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94–200 PDF 2004

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THE ROAD TO RECOVERY: SOLVING THE SOCIAL

SECURITY DISABILITY BACKLOG

HEARING

BEFORE THE

OVERSIGHT OF GOVERNMENT MANAGEMENT, 

THE FEDERAL WORKFORCE AND THE DISTRICT 

OF COLUMBIA SUBCOMMITTEE

OF THE

COMMITTEE ON 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

FIELD HEARING AT CLEVELAND, OHIO

MARCH 29, 2004

Printed for the use of the Committee on Governmental Affairs

(

(II)

COMMITTEE ON GOVERNMENTAL AFFAIRS 

SUSAN M. COLLINS, Maine, Chairman 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

ARLEN SPECTER, Pennsylvania 

ROBERT F. BENNETT, Utah 

PETER G. FITZGERALD, Illinois 

JOHN E. SUNUNU, New Hampshire 

RICHARD C. SHELBY, Alabama 

JOSEPH I. LIEBERMAN, Connecticut 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

RICHARD J. DURBIN, Illinois 

THOMAS R. CARPER, Delaware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas

MICHAEL D. BOPP, Staff Director and Chief Counsel 

JOYCE A. RECHTSCHAFFEN, Minority Staff Director and Counsel 

AMY B. NEWHOUSE, Chief Clerk

OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL 

WORKFORCE AND THE DISTRICT OF COLUMBIA SUBCOMMITTEE 

GEORGE V. VOINOVICH, Ohio, Chairman 

TED STEVENS, Alaska 

NORM COLEMAN, Minnesota 

ROBERT F. BENNETT, Utah 

PETER G. FITZGERALD, Illinois 

JOHN E. SUNUNU, New Hampshire 

RICHARD J. DURBIN, Illinois 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas

ANDREW RICHARDSON, Staff Director 

MARIANNE CLIFFORD UPTON, Minority Staff Director and Chief Counsel 

KEVIN R. DORAN, Chief Clerk 

(III)

C O N T E N T S 

Opening statements: Page 

Senator Voinovich ............................................................................................. 1 

WITNESSES 

MARCH 29, 2004

Hon. Jo Anne B. Barnhart, Commissioner, Social Security Administration ...... 7

Hon. Hal Daub, Chairman, Social Security Advisory Board ................................ 15

Robert E. Robertson, Director, Education, Workforce, and Income Security, 

U.S. General Accounting Office .......................................................................... 17

Erik Williamson, Assistant Director, Ohio Bureau of Disability Determination ........................................................................................................................ 18

Hon. D. Kevin Dugan, Vice President, Association of Administrative Law 

Judges ................................................................................................................... 29

James A. Hill, President, Chapter 224, National Treasury Employees Union, 

Office of Hearings and Appeals, Social Security Administration ..................... 31

Marcia Margolius, Esq., Brown and Margolius, L.P.A. ........................................ 32

ALPHABETICAL LIST OF WITNESSES

Barnhart, Hon. Jo Anne B.: 

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

Prepared statement .......................................................................................... 45

Daub, Hon. Hal: 

Testimony .......................................................................................................... 15

Prepared statement with an attachment ....................................................... 55

Dugan, Hon. D. Kevin: 

Testimony .......................................................................................................... 29

Prepared statement with an attachment ....................................................... 126

Hill, James A.: 

Testimony .......................................................................................................... 31

Prepared statement .......................................................................................... 133

Margolous, Marcia, Esq.: 

Testimony .......................................................................................................... 32

Prepared statement .......................................................................................... 144

Robertson, Robert E.: 

Testimony .......................................................................................................... 17

Prepared statement .......................................................................................... 107

Williamson, Erik: 

Testimony .......................................................................................................... 18

Prepared statement .......................................................................................... 121

APPENDIX 

‘‘Disability Service Improvement,’’ submitted by Commissioner Barnhart ........ 146

‘‘Impact of Not Passing a Budget On Time,’’ submitted by Commissioner 

Barnhart ............................................................................................................... 147

‘‘Category Hiring vs. Rule of Three,’’ submitted by Commissioner Barnhart ..... 148

Letter to Hon. George V. Voinovich from Jo Anne B. Barnhart .......................... 149

Questions for the Record from Commissioner Jo Anne B. Barnhart .................. 151

(1)

THE ROAD TO RECOVERY: SOLVING THE 

SOCIAL SECURITY DISABILITY BACKLOG 

MONDAY, MARCH 29, 2004

U.S. SENATE, OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL

WORKFORCE AND THE DISTRICT OF COLUMBIA SUBCOMMITTEE, OF THE COMMITTEE ON GOVERNMENTAL AFFAIRS, Washington, DC. 

The Subcommittee met, pursuant to notice, at 9 a.m., in the Vocational Guidance Services Headquarters, 2235 East 55th Street, 

Cleveland, Ohio, Hon. George V. Voinovich, Chairman of the Subcommittee, presiding. 

Present: Senator Voinovich. 

OPENING STATEMENT OF CHAIRMAN VOINOVICH 

Senator VOINOVICH. The hearing will come to order. 

I would like to open by thanking the Vocational Guidance Services for allowing us to use this very wonderful, brand new facility. 

And I think the people of Cleveland are fortunate to have such a 

nice facility. 

And, of course, this organization has a long history going back 

until 1890. So sometimes we think that some of the things we are 

dealing with today are just new on the scene, the last several decades. But the fact is that the challenges have been around since 

that time and it is nice to know the community recognized the 

challenge back in 1890. 

