 

nonetheless, have a real impact on the way the Federal Government works and the everyday lives of millions of Americans. 

George, I want you to know that I plan to continue to monitor 

SSA resources and strategic planning as well as the workforce challenges that must be addressed to provide high-quality service to 

disabled Americans, and I look forward to hearing from our witnesses in order to assist our congressional oversight of this issue. 

So, George, will you please go ahead with your opening statement? I also would like to defer to you to introduce the witnesses 

and to start questions of the rounds, if that is OK with you. 

OPENING STATEMENT OF SENATOR VOINOVICH 

Senator VOINOVICH. That is OK with me. I have not done it for 

a while. 

3 

Senator Akaka and I have been working with each other for over 

10 years, and I know there is a lot of feeling in the country that 

somehow there is not a good feeling in the Senate among the members and that we are not getting things done because we are too 

busy with partisan politics. But the fact of the matter is there are 

some wonderful things that do happen in the Senate, and one of 

them is this wonderful relationship that I have had with Senator 

Akaka. The two of us together over the last 10 years, I think, have 

made the biggest changes in the Federal Title 5 since 1975. And 

because of his background in management schools and my background as a Governor and mayor, we understand how important 

the team is. We call it the ‘‘A Team,’’ the people who are our internal customers that are so very, very important to providing the 

services to the citizens of our respective States and to our Nation. 

One of the things I am going to really miss is the wonderful relationship that I have had with Senator Akaka. He is one of the finest people I have ever met, and he is in government for the right 

reasons, and together we have had a great partnership. I have gotten to know Senator Akaka and his wife, Millie, and his family, 

and so I just again want to thank you, Senator Akaka, publicly 

here in my own State for your friendship over the years and the 

work that we have done together. We want to try and make a difference in people’s lives, and I think that we have done that, particularly for those that are in our Federal workforce. 

So I want to thank you for coming to Akron. It was a lot easier 

for me to go to Hawaii. [Laughter.] 

Our last hearing in another State was when I was in Hawaii, in 

Honolulu, and I think at that time we were talking about the new 

system for the Federal Government in terms of the defense workers, the National Security Personnel System (NSPS)—whatever. It 

has now gone back to the old system. And I am really pleased that 

Senator Akaka indicates that he is going to continue to stay on top 

of this so that those of you who are here testifying today know that 

we are going to stay on top of this and he is going to stay on top 

of it, because we know how important it is. 

I would like to thank our witnesses here today. I thank you for 

the new office here, and also in Toledo, and the fact that we now 

have 14 new administrative law judges in the State and 37 people 

to support those judges. 

As Senator Akaka says, we have been looking at this for some 

time, and I just thought particularly for maybe some of the people 

here from the media to remind them that this program started 

back in 1956, and it is to provide disability benefits to employees 

who work, pay Social Security taxes, and become disabled to the 

point where they can no longer work, and that Supplemental Security Income (SSI), is an additional program developed to provide 

disability payments on the basis of financial need. If a disabled person wants to apply to either program, they submit an application 

through their local Social Security office. 

Mr. Astrue, I want to say to you that the one we have in my local 

community does a very, very good job. I am really pleased with the 

service there. 

And then that application is sent to the State Disability Determination Service, the DDS, and that office is made up of State emVerDate Nov 24 2008 15:17 May 17, 2011 Jkt 063865 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 P:\DOCS\63865.TXT SAFFAIRS PsN: PAT
4 

ployees but are employees paid by the Federal Government. If the 

application is denied, there is another opportunity for reconsideration at that level. If it is again denied, then it goes on appeal 

through the Federal Office of Disability Adjudication and Review 

(ODAR), a hearing office like the one we have right here, where 

you have an administrative law judge and they make a decision on 

the case. If the applicant is still unhappy with the situation, they 

can appeal to an SSA appeals council, and then finally they can go 

to Federal court. So that is the way the system works. It is a very, 

very extensive—it is probably one of the most extensive judicial 

things in the world today. 

Last year—and I think these numbers are really boggling—SSI 

paid $155 billion—to 14.5 million disabled workers and their families here in this country. And I have learned over the years that 

the process for getting those benefits is difficult. In fact, right now 

in my own office, we have 174 disability cases that constituents 

have complained about, and we are trying to follow up right now. 

The reason why I am into this is because of the fact that so many 

people have had to turn to our office, our constituent office, to try 

and get help for it. Where is Michael Dustman? He heads up our 

caseworker office, and they do a very good job. Over the last number of years, it is hard to believe this, but we have had 6,000 cases 

in our office, Commissioner—that is about 500 a year—where they 

feel they just cannot get anywhere, and they come to us and ask 

us to get the job done. 

What we are really striving for is they ought not to have to come 

to my office or to Senator Akaka’s office or anybody else’s office. 

The system ought to be able to take care of them. 

So in terms of our numbers in Cleveland, I think, Senator Akaka, 

the national average I think is 390, and 6 years later it is still 481 

days in my town. And we have the same kind of problem in some 

other areas. 

The good news is that the ranking for cases per administrative 

law judge was 140th out of 149th in May 2010, and we are down 

to 40 right now, so that is pretty good. We are making some 

progress. But as Senator Akaka says, the situation has gotten 

worse because of the fact that we have had a 21-percent increase 

in the number of people who are asking for disability benefits. 

These are a lot of folks that were out there working at a job and 

did not come in for disability. Now they are coming in, and they 

need help. And at the same time they are coming for help, the people that handle them in Ohio, the numbers are not there because 

we have furloughed them. In our State, we had 20 furlough days, 

and I think, Senator Akaka, you had 42 in Hawaii. So the people 

at the State level that hear these claims initially are not working 

as much as they did. And I know I have talked to Governor Strickland about this. I think it is a problem, maybe the Commissioner 

and others, that we need to deal with nationally because we have 

a disconnect here. We have more people that want it, and we are 

furloughing more. And one of the things I pointed out to our Governor is this money is not coming from Ohio. It is coming from the 

Federal Government. So it is not doing anything on the Ohio budget. So I think this is something that we really need to look at if 

5 

1The prepared statement of Mr. Astrue appears in the appendix on page 37. 

we are going to deal with the problems that we are confronted with 

today. 

I really again want to thank you, Senator Akaka, for being here 

today, and I am pleased that—we are honored today that we have 

the Commissioner, Michael Astrue, who is here, and Patrick 

O’Carroll, Jr., who is the Inspector General for the Social Security 

Administration. We have the Inspector General that kind of watches over them. We have the General Accounting Office that watches 

over them. And so we are pleased to have both of you here, and 

if you will stand up, as is our procedure, raise your right hand. Do 

you swear that the testimony you are about to give is the truth, 

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

Mr. ASTRUE. I do. 

Mr. O’CARROLL. I do. 

Senator VOINOVICH. Thank you. 

See, I am not used to that, Senator Akaka. I have not been doing 

it for a couple of years. [Laughter.] 

All right. Let it be noted that they did take the oath. 

Mr. Astrue, will you proceed with your statement? 

TESTIMONY OF THE HON. MICHAEL J. ASTRUE,1

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION 

Mr. ASTRUE. Thank you. Chairman Akaka and Ranking Member 

Voinovich, thank you for this opportunity to discuss our rapidly improving disability process here at our new Akron hearing office. 

Your support has made this and other service improvements possible. The resources we received in the last few years have proved 

critical. We appreciate your commitment to a faster, more accurate 

disability process in Ohio, and thank you for your critical role in 

helping us open new Ohio offices. 

Senator Voinovich, as you prepare to retire from the Senate, we 

at the Social Security Administration want to thank you for your 

commitment and for your critical role in the opening of these new 

offices. We will miss you. 

Together we have accomplished much over the last few years despite the surge of benefit applications and the misguided furloughs 

of many Disability Determination Services (DDS) employees. We 

remain on track to eliminate the hearings backlog in 2013, our top 

priority. Despite many challenges, we have made progress in reducing the number of pending hearings and the average processing 

time. 

Our progress, though, extends beyond the hearings workload. 

Our employees worked hard to keep the level of pending initial disability claims below our fiscal year 2010 projections, even as we receive a record number of new claims due to the recession. Despite 

the workload pressures, we achieved our highest level of accuracy 

since 1997. Waiting times in our field offices dropped, and our performance on the 800 number was our best ever. We increased staffing for program integrity, which enabled us to increase the number 

of Supplemental Security Income (SSI) redeterminations and improve accuracy. 

6 

Our employees deserve enormous credit for these successes. 

Since fiscal year 2007, they have increased productivity by an average of nearly 3.7 percent each year. 

Our hearing backlog plan is succeeding. In the last 2 years, we 

have hired about 375 new administrative law judges (ALJs) and 

the staff to support them. We will open over two dozen new hearing offices by the end of 2011. We have standardized our business 

processes, realigned our workloads, and used technology to become 

more efficient. 

Pending hearings reached a high point in December 2008, but we 

have steadily worked the number down, ending fiscal year 2010 

with the lowest year-end pending in 5 years. We have made these 

gains despite record receipts that jumped nearly 100,000 cases 

from fiscal year 2009. 

We are also making decisions more quickly. Four years ago, some 

hearing requests had been pending as long as 1,400 days. Waiting 

this long for a decision is immoral, so we focused on handling the 

oldest cases first, even though that makes some of our other statistics improve more slowly. Since then, we have decided over one-half 

of a million cases that were 825 days old or older. Now we have 

a negligible number of cases in that category. This year we have 

again raised the bar and expect to resolve all cases 775 days old 

or older. 

Even as we work the oldest, most time-consuming cases, we have 

reduced the average time to make a decision from a monthly high 

of 532 days in August 2008 to 377 days in October of 2010—the 

lowest average processing time in more than 6 years. Moreover, 

every hearing office nationwide had average processing times 

under 600 days in September and October of 2010. Two-thirds of 

our cases have been pending less than 270 days, which is our target processing time under our plan. 

Since May 2007, when I joined Senator Voinovich in Columbus 

to discuss hearings in Ohio, we have improved all major performance metrics in this State. Four years ago, average processing 

times in the Ohio hearing offices were between 600 and 800 days. 

That range has fallen to 400 to 600 days, and it is still dropping. 

Our greatest progress is in the most backlogged offices. 

