Improving 

the Social Security Administration’s 

Hearing Process

September 2006

Hal Daub, Chairman

Dorcas R. Hardy Barbara B. Kennelly

David Podoff Sylvester J. Schieber
TABLE OF CONTENTS

 EXECUTIVE SUMMARY ............................................................................. 1

 I. Background ......................................................................................................3

II. Our Concerns about Performance at the Hearing Level ..................................4

 Consistency ...................................................................................................... 4

Processing times and backlogs ......................................................................... 8

 Productivity .................................................................................................... 12

 Hearing offi ce management ........................................................................... 14

 SSA-ALJ relationship .................................................................................... 15

III. Changes Under Way ....................................................................................... 15

 A. Disability Service Improvement .................................................................... 15

 Federal Reviewing Offi cial ............................................................................ 15

 Decision Review Board ................................................................................. 16

 Performance expectations .............................................................................. 17

 Feedback and learning ................................................................................... 18

 Keys to successful implementation ................................................................ 19

 B. Use of technology .......................................................................................... 20

 Electronic disability system ........................................................................... 20

 Video teleconference hearings ....................................................................... 21

 Decision writing software .............................................................................. 22

IV. Further Actions Needed ................................................................................. 22

 Selection process for ALJs ............................................................................. 22

 ALJ pay issues ............................................................................................... 23

 Management structure and roles .................................................................... 24

 Increased accountability ................................................................................. 25

 Training .......................................................................................................... 27

Abbreviations used in this report ................................................................... 28

V. Social Security Advisory Board ..................................................................... 31
Executive Summary

 In examining the hearing process, our goal is a process that embodies the public’s 

interests of fairness, consistency, and effi ciency. Our major concerns with the current process are 

lack of consistency, processing times and backlogs, productivity, hearing offi ce management, and 

the SSA-ALJ relationship.

• Our concern with consistency is based on variations in allowance rates. The extent of 

variance, supported by data from quality assurance reports, suggests that ALJs may be 

applying law and agency policy differently. SSA should ensure that its policies are being 

applied consistently.

• Processing times and pending caseloads have been rising to levels that impose an 

intolerable burden on claimants.

• The extent of variation in productivity indicates a need to explore the reasons for it and 

to take steps to increase productivity at the lower end of the spread and to ensure that the 

upper end is appropriately balanced with decisional quality.

• The current condition of hearing offi ce management does not provide needed incentives 

and supports.

• The relationship between SSA and its ALJs seems to have improved since our last report 

on the hearing process but still needs attention.

 SSA has begun implementing a set of changes to its disability process that are known 

collectively as Disability Service Improvement (DSI). We are generally supportive of the 

agency’s new approach. There are, however, some keys to successful implementation of DSI. 

The agency must seek and the Congress must provide adequate resources to meet the needs 

of both the evolving and existing systems, or the new system will not provide the results that 

are expected of it. Beyond fi nancial resources, however, the success or failure of the new 

adjudication structure will depend on how well the implementation is managed. It is essential 

that good workload data and other management information be collected as the new processes 

are rolled out and that the information be used internally and made available publicly so that 

the new procedures can be carefully evaluated on an ongoing basis. In implementing the 

new regulations, the agency must encourage prompt, frank, and open communication among 

all levels of the agency of problems that are encountered. We also have some more specifi c 

recommendations for aspects of DSI.

 SSA is using technology to improve the hearing process. Its new electronic disability 

system should make hearing offi ces more productive and reduce processing times. SSA has 

made great strides in the use of video teleconferencing in the last few years; we encourage it 

to go even further. We are encouraged by the implementation to date of new decision-writing 

software.

 We also have several recommendations for further action:

• The selection process for ALJs should be reformed to make it more responsive to the 

needs of SSA.

• The ALJ pay system should be revised to provide additional incentives to recruit and 

retain hearing offi ce chief ALJs (HOCALJs). SSA should also explore with the Offi ce of 

Personnel Management the possible use of pay for performance for ALJs, with due care 

for the need to protect decisional independence.

1
• SSA should address the de facto dual management structure for the hearing offi ce 

process, which results in confusion and lack of accountability and should provide 

HOCALJs with the tools and supports they need to do their job well.

• SSA’s multilevel appraisal system should be expanded to all parts of the hearing process. 

Appraisals should be based on quantifi able performance data, including both quality and 

quantity of work performed.

• There is a need for additional training and ongoing professional development.

2
 I. Background

The administrative structure for determining disability involves different levels of 

government and different processes, depending upon the stage of an individual’s claim. 

Although SSA is responsible for the program, the law requires that initial determinations of 

disability be made by agencies administered by the 50 states, the District of Columbia, and 

Puerto Rico. The state agencies are required to follow the policy guidance of the Social Security 

Administration and are fully funded by the Federal government. 

By regulation, an individual whose claim is denied by the state agency may ask the 

agency to reconsider the decision and may present new evidence. After the reconsideration 

decision (or, after the initial decision, in those states where there is no reconsideration step),1 

the statute gives individuals who are dissatisfi ed with the agency decision the right to request a 

hearing. Hearings are conducted by SSA’s corps of administrative law judges.2 New evidence 

is frequently introduced at this stage, and since an ALJ hearing is a de novo proceeding, it is 

essentially a complete re-adjudication of the case. Although ALJs must follow the agency’s 

regulations and rulings, they exercise decisional independence to ensure a fair hearing. This 

report will focus on the hearing level.

Individuals whose claims are denied at the ALJ level may appeal their cases to the 

Appeals Council, which is the fi nal step in the administrative appeals process.3 At this stage, 

claimants may continue to introduce new evidence and raise new issues. In addition, the Appeals 

Council may select cases to review within 60 days of the date of the ALJ’s decision; all of these 

case reviews conducted by the Appeals Council are done on a pre-effectuation basis.

Individuals who disagree with the fi nal administrative decision may pursue their appeals 

through the Federal District Court, the Circuit Court of Appeals, and the Supreme Court.

Most claims are resolved at the state agency level. Of all the disability claims fi led in 

2000 (the most recent year for which almost all claims fi led have been resolved), 40 percent were 

allowed at the initial state agency level, another 4 percent were allowed at the reconsideration 

level, and 38 percent were denied by the state agency but did not pursue their claim to the 

hearing level. The remaining 18 percent did pursue their claim to the hearing level or beyond, of 

which two thirds were eventually allowed and one third denied.

Although most cases are decided at lower levels of the disability process, the hearing 

level is important to examine for a number of reasons. While the number of hearing decisions 

is small by comparison to the state agency level, it is large in absolute terms. In fi scal year 

2005, SSA received nearly 600,000 requests for hearings in Social Security cases. It is also an 

expensive process, consuming a considerable part of the agency’s administrative resources. The 

agency’s administrative cost per case at the hearing level in 2005 was $2,297, including 

 1The reconsideration step was eliminated in 10 states in October 1999 under a set of changes by SSA aimed at 

improving the disability determination process. SSA also began introducing a set of changes in August 2006 that will 

eventually eliminate reconsideration in all states. Those changes are detailed later in this report. 2The hearing function was previously in SSA’s Offi ce of Hearings and Appeals (OHA). In April 2006, SSA established an 

Offi ce of Disability Adjudication and Review (ODAR), which now manages the hearing process, the Appeals Council, and 

some newly established functions. 3The changes that SSA began to introduce in August 2006 will also eventually replace the Appeals Council. Those changes are 

detailed later in this report.

3
dismissals and remands. Given the size of the hearing workload, the total administrative costs 

are over $1 billion per year.

Although most cases do not go to the hearing level, about 20 percent of all allowances 

are made at that level. The hearing is an important check on the quality of earlier stages of the 

process, offering a de novo review and an opportunity for a claimant to meet face-to-face with 

the decision maker in his case.

We have a number of concerns about the hearing process that we will address in this 

report. SSA is undertaking some initiatives that have the potential to signifi cantly improve the 

process; we will make some recommendations on implementation of those initiatives. We will 

also make some recommendations to improve the process in other ways.

In examining the hearing process, our goal is a process that embodies the public’s 

interests of fairness, consistency, and effi ciency.

• In order for the public to have confi dence in the disability program it must be 

demonstrably fair. Decisions must be free from bias and from any pressures that 

might seek to infl uence the decision.

• The public also has an interest in a consistent system. Claimants and potential 

claimants want a system that produces the same results for people in the same 

circumstances. The outcome of a claim should not depend on where the decision is 

made or who makes it.

• Both claimants and taxpayers want a system that is effi cient, that produces results 

quickly and with only the necessary minimum of expense.

II. Our Concerns about Performance

at the Hearing Level

Consistency

One of our concerns is the consistency of hearing decisions. One aspect of inconsistency 

is that the decisions in this national program seem to vary depending on where they are made. 

There has been considerable variance in the allowance rates between decisions made in hearing 

offi ces in the states with the lowest allowance rates and those in the states with the highest rates, 

as shown in Chart 1.

Chart 1 Percentage of Favorable Hearing Decisions

1985 - 2005

100

80 High state

Average

cent

60 Low state

Per

40

20 1985 1990 1995 2000 2005

Fiscal Year

4
 

The fi rst potential explanation that comes to mind for this variation is that hearing 

allowance rates may tend to correct high or low allowance rates at the initial level. A comparison 

of initial and hearing level allowance rates by state, however, shows that this is not the case. In 

fact, there is no overall correlation between initial level and hearing level allowance rates.4

Another aspect of inconsistency is variations among ALJs shown in Chart 2. The Board 

recently obtained data showing the distribution of allowance rates by ALJs in SSA cases in 

fi scal year 2002 and fi scal year 2005. Because ALJs who made few decisions in that year (for 

example, those who worked only part of the year), might easily have either very high or very low 

allowance rates with little effect on the overall allowance rate, we excluded from our calculations 

ALJs who made 100 or fewer decisions in those years. 