I want to thank all of you for coming today. Congressional hearings are an integral part of the legislature and oversight process. 

I serve as the Chairman of the Subcommittee on Government 

Management, the Federal Workforce and the District of Columbia. 

Ms. Barnhart, you should be familiar with my Subcommittee since 

you worked for Senator Roth on the Governmental Affairs Committee before he went to the Finance Committee. 

Ms. BARNHART. Yes, I was. 

Senator VOINOVICH. It is a pleasure to hold this hearing on the 

Social Security Disability process which impacts many Ohioans including 180,000 people whose applications were processed at the 

State level last year. I want you to know my opening statement is 

going to be a bit longer. Ordinarily I have three or four other senators sitting with me, so I’m taking advantage of their time but it 

will be for the better. 

We are going to examine the cause of the Social Security Disability backlog and, more importantly, Commissioner Jo Anne 

Barnhart’s approach to the overall process. The Social Security proVerDate 0ct 09 2002 13:05 Jul 13, 2004 Jkt 094200 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\DOCS\94200.TXT SAFFAIRS PsN: PHOGAN
2

gram is a separate agency retirement program. I think people 

think of Social Security and know about a couple other programs 

that come within the purview of Social Security. It also includes 

Disability Insurance (DI), and Supplemental Security Income (SSI). 

Last year those two programs alone paid 107 billion dollars in benefits to roughly 14.5 million disabled workers and family members. 

Now, during my time in the Senate I have become familiar with 

the problems of the disability process. In fact, Senator DeWine and 

I currently have 360 disability cases open on behalf of our constituents. These are people frustrated with the system and have come 

to us for our help. In my time in the Senate we have assisted about 

950 Ohioans with disability cases. 

In addition to the case load that we have in our constituency office in Columbus, I know there are thousands of constituents waiting for a hearing and trying to get through the red tape. The fact 

of the matter is that the disability process should be so efficient 

that the Members of Congress should not have to intervene on behalf of people who are frustrated with the system. And sometimes, 

Commissioner, perhaps we don’t help the matter because we get involved and we try to expedite certain cases because of extenuating 

circumstances. 

But I will never forget when I became governor of Ohio we had 

a disastrous situation with the Ohio Bureau of Workers’ Compensation, which I refer to as the silent killer of jobs. And our goal was 

to streamline the process. State legislators were constantly contacting the Bureau on behalf of Ohio residents. And after 8 years 

we eliminated that problem. The Bureau stopped getting letters because the system was handling the needs of the people that were 

going through the process. 

As many of you know, the Cleveland Social Security Office of 

Hearings and Appeals, OHA, has one of the longest processing 

times for disability cases in the Nation. And that’s one of the reasons why we have so many cases come to us in our constituency 

office. 

Currently, the national processing time at the hearing level is 

368 days. The processing time in Cleveland is an astounding 550 

days. Unfortunately, residents throughout Ohio face similar delays 

in three hearing offices in Cincinnati 412 days, Columbus 477 days, 

Dayton 381 days. These are all times way above the national average. 

When examining the case load in Cleveland, it is evident slow 

processing time is only part of the problem. For instance, at the 

end of last month, the Cleveland hearing office had a backlog of 

8,796 cases of which 5,461 had yet to be assigned to a particular 

judge. Those are just numbers but, folks, there are people behind 

those numbers. 

Commissioner Barnhart joins us today to talk about how she will 

resolve this situation. I mentioned to her the 65,000 people that 

she has responsibility over, and I was with Mr. Daub who brought 

it to my attention, there’s another 15,000 that work in the State 

organizations. That’s a lot of people. 

I thank you, Commissioner, for taking your time to be here 

today. I am honored you came to Cleveland. I can assure you your 

3

visit here and the visits of the other witnesses are going to be 

worthwhile for you because I’m holding this hearing to help you. 

I would like to commend you for not only recognizing the shortcomings of the disability system but for trying to work with your 

stakeholders to improve the disability process. I’m going to ask how 

much involvement your stakeholders have. Your challenge is to utilize today’s technology to update the disability process that was 

created back in 1956. To accomplish this task, you must work within the confines of the Federal bureaucracy while balancing the 

needs of several key stakeholders. Given these parameters, it is 

evident that your work is cut out for you. 

We all are very critical of the current situation and want to know 

how Congress can help you out, and make it easier for you to do 

your work. However, we can’t fully appreciate your task until we 

understand some of the problems. 

Unfortunately there does not appear to be one root cause of the 

backlog. I am only going to mention a few. Instead, several complicated interrelated factors seem to contribute to the crushing case 

load. One is the outdated processing system which needs to be examined and improved. There seems to be a number of steps within 

the disability process including the State operation process, reconsideration, the hearings, and the appeals. Applicants can even end 

up in supreme court. It is unbelievable. 

There’s specific human capital management challenges, including 

the Administrative Law Judge’s (ALJ) hiring freeze and the hearing process improvement. In addition, perhaps your budget request 

did not receive adequate funding during the appropriations process. 

And I am also sure people do not understand the fact that we 

have not been able to pass a budget on time and have had to move 

our appropriations into January. We have done that twice now. 

That makes it very difficult for an agency to figure out what their 

budgets are going to be and, seemingly, the media completely overlooks the fact that this happens. Again, Congress will try this year 

to get it done on time but it is easier said than done. 