For example, in May 2007, the average processing time in the 

Columbus Hearing Office was 760 days, the worst in the State. By 

the end of October 2010, the wait had decreased to 557 days. 

The new Akron and Toledo hearing offices which have just 

opened will accelerate our progress and bring even more relief to 

Ohio claimants. The new Muncie Indiana Office will bring some relief as well to people now being served by the Dayton office. 

As we eliminate the hearings backlog, we are responding to the 

additional disability claims resulting from the economic downturn. 

Nationwide, we received more than 3.2 million claims in fiscal year 

2010, 24 percent more than in fiscal year 2008. We have responded 

to this increase by adding staffing in the State DDSs and Federal 

disability processing components, improving online services, and refining our policies and business processes. Our fast-track initiatives 

allowed us to issue favorable determinations to over 100,000 disability claimants last year within 20 days of filing. 

7 

1The prepared statement of Mr. O’Carroll appears in the appendix on page 53. 

A sharp increase in disability claims and high employee turnover 

in the Ohio Bureau of Disability Determinations (BDD) contributed 

to the disappointing outcomes in Ohio in fiscal years 2008 and 

2009. The State furlough only compounded these difficulties. 

Our prompt response has turned the situation around. We increased staffing in the Ohio BDD by over 90 new hires in the last 

2 years. We transferred over 15,000 disability cases to Federal 

processing units, which resulted in a 10-percent drop in pending 

workload. Ohio closed fiscal year 2010 with about 54,000 cases 

pending. Accuracy improved significantly, and productivity is increasing as the new hires gain experience. 

As misguided as it is for the States to respond to fiscal crisis by 

furloughing employees whose salaries and benefits we fully fund, 

many of them have done so. In Ohio, we estimate that the 20 furlough days in fiscal year 2010 and 2011 will delay decisions on 

nearly 16,000 disability claims and postpone over $3.7 million in 

Federal benefits to the State’s most vulnerable citizens. Additionally, Ohio will lose over $7.3 million in Federal funds. Nationwide, furloughs have already delayed $29 million in bene- fits and cost States over $56 million in administrative funding. To 

stop these furloughs, we have proposed legislation in the last few 

months that would prohibit States from furloughing DDS employees without the agency’s approval. I urge Congress to take quick 

action on this legislation. 

Our employees are proud of how far we have come over the last 

2 years, and they do not want to backtrack. We are trying to maintain momentum despite the loss of employees. Due to our uncertain 

appropriations situation, in July we froze most hiring. Only components critical to the backlog reduction effort can replace staffing 

losses, and we may not be able to maintain that policy much 

longer. 

To see continued progress, we ask Congress to approve the critical funding that the President requested for us. The American people are depending on us, and we have demonstrated that with adequate funding we deliver on our promises. 

Thank you, and I am happy to answer any questions you may 

have. 

Senator VOINOVICH. Thank you very much. Mr. O’Carroll. 

TESTIMONY OF THE HON. PATRICK P. O’CARROLL, JR.,1

INSPECTOR GENERAL, SOCIAL SECURITY ADMINISTRATION 

Mr. O’CARROLL. Good morning, Chairman Akaka and Senator 

Voinovich. Thank you for having me here today to testify. 

My office continues to assist SSA in its efforts to reduce backlogs 

of both initial disability claims and appeals hearings. At the end 

of fiscal year 2010, SSA had nearly 850,000 initial disability claims 

pending. More than 700,000 applicants are awaiting a hearing with 

an administrative law judge. 

In Ohio, a disability applicant will wait 119 days for a decision 

on an initial claim. However, hearing offices in Ohio take 479 days 

on average to issue decisions on disability appeals. Here in Akron, 

the average disability appellant will wait 334 days for their case 

8 

to be decided. In Columbus, the wait for an appellate decision is 

557 days. 

A large population of baby boomers reaching retirement age has 

created workloads that have taxed SSA’s resources and helped 

cause these delays. The current economic climate has made matters worse for some States, including Ohio, that have decided to 

furlough DDS employees. The furloughs have delayed case decisions and benefits from reaching the people who really need them. 

We commend SSA for campaigning against DDS furloughs and for 

bolstering staffing levels. However, the backlogs remain. 

In recent years, my office has placed a high priority on helping 

SSA improve the disability claims process and reduce backlogs. 

Senator Voinovich, in 2009, you asked us to review productivity 

levels among hearing offices and identify why some offices had productivity rates below the national average. Earlier this year, we released that report, which identified factors affecting hearing office 

productivity. Those factors included: ALJ motivation and work 

ethic; case review times; hearings management; and staff quantity, 

quality, and composition. 

Through hiring, SSA has worked to address some of these support staff factors we identified. SSA seeks to have a national average of 4.5 support staff for every ALJ. Hearing office chief ALJs are 

responsible for managing ALJ performance. Managers have taken 

action against underperforming ALJs, but those actions primarily 

include mentoring and counseling rather than discipline. 

In another report we issued in August, we identified four disabilities that are most often allowed by ALJs on appeal. The four impairments are: Back disorders, degenerative arthritis, diabetes, and 

muscle or ligament disorders. We recommended that SSA analyze 

why these claims were denied before being allowed by ALJs. We 

suggested SSA consider variables such as claimant age and representation. 

In May 2007, SSA began implementing its ‘‘Plan to Eliminate the 

Hearings Backlog and Prevent its Recurrence.’’ By fiscal year 2013, 

SSA wants to reduce pending cases to the desired level of 460,000 

cases and reduce average case processing time to 270 days. The 

agency has determined ALJs could manage that pending case level 

of 460,000 cases without claimants experiencing any unnecessary 

delays. 

In a July report, we said that SSA will achieve its fiscal year 

2013 pending hearings backlog goal. SSA has made several assumptions about variables that affect the pending case level. Those 

variables are: Hearings requests, ALJ availability and productivity, 

and senior attorney adjudicator decisions. SSA must continue to assess these factors and make necessary adjustments to stay on track 

to meet its 2013 goal. 

Finally, my office continues to encourage the creation of a revolving integrity fund that would pay for initiatives such as continuing 

disability reviews and our Cooperative Disability Investigations 

(CDI) program. These are additional ways to help SSA reduce the 

backlog of disability claims and to ensure that only those who are 

eligible for benefits receive them in a timely fashion. We continue 

to work with you and SSA to accomplish these goals. 

9 

Thank you again for the invitation to testify today, and I will be 

happy to answer any of your questions. 

Senator VOINOVICH. Thank you very much. 

Senator Akaka, would you like to begin the questioning? 

Senator AKAKA. You proceed with your questions. 

Senator VOINOVICH. OK. Does anybody have a clock or something? I will start out with 5 minutes and then let me know. 

There are two things that I wrote down that are big-picture 

issues. First is the appropriations. I do not think the public understands what a disadvantage it puts an agency when we pass continuing resolutions and we do not do our appropriations work. I 

think Senator Akaka has heard me say this before that if I had 

been mayor and had not gotten our appropriations done on time, 

or Governor, I would have been impeached. That is a fundamental 

responsibility, and for some reason we just cannot get it done. And 

I suspect that when we go back, because of the change in the 

House, we will probably pass another continuing resolution, which 

I would like you, Commissioner Astrue, to—puts the question of 

where does that put you, because you are banking on appropriations that the President recommended in your budget. So I would 

like you to respond to that. And second also to fill us in a little bit 

about the likelihood of our possibly getting Federal legislation that 

will disallow States from putting these folks on furlough at a time 

when we need them more than ever before. And last but not 

least—I will give you three of them, and then I will stop—is that 

possibly do you think that instead of these folks working for the 

State that they ought to be brought into the Social Security Administration rather than being under the aegis of their respective 

States? 

Mr. ASTRUE. Thank you, Senator Voinovich. So on the question 

of continuing resolutions (CRs) and appropriations, I think we are 

on the same wavelength. A lot of agency heads are a little reluctant 

to speak up on this issue because it is viewed as impolitic. But I 

did so a few months ago, I believe in the National Journal, which 

actually tracked big swings in our number of employees tied into 

the delays in the continuing resolution. And when you have a budget approximately in the $12 to $13 billion range, if you do not know 

how much money you actually have to spend until halfway through 

the fiscal year, which is the situation I have had to deal with, you 

cannot spend the money that you have as well. The contracting 

process and the other agencies that you have to go through to get 

things done takes so long that you really cannot spend your money 

as prudently as you should. 

So I am with you 100 percent. I am old school. I would urge the 

Congress to pass appropriations before the start of the fiscal year 

to make sure that the taxpayers get the most value for their 

money, and the longer the Congress goes into the year with continuing resolutions, the harder it is to plan and the less wisely 

money is spent. So I am with you 100 percent on that. 

I think we are on the same wavelength on furloughs. I have spoken up fairly vocally on this. We were caught off guard by this. 

This is not a historic problem. And when it started in California, 

I will be honest, I made the mistake of thinking this was going to 

be a one-off and other States would not follow California’s lead. But 

10 

I turned out to be wrong on that, and we have had at any given 

point in time usually about 10 to 15 States in the last year and 

a half or so that have done at least some degree of furloughing. 

And your two States, just coincidentally, have been two of the most 

aggressive, and I think people in your States have suffered unduly 

for that. 

We worked with the Office of Management and Budget (OMB) to 

come up with legislation on this topic, which we sent to the Hill 

too late in this legislative year to expect action this year. I believe 

we sent it up in August. The Legislation is a good blueprint for 

next year, and I would certainly ask for your support to help us 

line up as many initial cosponsors as possible and try to put an end 

to these furloughs. There is no benefit for a State to Furlough DDS 

employees and a lot of negatives. It has been puzzling to me that 

I have to continue dealing with this. 

As an alternative, I would also note, having served on two gubernatorial transition teams myself in the past, it is a time of fluidity 

where policies are reconsidered. Both Ohio and Hawaii are going 

through gubernatorial transitions, so I would recommend strongly 

to each of you to contact your new Governors and urge them administratively to end furlough policies. Experience has taught me 

that Governors are not terribly impressed by my opinion, but they 

do need to listen to senior members of their congressional delegation. I hate to ask for your help one more time, but any contact you 

could make with your new Governors would be very helpful. 