150

120

90

60

30

0

Chart 2 Frequency Distribution of ALJ Allowance Rates

 SSA Decisions, FY 2002 - 2005

2002

 of ALJs

2005

Number

 0-5

 6-10

1-15 1

 16-20

 21-25

 26-30

 31-35

 36-40

 41-45

 46-50

 51-55

 56-60

 61-65

 66-70

 71-75

 76-80

 81-85

 86-90

 91-95

 96-100

Percent of Decisions Allowed

The chart shows how many of the 1,080 ALJs who made 100 or more decisions in 

2002 and the 1,102 ALJs who made 100 or more decisions in 2005 had allowance rates within 

a particular range.5 For example, in 2002 116 ALJs had allowance rates between 61 and 65 

percent, and in 2005 99 had allowance rates between 61 and 65 percent. The allowance rates are 

percentages of decisions and exclude dismissals. The following statements apply to ALJs who 

made 100 or more decisions:

• In 2002, allowance rates of the middle 50 percent of ALJs (those between the 25th 

and 75th percentile) was between 58 percent and 80 percent.

• In 2005, allowance rates of the middle 50 percent of ALJs was between 60 percent 

and 82 percent.

• In 2002, the 10 percent of ALJs with the lowest allowance rates had rates of 48 

percent or lower.

 4For more information on this, see the Board’s Disability Decision Making: Data and Materials, May 2006 

 (http://ssab.gov/documents/chartbook.pdf), Chart 54.

 5In 2002, of the 388,814 cases decided by judges with more than 100 decisions, 70% were allowed. The average allowance rate 

among the 1080 judges was 68.4% (standard deviation: 15.5%). The median judge allowed 69.4%. In 2005, of the 442,054 

cases decided by judges with more than 100 decisions, 72% were allowed. The average allowance rate among the 1102 judges 

was 70.2% (standard deviation: 15.7%). The median judge allowed 71.2%.

5
• In 2005, the 10 percent of ALJs with the lowest allowance rates had rates of 49 

percent or lower.

• In 2002 the 10 percent of ALJs with the highest allowance rates had rates of 89 

percent or higher.

• In 2005, the 10 percent of ALJs with the highest allowance rates had rates of 90 

percent or higher.

• In 2002, the allowance rate of the median judge was 69 percent.

• In 2005, the allowance rate of the median judge was 71 percent.

One potential explanation for those ALJs with allowance rates at the upper end of the distribution 

is that ALJs involved in initiatives to identify cases that can be allowed without a hearing may be 

expected to have very high allowance rates. 

These data lead us to two concerns. The fi rst is that the degree of variance in this 

distribution is troubling. It is true that each case has its own individual circumstances and 

characteristics, and each claimant is entitled to be served as an individual. It is also true that in 

disability cases, which account for the great majority of hearing cases, ALJs must make an allor-nothing decision on a great number of cases that fall into a gray area along the continuum of 

disability. But in a system that essentially assigns cases to judges randomly, individual factors 

should average out over a period of time.

Our second concern is based on the somewhat higher allowance rates in 2005, combined 

with the production fi gures shown in Chart 6 of this report. There is a small positive correlation 

between the allowance rates and the number of decisions for the years shown. That is, the 

allowance rates tend to increase as the number of decisions increases. There may be valid 

reasons for the increased allowance rate. For example if DDSs allow too few cases, that would 

both increase the hearing workload and require more hearing allowances. But it might also 

be the case that pressures for increased production lead to an increased number of allowances, 

which take less time than denials. The agency should analyze this question carefully. 

The extent of variance suggests that ALJs may be applying law and agency policy 

differently. Other evidence supports this suggestion. For example, a peer review of ALJ fi ndings 

published in December 20056 noted continued inconsistent compliance with a set of Social 

Security Rulings (SSRs) issued in 1996. The report states that ALJs need to fairly and correctly 

apply the law, regulations, and SSRs. “Failure to do so constitutes an error of law. An error of 

law is generally indicative that a decision is not legally suffi cient.”

 Another example from the same report concerns the need to inform claimants without 

representatives about their right to representation. About 17 percent of claimants who receive a 

hearing decision are unrepresented. In the opening statement of the hearing, the ALJ is to ensure 

that an unrepresented claimant is capable of making an informed choice about representation. 

The December 2005 peer report found that ALJs adequately informed unrepresented claimants at 

hearing of their right to representation 77 percent of the time, down from 81 percent in the 

6SSA, Offi ce of Quality Assurance and Performance Assessment, Findings of the Disability Hearings Quality Review Process 

ALJ Peer Report VI. The report is based on a peer review of ALJ decisions issued from October 2002 through September 

2004.

6
previous report.7 After that previous report was issued in December 2003, the Chief ALJ issued 

a reminder of the rights of unrepresented claimants, accompanied by a PowerPoint presentation 

for viewing by individual ALJs as a desk aid. The Chief ALJ’s offi ce also issued a large 

laminated orange desk aid with instructions for addressing the rights of unrepresented claimants. 

This guide was sent to all hearing offi ces to be placed on the dais of every hearing room. OHA 

staff also conducted regional teleconferences that addressed the rights of unrepresented claimants 

at hearing. The fact that after all this effort, the percentage of unrepresented claimants who were 

not adequately informed of their rights has risen suggests deliberate lack of compliance with 

agency policy.

 Another example comes from a quality assurance report on dismissals.8 In the past 

10 years, 1 of every 7 to 8 hearing requests in SSA programs have been dismissed, most often 

because the claimant fails to appear or the request is untimely fi led. In doing peer reviews of 

samples of dismissed hearing requests, ALJs have found problems with the quality of dismissals 

in repeated reviews. In the most recent study, reviewing judges agreed with only 71 percent of 

dismissals. More troubling is the type of cases that were dismissed. The reviewers disagreed 

with dismissals signifi cantly more often in SSI-only cases, claims in which the applicant 

needed additional assistance due to a mental impairment, and cases in which the claimant was 

unrepresented. As the report notes, “It appears that the claimants most in need of assistance in 

the processing of their claims are the most susceptible to dismissal actions.”

 These examples suggest that some ALJs are simply not following some policies. If 

policies are being misinterpreted, they should be clarifi ed. If they are being sidestepped, they 

should be examined to determine if they are unreasonable or need modifi cation. If they are clear 

and reasonable, they should be enforced consistently.

ALJs are employees of SSA making decisions for the agency in a national program in 

which claimants and the public expect like cases to be treated alike. SSA should identify the 

sources of variance and work to reduce them. We believe that some aspects of the new Disability 

Service Improvement (DSI) initiative, which we will discuss later, will help to do this.There is 

obviously a tension between the need for consistency and the independence of decision makers. 

Some would argue that in the interest of protecting the independence of decision makers, the 

agency cannot conduct the kind of oversight that would be necessary to ensure consistency. 

We would argue that consistency and independence are not incompatible. The agency has the 

responsibility – and must fi nd a way – to ensure both independence in factual decision making 

and correct (and therefore consistent) application of policy.

7The previous report was SSA, Offi ce of Quality Assurance and Performance Assessment, Findings of the Disability Hearings 

Quality Review Process: ALJ Peer Report V, December 2003. That report was based on a peer review of ALJ decisions issued 

from October 2000 through September 2002.

8 SSA, Offi ce of Quality Assurance and Performance Assessment, Dismissal Report, July 2004.

7
Processing times and backlogs

Processing times and backlogs at the hearing level largely refl ect the fl ow of disability 

applications into SSA as shown in Chart 3. There was a large infl ux of disability claims in the 

early 1990s, which subsided later in that decade until claims again began to grow rapidly.

Chart 3 DI and SSI Disability Applications, 1985 - 2005

2.5

SSI

2.0

Millions

DI

1.5

1.0

0.5 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005

Since 2000 the average processing time for SSA cases, almost all of which are disability 

claims, at the hearing level has risen to the highest level ever.

Chart 4 Average Hearing Processing Time, 1985 - 2005

450

400

350

300

250

Days

200

150

100

50

0 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005

In 1976, Congress enacted legislation to facilitate an expansion in the number of ALJs. 

It characterized that legislation as being of an “emergency” nature to address the “tremendous” 

backlog of approximately 105,000 cases, with the objective of eliminating that backlog and 

reducing the average processing time for hearings to 90 days. In 1991 SSA was concerned about 

a 229-day processing time and formed a Strategic Priority Workgroup to deal with the problem. 

Average hearing offi ce time for SSA cases soared in the mid 1990s, as the wave of initial claims 

fi led in the early 1990s made their way through the system. In 1995 when processing time hit 

350 days, SSA launched a Short Term Disability Project. After falling to 274 days in 2000, 

processing times rose to 415 days in 2005. It should be noted that this average includes 

8
dismissals and decisions made on the record without a hearing. The average processing time for 

a claimant who has a hearing and waits for a decision is closer to 500 days.

Waiting times of this length impose an intolerable burden on claimants and are simply 

unacceptable. We must not lose sight of the fact that the hearing process is not about cases or 

folders but about people, many of whom deserve and desperately need the benefi ts for which 

they are waiting. It would be bad enough if only a small percentage of claimants were allowed, 

but that is not the case. In 2005, 72 percent of decisions in SSA hearing cases were in favor of 

the claimant.9 And it would be bad enough if claimants had adequate income while waiting for 

their decision. But for many, this is not likely the case. We do not have good data on incomes 

of claimants awaiting a hearing. But we do have data on incomes of benefi ciaries. A survey in 

2001 found that for 28 percent of DI worker benefi ciaries, their Social Security benefi ts were 

their only income, and for 47 percent of SSI benefi ciaries, their SSI benefi ts were their only 

income. 

The size of the pending workload in hearing offi ces – the hole that SSA has to dig itself 

out of – has followed a pattern similar to that of processing times.

Chart 5 Cases Pending in Hearing Offices at 

End of Fiscal Year, 1985 - 2005

800

700

Thousands

600

500

400

300

200

100

0

1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005

9 There were 519,359 hearing dispositions in 2005, 71,356 of which were dismissals. Of the 448,003 decisions (dispositions 

minus dismissals), 322,283 were favorable to the claimant. As a percentage of decisions (excluding dismissals), favorable 

decisions were 72 percent. As a percentage of all dispositions, favorable decisions were 62 percent.