According to a January 2001 report issued by the Social Security 

Advisory Board the disability infrastructure was, ‘‘ill-equipped to 

handle today’s massive and complex workload.’’ That was back in 

January 2001. In fact, the system itself has changed very little 

since it was first created. However, since the disability programs 

are expected to expand by 35 percent by 2012, it is imperative this 

outdated infrastructure receive an overhaul. Commissioner, I would 

like to know how you plan on improving the process. 

Second, in January of this year GAO issued human capital challenges facing State Disability Determinations Services, DDS. It 

outlines three key changes facing DDS across the Nation, high 

turnover, recruiting and hiring difficulties and gaps in key skilled 

areas. From an organizational standpoint, the current operating 

structure between the Social Security Administration and the State 

Disability Determinations Services is certainly a unique alignment. 

I would like to know if the Commissioner thinks this is the most 

efficient way to run the disability system. 

Erik Williamson, from the Ohio Bureau of Disability Determination is here to discuss how they manage their human capital challenges. I am also interested in learning how they manage their 

4

case load and what steps they have taken to keep their processing 

time close to the national average. 

Third, in 1996 the merit system, MSPB, ruled the OPM scoring 

system unfairly favored veterans over nonveterans. This ruling 

started a 7-year hiring freeze of ALJs and ultimately affects Social 

Security’s ability to manage the disability program. 

SSA currently employs 1,000 administrative law judges out of 

the government’s 1,200 judges. During ALJ’s hiring freeze OPM 

took steps to minimize the shortage of judges at SSA by filling a 

motion to vacate the MSPB order. The staffing challenges did not 

dissipate even though the board lifted the stay in September 2001 

allowing SSA to hire additional ALJs. 

The question I have is, why did it take so long for the ALJ hiring 

freeze to be resolved. That in itself may be something we ought to 

look at. I wonder if this is symptomatic of the Federal appeals process in general. The ALJ issue should have been resolved in a couple years. If this were the case, we would not have had a scarcity 

of ALJs. 

On February 20, 2003, as I mentioned the Federal circuit ruled 

that the ALJ scoring formula was applied lawfully and did not violate the veterans preference. This rule was upheld by the U.S. Supreme Court on March 2004, almost 8 years later. 

Ms. BARNHART. Something like that. 

Senator VOINOVICH. Fortunately the ALJ hiring freeze is over. 

Social Security Administration will hire 50 new judges and I appreciate it if you can provide insight regarding the number of judges 

assigned to Cleveland and Ohio to deal with the backlogs we seem 

to have as differentiated from some other States. 

Frankly, I would like to know whether 50 judges is enough to get 

the job done. In addition, does the list of potential ALJs contain 

competent and qualified candidates, is your pay scale competitive, 

and is your budget adequate. These are some of the questions that 

we need to explore. For instance, I know State ODS in Ohio wanted to hire 20 employees last year but were only able to find 17 

qualified employees. Some of these recruitment challenges may 

stem from the fact that your pay scale may not be adequate or we 

may need to do a better job of recruiting employees to take on 

these jobs. 

Finally, regarding the backlog, can be attributed to the hearing 

process improvement (HPI). This three phase initiative was implemented between January and November 2000. The question I have 

is that November 2000, this was the last year of the Clinton Administration, why would you ever undertake such an extensive 

project in the last year of your administration on an overhaul that 

his administration should have been working on during the first 7 

years. Maybe I’m being a little critical but my last year as governor 

I realized that and I didn’t take on new initiatives. Our mindset 

was to wrap up any projects and get some things done rather than 

starting a whole new process. 

Based on reports from the GAO and the SSA inspector general, 

the HPI initiative did not have the desired effect. And the Commissioner inherited an ineffective program. Prior to HPI, the average 

national processing time for disability cases in fiscal year 1999 was 

280 days, 2 years later 336 days. HPI was going to improve the 

5

system? As I mentioned earlier, the current national processing 

time for disability is 368 days. 

According to GAO the failure of the HPI initiative in part is the 

result of attempting to implement large scale changes too quickly 

without resolving known problems. I would like to know who designed the HPI, was it a consultant firm? How often were the people actually doing the work? Were they asked about how they could 

improve the system, and the issue of how long it takes to get the 

job done? 

Right now there are people complaining that we came up with 

a new Medicare prescription drug benefit. And a lot of people I see 

at meetings say it will take until 2006 to get it done. All we have 

is the end of this year, 2004 and 2005, that is a major undertaking 

to provide this kind of benefit to millions of Americans. We want 

to make sure it is done right, and I think that underscores, Commissioner, that you can’t snap your fingers and expect something 

is going to get done overnight. 

These are some, but not all, of the reasons for the backlog. Commissioner Barnhart, I would like to know what you are doing to improve the situation but also would like to offer you some advice. 

Woody Hayes, the Ohio State football coach, said that you win with 

people. That’s what it is about. If you think about it, his words 

apply to the disability process as well. In order to effectively 

streamline and improve the disability process, you have to have the 

right people with the right skills and knowledge and the right 

places at the right time. Most importantly, however, your approach 

will only be successful if it improves the process to the applicants 

themselves. 

Folders sitting in dockets across the country represent people 

with serious health related problems. Those individuals are my 

constituents and your clients and they deserve a better system. I 

just received a weekly report from my staff about hangups and 

busy signals at SSA call centers. SSA’s telephone service conducted 

a survey with the National Council of Security Management Association and 93 percent of the managers at the local Social Security 

offices and 73 percent of the managers for 1–800 numbers claim 

their office is not providing acceptable telephone service. This gets 

to the point, answering the phone is vital to serving the American 

public and somebody ought to get on that one right away to make 

sure that gets done. 