The third question, Senator Voinovich, was on Federalization of 

the DDSs. At the moment, I think the administration has not been 

supportive of that primarily because of the cost issue. There are 

some other issues as well. We have taken a look at this. It is about 

a $4 billion cost over 4 years, with about $2.5 billion in the second 

year. And it really comes from the fact that State employees get 

paid substantially less than Federal employees. So to bring the 

DDS workers into the Federal workforce would involve substantial 

increases in salary, and that delta has a substantial cost for the 

Federal Government. But certainly as we have experienced more 

and more difficulties with the furloughs, we have looked at this 

issue again, and we are not at the point to—— 

Senator VOINOVICH. The other thing in Ohio, we have a turnover 

rate that is like 15 or 16 percent. I think the average is like 8.5 

or something of that sort. So you wonder whether or not the salary 

levels are competitive in terms of other States. 

Mr. ASTRUE. Yes. We have often been in the situation with 

States where we have actually tried to get them to increase salaries to reduce the level of attrition. It tends to create some difficulties in terms of comparability throughout States. That is usually 

what we hear back. But when we see attrition rates higher than 

the norm, we typically do look at it and often do see if we can recommend some sort of increase, directly or indirectly, to try to reduce that attrition, because it is a real concern. About half of our 

examiners have 3 years of experience or less, and that is an issue. 

Senator VOINOVICH. Well, that is the heart of it. If the State level 

is the first level of determination, then to me that is the most important. If you really had a slick operation where you had consistency in terms of determination of, when people were eligible for it, 

11 

you had training across the country—so that, Mr. O’Carroll, in your 

testimony and others noted the discrepancies in terms of certain 

cases, I think. In one State, you had a certain type of back injury; 

they turned them all down. And then when they got up to appeals, 

they overrode them and agreed to them. The system could be really 

done much better, and it would eliminate some of the need for the 

judges that we have. I mean, that is the beginning. 

We did that with our Ohio Bureau of Workers’ Compensation 

(BWC). We had a situation here where we had a three-judge hearing, and we concentrated on the intake and retrained the people, 

and that helped to make the system a whole lot better and more 

efficient. And, by the way, it saved a whole lot of money. 

Mr. ASTRUE. I would agree. I do not have any significant policy 

concerns. I think it comes down to a flat budget question. To take 

us back to 1956, when the program started, I think there was some 

thinking that housing the DDSs with State vocational rehabilitation agencies would be a benefit to the public and to the Federal 

Government. I would have to say I do not think that has really 

worked out in practice. And, in fact, at this point in many States, 

they do not house the DDSs within the vocational rehabilitation 

agency. It is in a separate part of the State organization. 

So I think it really just comes down to a question of cost. It is 

expensive, and we are in a period in which we are already worried 

about going backwards on our budget on our basic functions. I 

think it is just really a question of cost at this point. 

Senator VOINOVICH. I think the final thing—and then I will turn 

it over to Senator Akaka—is that if you can get a much better DDS 

operation—you say that if they go on the Federal payroll they 

might get more money. But I would think that if you do it right 

you would save, as I mentioned, down the road in terms of administrative law judges, I think we are talking, what, about 4.5 people 

on average that we should have to help the administrative law 

judge. It might be a good thing to look at that so that if Congress 

said, ‘‘Well, it is going to cost more money,’’ you can come back and 

say, ‘‘You know something? It probably will cost less money.’’ But 

more important than anything else, it is going to be better for people. 

Mr. ASTRUE. Yes, I agree. 

Senator VOINOVICH. So often people get lost in the shuffle here, 

and I have several cases here, I mean, unbelievable situations 

where people have been out there delayed and call, especially now, 

they could not get their disability payment, foreclose on the 

house—I mean, just it really is a situation that all people should 

be concerned about. 

Mr. ASTRUE. I agree with you, Senator. 

Senator VOINOVICH. Senator Akaka. 

Senator AKAKA. Thank you. 

Mr. Astrue, thanks to the Recovery Act and increased funding, 

your agency was able to hire thousands of new employees. This has 

been, I think, one of the advantages that we have had with the Recovery Act. We have hired these thousands, and I am sure it has 

made a difference. But I would like to be more specific and ask you 

to describe how SSA is handling the challenge of training, the challenge of adequately training all new staff on their responsibilities. 

12 

As we know, in government management as well, we have to continue to be sure that staffs are efficient at what their responsibilities are. And with all of these new ones coming in, I want to specifically ask you about what you are doing in meeting that challenge of training. 

Mr. ASTRUE. Sure. We have tried, even with all the fiscal concerns, to invest more in—and actually, we are trying to use the 

phrase ‘‘learning’’ rather than ‘‘training.’’ ‘‘Training’’ tends to have 

sort of a top-down, hierarchical sense. We are trying to create a 

culture where, to some extent, we provide people with an opportunity to learn on their own and do more than is absolutely required from a top-down basis. 

I think with the judges the training has gone extremely well. 

Typically, they spend 2 weeks in a hearing office before they go 

into training sessions so that they have some real-world context before they get a lot of very difficult abstract information thrown at 

them in a relatively short period of time. We have received positive 

feedback from the new judges on the training. Their performance 

has been quite good. We are feeling quite good about that. 

With the other staff, it is a little bit more decentralized in the 

hearing offices. I think generally that has gone well. Probably because it is a more diffuse operation, there have been a few places 

where we could do better. But generally I think that is going well. 

For the claims representatives, we have training that we are trying to make a little more user-friendly. We do most of that through 

remote video because it is too expensive to bring people into central 

locations. That presents some challenges, but we are doing things— 

for instance, there are national chat boards for the young people 

who are going through the training. They actually expect to interact with peers and supervisors in that way rather than in the way 

that would have been our expectations 20 years ago. 

So we are trying to adapt to sort of new ways of learning in addition to trying to make sure we transmit information in the traditional way. I think we have a way to go. We are doing something 

we have not done since the 1970s. We actually are having college 

classes taught on the headquarters campus that people at their 

own expense are taking advantage of. 

We are trying to create a real learning culture and transmit a 

lot of complicated information in different ways than we have before. Generally, I think that is going well, but I would be misleading you if I said I think we have it down perfectly, because we 

do not yet. 

Senator AKAKA. Commissioner, as you well know, administrative 

law judges play a critical role in the claims process, and it is important to have access to qualified or well-qualified judges. 

Mr. ASTRUE. Yes. 

Senator AKAKA. This has been an issue. So my question to you 

is: What challenges has your agency faced in the process of hiring 

these judges? And how have you addressed them? 

Mr. ASTRUE. Sure. Senator Voinovich and I have gone through 

this in a lot of detail, so he will probably remind me of things I 

forget to mention to you. 

We are in a much better place than we have been historically. 

One of the things about which I am pretty sure I expressed considVerDate Nov 24 2008 15:17 May 17, 2011 Jkt 063865 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 P:\DOCS\63865.TXT SAFFAIRS PsN: PAT
13 

erable frustration to Senator Voinovich in 2007 was the fact that 

we had not had a refreshed roster of judges from the Office of Personnel Management (OPM) in almost a decade. And if you stop and 

think about it, if you were hiring in your Senate offices with only 

the resumes that had come in 10 years before, what caliber of people would you have? And would you be proud of the staff that you 

would hire in that process? In 2007 and 2008, we encountered considerable resistance from OPM concerning refreshing the roster. I 

want to thank Senator Voinovich and several of the key Members 

of our Subcommittees of jurisdiction for working with me to persuade OPM to refresh the roster once and then a second time, because that was not easy. 

I think that it is critical to refresh the roster, particularly as the 

number of ALJs being hired is increasing, not only at our Agency 

but at other agencies with new responsibilities, particularly Health 

and Human Services (HHS). We should always be able on short notice to tap a very deep list of highly qualified people for these positions. And I think John Berry, the new Director of OPM, agrees in 

principle, and OPM has done much better. I do not think we are 

still quite where I would like to see us. 

I also think it would be timely for some authoritative outside 

groups to take a look at the criteria and the process for hiring. 

OPM often, because of perceived litigation risks, is not very transparent with us about the requirements, the process, the timing, 

even the number of people who are on the list. And that is a little 

bit of a frustration for me as the agency head that hires 95 percent 

of the judges. 

I think that they have well-intentioned people within OPM who 

are using outdated and inappropriate criteria for the hiring of 

judges. And I know that there is skepticism often about the agency’s motives. But I think that we have a revived Administrative 

Conference of the United States which has a lot of experience in 

these type of matters. That would be one outside experienced group 

that you could look to. You could look to the American Bar Association and other groups. But I really do think it is time to look at 

the criteria. I think we have ended up with great judges, even with 

a process that is highly imperfect. But if you are essentially asking 

me is this the best that we can do, my answer is I do not think 

it is. I think that we can do better. And rather than make specific 

recommendations, I think it is important to build a consensus 

around a better process. 

Senator AKAKA. Mr. O’Carroll, Commissioner Astrue addressed 

this issue, and I would like to hear from you as well on this issue. 

As you know, States like Ohio and Hawaii have chosen to furlough 

DDS employees, even though the Federal Government pays for all 

costs associated with processing disability insurance and Supplemental Security Income cases. If furloughs continue, do you believe 

it will hinder SSA’s ability to reach its backlog reduction goals? 

Mr. O’CARROLL. That is a very good question, Chairman, because 

there is a very delicate balance in SSA’s ability to meet that 2013 

goal. If there is as much as a 3-percent increase in the number of 

new claims, that could affect SSA’s ability to meet the goal. At the 

front end of it, because DDSs supply the information coming forVerDate Nov 24 2008 15:17 May 17, 2011 Jkt 063865 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 P:\DOCS\63865.TXT SAFFAIRS PsN: PAT
14 

ward, if there are DDS furloughs or more initial claims, that is all 

part of the balance. 

We have been tracking the DDS furloughs and the productivity 

of these States, and have issued several reports on this. I am often 

asked to speak to the National Association of Disability Examiners 

(NADE), which is made up of DDS employees from around the 

country, and they are very, very interested in the furloughs. They 

have used OIG reports to ask for help from their local Representatives and Senators. We are extremely concerned with the furloughs, 

because we are having more applicants than ever before. 