9
At the end of 1985 there were 107 thousand hearing requests awaiting disposition at 

the hearings level. That number rose gradually through the early 1990s, then more sharply as 

the wave of initial claims fi led in the early 1990s made its way to the hearing level. Pendings 

peaked at 548 thousand in 1995, then declined gradually. The decline in pendings was associated 

with an increase in ALJ staffi ng shown in Table 1. Pendings have climbed steadily since 2000, 

reaching 711 thousand at the end of 2005.

 

 Fiscal 

 Year 

1986 

1987 

1988 

1989 

1990 

1991 

1992 

1993 

1994 

1995 

1996 

1997 

1998 

1999 

2000 

2001 

2002 

2003 

2004 

2005 

Table 1

 ALJs on 

 Duty 

 703 

 666 

 652 

 694 

 696 

 779 

 838 

 814 

 879 

1014 

1024 

1061 

1153 

1090 

1024 

 974 

1082 

1035 

1034 

1096 

Hearings

 Pending 

117,384

148,398

158,892

159,268

172,756

183,471

218,423

357,564

480,102

547,690

503,481

483,712

384,313

311,958

346,756

435,904

500,757

591,562

664,276

711,284

10
SSA projects the number of disability claims received at DDSs for a 10-year period. 

Those projections are shown in the second column of the table that follows. A proportionate 

change in the number of hearing requests would result in the number of hearing requests shown 

in the third column of the table. The table shows the actual fi gures for 2005 and projections for 

2006 through 2016.10

Table 2

Year Initial Hearing

 claims requests

2005 2,551,800 592,343

2006 2,527,500 586,702

2007 2,553,800 592,807

2008 2,535,300 588,513

2009 2,530,000 587,283

2010 2,530,200 587,329

2011 2,537,800 589,093

2012 2,559,500 594,130

2013 2,583,400 599,678

2014 2,608,100 605,412

2015 2,633,600 611,331

2016 2,650,600 615,277

SSA is projecting only a slight growth in the number of initial claims over this period. 

Assuming that hearing requests rise in proportion, they will grow by less than 4 percent by 

2016. The numbers of hearing requests in each year, however, exceed SSA’s goal of processing 

560,000 hearings in 2006 and in 577,000 in 2007. If SSA achieves its 2007 goal and continues 

to process that number of hearings every year through 2016, the size of the backlog will continue 

to grow, reaching nearly 900,000 by the end of the 10-year period.

This growth in backlogs and in the waiting times that would accompany it is not 

inevitable. There are 3 ways to avoid it. One is to increase the resources expended on the 

hearing process. The Commissioner of Social Security prepares a 5-year service delivery 

budget that is updated every year and includes the resources needed to essentially eliminate 

backlogs over the period. The budget that the President submits to Congress has been smaller 

than the service delivery budget, and the amount appropriated by Congress smaller still. As the 

Commissioner recently testifi ed, “[I]n the last several years Congress gave us $720 million less 

than the President requested, which equates to about 9,000 work years. If we had gotten those 

9,000 work years, we would have no backlogs in the hearing offi ces. There would be 400,000 

pending hearings. That amount pending is considered pipeline work just so that there is work 

going on in the process.”11

The second way to reduce backlogs is to reduce the fl ow into the hearing process. SSA’s 

Disability Service Improvement (DSI) initiative includes a new position known as the Federal 

Reviewing Offi cial that we will discuss later in this report. If properly implemented, this 

 10 The fi gures for initial claims are actual fi gures for 2005 and SSA workload projections for 2006 through 2016. The fi gures 

for hearing requests for 2006 through 2016 are calculated by applying the rate of increase in initial claims to the actual number 

of hearing requests in 2005. 11“Social Security Service Delivery Challenges,” Hearing before the Subcommittee on Social Security of the Committee on 

Ways and Means, U.S. House of Representatives, May 11, 2006.

11
position will not eliminate the backlog, but it has the potential to reduce the fl ow of cases. That 

implementation, however, will itself require a commitment of resources.

The third way to reduce backlogs is to increase production levels. SSA’s new electronic 

disability system has the potential to increase production to some extent, but it is not a solution to 

the problem of backlogs. The main savings from the new system at the hearing level will come 

in the form of reduction of time spent on data entry and fi le arrangement and preparation. In 

those offi ces where these functions are causing bottlenecks, the new system will reduce backlogs 

and processing time. In other offi ces, the new system will simply move cases more quickly into 

another queue, where they will wait for available resources.

Productivity

Our concern about backlogs and long processing times should not be taken as a criticism 

of ALJs generally or their support staffs. As we have visited hearing offi ces and spoken with 

many ALJs or their staffs over the past several years, we have been impressed overall by their 

hard work and dedication. Still, as in any group of workers, there are some that are more 

productive than others, and productivity can also be affected by factors such as management 

environment.

+

200

150

100

50

0

 Chart 6 Frequency Distribution of ALJ Decisions,

 SSA Cases, FY 2002 - 2005

2002

 of ALJs

2005

Number

101-150

151-200

201-250

251-300

301-350

351-400

401-450

451-500

501-550

551-600

601-650

651-700

701-750

751-800

801-850

851-900

901-950

951-1000

1000

Number of Decisions

 Chart 6 above shows how many ALJs issued a number of decisions falling within certain 

ranges.12 The population of ALJs in this chart is the same as that in Chart 2, on the distribution 

of allowance rates, namely, the 1,080 ALJs who made more that 100 decisions in 2002 and the 

1,102 ALJs who made more than 100 decisions in 2005. This chart shows, for example, that in 

2002 159 ALJs issued between 351 and 400 decisions, and in 2005, 146 issued between 401 and 

450. The chart shows only the number of decisions and excludes dismissals. 

12In 2002, the 1080 judges with more than 100 decisions decided a total of 388,814 SSA cases. In 2005, the 1102 judges with 

more than 100 decisions decided a total of 442,054 SSA cases. In 2002, there was an average of 360 cases decided per judge 

(standard deviation: 147.5). The median judge decided 350 cases. In 2005, there was an average of 401 cases decided per 

judge (standard deviation 180.4). The median judge decided 383 cases. 

12
The data show that for those ALJs in those years:

• In 2002, the middle 50 percent of ALJs (those between the 25th and 75th percentile) 

issued between 254 and 444 decisions.

• In 2005, the middle 50 percent of ALJs issued between 291 and 478 decisions.

• In 2002, the 10 percent of ALJs with the lowest number of decisions issued fewer 

 than 185.

• In 2005, the 10 percent of ALJs with the lowest number of decisions issued fewer than 

206 

• In 2002, the 10 percent of ALJs with the highest number of decisions issued 537 or 

more.

• In 2005, the 10 percent of ALJs with the highest number of decisions issued 579 or 

more.

• In 2002 the median judge produced 350 decisions.

• In 2005 the median judge produced 383 decisions.

There are several possible reasons for low numbers of decisions by some judges. Some 

judges spent much of their time on Medicare cases, which are not included in the chart, and 

the SSA cases shown on this chart refl ect only a small percentage of their work. Some judges 

produced few cases due to the time they spent on management or union duties or on details or 

other assignments. Some ALJs may not have worked a full year, either because they were new 

or were on leave for extended period because of illness or other reasons or because they left the 

agency during the year.

There are also possible reasons for high numbers of decisions. For example, some ALJs 

have been involved in initiatives to identify cases that can be allowed without a hearing.

We fi nd two things striking about these data. The fi rst is that there are fewer ALJs with 

low production numbers and more with high production numbers in 2005, compared with 2002. 

We congratulate SSA on this increase in production. As mentioned in the discussion of Chart 2, 

however, there is a small positive correlation between production levels and allowance rates. This 

suggests that increased pressures for production may have led to increased allowance rates. If 

this is the case, it would increase long-term program costs. The agency should monitor this issue 

carefully.

The second thing that strikes us about these data is that, even given the possible reasons 

for high and low numbers, the extent of the variation in production seems to indicate a need to 

explore the reasons for it and to take steps to reduce the lower end of the spread and to ensure that 

the upper end is appropriately balanced with decisional quality. SSA should fi nd ways to identify 

and share best practices. 

While we appreciate the strides that SSA has made in increasing production, we also 

recognize that there is a limit to what can be produced with current resources. If the bottom 25 

percent of the ALJs shown in Chart 6 had produced in 2005 at the same rate as the median ALJ, 

which would be a tremendous accomplishment, the total number of cases produced would have 

increased by 46,000, a 10.4 percent increase. But dispositions still would not have exceeded 

receipts. It is not reasonable to expect to reduce backlogs without adding resources, reducing the 

infl ux of hearings, or using technology to increase productivity.

13
In discussing these fi gures on ALJ decisions, we do not mean to imply that only ALJs 

have an impact on the number of decisions. ALJs are only a part, albeit a very important part, 

of the hearing process. They are dependent on others to prepare cases for hearing and to write 

decisions after the hearings. They need staff in those positions in suffi cient quantity and quality.

In fact, many ALJs and management offi cials have told us that their most urgent need is 

support staff rather than additional ALJs. We have heard that the type of support staff needed 

varies from offi ce to offi ce. In some offi ces there is a shortage of case technicians to prepare 

cases for hearing. In others, a lack of decision writers creates a bottleneck. In 2005, the median 

offi ce had between 4 and 4.5 staff members (decision writers, case technicians, and other support 

staff, excluding those designated as management). This is fewer than the peak in 2001 of 5.4 

staff members per judge. Our analysis of the data from 2002 through 2005 shows that, as staffto-judge ratios increase, dispositions per judge also tend to increase and average processing time 

tends to decline.

Hearing offi ce management

A key figure in improving performance in SSA’s hearing offi ces is the Hearing Offi ce 

Chief Administrative Law Judge (HOCALJ). We have met with many HOCALJs who are highly 

motivated and dedicated individuals. However, the existing structure provides few incentives to 

accept this diffi cult position. There is little incentive for them to actively work to improve offi ce 

performance and few tools and supports for those who try to do so.