Before I recognize the Commissioner for her opening remarks, I 

would like to read excerpts from a letter I received from a constituents in Pemberville. We asked her if it would be all right to read 

her letter and make it a part of the hearing this morning. Her letter personifies the hardship that occurs because of a lengthy and 

drawn out disability process. I asked consent that it be made part 

of the record and since I’m running the hearing it will be. And it 

is a very well written letter. And I wouldn’t be sharing it with you 

but it just does a super job of laying out the situation.

‘‘On September 20, 2002, I suffered a brainstem stroke. My life as I have 

known it to be would be forever changed from that day forth. My road to 

recovery was long and grueling. When I inquired from my physicians how 

long it might take for my recovery, I was told up to a year or longer. That 

became very distressing news for me because I began to wonder how I was 

going to manage financially for that length of time. 

6

1The prepared statement of Ms. Barnhart appears in the Appendix on page 45. 

‘‘After much urging from immediate family, primary physician and stroke 

related physician I began the process of filing for Social Security Disability 

in November 2002. Had I known then what I know now, I may have reconsidered that decision. The paperwork alone is a very lengthy, time consuming matter. 

‘‘I received my first notice that I was not qualifying for purposes Social 

Security Disability or Supplemental Security Income. I refiled for a second 

determination. Once again, a mountain of paperwork and once again my 

claim was denied. 

‘‘My local Social Security office informed me that the next step would be 

a third filing and a hearing before a Social Security judge. I was also told 

it would take another 12 months before I would be granted a hearing. The 

system is not structured in such a manner as to accommodate someone 

such as me. It is a system that only looks at me as a number, not as an 

individual. Every time I have contacted the Social Security administration 

I am first asked for my Social Security number and then, only then, do I 

become a person with a name. 

‘‘The changes that have occurred in my life over the past year have been 

devastating for me. In a nutshell, since my stroke I have lost my job, my 

home, my health insurance, and the majority of my savings. 

‘‘I want to know why it is necessary to endure such a cumbersome and 

long, drawn out process. I truly believe the system is set up for the average 

citizen to become so discouraged they discontinue filing their claim. It 

seems to me someone like me gets swallowed up in the big sea of bureaucracy of the Social Security system. I am a number with no face or voice. 

‘‘The system needs to be revamped. My voice needs to be heard. I need 

to know there is someone out there who is listening and someone who 

cares.’’

Commissioner, I know you have heard these stories before, perhaps not as eloquently as this woman has written. I would like to 

add if anyone else here today is experiencing similar difficulties, 

the Social Security Administration has staff in room 103, to talk 

to you about your case. 

Commissioner, I am anxious to hear from you. I apologize to you 

for taking so long in my opening statement but I thought it would 

kind of bring everything together and I want to thank you and I 

want to thank all the other witnesses that have taken time, many 

of you to come long distances to be here with us today. 

It is the custom of this Subcommittee that all witnesses be sworn 

in. So I, therefore, ask all of today’s witnesses, are they all here, 

if you all stand I will administer the oath. 

[Witnesses sworn.] 

Senator VOINOVICH. Let the record show that everyone answered 

in the affirmative. I also would like to ask if the witnesses here 

today would limit their statements to no more than 5 minutes. I 

want every witness to know your written testimony will be entered 

into the record and be reviewed. The only witness that I’m going 

to make an exception to is the Commissioner herself. You’ve got a 

big job and you came from Washington, you are here today and we 

thank you for coming here today and look forward to hearing from 

you. 

TESTIMONY OF HON. JO ANNE B. BARNHART,1

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION 

Ms. BARNHART. Thank you, Mr. Chairman, and thank you for 

providing this opportunity to return to Ohio to discuss my approach for improving the disability determination process and also 

7

1 ‘‘Disability Service Improvement List,’’ submitted by Commissioner Barnhart appears in the 

Appendix on page 146. 

to talk about the initiatives we have underway to improve service 

right here in Cleveland. 

As you know, I heard earlier this year from many of your constituents about their experiences and concerns with the current 

disability process. And holding this hearing is clearly evidence of 

your personal commitment to the Social Security program and people we serve. I do appreciate that. 

When I became Commissioner, I pledged to improve the Social 

Security Disability process. Last fall I presented my approach for 

improving the disability determination process to Congress and 

since then I have met with the House and Senate staffs, SAA employees and groups involving every staff of the disability determination process to discuss this new approach. I met with the representatives for the attorneys in Social Security, representatives of 

the ALJs and ALJs themselves, and many advocacy organizations. 

In fact, I kept track of all the groups I met with and would be 

happy to provide a list of the meetings for the record. I personally 

held sessions to discuss proposals. 

Senator VOINOVICH. I would like to have them because it would 

let me know of the allies we might have.1

Ms. BARNHART. I have incorporated what I think are some very 

important changes in my approach to shorten the decision time and 

pay benefits expeditiously to people who are obviously disabled, as 

well as test new ways to help people with disabilities who want to 

return to work to do so. 

I have provided a complete description of my new approach to 

disability determination in my written testimony, and for time constraint purposes I won’t walk through the entire thing. It takes me 

40 minutes. I don’t want to take more time than the Chairman. 