Transferring caseloads from one State to another State is really 

not solving the problem. And as Senator Voinovich mentioned before, one of our concerns, is the training level of the employees. 

They are very crucial, the DDS employees, at the State level because they know their work so well. It takes 2 to 3 years to really 

come up to speed. As Senator Voinovich mentioned, if we lose a 

person in 2 years for that reason, all that training is gone, and the 

DDS has to start over again. So it is a very delicate balance, and 

this influx/outflux of employment is going to hurt dramatically. 

Senator AKAKA. Senator Voinovich, do you have any further 

questions? 

Senator VOINOVICH. Yes. I would like to get back to the availability of these ALJs. We have had more cooperation from OPM, 

but I do not think people realize that they are the intake for just 

about all the Federal agencies. So basically what you are saying is 

that they open it up, people make application, they review the applications, and then they make the appointments, these are the 

people that are going to be your judges. Is that correct? 

Mr. ASTRUE. It is pretty close. The only refinement I would add, 

Senator, is—and, again, I am not a master of the intricacies of the 

process—we specify the locations where we want to hire, and what 

OPM does is give us what they consider the three most highly 

ranked candidates for that position, and we hire off of that list of 

three. If there are some exceptions and qualifications, I will add 

those for the record. 

INFORMATION FOR THE RECORD 

The Office of Personnel Management (OPM) maintains a ‘‘register’’ of individuals 

who have applied for the position of administrative law judge (ALJ) and who meet 

the minimum eligibility requirements according to OPM’s qualifications and criteria. 

When we want to hire individuals to ALJ positions, we request a list of eligible 

candidates from OPM. That request identifies specific geographic locations where 

ALJs are most needed based on workload and where we have physical space. OPM 

identifies an adequate number of ‘‘eligibles’’ from the ALJ register, prepares a certificate, and issues the certificate to us. On average, we receive three ‘‘eligibles’’ per 

vacancy per location. 

Once we receive the certificate of ‘‘eligibles’’ from OPM, we begin our process that 

includes: 

• Our Office of Personnel (OPE) contacts all candidates to reconfirm their geographic availability and initiates the background investigation process. 

• An outside contractor conducts background investigations of the ALJ candidates and provides us with a report. 

• We conduct panel interviews of all candidates not interviewed for previous vacancies. 

• Based on all of the above, we make selections. 

• OPE confirms compliance with all selection procedures, and we make offers 

to the candidates. 

15 

We also fulfill our bargaining obligations under Article 20 of the Association of 

Administrative Law Judges/International Federation of Professional and Technical 

Engineers and Office of Disability Adjudication and Review National Agreement. We 

consider requests for reassignments of incumbent judges to the vacant locations 

prior to considering the assignment of a newly hired ALJ and before we request the 

certificate. 

Senator VOINOVICH. But the qualifications that they are looking 

at are—they draft them, and you were mentioning that those qualifications could be better reviewed to make sure that they are the 

kind of people that you are going to need for your particular assignment. I think people do not understand. There has to be big 

competition. These are lifetime appointments. 

Mr. ASTRUE. Yes. 

Senator VOINOVICH. If you are an attorney out there and you get 

a chance to get a lifetime appointment if you become an administrative law judge for Social Security, that is quite an incentive. 

Mr. ASTRUE. Absolutely. And, of course, a sign that you are exactly right is that the process up until recently was on an unannounced basis. All of a sudden there would be something on the 

OPM website saying it is open, and so many applications flooded 

in that they closed it usually within about 24 to 36 hours. And I 

think that is fundamentally unfair to a lot of the well-qualified people out there who are not clicking onto the OPM website on a daily 

basis. So there is an enormous amount of interest in these jobs. 

I give Director Berry credit for being uncomfortable with that, so 

this most recent time OPM issued a press release saying it was 

going to be open on such and such a date. And I commend Director 

Berry for doing that because I think it is a step in the right direction. 

But there are some fundamental questions that I think the Congress should be asking outside experts. Most notably, I think the 

OPM model is a one-size-fits-all for administrative law judges. And 

I have some question that you have non-experts in administrative 

law with no real experience in the area, drawing from a human resources (HR) background and putting too much weight on qualifications that I do not think matter generally. But I also think it is 

a reasonable position to observe the day-to-day work of our 

judges—we are a mass production operation. We need to have each 

judge produce a lot of cases numerically in order to serve the American public. It is very different day-to-day work than, say, what a 

judge would do at the National Labor Relations Board (NLRB) or 

the Securities and Exchange Commission (SEC), where it is a very 

fact-bound, long, adversarial process, and they may only have a 

caseload of half-a-dozen cases for a year; whereas, our expectation 

is our judges will handle 500 to 700 cases a year. And it is a different profile, and maybe we need to have agency-specific rosters. 

But even if we do not, I think that there needs to be more attention 

paid to Social Security because we hire over 90 percent of the 

judges. I do not think a lot of the criteria, to the extent that I understand them, really tie in very directly with what we need. 

Again, having said that, we can go fairly deep on the roster, and 

from my vantage point, we have been seeing extremely qualified 

candidates. 

Senator VOINOVICH. Well, that is something that you would not 

need legislation for. Could you not work that out with John Berry 

16 

and say, ‘‘John, we have to give him your insight in terms of the 

kind of people that——’’ 

Mr. ASTRUE. Theoretically, I think that is right. 

Senator VOINOVICH. In effect, you are hiring people for your system, but the people that are hiring them and making the determination—you are not making that determination. OPM is. Right? 

Mr. ASTRUE. I think that is right. But I think that within the 

agency there is a lot of attachment to the status quo, and I think 

that is not likely to change until significant outside interested parties, particularly the Congress, express concern about the process 

and encourage the—— 

Senator VOINOVICH. We have talked about, even with the administrative law judges, you get the performance of them—and I have 

to say that their performance has improved, at least from what I 

can see. 

Mr. ASTRUE. Right. 

Senator VOINOVICH. But the fact of the matter is if you get somebody out there that is not doing a job, what do you do? I mean, you 

cannot do much about it. 

Mr. ASTRUE. Right. My—— 

Senator VOINOVICH. They are there, and, we have talked about 

the idea of maybe having the term a 15-year term, and at the end 

of 15 years they are reviewed in terms of their performance, and 

if they are doing their job, they can come on for another period of 

time. If not, at least you have that over their heads in terms of 

their responsiveness and, performance. 

Mr. ASTRUE. I agree. I want to credit the vast majority of judges 

who have embraced the mission, and I think are working very 

hard. Since the time we announced our performance expectation a 

couple years ago, we have moved from, 46 percent of the judges 

meeting our minimum case expectation to this year, 74 percent. 

And a substantial percentage are within striking range of our expectation. 

Senator VOINOVICH. Does their performance have anything to do 

with their pay? 

Mr. ASTRUE. No, we are not allowed to do that. I think the truth 

is that the agency in the 1980s overstepped its bounds with regard 

to the independence of judges. Congress reacted and largely tied 

our hands in lots of ways. And I think in general I am not going 

to be critical of that, but I think there were some unintended results of that. And there are a small number of outlier judges who 

essentially have taken early retirement while at the top of the Federal pay scale. We had one judge in Rhode Island who went 61⁄2

years without deciding a case. When we started calling him out, he 

started to do a small number of cases, but he basically allows them 

all. From my vantage point, that is essentially theft from the public. 

We have had some judges in this category, and we have benefited 

from the fact that the arrogance that leads you to do that also 

leads to misconduct at work. So we have actually been more aggressive in taking judges to the Merit Systems Protection Board 

(MSPB) who have engaged in inappropriate conduct. They are often 

low performers as well. 

17 

We had, for instance, a judge we removed in Georgia a couple 

years ago, and it turned out he was a low performer because he 

also had a full-time job in the Department of Defense for 3 years, 

and so he was double-dipping and not giving full effort at either 

Federal job. 

Sometimes, by going after behavior, we remove a low performer, 

but it is very difficult under the current rules to take any action 

against a judge who is doing next to nothing or transparently not 

following the rules of the agency. 

Senator VOINOVICH. The last part of it—and I will end on that. 

But, Mr. O’Carroll, could you comment on that? 

Mr. O’CARROLL. Yes, Senator. Interestingly 3 years ago we did an 

audit on the productivity of administrative law judges, taking a 

look, as the Commissioner talked about, at those judges processing 

a few cases per year all the way up to the ones doing over a thousand per year. At the time, we worked with the agency and asked 

what their expectations and goals were. About 500 cases per year 

would have been the top of the bell curve. And the majority of 

judges were processing fewer than 500. I would say over the last 

3 years, that has changed, and we are finding that many are processing more than 500 cases per year. As the Commissioner just 

said, that is happening. So we are looking at that in terms of their 

productivity. We have been monitoring that. 

One thing that we have not mentioned too much in terms of the 

productivity, again, and I mentioned in my testimony, is that 4.5 

support staff ratio. Very critical. We have recommended that ratio 

because of that first report when we were looking at the productivity of judges. We looked the better performing hearing offices 

compared to others, and we interviewed chief judges, judges, and 

support staff. And we found out that when offices had 4 to 5 support staff per ALJ, they were the most productive offices. 

Our most recent work indicates that the agency is moving in a 

positive direction. 

Senator VOINOVICH. Thank you. Senator Akaka. 

Senator AKAKA. Yes, let me offer a final question to this panel, 

and I would like both of you to answer it, beginning with Commissioner Astrue. 

You have mentioned some of the processes and what needs to be 

done to improve them. And based on your experiences and your 

work thus far, my question to you is: In the years to come, what 

are the top three factors you believe will determine whether SSA 

is successful at maintaining progress that has been made and staying on track to meet its goals? I am asking this to see maybe what 

we need to do legislatively to improve the entire system. 

Mr. ASTRUE. Sure. Well, my first two would really be the appropriation—the first is the size, and the second is the timeliness. Our 

Inspector General is entirely right. He mentioned before that while 

we are on track to hit our goal for 2013, it is fragile, and it would 

not take very much for us to miss that goal. 

I know that we are in a time of a lot of concern about the Federal 

budget; there will be cutbacks. I have tried to be responsive to that. 