The HOCALJ is still an ALJ, responsible for holding hearings and making and issuing 

decisions. In addition, according to the position description, the HOCALJ has responsibility 

for the overall management and effectiveness of the hearing offi ce, administrative and 

managerial responsibility for all support staff in the hearing offi ce, and is to provide leadership 

and administrative direction to the ALJs as may be required in the course of general offi ce 

management. The position description lists 2 pages of duties and responsibilities. Among his or 

her more specifi c duties, the HOCALJ is to: provide leadership and guidance to all hearing offi ce 

employees, including ALJs, for the purpose of improving the hearing process and achieving the 

goals and objectives of the agency; provide advice and guidance to ALJs in substantive program 

policy and procedural matters relating to the adjudication of cases under the Social Security Act; 

supervise directly the ALJs, the supervisory staff attorney, and the hearing offi ce director; and 

provide technical and procedural guidance for the expeditious processing of pending cases.

The HOCALJ’s material compensation for taking on these additional duties is, generally, 

nothing. HOCALJs are at the same pay grade as other ALJs. There may be 2 small rewards for 

becoming a HOCALJ. If they are not already at the top step of their pay grade, as many are,13

they receive a 1-step pay increase. And some HOCALJs take the position in order to move to a 

more desirable offi ce.

What HOCALJs do get, in plentiful measure, are the headaches that come with 

responsibility without authority. We have been told that, although the ALJ has managerial 

responsibility for all support staff, in practice there are 2 parallel structures in hearing offi ces, 

with the HOCALJ and ALJs in one, and all other staff in the other. We have heard that directives 

13 Further information on the ALJ pay scale can be found on page 23.

14
from higher levels are sometimes sent to the hearing offi ce director without the HOCALJ even 

knowing about them. The HOCALJ is responsible for the performance of his or her hearing 

offi ce, but HOCALJs are unable to hold ALJs accountable for their performance. A HOCALJ 

told us, “HOCALJs do not have authority to deal with ALJs who do not carry their load. Some 

ALJs feel that they can only prepare 20 to 25 decisions a month. And some ALJs write only 

5 to 10 decisions a month. The HOCALJs do not have the authority to make ALJs write more 

decisions.” HOCALJs have told us that it is too time consuming to document performance 

problems in their offi ces, and, since action is rarely taken further up the line, those who have 

done so become discouraged.

SSA-ALJ relationship

In our 2001 report on the disability process, we noted a need to change SSA’s relationship 

with its ALJs from one of confrontation to cooperation. There is still a need to improve that 

relationship. There is a residue of mistrust that goes back at least as far as the late 1970s, when 

pressures to reduce the number of allowances and increase the number of decisions led to a 

situation that was described as “an agency at war with itself.”14 Since then, many ALJs have 

resented what they saw as the agency’s failure to consult them about changes that have been 

made. Lack of consultation on the Hearing Process Improvement initiative implemented in 2000 

was a major factor lending support to the formation of the ALJ union. We believe that the SSAALJ relationship has improved more recently but still needs attention.

The agency has much to gain from the advice and input of the dedicated professionals 

in the ALJ corps, at the national, regional, and hearing offi ce levels. The ALJ corps, in turn, 

needs to acknowledge the agency’s legitimate desire to ensure that hearing decisions are made 

promptly and consistently. There is an understandable and probably inevitable tension between 

the public’s interest in decisional independence and the public’s interest in consistency and 

effi ciency, but we believe these interests can be reconciled. We urge SSA and its ALJs to work 

together to develop reasonable procedures to reconcile them.

III. Changes Under Way

A. Disability Service Improvement

SSA has begun implementing a set of changes to its disability process that are known 

collectively as Disability Service Improvement (DSI). DSI is being implemented fi rst in SSA’s 

Boston region, which will, in effect, serve as a large-scale pilot of the new process. It will 

eventually be rolled out nationally. Parts of DSI affect the hearings process and have great 

potential to improve the process. We will comment on those changes and on what is needed in 

order for them to be successful. 

Federal Reviewing Offi cial

Under current regulations, as they apply in most states, individuals who are denied 

benefits on the basis of the initial decision by a state Disability Determination Service (DDS) 

may ask for a reconsideration of that decision. That reconsideration is carried out by different 

14Social Security Administrative Law Judges: Survey and Issue Paper, Ways and Means Committee Print 96-2, p. 3.

15
decision makers in the same state DDS. In recent years, about 15 percent of reconsidered claims 

have been allowed. DSI eliminates this DDS reconsideration step and instead provides that 

appeals from initial DDS-level denials would be handled by an attorney known as a Federal 

Reviewing Offi cial (FedRO).

The elimination of DDS-level reconsideration and the establishment of a FedRO are 

changes which provide an opportunity to address several longstanding issues with the disability 

adjudication process. However, it is crucial that this position be implemented properly and 

with adequate resources, as it otherwise has a potential to become yet another bottleneck in the 

process. 

In August 1998, in one of our earliest reports on the disability program, we noted that the 

administrative structures of Social Security’s disability programs are fragmented in a way that 

makes consistent and equitable decision making diffi cult to achieve. Initial decisions are made 

by over 50 DDSs administered by the states, the District of Columbia, and other jurisdictions, 

that also conduct reconsiderations. The FedRO position is an opportunity to have the fi rst level 

of appeal handled by federally trained and supervised individuals who can ensure that agency 

policies are applied uniformly to all claimants. 

DSI also requires ALJs’ decisions to explain in detail why the ALJ agrees or disagrees 

with the substantive fi ndings and overall rationale of the FedRO’s decision. Some observers 

have seen this requirement as undermining the de novo nature of the ALJ decision and 

challenging the ALJ’s independence. We understand this concern, but we do not think that a 

requirement to explain the reasons for agreement or disagreement with a prior decision in any 

way prevents independent decision making. In our studies of the disability program over the 

years, we have found a widespread and corrosive belief at each level of review that other levels 

are applying agency policy differently and inappropriately. Having each decision maker explain 

the reasons for agreement or disagreement with prior decisions should provide the agency the 

information needed to determine whether these beliefs are accurate and, if they are, to undertake 

the necessary training, policy clarifi cation, or other measures needed to remedy the situation. 

It is essential to provide useful feedback if the overall process is ever to improve. The ALJ 

decision will provide that feedback to the FedRO only if it explains why it agrees or disagrees 

with the FedRO’s fi ndings and rationale.

If the FedRO position is ultimately successful, it should become the fi nal decision point 

for the great majority of cases which are appealed from the initial DDS level. If the FedRO can 

stem the tide of cases fl owing into the hearing level, SSA will have a chance to reduce its hearing 

backlogs and reduce the time that claimants have to wait for a hearing decision. For those 

claimants who continue to the hearing process, the FedRO’s work should also be able to ensure 

that cases appealed further are essentially hearing ready. That result will be achieved only if the 

FedROs are both well trained in agency disability policy and well grounded in what is necessary 

to ensure that the case fi le and decisions will be legally suffi cient, and if they have suffi cient time 

and resources to do a complete job.

Decision Review Board

DSI eliminates the Appeals Council and establishes a Decision Review Board (DRB). 

Although these entities are superfi cially similar, this is a major change in the adjudicative 

structure. The Appeals Council functions primarily as the fi nal step in the administrative 16
appeals process. In 2005, it received over 89,000 requests for review, allowed about 2,500, and 

remanded about 25,000. Under DSI, claimants who are not satisfi ed with an ALJ decision would 

not have the right to request review by the new DRB except in very limited circumstances. The 

DRB will primarily review cases (both allowances and denials) that are selected for review 

on the basis of a profi le of error-prone cases or that involve such issues as new or problematic 

policies. The DRB will be composed of ALJs and Appeals Judges. Because of their case review 

function, they will be in a good position to identify areas where unclear or misunderstood policy 

may be contributing to inconsistencies. Precedential decisions could be an important tool in 

increasing consistency. SSA should consider using the DRB to identify cases that clarify the 

correct handling of diffi cult issues and refer them to the new Disability Policy Council, which 

could issue them as precedential decisions.

We have long recommended the need to rethink the role of the Appeals Council, which 

seems to add little value relative to the resources it consumes. If these resources are applied 

to making improvements in the process at earlier stages and contribute to a better system for 

identifying and resolving policy issues at all levels, the result could and should be one in which 

the need for further review beyond the ALJ hearing level is substantially reduced. 

Some observers have expressed concern that eliminating the Appeals Council will 

result in a flood of Social Security cases coming into Federal courts. In our earlier reports on 

the disability program, we have urged consideration of a separate Social Security court that 

could provide more expeditious review of disability appeals, eliminate the impact of such cases 

on the District Court workloads, and produce more uniform application of disability policy 

throughout the Nation. This remains an avenue that should be considered, particularly if the new 

adjudication process does not result in a decreased incidence of appeals beyond the hearing level. 

Performance expectations

Part of piloting the new FedRO position in the Boston region will be establishing 

performance expectations for that position and adjusting performance expectations for ALJs. It 

is imperative that SSA demonstrate that it is serious about service delivery at all levels of the 

organization. 

The FedRO’s duties are comprised of case review, some development of the record and 

consultation with an expert, and then writing a decision. It appears that this is not that different 

from the current reconsideration process, apart from the requirement to write a more detailed 

decision rationale. On average, DDSs adjudicated reconsideration claims in 68 days in FY 2005. 

We believe that the primary responsibility of the FedRO position should be to ensure that the 

case is fully developed, and SSA should ensure that the FedROs have the necessary resources 

to do this. Thus, it would seem reasonable to expect that the FedRO may take a little longer to 

process cases than was true in the DDS. Target and threshold performance goals for the FedRO 

should be established and tested, along with quality standards that include accuracy, cost per 

case, and remand rates. 