In January of this year we began rolling out what I believe is the 

cornerstone of my strategy to improve the disability process. The 

Accelerated Electronic Disability system, (AeDib). This new system 

is going to eliminate the current process of mailing, locating and 

manually organizing paper folders. That may not sound like much, 

but based on the content of the analysis I did on the disability 

process when I became Commissioner, we estimate it takes approximately 60 days to mail folders back and forth from one office 

to another and that it takes approximately 100 days to locate files 

at various stages in the process. That may sound like a lot and it 

is a lot but when you are staging, as we call it, over a million to 

two million cases a year, it’s understandable that it’s sometimes 

hard to find paper files. 

Senator VOINOVICH. That was exactly the way the Ohio Bureau 

of Workers’ Comp was organized. We had files in boxes and they 

would move the boxes around in the State and people would loose 

the boxes. Are you going to put everything electronically right from 

the beginning and make it a paperless system? 

Ms. BARNHART. That’s right. It affords us the opportunity to revolutionize the way we process disability cases. We specifically want 

to get to the issues in Cleveland. Now work submitted from one 

place to another can be done with a push of a button in terms of 

8

record review and that kind of thing and preparation of the case. 

By moving to electronic processing, it will reduce processing time 

by 25 percent. 

And I’m pleased to tell you that Ohio is scheduled to have this 

system starting to run in late September. As we move ahead, I 

would be more than happy to keep you informed of our progress. 

I’m pleased to say that we rolled out in Mississippi on January 26, 

and, frankly, Mr. Chairman, this is a good example of the approach 

that I have taken in general in the agency dealing with the disability issue. 

When I came into the agency, electronic disability was on scheduled for 7 years from the time that I came in. I said, no, that won’t 

do. I have 5 years left in this term. I would like to accomplish it 

during my term as Commissioner, going to the point you made of 

starting things you have the opportunity to actually complete. 

And I asked my staff if they had all the resources they needed 

and I promise you we sat down and talked about how long will it 

take to begin implementation. We decided it would take 23 months, 

which was January of this year. We met that start date in Mississippi. We are moving on to South Carolina and gradually moving 

from one State to another and doing one region at a time. We are 

currently on schedule and, in fact, we had a couple States ask if 

we could come sooner to them than originally planned. I think 

that’s very significant because you and I both know the grapevine 

among State directors, if AeDib weren’t working, other States 

wouldn’t be interested in having it get in sooner. We are working 

through the issues as they arise. It’s going very well and it’s one 

of my top priorities. 

In the meantime, while we have begun the electronic disability 

process and announced a new approach, I am working with all the 

stakeholders, as you put it, in order to finalize that approach. I do 

think it is important to point out that when I introduced my approach, I called it that because the problems in this system are so 

immense that it really requires an all encompassing perspective of 

the system working together to come up with a solution. I really 

didn’t want to have something I developed and lay it out and say 

this is it and it’s all signed, sealed, and delivered. I laid down an 

approach and I’m meeting with all the interested parties before finalizing it. 

Because of the time it will take to do that, I estimate implementing a new approach probably couldn’t happen until October 

2005 at the earliest. This is largely because it’s predicated on successful implementation of electronic disability, which will take 18 

months to roll out nationwide. 

There are situations like the one here in Cleveland we had to 

take short-term action. We had to take action to work as quickly 

and expeditiously as we possibly could to address the challenges 

faced by offices like Cleveland. To assist with the workload one of 

the things we did is we brought back retired administrative law 

judges and reemployed them on a part-time basis. 

Senator VOINOVICH. Were you able to bring them back and have 

them work without——

Ms. BARNHART. There’s like a senior ALJ program. 

9

1 ‘‘Impact of Not Passing a Budget On Time,’’ submitted by Ms. Barnhart appears in the Appendix on page 147. 

Senator VOINOVICH. They don’t have to give up their retirement, 

sort of like senior service, like a Federal judge? 

Ms. BARNHART. Yes, I believe we used that. And you went into 

great detail as to the delay of MSPB and no question that has had 

a very detrimental effect. We have identified 50 judges now coming 

on April 26 and three of those judges will be coming to Cleveland 

June 1. From April 26 to June 1 they will be in training at headquarters. 

I have plans later this summer to bring on an additional 50 

judges which means a hundred will be hired this year. You asked 

me if we had enough ALJs. We don’t, as you pointed out. We have 

approximately a thousand now. I’m hiring a hundred. Ideally I 

would like to add a hundred more. That is simply a function of the 

budget situation. In addition to hiring ALJs and using——

Senator VOINOVICH. Are your administrative costs part of mandatory spending or subject to——

Ms. BARNHART. Subject to the discretionary cap. It’s not clear 

whether the Appropriations Committee——

Senator VOINOVICH. You’ll have to compete with other things in 

the discretionary budget. 

Ms. BARNHART. There’s no question that has an effect. Last year 

the President requested an 8.5 percent increase for SSA and we 

ended up with a 5.4 percent increase. This year the President requested 6.8 percent and we are hoping obviously to come very close 

to getting that. When we look at the budget situation, obviously 

there certainly is no guarantee. I think it’s significant that in both 

years when the budget situation was certainly a pressing one, that 

the President requested for SSA more than twice the percentage increase for the whole Federal Government. It’s a very significant increase relative to other agencies. Not getting that 8.5 percent increase obviously had an effect and if we don’t get the 6.5 percent 

increase it will have an effect. 

You correctly pointed out the whole issue of being able to hire 

staff because of the passed budget is very significant. We basically 

had to put a curb on hiring until the appropriation was passed because we didn’t know what level of funding we were going to have. 