I submitted a tighter budget this year than I ever have before. But 

at the end of the day, we have an aging population, which adds to 

the workload. We have a recession that gives us more disability 

18 

cases and more retirement cases. And we have a lot more statutory 

responsibilities. So workloads are going up enormously. 

If we do not get budgets that reflect those workloads and the 

need to reduce the backlog, then we will miss the goal. I cannot tell 

you that we can hit the goal just by sheer administrative effort on 

level funding. We cannot. We will miss the goal if we go to level 

funding. And the timeliness, as Senator Voinovich was pointing out 

before, is almost as important as the amount. 

I think the other factor that, again, I cannot control—and maybe 

the Congress only can to a fairly limited extent—is the recession. 

There is a lot of discussion about ‘‘the plan’’ to reduce the backlog, 

and I think GAO sometimes has wanted us to sort of lock in something and then measure against, what we expected. And it has not 

been that way, and it should not be. It has been a much more fluid 

plan, and we have had to adapt to radically changed circumstances. 

So we made a lot of adaptations to ‘‘the plan’’ when the recession 

hit, and all of a sudden, we are seeing over half-a-million more disability applications than we saw 2 years ago—a little less than 20 

percent of which will eventually show up in the hearings and appeals process, so at least another 100,000 at the Office of Disability 

Adjudication Review (ODAR). 

And the extent to which the recession continues at 9.5, 9.6 unemployment is critical, too, because all the studies have shown—and 

it has held up in this recession—that there is a very high correlation between increases in disability applications and increases in 

unemployment. What I need more than anything else is for people 

to start hiring and for that rate to go down because that will do 

more than anything that I can do administratively to help move 

these cases along. So I think those are the three most important 

factors. 

Senator AKAKA. Thank you. 

Mr. O’CARROLL. Mr. Chairman, the Commissioner said it well. 

One of the big issues for SSA is service versus stewardship. On the 

service side, the challenge is going to be, as we mentioned before, 

the large influx of claimants coming in, the baby boomers, etc. One 

aspect of that challenge that they are going to have to be looking 

at is Information Technology (IT) support and electronic services. 

We are doing a lot of oversight on that and trying to give advice 

to the agency on long-range planning in relation to that. 

Long-range planning should happen, and one challenge is trying 

to address IT strategic planning as well as all the personnel and 

staffing issues that we have been talking about today. But, again, 

the IT infrastructure of the agency is going to be a challenge into 

the future. 

On the stewardship side, I think all of government now has to 

be very cautious in terms of improper payments in the benefit programs. We are very involved in the issue of improper payments for 

the Inspector General (IG) community, representing the community 

in dealing with all the different agencies and departments. Specifically here at SSA, in terms of stewardship and taking a look at improper payments, two of the things that are of interest to us is an 

integrity fund as part of future appropriations for the agency, 

where money would be set aside above the cap just for doing integrity activities like continuing disability reviews (CDR). When a 

19 

claim is adjudicated through the system and approved, somebody 

gets benefits. Three to 5 years out, SSA conducts a CDR to see if 

they have improved, so there is a safety net with CDRs. And that 

safety net has been weakening. When the agency puts more resources towards service, there is less for stewardship, and as a result there have not been enough CDRs. So we are recommending 

that more resources go towards integrity; to do more CDRs and 

more redeterminations. 

Finally, I want to mention that we have a partnership with SSA 

on a continuing disability investigative (CDI) process where we 

have State employees, SSA employees, and Office of Inspector General (OIG) employees taking a look at claims at the front end of the 

disability process. They try to eliminate fraudulent claims before 

the individuals receive benefits. These units investigate when a 

DDS examiner suspects somebody, and they try to make sure that 

the disability the person claims that they have is, in fact, genuine. 

And that CDI program is very successful. 

So thank you for the chance to mention our important initiatives. 

Mr. ASTRUE. Mr. Chairman, if I could just add briefly, I want to 

second what the Inspector General said. And I think if you look at 

the decade for the agency, as our funding contracted in the early 

part of the decade, not only did the backlogs go through the roof, 

but the program integrity work dwindled from close to optimal levels down to almost nothing. And despite tight resources, we have 

increased our commitment to program integrity. Every year it is 

not as much as we would like to do it, particularly on the continuing disability reviews. 

There will be a moment—and it may be after I am gone as Commissioner—where the economy starts to improve significantly, and 

for intake of new cases of disability, we may be slightly overstaffed 

at the DDS level. Now we are not. We are nowhere close to that. 

We are struggling right now. But when that happens, there will be 

a very important moment for the Congress from a program integrity point of view, because I think it will be important to hold onto 

those resources and dramatically increase the number of continuing disability reviews, because as you well know, there is about 

a 10:1 return for the trust funds each time we do one of those continuing disability reviews, and we will have the resources in place 

whenever this recession starts to improve. I think it is very important for the Congress to keep an eye on that so it makes a very 

important choice to dedicate those resources to program integrity 

work when the paradigm shifts. 

Senator AKAKA. Thank you very much. 

Senator VOINOVICH. I would just like to ask, who decides how 

that budget is spent, though, in terms of the money for these reviews? Do you do that? Or is that part of—— 

Mr. ASTRUE. We have a process with OMB to try to set program 

integrity work within the budget, but then we also take guidance 

from the Appropriations committees on that. So usually, what we 

target for a year is heavily influenced by both the OMB and Congress—— 

Senator VOINOVICH. I am sure Senator Akaka has had people 

come up to him and say, ‘‘That person is on Social Security disability and they have another job,’’ or, they are painting their 

20 

1The prepared statement of Mr. Warsinskey appears in the appendix on page 58. 

house or whatever the case may be. And, of course,, that brings discredit to the whole process. And I think, particularly right now, if 

you let us know that you are out there doing the job and that, we 

are trying to do the very best that we can and make sure that 

those that are eligible get it and those that are not eligible do not 

get it. And, again, that gets back to the initial entry into the system. If you can get it taken care of there, then it eliminates the 

problem down the line. 

Mr. ASTRUE. The other thing, Senator in that category that is 

new—and I think it is working very well so far, and we are excited 

about it—is our Access to Financial Institutions Program (AFI) 

where we are very efficiently checking with banks on the asset levels of our Title XVI applicants. And we are doing this not only in 

continuing disability reviews, but we are building it into the front 

end of the process. We are not finished yet with establishing this 

network, but the early returns seem to be quite good, and we think 

that this is going to be the most important new anti-fraud initiative of the agency in quite a few years. 

Senator VOINOVICH. Great. Well, listen, we thank you very much. 

I think that I have learned a lot today, and, again, I appreciate 

your coming here to Akron. 

Mr. ASTRUE. And, again, thank you to the both of you for your 

leadership. We are more grateful than I know how to express. I 

guess that is all I know how to say. So thank you. 

Mr. O’CARROLL. Thank you. 

Senator VOINOVICH. Thank you. I just noticed that Betty Sutton 

is here, our Congresswoman from this area. Betty, welcome. Thank 

you for being here this morning. 

For the next panel, Richard Warsinskey is the Downtown Cleveland District Office Manager and Past President of the National 

Council of Social Security Management Associations. Mr. 

Warsinskey, we are glad to have you here today. And Randall Frye, 

who is the President of the Association of Administrative Law 

Judges. Mr. Frye, I saw you listening intently out there and picked 

up some agreement or disagreement from watching your expressions. 

We are very happy that you are here today, and I would like you 

to stand, if you will, and be sworn in, as is the protocol. Do you 

swear that the testimony you are about to give is the truth, the 

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

Mr. WARSINSKEY. I do. 

Judge FRYE. I do. 

Senator VOINOVICH. Let the record note that the witnesses answered in the affirmative, and, Mr. Warsinskey, we will start with 

you. 

TESTIMONY OF RICHARD E. WARSINSKEY,1 MANAGER, CLEVELAND DOWNTOWN DISTRICT OFFICE, AND PAST PRESIDENT, 

NATIONAL COUNCIL OF SOCIAL SECURITY MANAGEMENT 

ASSOCIATIONS 

Mr. WARSINSKEY. Aloha and good morning. 

Senator AKAKA. Aloha. 

21 

Mr. WARSINSKEY. Chairman Akaka, Ranking Member Voinovich, 

my name is Rick Warsinskey, and I represent the National Council 

of Social Security Management Associations. Our organization represents the field office and teleservice center management from 

over 1,300 offices nationwide. 

I also help coordinate the activities of the SSA Advocacy Group, 

and I have been the manager of the Social Security office in downtown Cleveland for over 15 years. I am pleased to have the opportunity to testify before you. 

Today we celebrate the opening of the Akron hearing office. This 

opening, along with that of the Toledo hearing office, will be a significant help to thousands of Ohioans waiting for a decision on 

their disability hearing. We greatly appreciate Senator Voinovich’s 

strong leadership along with the Commissioner’s perseverance in 

ensuring the opening of these two offices. 

Ohio’s hearing offices have had backlogged hearing requests for 

many years. Senator Voinovich first held a hearing on these backlogs over 6 years ago. It was taking over 600 days for a hearing 

decision to be rendered. This created hardships for many Ohioans. 

When Commissioner Astrue took office in February 2007, he immediately focused on addressing the hearing backlogs nationwide 

and in Ohio. He initiated a plan that is coming to fruition now. A 

key component of this was securing additional resources to open 

more hearing offices and to add more staff. His plan received solid 

support from Congress. Senators Akaka and Voinovich were strong 

advocates in helping SSA get additional resources. 

Starting in fiscal year 2008, SSA appropriations were at or above 

the level the President requested. These appropriations infused 

much needed funds into SSA to reduce backlogs in hearing offices. 

Favorable funding received in fiscal years 2009 and 2010 was critically important as SSA was flooded by a dramatic increase in disability claims being filed due to the recession. 

Disability claims continue to arrive in hearing offices in unprecedented numbers, contributing to an increase in the number of 

pending hearing requests. However, with the significant addition of 

new judges and support staff, SSA has been addressing this new 

onslaught of claims. National processing times are being reduced 

significantly. In October, the overall hearing processing time was 

377 days, the lowest since December 2003. Processing times are 

also dropping rapidly in Ohio hearing offices. In October, processing times in the Cleveland, Columbus, Dayton, and Cincinnati 

hearing offices were about 75 days lower than they were last fiscal 

year. Improvement should continue with the opening of the Akron 

and Toledo hearing offices. 