Implementing the FedRO position and phasing out the Appeals Council naturally impact 

the ALJ position. Some experts have expressed to the Board a concern that under DSI it may 

be even more diffi cult to receive a timely hearing decision. Their concern is that because 

ALJ decisions will be directly reviewed by the district court, it is quite possible that SSA will 

experience the unintended consequence of the ALJs issuing more detailed but fewer decisions. 

17
SSA should monitor its implementation of DSI carefully to ensure that this does not happen.

While it is important to ensure that claimants receive a hearing decision that represents 

the ALJ’s independent best judgment as to how agency policy applies to the particular facts of 

the case, it is also a claimant’s right to get a hearing decision within a reasonable time. SSA 

needs to use the implementation of DSI as an opportunity for re-crafting how work is done 

in the appeals process and to develop standards and clearer roles and responsibilities. If the 

FedRO position is responsible for developing the record, clarifying and/or narrowing the 

issues, and facilitating the hearings process, then the scope of work that is left to the ALJ can be 

refi ned. The ALJ would receive a properly and completely developed case and could generally 

be seen to have fulfi lled the duty to ensure that the record is fully developed. The ALJ could 

then concentrate more fully on writing decisions that may be produced much more timely. In 

its implementation of DSI, SSA should measure carefully the extent to which ALJ duties and 

the time required for them changes. Many of the problems within the current process can, we 

believe, be traced back to a lack of accountability and to insuffi cient institutional measures to 

ensure timely and effi cient customer service.

Eventually, SSA intends to screen ALJ decisions, using predictive screening tools and 

individual case record reviews to identify cases for referral to the DRB. The caseload will be 

comprised of favorable and unfavorable ALJ decisions that are likely to be error prone. During 

the initial implementation in the Boston region, the DRB will review all ALJ decisions. We 

caution that SSA should remember the lessons learned from prior unchecked growth in the 

Appeals Council workload. Without performance goals, there is a substantial danger that DRB 

backlogs will grow and caseloads will not be well managed. 

The DSI regulations state that, if a claim is selected for DRB review, the notice of that 

selection will be furnished to the claimant at the same time that that ALJ’s decision is released. 

The DRB has 90 days to review the ALJ’s decision and if it fails to complete the review, the 

ALJ’s decision will become fi nal. (The Appeals Council currently has 60 days to fi nish its 

review of own-motion cases.)15 While this establishes an outside limit, it does not really speak 

to a standard of acceptable performance, which presumably should be much shorter. Since these 

are pre-effectuation reviews, an allowance decision could be delayed up to another 90 days. 

Standards should be established to ensure that a 3-month delay is the exception, not the norm. 

Otherwise, it is highly likely that the processing time savings that are being culled from other 

parts of the adjudication process may be spent in this new review process.

Feedback and learning

One of the systemic problems in the current system is the lack of feedback between levels 

of adjudication. DSI provides for such feedback, although the specifi c mechanisms for that 

feedback have not yet been designed. A copy of FedRO decisions will be sent to the DDS that 

made the initial determination. A copy of the ALJ decision will be sent to the FedRO that made 

a decision in the case. And DRB decisions that disagree with ALJ decisions will be sent to the 

ALJ that issued the decision.

15For this own-motion review, SSA’s quality assurance component reviews a sample of hearing allowances, based on a profi le 

of error-prone cases. It forwards to the Appeals Council those in which it disagrees with the hearing decision. If, after review, 

the Appeals Council agrees with the quality assurance assessment, it can reverse the decision or remand the case to the hearing 

offi ce.

18
Such feedback is essential to organizational learning, but it does not guarantee it. It 

provides a useful tool to improve quality and consistency, but it does not automatically effect 

those improvements. All levels of the disability adjudication process will need to develop 

methods and practices for absorbing and digesting that feedback. Feedback will have to be 

analyzed and used as a basis for management and training decisions and for ongoing review of 

how well adjudication practice is aligned with policy. This will take time and resources, but the 

potential for improving the process will make it time well invested.

Keys to successful implementation

DSI represents a response to a dysfunctional adjudication system that, despite the best 

intentions and hard work of thousands of Federal and state employees, exhibits unexplained 

inconsistency, has huge backlogs, and subjects many claimants to intolerable delays in reaching a 

fi nal decision on their claims and appeals. The Board is generally supportive of the approach to 

restructuring that system refl ected in DSI. However, we are concerned that merely changing the 

steps in the process will not in itself make a substantial difference. Even if, in the long run, the 

new process combined with the move to far greater use of electronic systems has the potential to 

reduce the need for resources, growing caseloads may offset much of any such savings. In the 

near term, moreover, the agency will have the daunting task of implementing a new adjudication 

system while continuing to operate an existing system that is nearly overwhelmed by its huge 

caseload and backlogs. The agency must seek and the Congress must provide adequate resources 

to meet the needs of both the evolving and existing systems, or the new system will not provide 

the results that are expected of it.

Beyond fi nancial resources, however, the success or failure of the new adjudication 

structure will depend on how well the implementation is managed. 

It is essential that good workload data and other management information be collected as 

the new processes are rolled out and that the information be used internally and made available 

publicly so that the new procedures can be carefully evaluated on an ongoing basis. In our 

discussions with interested parties, we found widely divergent viewpoints as to whether some of 

the past experiments with changed processes had succeeded or failed. Unfortunately, the agency 

had not produced the data and evaluations that would help to resolve those questions. 

SSA should also refi ne and use the data it collects at earlier levels in the adjudication 

process to work more effectively at the hearing level. Such data could help identify types of 

cases that might be handled more expeditiously. For example, state agencies deny some claims 

because the impairment is not expected to last 12 months or more. By the time these cases reach 

the hearing level, the duration of the disability can be determined more easily. SSA could also 

look into refi ning its coding system at the state agency level to enable it to look for combinations 

of case characteristics that could indicate a greater likelihood of allowance.

Caution should be taken, however, in identifying cases that might be allowed quickly. 

Given the pressures of current backlogs, there might be too great a tendency to allow cases 

without a careful consideration of all factors. For the same reason, bench decisions, which can 

save processing time, should be monitored carefully.

In our 2001 report, Agenda for Social Security, we pointed out that the Social Security 

Administration has a strong institutional resistance to open discussion of the agency’s 

19
problems. In implementing the new regulations, the agency must encourage prompt, frank, 

and open communication among all levels of the agency of problems that are encountered. 

The implementation of such signifi cant changes to the complex SSA adjudication process will 

undoubtedly reveal a number of areas where adjustments need to be made. Those issues need 

to be identifi ed and seriously considered. As necessary, midcourse corrections will have to be 

made. In undertaking changes of this magnitude, thorough, open, and honest communications 

are crucial. 

Successful implementation will also require that SSA management not only listen to but 

actively address problems that are brought to their attention by sources within and outside the 

agency. We have repeatedly heard allegations that agency management has not been supportive 

of measures that might have lessened some of the problems the regulations seek to remedy. 

For example, we heard that ALJs feel that the agency discourages the use of subpoenas even 

though some judges fi nd them to be an effective tool to overcome recalcitrance on the part of 

some providers. We heard that the agency is reluctant to require hearing offi ces to adopt best 

practices such as making claims fi les available for copying by representatives while they are 

awaiting assignment even though that seems to help address the problem of late submission of 

evidence. We also heard that ALJs believe that efforts to sanction representatives who do not 

properly carry out their responsibilities to claimants have often not been supported by higher 

management. Whether or not these particular allegations are correct, it does seem that there is 

fairly widespread perception that the management of the agency is not doing all that it can to 

provide the leadership and support that is needed to make the current system work better. 

B. Use of technology

Electronic disability system

SSA’s electronic disability (eDib) system promises to improve the productivity of the 

hearing process. By eventually eliminating paper folders and replacing them with electronic 

folders, eDib will reduce the time it takes to obtain information, eliminate the time it now takes 

to fi nd and ship and store paper folders, eliminate the need to associate mail with paper folders, 

eliminate much of the work involved in preparing folders for hearings, simplify the scheduling of 

hearings, reduce photocopying, and automate the mailing of decisions.

The new system should make hearing offi ces more productive and reduce processing 

times. In many offi ces, the preparation of cases for hearing is a major bottleneck. Those offi ces 

could hold more hearings if more case fi les were prepared for hearing. By eliminating much of 

the time required to prepare case fi les, those offi ces will be able to hold more hearings and issue 

more decisions.

The work that is eliminated by eDib means that SSA may have the opportunity to 

redeploy some of the staff that has been doing that work, once backlogs are under control. In 

doing so, it should take into consideration staffi ng needs in all parts of SSA, not just in the 

hearing offi ces. It should also bear in mind the lessons from the unsuccessful Hearing Process 

Improvement (HPI) initiative that began in 2000. As part of HPI implementation, a number of 

employees were promoted to positions for which they were not adequately trained and which 

they were not able to perform well. Putting employees into positions in which they cannot 

succeed serves well neither the employees nor the agency. Any redeployments of personnel 

20
should consider the knowledge and skill requirements of the positions and provide what is 

needed to perform the positions successfully.

Video teleconference hearings

Video teleconferencing (VTC) also holds great promise for improving the productivity 

of the hearing process. SSA has made great strides in the use of VTC technology in the last few 

years. We encourage it to go even further. SSA reports conducting over 8,000 video hearings 

in 2004 and 25,000 in 2005. If VTC hearings continue at the rate they were conducted through 

May 2006, the last date for which we have data, it will conduct nearly 40,000 in 2006. This is 

excellent progress, but current regulations impede future progress.

In 2003, SSA issued regulations providing that ALJs could schedule hearings at which 

claimants would appear by video teleconference rather than in person. If claimants objected to 

the use of that technology, however, the regulations provided that SSA would reschedule an inperson hearing. We do not believe that provision is necessary.

Hearings have traditionally been held with all participants (claimants and any other 

parties, the ALJ, any representatives, witnesses, translators, or anyone else that the ALJ considers 

necessary) at the same location, either a hearing offi ce or a remote hearing site. Remote hearing 

sites, generally at least 75 miles from a hearing offi ce, are used to accommodate individuals 

who do not live near a hearing offi ce. At the time SSA issued its regulations, about 40 percent 

of hearings were held at remote sites. The time and other resources that ALJs spend traveling to 

remote sites could be used in more productive ways.