Obviously I wasn’t going to have to run a furlough. We have been 

hiring judiciously. Just last Friday we completed our opinion on the 

initial budget, what we call budget scrub, since the appropriation 

was passed and so I will be putting out more FTEs around the 

country for people to be brought on board. But we have had to proceed in a judicious manner until we were confident of the level of 

appropriation we were going to receive. 

Senator VOINOVICH. What I would like you to do, sorry for interrupting your testimony, is maybe give me a one pager on the disastrous effect of not passing the budget on time because I’m trying 

to convince my colleagues, and so is Ted Stevens, that we have to 

act before October 1.1 However, with the Senate’s schedule this 

year it’s going to be difficult to do it. Over the past few years, we 

have delayed passing the appriations bills. I am afraid this year 

that we’ll just delay, delay and come back after the election with 

10

a big omnibus appropriations bill. I would like to get it done before 

the end of the year but it could end up in January. 

Ms. BARNHART. That’s a disadvantage to the Federal agency. You 

have a great interest in the Federal personnel system, and obviously our best recruiting time is summer up to early fall when the 

kids are just graduating from college. We have direct hiring authority for outstanding scholars, who are students with an overall 

GPA of 3.5 or higher. If we don’t know what our budget is going 

to be in January of the next year, then many of those talented 

young people would have chosen to go other places by the time we 

were able to offer them a job. So it’s very significant for us in particular. 

In addition to adding to the ALJs, we have various hearing offices in the Chicago region as well as some outside of the region, 

that are assisting Cleveland with its work load. We plan to transfer 

5,200 cases from Cleveland to other hearing offices. Over approximately 1,500 of those cases will go to our Boston region, and approximately 3,500 have been transferred within the Chicago region 

to other hearing offices. 

I have also been moving toward using video conferences, which 

gives us the capability of conducting hearings via video. I think 

time and distance are very important factors, particularly with a 

pared down ALJ core and hiring delays due to the Ashdale case. 

Having the judges spend time traveling as opposed to conducting 

hearings is not efficient and sometimes it’s much more convenient 

rather than traveling to that office to go to a location that has 

video capability. This also makes transfer of cases possible because 

claimants in Ohio don’t have to leave Ohio in order for their case 

to be heard by a judge outside of Ohio. 

We have also sent in a team of attorneys to supervise and to 

screen pending cases to make a decision without a hearing, socalled on-the-record decisions, and we have ALJs travel to conduct 

hearings. 

I want to assure you the hearing and appeal staff is actively involved in the challenges of the Cleveland office. Our Chief ALJ, 

David Washington, has been to Cleveland several times meeting 

with management and heard a docket of cases himself in May. In 

addition, with the VTC equipment a regional chief judge in Chicago 

heard 45 cases from the Cleveland office and my understanding is 

he plans to hear 45 more. 

We have conducted onsite meetings with management offices and 

hearing offices, and have examined a number of administrative 

best practices. We expect these actions to significantly reduce the 

time to get a decision. We know and understand how important it 

is for the claimant and family members who are waiting for a decision. Everyone at Social Security realizes the folders on our desk 

represent parties. These big tall folders aren’t just files. They are 

people whose lives are affected by the job we do and how well we 

do it. These people are in dire need, and are counting on Social Security for support. I assure you this is a responsibility no SSA employee takes lightly, from teleservice representatives to claim paralegals to attorneys and judges. Everyone at Social Security is committed to providing the kind of service the American people expect 

and desire. 

11

I thank you for holding this hearing and I would be happy to answer any questions and address any issues you would like me to. 

Senator VOINOVICH. Thank you very much. The first one I wanted to address is the electronic disability folder and you pretty well 

answered that in your opening statement. You think you are going 

to wrap that up by October 2005? 

Ms. BARNHART. I think AeDib will be implemented 18 months 

from January—June of next year. My thought was if we are improving a new process approach we need to not just implement it 

but have 6 or 7 months experience with it. That’s why I was looking at no sooner of October 2005 for implementing a new process. 

Senator VOINOVICH. Ohio is June? 

Ms. BARNHART. September of this year. 

Senator VOINOVICH. And Ohio is part of Region V? 

Ms. BARNHART. Yes, Region V. 

Senator VOINOVICH. Your opening statement was very thorough 

and you have done a good job answering my questions. In October 

2003 the Social Security Advisory Board issued a report entitled 

‘‘The Social Security Definition of Disability.’’ Do you think that we 

need to update that definition or would you think it would be such 

a political hot potato that we ought not to bother with it? 

Ms. BARNHART. I didn’t get into that. I have limited my improvements to process improvements I could accomplish without legislation. That’s one thing I didn’t mention. The new approach I designed and presented can all be implemented with regulation or administrative issuances and I thought that was important because 

that means the process is something I could actually accomplish 

and see through to its completion during my term as Commissioner. My term expires in January 2007. 

The definition of disability obviously would require statutory 

change and I think it is certainly a very complicated issue, one 

where people have diverse views about it. 

GAO did place all of the Federal disability programs, as you 

know, on the high risk area. And I have had several conversations 

with David Walker, the controller general, about that. The Federal 

disability programs were not a high risk area from a management 

perspective. David was very clear about that in our discussions. 

They were considered high-risk because the disability programs as 

they currently exist were created in the 1950’s and don’t necessarily reflect what happened societally over that time period. 

With the passage of the ADA almost 11 years ago, attitudes 

about people with disabilities and their abilities changed dramatically. Back to work legislation that Congress passed in 1999 reflects——

Senator VOINOVICH. No one has taken advantage. 