Ohio hearing offices are working diligently to adjudicate cases as 

efficiently as possible. One key component to the success of these 

efforts is the productivity of the hearing offices. Historically, the 

average number of clearances in Ohio has been significantly below 

the national average. Improving productivity will accelerate the reduction of the backlog. 

The Ohio Disability Determination Service (DDS), is also under 

considerable pressure to process their increased workloads. The 

number of pending claims has risen 48 percent since the beginning 

of fiscal year 2009. This pressure has intensified due to the manVerDate Nov 24 2008 15:17 May 17, 2011 Jkt 063865 PO 00000 Frm 00025 Fmt 6633 Sfmt 6601 P:\DOCS\63865.TXT SAFFAIRS PsN: PAT
22 

1The prepared statement of Mr. Frye appears in the appendix on page 70. 

dated 10-day furloughs of Ohio DDS staff in fiscal year 2010. These 

furloughs will continue during the current fiscal year. The furloughs have resulted in $2.3 million in monthly benefit delays 

reaching Ohio citizens. All of this is completely unnecessary as SSA 

pays for all expenses of the Ohio DDS. Nevertheless, the State has 

mandated the furloughs. We support the immediate ending of these 

furloughs and applaud the Commissioner’s efforts to rectify the situation. 

SSA has certainly faced many challenges in recent years. The 

agency is currently operating under a continuing resolution. With 

the significant increase in SSA’s workloads, it is imperative SSA 

receive adequate funding. We strongly support the President’s proposed funding for the Social Security Administration for fiscal year 

2011. Attempting to address the current workload demands at fiscal year 2010 resource levels is not a prudent course of action. 

Freezing SSA’s budget at fiscal year 2010 levels or lower would almost certainly lead to major service cutbacks and would be catastrophic for members of the public who rely on SSA for assistance. 

We ask for your continued support for appropriate funding for 

SSA. We believe that the American public deserves to receive thorough, timely service for the tax dollars they have paid to receive 

Social Security benefits and services. 

In conclusion, we want to express our great appreciation for the 

Senators’ ongoing support of SSA funding and for all your efforts 

to make possible what is happening today: The opening of the 

Akron hearing office. I thank you for this opportunity to testify 

today and would welcome any questions you may have. 

Senator VOINOVICH. Thank you very much. Thank you for your 

service. Mr. Frye. 

TESTIMONY OF D. RANDALL FRYE,1 PRESIDENT, ASSOCIATION 

OF ADMINISTRATIVE LAW JUDGES 

Judge FRYE. Good morning and aloha to each of you. Mr. 

Warsinskey stole my thunder in that regard, but I want you to 

know it comes from the heart. 

I am here today the behest of the administrative law judges of 

this great Nation. I serve, as indicated earlier, as President of the 

Association of Administrative Law Judges. We represent 1,400 administrative law judges at the Social Security Administration and 

Health and Humans Services (HHS). We are affiliated and known 

as Council Number 1 of the International Federation of Professional and Technical Engineers (IFPTE). Of the 1,600 Federal administrative law judges, we represent 1,400 of those. 

I, too, am extremely pleased with what we have been able to 

achieve in the last 2 years. We have experienced over the decade 

almost insurmountable backlogs, created for the most part by staffing imbalances. We suffered budget shortages that precluded 

judges from having the staff necessary to hear and decide cases on 

behalf of the American people. I want you to know how painful that 

was during that period of time. Let me tell you, there is nothing 

worse than having a widow show up at a hearing because the 

spouse died waiting for the benefits from Social Security. Judges 

23 

have worked incredibly hard to avoid that circumstance, and I am 

very proud of what we have been able to achieve. 

On the other hand, it is not we that deserve the credit. It is the 

Congress of this great Nation that provided the resources in the 

last 2 years to permit us to bring more judges on board and to address the rather significant backlog already in place. In my view, 

it is the Congress that has saved the disability adjudication system 

in this Nation, and I am proud of each and every Member of Congress for doing so. In doing what you have been able to achieve, 

you have saved the lives of many Americans, and certainly you 

have saved a lot of dignity. People are not losing their homes because they are waiting on benefits and are not able to work. More 

and more are getting their benefits. And believe me, with continued 

congressional support, more of that will be seen. 

We have been advocates for many years of addressing the backlog by appointment of additional judges and the appropriate staff. 

The results of those recommendations I think are being seen in 

what we are able to do today. It really is—this is a manpower kind 

of job. You need people in place to move the cases. And we recognize and appreciate and support the idea that we are a high production operation. We take great respect in doing what we do in 

that area. 

On the other hand, we do grow concerned when the pressure to 

produce numbers impairs our ability to give a fair due process 

hearing, and that is happening more and more. That is not to say 

that we do not support goals. Indeed, I think goals—and I have 

said this many times—are important in many aspects of our lives, 

personal and professional. However, goals are becoming quotas at 

this agency. The record numbers of cases that are being heard, I 

must tell you, in large part are being heard at that level because 

judges admittedly are not able to review all of the evidence in a 

file. 

Our average file consists of about 400 pages of evidence. I hope 

the expectation of the Congress is that we read that evidence and 

understand that evidence. If you can imagine comparing the file we 

review, most of which is medical evidence and a little harder than 

reading a 400-page novel, but similar in many respects, because 

both tell a story and you cannot skip pages or chapters and still 

understand the story. 

Not so bad, I suppose, if you are reading the novel because the 

worst embarrassment may well be that you look foolish to your 

book club when you are discussing the novel. On the other hand, 

if you fail to review evidence that is critical in a case and you either reverse a case that should not be or you deny a case that 

should be, you either hurt the claimant and the claimant’s family, 

or you hurt the American people by reversing a case that costs 

$250,000 at minimum. 

Now, if you think about this, even at the low end of the goals 

the Commissioner mentioned, 40 cases a month is worth about $12 

million per judge per month, $120 to $140 million annually. We do 

not want judges making incorrect decisions. I am concerned that 

we are or at least potentially being forced to do the numbers by 

sacrificing the quality of their review. 

24 

Now, also understand that it is so wrong to evaluate performance 

on a per judge per case disposition method. Whether a judge does 

2.0 cases a day or 3.0 cases a day is beyond his or her control for 

the most part. If I could only sit you down with me for a couple 

weeks and walk through what we do in a hearing office, it would 

probably be far better in terms of understanding than what I can 

explain to you. But suffice it to say that we are totally dependent 

on what comes into our office from DDS. Oftentimes it takes our 

staff significant amounts of time to create a file that can go to a 

judge for hearing. We then get a file that is sometimes 2 years old 

and no medical development. You cannot hold a hearing without 

medical development or at least exploring whether there is additional medical evidence. It would be unfair to the claimant and, indeed, even worse if the claimant was unable to afford some medical 

care and you need to order some kind of medical evaluation to assist you in the disability process. 

So we are concerned about the process. We are concerned that 

we are measured in terms of cases per day. That is not as it should 

be. There is a better way to evaluate an office’s performance, and 

we do not need to get into that here at this point, but it should 

be a quantitative kind of assessment based on the production or 

the performance of all the staff in a hearing office, not just the 

judge, because the judge cannot control the number that goes out 

each week or each month. 

There are a number of things that we are very appreciative of 

this Commissioner. He was quick to appoint judges. He was quick 

to train those judges, and as a result, the American people have 

been well served. 

There are other programs that he has established that we, too, 

believe have been important to help reduce the backlog. They have 

been mentioned, and I will not go into them at this point. 

There are a couple things, however, that I want you to know that 

we do disagree with. We disagree with the large number of management positions that have been established in the last 2 years 

in the agency. In our view, that does little to assist us in addressing the backlog. What obviously from our history now assists the 

backlog is judges and judges’ staff, not more Senior Executive Service (SES) people, not an expensive Deputy Commissioner’s office, 

and certainly not additional management positions in the regional 

offices across the country. We believe those resources should have 

been better used in appointing staff, particularly in those offices 

where we do not have the 4.5 ratio. In fact, we believe judges are 

most productive if we have a ratio of five staff per judge. That ensures that cases get processed, good decisions get written and 

issued. 

Senator VOINOVICH. Mr. Frye, could you kind of wrap it up? 

Judge FRYE. I am. Just before doing that, there are three things 

that I would like to leave you with that are important to judges. 

First is courtroom security. We are terribly concerned about the 

increased threats against judges and judges’ lives because of the 

unfavorable decisions that are issued. 

We also believe morale has been adversely affected because our 

judges do not have an adequate pension system. We ask you to 

support H.R. 2850. 

25 

And, finally, we ask that you support a bill in the Senate that 

would provide judges with the same leave benefit that other members of senior staff have been provided as a result of legislation in 

2004. 

With that, again I give you my thanks, and to you, Senator 

Voinovich, we wish you well in your new venture in life. 

Senator VOINOVICH. Thank you very much. 

You both had an opportunity to hear the testimony of Mr. Astrue 

and Mr. O’Carroll, and I would like to get into the issue of the DDS 

and their importance to the system. You just were mentioning, Mr. 

Frye, what kind of paperwork do you get that comes before you, 

and how good that is and how thorough it is has a lot to do with 

whether or not a judge and staff can get it ready so that you can 

come up with the right decision. 

In addition to that, it appears that in many cases you have people turned down and then reversed when they go to the judges, and 

it varies around the country. You just wonder what kind of uniform 

training people get in terms of what is the basis of someone’s eligibility. 

So I would be interested in having you comment on how important that is and also the issue of this furlough business at a time 

when cases are increasing. You said a 48-percent increase? 

Mr. WARSINSKEY. Yes. And SSA has also been getting help from 

the component in Chicago to look at cases. They have a component 

up there to help them on that. But even with help the DDSs still 

have more pending cases up, and I know this is startling but—I 

have been tracking cases week to week this fiscal year that started, 

2011. They have been going up on a weekly basis, so it is not a 

good situation, with the furloughs. 

Senator VOINOVICH. In other words, you have 48 percent more 

cases than you had in, what, 2008? 

Mr. WARSINSKEY. At the beginning of fiscal year 2009. There is 

48 percent more cases pending. That is one of the reasons why the 

processing time has gone up. 