Based on earlier experience in Iowa, SSA stated in 2003 that VTC hearings resulted in 

claimant satisfaction, savings in ALJ travel time, faster case processing, and a higher ratio of 

hearings held to hearings scheduled. SSA’s 2003 regulations pledged that SSA would ensure 

that: the individual’s access to the hearing record would be the same when appearing by VTC as 

it would if appearing in person; additional evidence could be transmitted and received between 

all locations and all participants; an assistant would be present at the VTC site to operate the 

equipment and provide any other needed help; and the audio and video transmission would be 

secure and the individual’s privacy protected.

The comments we have heard on the use of VTC hearings have been overwhelmingly 

positive. We can understand that some claimants may be reluctant to adapt to an unfamiliar 

technology, but we see no reason not to require the use of VTC hearings whenever they can 

be scheduled. The technology obviously meets the requirements of due process, and it is in 

widespread use in other types of adjudications. Allowing claimants to veto its use in their cases 

reduces the productivity of the hearing process. It does not affect only their case but delays the 

decisions for others who are waiting for a hearing.

In issuing its regulations in 2003, SSA said that, based on its experience as of that time, 

it believed that VTC did not change adjudicative quality or change decisional outcomes. We 

recommend that it analyze its experience since that time and, if it continues to be positive, issue 

regulations requiring the use of VTC hearings wherever available.

21
Decision writing software

We have heard very positive reactions to the new Findings Integrated Template (FIT) 

software that integrates fi ndings of fact into the body of ALJ decisions. FIT seems to provide 

a structured and analytical format that lends itself to ALJs’ thought patterns. The vision of the 

project is to provide a template for every category of decision. The software provides prompts 

to guide the writer through the analysis. By providing an analytical framework to ensure that all 

relevant issues are addressed, FIT should improve the quality of decisions and reduce the number 

of remands.

FIT started as a grassroots project, one of those initiatives that somehow manage to 

bubble up through a bureaucracy. It is a good example of the creativity in SSA’s workforce and 

of the type of initiative that should be encouraged.

IV. Further Actions Needed

Selection process for ALJs

The Offi ce of Personnel Management administers the government-wide selection process 

for ALJs. ALJs are employed at 29 Cabinet-level and independent agencies. As of December 

2005, 1,429 ALJs were employed by the Federal government, of whom 1,176, or 82 percent of 

the total, worked for SSA. ALJs are selected from an OPM roster of qualifi ed candidates based 

on passing a competitive test and evaluation of legal experience and judicial capability and 

temperament. OPM currently sends SSA 3 to 5 qualifi ed candidates for each opening. Agencies 

hiring ALJs reimburse OPM for its cost of administering the selection process.

The work that SSA ALJs do in making decisions on claims for benefi ts can be 

distinguished from that done by ALJs at regulatory agencies, such as the Securities and Exchange 

Commission or the Federal Communications Commission. SSA ALJs handle many more cases 

and make many more decisions than those in regulatory agencies. They therefore have different 

skill requirements that should be refl ected in a separate selection roster for ALJs who make 

individual benefi t decisions. Not everyone on the current register meets those skill requirements. 

As a HOCALJ told us, “A diffi cult thing about hiring new ALJs is fi nding ones who are not 

shocked about processing 60 cases a month.” Demonstrated ability to manage a large docket 

should be a selection factor for the position.

OPM has resisted suggestions to establish specifi c qualifi cations for different types of 

ALJs, from a belief that qualifi ed candidates should be able to quickly learn specifi c agencyrelated subject matter. OPM also argues that it is in the government’s interest to have a mobile 

workforce of ALJs. It is not a question of subject matter, however, but of skill and ability to 

perform work in a different manner. In view of the fact that SSA employs more than 4 out of 5 

ALJs and pays most of the costs of the selection process, the statute should be changed to enable 

SSA to conduct its own selection process to meet its unique needs. SSA should use data on 

quality and quantity of decisions of current SSA ALJs to identify characteristics of judges with 

high quality and quantity and develop a selection process that uses those characteristics.

As an alternative, OPM could continue to maintain a single register of qualifi ed 

candidates but provide SSA with a greatly expanded certifi cate of qualifi ed candidates, together 

22
with supplementary information on the candidates’ demonstrated ability to manage a large docket 

that SSA could use in making selections. It has been argued that the intent of the Administrative 

Procedure Act in 1946 was to have the Civil Service Commission (since succeeded by OPM) 

establish qualifying requirements and have the agencies select from among all applicants meeting 

those requirements. 16

ALJ pay issues

ALJs are paid 1 of 3 levels of basic pay, designated AL-1, AL-2, and AL-3. Within AL-3 

there are 6 rates of basic pay, designated A through F. With the approval of OPM, agencies may 

establish positions at AL-1 and AL-2 when they involve signifi cant administrative and managerial 

responsibilities. At SSA the Chief Administrative Law Judge is paid at AL-1. The Deputy Chief 

ALJ and the Regional Chief ALJs are paid at AL-2. Line ALJs and HOCALJs are paid at AL-3. 

An ALJ who begins service at AL-3/A (ALJs may begin at a higher rate because of prior service 

or superior qualifi cations) automatically advances to rates B, C, and D of AL-3 upon completion 

of 52 weeks of service in the next lower rate, and to rates E and F upon completion of 104 weeks 

of service in the next lower rate. An ALJ would therefore progress from AL-3/A to AL-3/F in 7 

years. As of September 2005, 72 percent of all ALJs were at AL-3/F.

An agency may, on a 1-time basis, with the approval of OPM, advance an ALJ 1 rate 

within AL-3 upon taking a position with added administrative and managerial duties and 

responsibilities, such as that of HOCALJ.

Rates of Pay for Administrative Law

Judge Positions

Effective January 2006

AL-1 $152,000

AL-2 $152,000

AL-3/F $148,526 to $152,000

AL-3/E $140,425 to $152,000

AL-3/D $132,098 to $151,070

AL-3/C $123,885 to $141,677

AL-3/B $115,588 to $132,154

AL-3/A $107,457 to $122,889

 

 

 

 

 

 

 

 

Like most Federal employees, ALJs receive locality pay, which accounts for the ranges in 

the table above, in addition to their base pay. The combined base pay and locality pay of an ALJ 

is capped by statute at Executive Level III ($152,000). Because ALJs quickly reach their pay 

ceiling, with the addition of locality pay, about 43 percent of ALJs government-wide are currently 

paid at the capped rate.

OPM reports that it has seen no evidence that this pay compression has resulted in 

signifi cant recruitment or retention problems. We have been informed that OPM would be 

interested, however, in applying pay for performance to the ALJ position, which would raise the 

16 See Antonin Scalia, “The ALJ Fiasco – A Reprise,” 47 University of Chicago Law Review, 57 (1980). Scalia wrote that 

the system of “hiring ‘by the numbers’ into an effectively life-tenured job . . . is a horror story of personnel management which 

should come to an end.”

23
pay ceiling and result in higher pay for at least some ALJs. The possibility of pay for 

performance should be carefully explored, with due care for the need to provide adequate 

protections for decisional independence.

Whatever is done for overall ALJ pay, some additional incentive is needed to recruit and 

retain HOCALJs in SSA. We recommend a revision to the pay scale to add a percentage to be 

specifi ed to the pay of an AL-3 HOCALJ, in recognition of the additional duties of that job. AL1 and AL-2 pay rates also need to be adjusted to ensure the availability of the best candidates for 

Chief ALJ and Regional Chief ALJ positions.

Management structure and roles

The new structure of the Office of Disability Adjudication and Review (ODAR) shows 

promise for improving the hearing process. ODAR is that part of SSA that is responsible for the 

FedRO process, the hearing process, the Appeals Council, and the Disability Review Board. In 

the new structure, the Chief ALJ now reports directly to the Deputy Commissioner for Disability 

Adjudication and Review, instead of reporting, as previously, to an associate commissioner who 

in turn reported to a deputy commissioner. One of the Chief ALJ’s major duties is maintaining 

effective channels of communication between the deputy commissioner and the RCALJs and the 

ALJ corps. Elevating the Chief ALJ position shortens that chain of reporting and should enhance 

communication.

We are also encouraged that the new ODAR structure includes a Division of Planning and 

Evaluation that is charged with conducting a comprehensive ODAR-wide program of studies and 

analysis of the application of and compliance with SSA and ODAR policies and procedures in 

all phases of its processes and the quality of results achieved. Implementing a national program 

requires compliance with national policies and procedures, and compliance will not be achieved 

without regular, data-driven scrutiny of operations.

In terms of local management structure, a de facto dual management structure of the 

hearing process results in confusion and lack of accountability. As an RCALJ told us, “While 

technically the HOD [Hearing Offi ce Director] reports to the HOCALJ, in practice the 2 

structures are parallel.” Lack of clarity about lines of authority dilutes accountability and breeds 

confusion among employees. Lines of authority need to be simplifi ed and roles need to be 

clarifi ed at the hearing offi ce level.

The HOCALJ position is challenging. The HOCALJ is not only a manager but also a 

working ALJ, often among the most productive ALJs. Management is an important function, 

and to the extent that workloads allow, HOCALJs should be encouraged to reduce the number of 

hearings they conduct in order to allow time to perform their management role. The position is 

of critical importance in the hearing process, the linchpin between higher management and those 

who directly serve the public. No matter how well the overall process is structured, the work 

will not be done well unless the HOCALJ does his or her job well.