Ms. BARNHART. Some people are and we are working on that, 

Senator. So I think there are a lot of things that contribute, and 

will contribute to that debate and discussion on disability. It’s difficult but it definitely would be the next step after improving the 

process to look at the definition of disability if it were going to happen. 

Senator VOINOVICH. One of the things I have been working on, 

human capital practices and I have been working on that since 

1999. When we passed the Homeland Security Bill we were able to 

12

1 ‘‘Category Hiring vs. Rule of Three,’’ submitted by Ms. Barnhart appears in the Appendix 

on page 148. 

add numerous flexibilities for all the Federal agencies and Senator 

Akaka and I worked on that. For example, hiring, allowing an 

agency to use a category rank in hiring instead of the rule of three. 

Are you using categorical hiring instead of the rule of three? 

Ms. BARNHART. I don’t know for certain. I would be happy to find 

out and let you know, Senator.1

Senator VOINOVICH. How about voluntary attrition and voluntary 

retirement? Are you using these flexibilities? 

Ms. BARNHART. We have used early out, which is a voluntary decision to leave, with great success. It’s one of the things that has 

helped the agency level out the big retirement wave. We anticipated we will have lost over the next 7 years half of the people in 

the agency. This is more than the number of people who have retired in the last 10 years. 

Senator VOINOVICH. American people are not aware of that. I got 

involved in this in 1999 because I wanted to bring quality management to the Federal Government. Currently, the Federal Government is in the midst of a human capital crisis. Seventy percent of 

the senior executives could retire next year if they wanted to. You 

have a real challenge in terms of retirement. Do you think you 

have thought about new flexibilities you might need to make your 

job easier? I would ask you to share those with me. 

Ms. BARNHART. I haven’t. I’m glad you asked me. One of the 

things I mentioned is the outstanding scholar program for direct 

hiring authority. In other words, when we identify a talented young 

person at job fairs or recruiting efforts with an overall Grade Point 

Average (GPA) of 3.5 or higher we are allowed to directly hire that 

person. If that person had a 3.0 GPA, we should be allowed to directly hire him or her because that’s an accomplishment and certainly speaks to the individual’s ability. It also broadens the pool 

for us. 

One of the things we really need to do is to encourage young people to come in to the government, to become the dedicated kind of 

employees that we are very fortunate to have. 

Senator VOINOVICH. Do you have any contact with the Partnership of Public Service that Max Stier is leading. They have established a call to serve initiative and are working with colleges and 

universities to build interest in Federal service. 

Ms. BARNHART. I haven’t personally. The deputy for human resources has. One of the other things that would be possible would 

be speaking again to the budget situation. If we hire an employee 

as a term or temporary employee, sometimes it’s the prudent thing 

to do. If you don’t know what your budget is going to be, it would 

obviously be helpful. When we find out we are able to keep an individual then we can then make them permanent. If they work very 

well as a temporary or term employee to convert them to permanent status. We would have a person who is already trained and 

instead of having to go through all the steps to get there. Having 

that capability would be important. 

One place that is going to be important is the prescription drug 

program. We are actually responsible for implementing part of the 

13

program and people are going to come to us to apply for their benefits just as they do for Medicare. To handle the workload, we estimate we will be dealing with somewhere around 30 to 40 million 

people. We are going to have to bring a couple thousand people on 

board. And then obviously once we get through the people who are 

currently on the rolls, we’ll have an ongoing workload of a million 

and a half a year so we won’t need all these people. It would be 

wonderful knowing we were not going to lose 5,000 people a year, 

that we could hire right from that trained pool. Even if it’s in prescription drugs, they will have government experience and it would 

be wonderful to use them as a hiring pool for us to replenish our 

ongoing retirees. I have other things but won’t take time now. 

Senator VOINOVICH. I would be interested in having you put 

them down for us. We are still trying to get David Walker’s new 

flexibilities through. And I will be at meetings in the Pentagon to 

talk about what they are doing with the nonuniformed employees 

in the Defense Department. But if there are some things we can 

provide to help expedite your hiring needs, I would like to hear 

about it and we’ll be glad to work on it. 

Ms. BARNHART. I appreciate that. I will send something up to 

your staff. 

Senator VOINOVICH. Anything else you would like to share with 

us? 

Ms. BARNHART. I wanted to make a few points on a couple 

things. I was taking notes. We implemented starter kits for disability applicants that is going to be mailed out soon. 

Senator VOINOVICH. What is that? 

Ms. BARNHART. As in the rather eloquent letter from your constituent, there’s an enormous volume of paperwork. With the starter kit that idea is someone applies for disability and they’ll receive 

this and it gives very simple instructions and explains the kind of 

documents they need to have. 

Senator VOINOVICH. Who put that together? 

Ms. BARNHART. We did at Social Security. 

Senator VOINOVICH. Did you hire a consultant or——

Ms. BARNHART. We did it inside. We worked with claims representatives, teleservice representatives, and people in our program 

service centers. When we have undertaken projects, my approach 

has been actually to set up internal workgroups. For example, the 

service delivery budget was one of my major activities during my 

first year. It really has been key for all the other things we have 

done. It budgets where we want to be in 5 years and what are the 

resources it takes to get us there. The service delivery budget was 

based on the desire to eliminate backlogs, keep current with claims 

and special workloads to make the technology investments we need 

and so forth. 

My approach is to bring in people from the district offices, field 

office, program service centers located around the country, and our 

hearing offices. It’s very important to have people who are doing 

the work be involved in fixing the program because we sometimes 

form an idea in Washington or Baltimore about what is causing a 

problem but we are not on the ground working with it. 