Senator VOINOVICH. Mr. Frye, do you want to comment on that? 

Judge FRYE. Indeed, thank you. I have been an ALJ for 16 years, 

and I have had the pleasure of hearing cases in different parts of 

the country, so I have seen the work product from different DDSs. 

I also was at the agency when it began a process of trying to make 

more uniform decisions at the time—I think that program was 

called Process Unification—to convince the DDS to follow the Commissioner’s rules and regulations. 

I think there has been improvement, but I do not think there has 

been enough improvement. I think that there are times I am so 

frustrated that I want to call my congressional representatives and 

say please Federalize this program because we need uniformity, 

and it seems to me that is the only way you are going to get it in 

the long term. 

I do not know the answer, but I do think—— 

Senator VOINOVICH. Do you think that is a good idea? 

Judge FRYE. I think it is a great idea. I think it is—it will resolve 

the problem, believe me. I know it is, I have been told at least, a 

huge political issue because of—— 

Senator VOINOVICH. Well, who hires these people? 

26 

Judge FRYE. The State. 

Senator VOINOVICH. So, in other words, they are applying to the 

State, and they have the control over it. 

Judge FRYE. Yes. 

Senator VOINOVICH. So you get whatever the State decided—— 

Judge FRYE. Indeed. 

Senator VOINOVICH [continuing]. In terms of those offices. 

Judge FRYE. That is correct. Yes, I think it is an area ripe for 

some oversight hearings and legislation. 

Senator VOINOVICH. And how about this furlough thing? Would 

you urge Congress to try and—— 

Judge FRYE. It is incredibly—I cannot imagine that everyone in 

the country would not be outraged over furloughing employees in 

a State whose salary is being paid by the Federal Government. I 

thought it would be a slam-dunk to reverse the California decision. 

But, obviously, and as the Commissioner said, other States followed. It has been a battle on a regular basis. It is unfortunate. 

It is an American tragedy, in my view. And I am sure it is not consistent with the intent of Congress. 

Senator VOINOVICH. Well, part of the problem I think is—at least 

that is what I have heard from our State—that we have to treat 

them all alike. If we did that, then the unions would come back to 

us and say, ‘‘If you are not furloughing these people, then, by golly, 

you should not be furloughing the others.’’ 

Has there been any kind of—do you belong to any national labor 

organizations where—— 

Judge FRYE. We are associated with a national labor organization, but I can assure you that we would not oppose Federally funded employees doing their jobs during periods where other non-federally funded employees may have to take a furlough. These are 

not like positions. They are different positions. And they are funded 

differently. 

So I think it is most unfair that Governors have taken the positions they have and have in reality hurt the people who are the 

bottom of the spectrum who are waiting for decisions. I think that 

is unconscionable. 

Mr. WARSINSKEY. There may be other ways to force the States 

to do things other than Federalizing them. I do agree that if you 

Federalize them, I think you will have uniformity because there 

are some differences in the approval rates among the DDSs. And 

I think you would have uniform training, although I think they do 

try to have training in every State be the same. I think there 

would be a lot of advantages to it. I agree with the Commissioner 

that it would be more costly, but in the long run, you might save 

money. You would have fewer cases going to the hearing offices, 

which is expensive and has untold hardships to the public. 

On legislation, maybe the Congress could hold some money back 

from the States for other things that—I do not know if that is possible, because they do give a lot of money to the States. If they are 

not going to fully fund the DDS and they are going to furlough 

State employees that work on the cases then we should not pay everything. 

Senator VOINOVICH. To change the subject, something that the 

folks have testified to and, that is, this whole business of the apVerDate Nov 24 2008 15:17 May 17, 2011 Jkt 063865 PO 00000 Frm 00030 Fmt 6633 Sfmt 6601 P:\DOCS\63865.TXT SAFFAIRS PsN: PAT
27 

propriations and the continuing resolutions. You know, you are on 

the firing line. You run a local office. What kind of havoc does it 

play in terms of your offices, in terms of your decisionmaking, 

when you are on a continuing resolution and you are not aware of 

what—I mean, even the lease for this building I suspect might 

have been up in the air because the appropriation had not been 

made and they could not enter the lease because they did not know 

whether the money to pay for the lease would be available. Could 

you comment on that? 

Mr. WARSINSKEY. Well, I can tell you, being in Cleveland, our offices are really busy. The walk-in traffic is very high. We are getting a tremendous number of calls. We are packed with people coming in to visit us, and a lot of it is because of the workloads we 

have been asked to do. SSI redeterminations is a large workload 

for us, continuing disability reviews, and we have a lot more people 

coming in to file for disability. 

If you cut back, what will happen if we do not get the adequate 

funding this year, then we will probably go into a freeze. We will 

not be able to hire. We will probably have less extra hours to work. 

Senator VOINOVICH. Well, where are you right now? You are on 

a continuing resolution. What does that mean to you? That you are 

just able to spend what you spent last time? 

Mr. WARSINSKEY. Right. 

Senator VOINOVICH. And you are anticipating that you are going 

to have more money because of the appropriations, but you have 

to hold that in abeyance until the appropriation is made? 

Mr. WARSINSKEY. Correct. And so if we do not get it—I mean, we 

are kind of on hold—we are treading water right now, waiting. And 

that is very inefficient for us, as the Commissioner mentioned, because you cannot really plan ahead. You cannot do the kind of hiring you need to do for the year. 

Most of the time we hire the second half of the year, and we are 

doing our training now for all of our hires we did this past year. 

It just is not efficient. 

Senator VOINOVICH. Mr. Frye, would you like to comment on 

that? 

Judge FRYE. Indeed. I have spent over 37 years in the Federal 

Government, and a great pleasure spending a couple of years in the 

Cincinnati regional office of the National Labor Relations Board as 

its Director. I have never seen a good situation come from spending 

resolutions at the end of the year. We have always had to cut back, 

always spend money in the most inefficient way, and more toward 

the end of the year, further backlogs build, even worse here, because, yes, it will build more backlogs, but the problem is much 

deeper than that. It hurts people. And that is why I urge Congress 

to please pass the budget for at least this agency or create a higher 

spending level for this agency. It is just too tragic for the American 

people. I just cannot express that enough. 

Mr. WARSINSKEY. SSA does not have the flexibility to cut back. 

They are not an agency with a lot of programs. Most of their budget goes to paying personnel costs and to support that. So if they 

get cut, it is going to get cut directly into the staff that services 

the people. 

Senator VOINOVICH. Senator Akaka. 

28 

Senator AKAKA. Thank you very much. 

Mr. Warsinskey, you testified that while SSA has hired new 

ALJs and support staff, many current ALJs and staff are eligible 

for retirement now or in the coming years. What management challenges would SSA face if these employees are not replaced, and 

what steps have been taken to address these potential skill gaps? 

It has been mentioned that appropriations, of course, is one of the 

key parts of this. In addition to that, what management challenges 

do you see? 

Mr. WARSINSKEY. I have always said as a manager the most important thing a manager does is who they hire and being able to 

hire the best people as you can and it makes the most difference. 

And I think we have to have the necessary time to recruit people, 

to hire people. I cannot speak as much for the judges, but, I know 

that they do hire using those lists and the rule of three, and there 

has been some discussions, I know, with OPM about moving away 

from the rule of three just for hiring in general for the Federal 

Government to well-qualified lists. They are making that change 

now. John Berry is doing that. I think that is an improvement, allowing us a little bit more flexibility in terms of who we select off 

a list. 

I have gone to a number of recruiting fairs this year. I go personally. I meet with people to sell them on coming to work for Social 

Security. We work hard in our agency. I think we are one of the 

hardest-working agencies in government, and you have to have 

good people. 

In terms of management, I think we have a culture to have good 

management. I think it is important that you don’t just manage 

but also, I think, have a staff that wants to work for you and have 

good morale. I think we really preach that. We are under the gun. 

I mean, the staff is under the gun, and they know that. But, you 

try to have good morale. Every day you come to work and reflect 

that in management. And training, I know, Senator, both of you 

have been very interested in training. SSA does try to do as much 

training as they can. It is sometimes challenging for us to train because we are so busy and we have so much work to do and we have 

to take that necessary time aside to train. But you have to invest 

in your people. 

Senator AKAKA. Mr. Frye, I appreciate you mentioning my ALJ 

leave equity bill. It would put ALJs on equal footing with other 

senior-level Federal employees and would be a valuable tool for recruiting talented attorneys from the private sector to government 

service. 

What sorts of challenges or frustrations have the ALJ workforce 

at SSA expressed regarding recruiting and retaining qualified individuals? 

Judge FRYE. I think we have been over the years as frustrated 

as heads of agencies have been because of some of the problems at 

OPM. 

On the other hand, I think under Director Berry he has the system back in queue, and I think he is performing. I think we are 

getting good candidates. I visit usually with all of the new appointees, and I am incredibly impressed with what we are able to 

bring into the system. Could it be more efficient? I am sure it 

29 

could. Could they increase the qualifications? I am sure they could, 

to bring in perhaps more experienced candidates. 

With respect to the attorney hiring, there is always some good 

out there when there is bad, and the recession has been bad for 

most of us. But I can tell you, we are hiring the best attorneys I 

have seen even going back 30 years with the National Labor Relations Board, and that is directly because of the recession, lay-offs 

in law firms. We are getting top-notch lawyers on board, and that 

is making a difference in terms of helping judges issue quality decisions. 

Senator AKAKA. Mr. Frye, you testified that focusing on a number of dispositions issued per judge can lead to cutting corners to 

meet output goals. You also testified that measuring the work output of each work unit would help SSA more accurately measure 

productivity and direct its resources. 

Would you please elaborate on that suggestion, and how you believe it would help? 

Judge FRYE. Well, again, I made that statement in my testimony, 

written testimony, earlier. And it is based on my management experience at the National Labor Relations Board. That is the way 

we evaluated offices, not based on a number of decisions that a regional director issued, as an example. 

A hearing office is a group of different employees assigned to do 

different but very important tasks to assist the judge in getting 

cases out. If you want an accurate measurement of the work productivity of a hearing office, you develop discrete units of work for 

each of those groups, and you measure then the output of the 

group. Believe me, judges are working as hard as they ever have. 