The agency, therefore, needs to provide HOCALJs with the tools and supports they need 

to do their job well. One of those supports is training. Many HOCALJs come to the job with 

little previous management experience. The 1-week course that they are currently offered seems 

inadequate. It is also given infrequently (just once in FY 2006), so that a new HOCALJ might 

not be trained for months. An RCALJ told us, “Too often, a manager will run up against union 

24
problems and decide to leave the HOCALJ position since they were not properly prepared for 

how to deal with such situations.” New HOCALJs should be provided with self-instructional 

materials on labor management relations and other nuts and bolts subjects that they are likely to 

need before they can get to formal training. They should also be given information on types of 

support that are available from regional and national staffs, whom they can call and when to call. 

New HOCALJs also need broader training on their new role, including training on leadership 

theories and practices, teambuilding, and interpersonal communication. HOCALJs should also 

be brought together regularly, on either a regional or a national basis, for refresher training and to 

exchange ideas, information, and best practices. Perhaps most importantly, they need to operate 

in an environment that encourages and supports their efforts to implement effective management 

of their offi ces.

In addition to the revision of the pay scale recommended above, there are some other, 

non-pay, incentives that could make the HOCALJ position more attractive. In view of the 

demands of the job, HOCALJs could be authorized to carry over from year to year annual leave 

in excess of the standard maximum of 240 hours. HOCALJs should also be given preference 

for attending agency-paid training at the National Judicial College, the OPM Management 

Development Centers, or other appropriate management training.

There also seems to be a lack of clarity about the role of the ALJ. We have heard that 

some ALJs do not follow some Social Security regulations in making their decisions, and the 

lack of consistency in decisions noted above lends credence to these reports. The problem seems 

to be more than a few scattered individuals. For example, an ALJ told us, “Often ALJs are 

trained well on the Social Security regulations at their initial training, only to go to the hearing 

offi ce and be told that the offi ce doesn’t do things that way. ALJs go to these hearing offi ces that 

have a bad culture and are beaten down.” Another ALJ told us, “Local practices often create a 

lot of problems when they don’t follow the regulations.”

ALJs are employees of SSA, not Article III judges. The Social Security Act gives the 

Commissioner authority to adjudicate claims in order to determine entitlement and eligibility for 

benefi ts. The ALJ’s authority derives from that authority given to the Commissioner; the ALJ 

makes decisions on behalf of the Commissioner. The ALJ, therefore, is to apply the agency’s 

policies as laid out in rules, regulations, and other policy statements. That role should be made 

clear to prospective ALJs before they are hired.

Increased accountability

SSA’s implementation of multilevel appraisal systems for its managers and for employees 

under its contract with the American Federation of Government Employees is a step in the right 

direction. It should be expanded to all parts of the hearing process. Appraisals should, to the 

extent possible, be based on quantifi able performance data, including both quality and quantity 

of work performed.

Unlike almost all other Federal executive branch employees, ALJs are excluded from 

the civil service performance appraisal system. They are also exempt from the standard 

requirement that new competitive service employees serve a probationary period and may not 

receive monetary or other awards. The reason for these exemptions is to protect the interests of 

claimants and the public by insulating ALJs from any agency pressures that might infl uence their 

decisions. On the other hand, the agency should be expected, in the interests of claimants and 

25
the public, to manage the hearing process to ensure that it is consistent and effi cient.

We believe it is possible, with an appropriate statutory change, to reconcile the interests 

of the public to both an independent decision and to a process that is consistent and effi cient.17 

The Chief ALJ would be charged with developing case processing guidelines, working with the 

ALJ union, agency managers, and others. These guidelines would address goals for production 

and time goals for steps in the hearing process. The Chief ALJ would delegate the duty of 

conducting regular (at least annual, preferably more frequent) performance reviews based on 

these guidelines. Other elements of these reviews would include judicial comportment and 

demeanor, as well as adherence to law, regulation, and binding agency policy. The reviews need 

not involve a numerical rating or ranking but should provide useful feedback on performance. 

The Chief ALJ would also be responsible for developing training and counseling programs to 

deal with performance problems identifi ed in the performance reviews and to issue reprimands or 

recommend disciplinary action as appropriate.

To protect against any interference with their qualified decisional independence, the 

agency should establish a system to investigate allegations from ALJs of such interference 

and to take appropriate action. OPM would have oversight responsibility for this activity and 

could review the agency’s response to allegations and recommend further action. ALJs would 

also continue to have the other protections for decisional independence that are provided by 

statute: the fact that their pay is set in accordance with OPM guidelines and that the agency must 

establish good cause, after providing an ALJ with an opportunity for a hearing before the Merit 

Systems Protection Board, before taking any adverse action against an ALJ.

We recognize that this recommendation is controversial, but we think it should be 

pursued. For the present, in the absence of such a performance appraisal system, the agency 

still has the responsibility to use the tools currently available to it to see to it that the public has 

a hearing process that is fair, consistent, and effi cient. The HOCALJ has the primary day-to-day 

responsibility for carrying this out. As we stated above, among his or her more specifi c duties, 

the HOCALJ is to: provide leadership and guidance to all hearing offi ce employees, including 

ALJs, for the purpose of improving the hearing process and achieving the goals and objectives of 

the agency; provide advice and guidance to ALJs in substantive program policy and procedural 

matters relating to the adjudication of cases under the Social Security Act; supervise directly the 

ALJs, the supervisory staff attorney, and the hearing offi ce director; and provide technical and 

procedural guidance for the expeditious processing of pending cases.

To accomplish these duties, the HOCALJ needs to monitor the management information 

available and provide those in the hearing offi ce the information they need to monitor their own 

work. All hearing offi ce staff should regularly be provided with data that allow them to compare 

their own performance with that of all those in the same position in their own offi ce and with 

17The following discussion follows a recommendation of the Administrative Conference of the United States, which can befound 

at http://www.law.fsu.edu/library/admin/acus/305927.html.

26
other offi ces in the region and the nation.18 HOCALJs should also do post-decisional reviews 

of samples of cases and discuss the results with ALJs to provide helpful feedback. Hearing 

offi ces should use the feedback they receive from later parts of the process to improve their 

performance, and HOCALJs should ensure that performance is monitored to ensure adherence to 

agency policy.

In dealing with performance problems, managers should ensure that employees have the 

knowledge and skills required to perform at expected levels. Training should be made available 

to meet identifi ed performance needs; time should be made available for it; and employees who 

need it should be required to take it. Performance problems that continue should be dealt with by 

progressive disciplinary measures.

It is important to balance the public’s interest in effi ciency with its interest in consistency 

and fairness. Pressures for quantity of production can result in declines in quality. For that 

reason, reasonable production standards that address both quality and quantity should be 

developed for all aspects of the hearing process, with the input of employees involved and of 

their representatives.

Training

In any service delivery organization, the knowledge and skills of its employees are 

essential to good performance. Since ALJs are a key position in the hearing process, it is 

essential that they have the knowledge and skills they need. New ALJs currently are assigned to 

a hearing offi ce, where they go through some assigned activities with a mentor before going to 

training. The training class lasts 4 weeks and is followed by additional activities in the hearing 

offi ce with the mentor. About a year after their initial class, they are brought back together for 

an additional week of training. Some judges also get 3 additional days of docket management 

training at some later point in their career.

The training that ALJs receive is probably enough to get them started on the job, but we 

believe they need additional skill development and ongoing professional development. We have 

been told that it takes about 9 months for a new ALJ to get up to speed. Some additional skill 

training may help shorten the learning curve. While the OPM selection process ensures that 

new ALJs are experienced attorneys, it does not ensure that they have all the skills they need 

to be effi cient judges. They probably have experience in analyzing and presenting cases, and 

the selection process ensures that they can write a decision. But it is not likely that they have 

experience managing a large docket of cases. At least for most new ALJs, it would be helpful 

to receive training on docket management during their fi rst few months on the job. Docket 

management training is now given only to some judges and only later in their career. This 

training is given as budget allows to classes of about 30 ALJs, and in fi scal year 2006 only 2 

classes were conducted.

18While we do not recommend making performance information public, there is precedent for doing so in the judicial branch. 

The Administrative Offi ce of the United States Courts publishes twice a year a report showing, by U.S. district judge and 

magistrate judge, the number of motions pending, bench traials that have remained undecided, and civil cases pending more 

than a specifi ed time.

27
Continuing professional development is also important. The subject matter that ALJs 

deal with is complex, and even experienced ALJs can and should continue to learn. SSA does 

some such continuing training. Some training is prepared in response to needs identifi ed by peer 

reviews and other types of feedback, some in response to changes in systems and procedures. 

Attendance at some training is compulsory.

One SSA offi cial with whom we discussed continuing professional development replied, 

“A lot of interactive video training is available; there is a lot of training out there.” It is good to 

put it out there, but we do not believe it is used as it should be. ALJs should develop an annual 

training plan, to be approved by their HOCALJ. The ALJ should commit to taking training of 

a specifi ed type, and local management should commit to seeing to it that training is not just 

available, but used.

Training is also important for other positions in the hearing process. There is an 

established national program of classroom training for HOCALJs, decision writers, hearing 

offi ce directors, group supervisors, legal assistants, and case intake specialists. We understand 

the diffi culties of logistics and budget involved in delivering classroom training. Ideally, such 

training should be delivered as soon as possible after an employee begins a new job. When that 

is not possible, other types of training, job aids, mentoring, and supports should be in place to 

enable employees to perform at an adequate level.

Abbreviations used in this report

AC Appeals Council 

ALJ Administrative Law Judge

DDS Disability Determination Services

DRB Decision Review Board

DSI Disability Service Improvement

eDib Electronic Disability

FedRO Federal Reviewing Offi cial

FIT Findings Integrated Template

HOCALJ Hearing Offi ce Chief Administrative Law Judge

HPI Hearing Process Improvement

ODAR Offi ce of Disability Adjudication and Review

OPM Offi ce of Personnel Management

SSA Social Security Administration

SSR Social Security Ruling

VTC Video teleconferencing

28
Social Security Advisory Board

Establishment of the Board 

In 1994, when the Congress passed legislation establishing the Social Security 

Administration as an independent agency, it also created a 7-member bipartisan Advisory 

Board to advise the President, the Congress, and the Commissioner of Social Security on 

matters relating to the Social Security and Supplemental Security Income (SSI) programs. 