Judges are working at night. They are working on weekends to 

meet this 500 goal. It is unfair, I think, to put them out as the reason a judge—or a hearing office is falling below the Commissioner’s 

goal. It is not the hearing office that is failing. It is the judge that 

is failing, when in reality the judge does not control the number 

of decisions he or she issues. 

So I think it is a much better way and a better way for Congress 

to understand. Do I have a problem in Ohio? And if I do, where 

is the problem? With productivity units for all of the work units, 

this would take into account staffing ratios, whether you are understaffed or overstaffed. The training issue could be factored in. So 

many of these factors could give you a much better picture of what 

is going on in different hearing offices. 

Now, with respect to Ohio, I know for a fact our judges have 

worked far more than 40 hours a week trying to address the backlog here. They are honorable men and women, and I am proud to 

be associated with them. I think they would be better served with 

a different way to measure the success of a particular hearing office. 

Senator AKAKA. Thank you. 

Any further questions? 

Senator VOINOVICH. Just for the record, what is the starting salary of an administrative law judge? 

Judge FRYE. That is a very good question. I am not certain what 

the starting salary is. I think, however, because of pay compression 

it has dropped below a GS–15 level. I do know the top pay is 

30 

around $162,000 or $163,000 to $167,000, depending on where you 

live based on the cost-of-living factors for those cities. I would 

guess it is in the low hundreds, the starting rate, and it goes up 

to $167,00, basically. 

Senator VOINOVICH. And it is a lifetime appointment. 

Judge FRYE. It is lifetime, but not the same as Article III judges. 

There are areas that judges can be removed for. The Commissioner 

indicated conduct is one, and we certainly support that. We do not 

want judges who are engaging in misconduct as part of our corps. 

Senator VOINOVICH. What kind of peer pressure does your organization exert on your judges in terms of meeting high standards? 

And so you have annual training sessions every year for your members and so forth? 

Judge FRYE. We do indeed. And, in fact, it is one of the real important things this organization does. We sponsor an educational 

seminar every year. This past year was our 19th. We developed the 

program. We put the program on. Judges pay their own expenses 

to come. And, indeed, we encourage both quantitative and qualitative performance. All of our judges understand we are in a huge, 

high-volume adjudicatory system, and we are proud of that fact, 

and we want to serve the American people well. 

Believe me, this organization emphasizes performance. We do not 

believe, however, that judges should be hearing cases that they are 

not prepared to hear. 

Senator VOINOVICH. Now, the staffing level is determined by you. 

Is that right? You hire the staffing people? 

Mr. WARSINSKEY. Yes, SSA hires the staffing people. The number 

of people assigned to each hearing office is decided by SSA. You 

know, staffing comes down from the headquarters, then goes down 

to the regional— 

Senator VOINOVICH. Let me just say this: OPM puts out the notice of job availability, correct? 

Mr. WARSINSKEY. Correct. 

Senator VOINOVICH. OK. And then they send you the list? 

Mr. WARSINSKEY. Right. 

Senator VOINOVICH. And then you select based on one in three, 

but you know right now under the law you can do categorical hiring, too. 

Mr. WARSINSKEY. That is just changing. 

Senator VOINOVICH. Pardon? 

Mr. WARSINSKEY. That is just changing, right. It started November 1, right. 

Senator VOINOVICH. Well, it should have been done a couple 

years ago. 

Mr. WARSINSKEY. Yes. Right. [Laughter.] 

Senator VOINOVICH. It just did not get done. So the point is, 

though, you are hiring the staffing people to provide the staff to 

your judges. Is that right? 

Mr. WARSINSKEY. Right. I mean, there are two different lists. 

There is one for the judges, and there is a list that we have for the 

hearings offices, and those are advertised in USAjobs, also. And 

then, as you say, there was the rule of three, and now there is this 

category rating which they will be using to hire them. 

31 

Senator VOINOVICH. We are changing that system, aren’t we, 

Senator Akaka? The President has an Executive Order out, and we 

are trying to put it in law so that—— 

Mr. WARSINSKEY. All the human resource departments are now 

implementing it now, so they will not be using the old method, 

right. 

Senator VOINOVICH. Good. And you do the training then of those 

individuals, the staff and new people you bring on? 

Mr. WARSINSKEY. Yes. We have to train them. I mean, anyone 

that comes in to work for any Social Security office generally does 

not understand the lingo we use. There is quite a bit of training. 

In the field office, you start out with usually 4 or 5 months of training, and you have a similar amount, quite a bit of training in the 

hearings offices. And it is just critical, and you have to have ongoing training. Our jobs are very complicated. There is no college you 

can go to—to learn Social Security. Obviously, in a hearings office, 

you are going to have a lot of attorneys, senior attorneys, plus the 

judges that have legal training that is specialized that they need 

to have. 

Senator VOINOVICH. So when you were talking about the quality 

of lawyers that are available, these are lawyers that come in and 

are doing the staffing. Is that it? 

Judge FRYE. That is correct. 

Senator VOINOVICH. So many of the people that you hire on staffing are attorneys, correct? 

Mr. WARSINSKEY. Right. They recruit often at the local law 

schools, like at Akron U and Cleveland Marshall, and—— 

Senator VOINOVICH. Those are for staffing positions in Social Security. 

Mr. WARSINSKEY. Right. There are many attorneys, these attorneys provide a great deal of support in the hearing offices, and one 

of the things they are doing now is they are assisting the judges 

now on the decisions to take off some of the work on them, on the 

cases. Mr. Frye probably can talk more about that, but that is cutting down on some of the work, although in our written testimony 

we pointed out that I think the judges are having to handle probably some more complicated cases on average now because they are 

trying to take off some of the other cases that could be handled by 

the attorneys. 

Senator VOINOVICH. What percentage of the cases are people who 

are represented by lawyers? 

Judge FRYE. It probably varies geographically. In the Charlotte 

area, we are up to about probably 94, 95 percent. A very high rate. 

And that is not bad. I think that has been beneficial to the process. 

Senator VOINOVICH. What do those lawyers get if they are successful? 

Judge FRYE. By law, they get a percentage of the back pay that 

may be due the claimant up to, I think, $6,000, maybe more. 

Senator VOINOVICH. What? 

Judge FRYE. Up to $6,000 per case. 

Senator VOINOVICH. It is a monetary limit rather than a percentage? 

Judge FRYE. Indeed—well, there is a percentage, but the percentage would kick in if there is less back benefits withheld. For examVerDate Nov 24 2008 15:17 May 17, 2011 Jkt 063865 PO 00000 Frm 00035 Fmt 6633 Sfmt 6601 P:\DOCS\63865.TXT SAFFAIRS PsN: PAT
32 

ple, if the back benefits due a claimant is only $4,000, they are limited to that amount. 

Senator VOINOVICH. So, really, in effect, the people that represent people before you are kind of limited in terms of their compensation based on some kind of procedural standards? 

Judge FRYE. They are limited to the extent that the law precludes more than 25 percent of back benefits, yes. On the other 

hand—and I do not want to speak for the attorneys of the world— 

I think most disability attorneys do quite well financially in representing claimants. And I think they do a very good job in representing claimants. 

Senator VOINOVICH. But if the DDS did a lot better job, there 

would be less claims that needed lawyers. 

Judge FRYE. No doubt about that. There is no doubt about that. 

I do not want to say a ‘‘better’’ job. Perhaps they do not have the 

resources they need to address the issues more accurately. 

Senator VOINOVICH. Senator Akaka, do you have any other questions? 

Senator AKAKA. No. 

Senator VOINOVICH. Well, we want to thank you very much, Mr. 

Frye, for coming here and speaking for your organization. 

Senator AKAKA. At this point, let me say thank you to our witnesses for testifying today. I have learned a great deal about the 

challenges facing the Social Security Administration, particularly 

in the area of furloughs and the need for increased resources. I am 

encouraged by the progress that has been made in Ohio and across 

the Nation, and I look forward to monitoring these issues in this 

next Congress. 

George, at this point I would like to defer to you for any closing 

statement you have. 

Senator VOINOVICH. Well, first of all, I want to again thank you, 

Senator Akaka, for being here today. We talked about this. Ordinarily in this time of a person’s—I am retiring. Someone will ask, 

‘‘What in the world are you having a hearing for?’’ But this is an 

issue that Senator Akaka and I have been working on a long time, 

and I really know how important it is to people. I get a weekly report from Michael Dustman, who is here, some of my staff people, 

and, Senator Akaka, I want to thank you for your staff people and 

the cooperation we have from them. But we get these reports back, 

and your heart goes out to these people. And this system has been 

around a long time, and it just seems like, it is one step forward, 

two steps back. And unless we stay on it, it is going to fall apart 

again. And I think part of the problem is that not enough people 

understand how important it is and how the system works. So I am 

hoping that, Senator, as a result of this hearing—I have written 

some things down. I am going to get on our new Governor and the 

legislative leaders and talk to John Berry again about some of the 

things that came up here, because John is doing a good job. He is 

probably one of the best OPM people that we have had since—I 

have been there 12 years, and he is very good. He is very conscientious, wants to do the job. So hopefully as a result of this hearing— 

write and tell your friends—maybe something is going to happen. 

Brother Akaka will be there to help out, and, Mr. Warsinskey, 

33 

thank you very much for your service, both of your services, distinguished—how many years in the Federal Government? 

Judge FRYE. Thirty-seven. 

Senator VOINOVICH. Thirty-seven. I have been in the business almost 45, and I thought it is time to get off the stage. So thank you 

very, very much, and I want to thank—probably there are people 

here that work in your offices that are here. We want to thank you, 

too, for your services to our country. You are making a difference 

in people’s lives. You know what happens sometimes. We get in the 

weeds and the trees, and we kind of forget about we are touching 

people’s lives. And I think one of the compensations that certainly 

I have derived—and I am sure Senator Akaka—from being in government is the opportunity to make a difference in people’s lives. 

A great opportunity to witness the second great commandment. 

So I thank you all very much for being here, and, Senator Akaka, 

you are the Chairman. You can adjourn the meeting. 

Senator AKAKA. You can adjourn. 

Senator VOINOVICH. OK, thank you. The meeting is adjourned. 

[Whereupon, at 11 a.m., the Subcommittee was adjourned.] 

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