The conference report on the legislation passed both Houses of Congress without opposition. 

President Clinton signed the Social Security Independence and Program Improvements Act of 

1994 into law on August 15, 1994 (P.L. 103-296). 

Advisory Board members are appointed to 6-year terms, made up as follows: 3 appointed 

by the President (no more than 2 from the same political party); and 2 each (no more than 1 from 

the same political party) by the Speaker of the House (in consultation with the Chairman and 

the Ranking Minority Member of the Committee on Ways and Means) and by the President pro 

tempore of the Senate (in consultation with the Chairman and Ranking Minority Member of the 

Committee on Finance). Presidential appointees are subject to Senate confi rmation. 

Board members serve staggered terms. The statute provides that the initial members of 

the Board serve terms that expire over the course of the fi rst 6-year period. The Board currently 

has 2 vacancies. The Chairman of the Board is appointed by the President for a 4-year term, 

coincident with the term of the President, or until the designation of a successor.

The Chairman of the Board is appointed by the President for a 4-year term, coincident 

with the term of the President, or until the designation of a successor.

Hal Daub, Chairman

Hal Daub is currently a partner in the law fi rm of Blackwell Sanders Peper Martin in 

Omaha, Nebraska and Washington, D.C. Previously, he was President and Chief Executive 

Offi cer of the American Health Care Association and the National Center for Assisted Living. 

He served as Mayor of Omaha, Nebraska from 1995 to 2001, and was an attorney, principal, 

and international trade specialist with the accounting fi rm of Deloitte & Touche from 1989 to 

1994. Mr. Daub was elected to the U.S. Congress in 1980, and reelected in 1982, 1984, and 

1986. While there he served on the House Ways and Means Committee, the Public Works 

and Transportation Committee, and the Small Business Committee. In 1992, Mr. Daub was 

appointed by President George H.W. Bush to the National Advisory Council on the Public 

Service. From 1997 to 1999, he served on the Board of Directors of the National League of 

Cities, and from 1999 to 2001, he served on the League’s Advisory Council. He was also elected 

to serve on the Advisory Board of the U.S. Conference of Mayors, serving a term from 1999 

to 2001. From 1971 to 1980, Mr. Daub was vice president and general counsel of Standard 

Chemical Manufacturing Company, an Omaha-based livestock feed and supply fi rm. A former 

U.S. Army Infantry Captain, he is a Distinguished Eagle Scout, 33rd Degree Mason, is active 

in the Salvation Army, Optimists International and many other charitable and philanthropic 

organizations. He is the current chairman-elect of the Community Health Charities of America. 

Mr. Daub is a graduate of Washington University in St. Louis, Missouri, and received his law 

degree from the University of Nebraska. Term of offi ce: January 2002 to September 2006.

29
Dorcas R. Hardy

Dorcas R. Hardy is President of DRHardy & Associates, a government relations and public 

policy fi rm serving a diverse portfolio of clients. After her appointment by President Ronald 

Reagan as Assistant Secretary of Human Development Services, Ms. Hardy was appointed 

Commissioner of Social Security (1986 to 1989) and was appointed by President George Bush 

to chair the Policy Committee for the 2005 White House Conference on Aging. Ms. Hardy has 

launched and hosted her own primetime, weekly television program, “Financing Your Future,” 

on Financial News Network and UPI Broadcasting and “The Senior American,” an NET political 

program for older Americans. She speaks and writes widely about domestic and international 

retirement fi nancing issues and entitlement program reforms and is the co-author of Social 

Insecurity: The Crisis in America’s Social Security System and How to Plan Now for Your Own 

Financial Survival, Random House, 1992. A former CEO of a rehabilitation technology fi rm, 

Ms. Hardy promotes redesign and modernization of the Social Security, Medicare and disability 

insurance systems. Additionally, she has chaired a Task Force to rebuild vocational rehabilitation 

services for disabled veterans for the Department of Veterans Affairs. She received her B.A. 

from Connecticut College, her M.B.A. from Pepperdine University and completed the Executive 

Program in Health Policy and Financial Management at Harvard University. She is a Certifi ed 

Senior Advisor and serves on the Board of Directors of Wright Investors Service Managed 

Funds, and First Coast Service Options of Florida. First term of offi ce: April 2002 to September 

2004. Current term of offi ce: October 2004 to September 2010.

Barbara B. Kennelly

Barbara B. Kennelly became President and Chief Executive Offi cer of the National 

Committee to Preserve Social Security and Medicare in April 2002 after a distinguished 23-

year career in elected public offi ce. Mrs. Kennelly served 17 years in the United States House 

of Representatives representing the First District of Connecticut. During her Congressional 

career, Mrs. Kennelly was the fi rst woman elected to serve as the Vice Chair of the House 

Democratic Caucus. Mrs. Kennelly was also the fi rst woman to serve on the House Committee 

on Intelligence and to chair one of its subcommittees. She was the fi rst woman to serve as Chief 

Majority Whip, and the third woman in history to serve on the 200-year-old Ways and Means 

Committee. During the 105th Congress, she was the ranking member of the Subcommittee 

on Social Security. Prior to her election to Congress, Mrs. Kennelly was Secretary of State 

of Connecticut. After serving in Congress, Mrs. Kennelly was appointed to the position of 

Counselor to the Commissioner at the Social Security Administration. As Counselor, Mrs. 

Kennelly worked closely with the Commissioner of Social Security, Kenneth S. Apfel, and 

members of Congress to inform and educate the American people on the choices they face to 

ensure the future solvency of Social Security. Mrs. Kennelly served on the Policy Committee for 

the 2005 White House Conference on Aging. Mrs. Kennelly received a B.A. in Economics from 

Trinity College, Washington, D.C. She earned a certifi cate from the Harvard Business School on 

completion of the Harvard-Radcliffe Program in Business Administration and a Master’s Degree 

in Government from Trinity College, Hartford. Term of offi ce: January 2006 to September 2011.

David Podoff

David Podoff was a senior advisor to the late Senator Daniel Patrick Moynihan on Social 

Security and other issues while serving as Minority Staff Director and Chief Economist for 

the Senate Committee on Finance. While on the Committee staff he was involved in major 

legislative debates with respect to the long-term solvency of Social Security, health care reform, 

the constitutional amendment to balance the budget, the debt ceiling, plans to balance the budget, 

and the accuracy of infl ation measures and other government statistics. Prior to serving with

30
the Finance Committee he was a Senior Economist with the Joint Economic Committee and the 

directed various research units in the Social Security Administration’s Offi ce of Research and 

Statistics. He has taught economics at the Baruch College of the City University of New York, 

the University of Massachusetts and the University of California in Santa Barbara. He received 

his Ph.D. in economics from the Massachusetts Institute of Technology and a B.B.A. from the 

City University of New York. Term of offi ce: October 2000 to September 2006. 

Sylvester J. Schieber

Sylvester J. Schieber is Vice President/U.S. Director of Benefi ts Consulting at Watson Wyatt 

Worldwide, where he specializes in analysis of public and private retirement policy issues and 

the development of special surveys and data fi les. From 1981 to 1983, Mr. Schieber was the 

Director of Research at the Employee Benefi t Research Institute. Earlier, he worked for the 

Social Security Administration as an economic analyst and as Deputy Director at the Offi ce 

of Policy Analysis. Mr. Schieber is the author of numerous journal articles, policy analysis 

papers, and several books including: Retirement Income Opportunities in An Aging America: 

Coverage and Benefi t Entitlement, Social Security: Perspectives on Preserving the System

and The Real Deal: The History and Future of Social Security. He served on the 1994 - 1996 

Advisory Council on Social Security. He received his Ph.D. from the University of Notre Dame. 

First term of offi ce: January 1998 to September 2003. Current term of offi ce: October 2003 to 

September 2009.

Members of the Staff

Joe Humphreys, Staff Director

Katherine Thornton, Deputy Staff Director

Joel Feinleib

Beverly Rollins

George Schuette

Jean Von Ancken

David Warner

31
The Early Days of the Hearing Process

When the Social Security Act was passed in 1935, it had no provision for a 

hearing process for Old Age and Survivors Insurance. In 1936, however, the staff of the 

Social Security Board began an extensive study to devise such a process. After the 1939 

amendments to the Act required the agency to provide hearings to dissatisfi ed claimants, it 

was prepared to move forward. As of March 1940, the fi rst 12 hearing offi cers, or referees 

as they were called then, had been selected and were in training.

The system that was put in place in 1940 resembles today’s system in outline, but 

was quite different in some ways from today’s highly legalized and high volume system 

that deals mainly with disability claims. Of the fi rst 12 hearing offi cers, for example, 

only 3 had law degrees and 2 more had some legal training. The U.S. Attorney General’s 

Committee on Administrative Procedure commented, “The referees are chosen for their 

qualities as hearing offi cers and for their qualifi cations as representatives of the Board who 

meet the public.”

The volume of claims was also small when the system began. Through August 

1940, only 70 requests for hearing had been received. Referees held 15 hearings that month 

and rendered decisions in 6. Timeliness was not a problem. In 1946 the average hearing 

was held within 30 days of the hearing request, and the decision was rendered within 2 

weeks of the hearing.

Despite a $10 cap on attorney fees, by 1946, attorneys were representing claimants 

in about one sixth of hearings. 

Consistency, however, was a concern in the design of the system. One of the basic 

provisions adopted by the Social Security Board in 1939 dealt with the coordination of 

decisions. It stated that, “during the developmental state of the hearing and review system,” 

in cases where they were in doubt or were inclined to reverse the agency’s decision, 

they were to submit their proposed fi ndings and conclusion to a consulting referee at the 

Appeals Council for his review and recommendation. Although they were not required to 

follow that recommendation, if they did not do so, their decision would be reviewed by the 

Appeals Council. The Attorney General’s Committee on Administrative Procedure called 

this provision “an ingenious and novel device for securing the benefi ts of decentralized 

adjudication, at the same time avoiding chaotically confl icting decisions.”