So people from all of the different parts of the agency that needed to be involved with the starter kit were involved. I’m hoping 

14

that it’s going to have very positive results for the claimants. What 

we have seen in the pilots we ran on the starter kit was that the 

number of people who had higher percentage of the documentation 

and the information when they came to the interviews increased 

fairly dramatically. I have no reason to believe that won’t be the 

case. It’s being rolled out across the Nation. 

You mentioned HPI, and I don’t want to go back and relive history I wasn’t a part of. I was watching it play out from my perspective on the Social Security Advisory Board. But I think one of the 

points you made is really worth mentioning time and time again. 

It took us many years to get to this situation we are in today. 

And I wish that I could wave a magic wand and get us out of it 

tomorrow but that is not possible. I did start working on these from 

the moment I was confirmed in November 2001. It was actually 

one of the board members who signed that January report you 

cited from the Social Security Advisory Board that pointed out the 

problems with the disability system. And there is no question that 

having had that experience on the board helped position me better 

coming into the agency to understand the really nitty-gritty the 

agency faced. 

I want to take this opportunity to say Hal Daub, the chairman, 

is testifying later today but the board continues to be a wonderful 

place to bounce ideas and to hold my feet to the fire to make sure 

we actually move ahead on a regular basis. 

I think that pretty much covered the comments that I wanted to 

make just in response to your opening comments except finally to 

say I do appreciate your interest and your dedication to helping 

solve this problem. There is no question it’s going to take the full 

support of everyone in Congress. 

We need to get the budget. When people ask me what’s the one 

thing they can do to be helpful, to try to make sure we get our 

budget. Last year the Senate voted the full amount as the President requested. It was in Congress that we received a reduction. 

So I’m hoping I can count again on the Senate to vote 6.8 percent 

for Social Security. It is money put to good use. I will point out the 

first full year’s——

Senator VOINOVICH. What budget? 

Ms. BARNHART. Fiscal year 2005. The people in this agency work 

very hard and they care very much. I travel around quite a bit to 

meet with employees in the agency and many are here today. And 

I think it’s important always when I testify on these problems to 

separate the problems from the people in the agency. What I would 

like to remind people is that, if the people in the agency were not 

working as hard as they are and as dedicated as they are to doing 

the job for the American people, the backlogs would be even greater 

than they are. The processing times would be longer than they are. 

I really appreciate the job they are doing. 

We need to get additional resources so we can provide the kind 

of service that you and all your constituents expect. It’s definitely 

the kind of service we want to provide. 

Senator VOINOVICH. I really appreciate you being here. I have to 

tell you I’m very impressed with your testimony. I think it’s good 

that we have somebody who really understands the problems of the 

agencies. I’m impressed with the fact you are looking at this long 

15

1The prepared statement of Mr. Daub appears in the Appendix on page 55. 

term and you understand there are some short term things you 

need to get done. I will monitor what you said today and I will remind you. I will make a deal if Ohio receives AeDib in June, I will 

send you a beautiful letter, if not I will ask you what happened. 

Ms. BARNHART. You got a deal. Thank you very much. 

Senator VOINOVICH. Thank you very much. 

Ms. BARNHART. I want to mention that I have previous commitments and I have to leave immediately to go to the airport. I did 

read the testimony of all of the other witnesses today and I want 

to say I have worked very closely with some of the witnesses coming up, Jim Hill and Kevin Dugan, I met Ms. Margolius before 

while I was in Cleveland. I appreciate the cooperative spirits and 

comments they made in their testimony. I have staff staying to listen to the entire hearing and be able to provide me with information. 

Senator VOINOVICH. Thank you for being here today. 

Our next panel is Hal Daub, Chairman of the Social Security Advisory Board, former Congressman and Mayor of Omaha, Nebraska. Robert Robertson is Director of Education, Workforce, and 

Income Security at GAO who has been paying a great deal of attention to what has been happening at the Social Security Administration. Erik Williamson is Assistant Director at Ohio Bureau of Disability Determination. 

Mr. Daub, we’ll start with you first. Thank you for coming here. 

TESTIMONY OF HON. HAL DAUB,1 CHAIRMAN, SOCIAL 

SECURITY ADVISORY BOARD 

Mr. DAUB. Thank you very much. I want to thank you for this 

very timely hearing. There are few of your colleagues who even 

want to deal with this problem, it is complex, is it technical. And 

in the process of preparing for this hearing I want to thank you for 

the attentiveness of your staff who really did dig deeply into the 

problems that the system does have and it should be noted they 

have done a very good job and are prepared now to deal with the 

issue and to support you. 

Ten years ago, Congress created a bi-partisan Social Security Advisory Board to recommend ways to improve the Social Security 

programs. The Advisory Board travelled to every region in the Nation. We have talked to those involved at every level—both those 

who run the program and those who seek help from it. We have 

found widespread consensus—with which we agree—that this is a 

program with serious problems. 

Disability decisions should be fair and consistent throughout the 

country and at each level of adjudication. We have found large and 

unexplained inconsistencies. The program lacks a comprehensive 

quality management system to assure careful and uniform application of the law. Improvements are needed to develop and to apply 

the same standards as objectively as possible at all levels of the decisionmaking. We are very pleased to see the Commissioner take 

bold steps to address these issues. To move ahead with major improvements in technology is a leap the agency needs to better meet 

16

1The report entitled ‘‘The Social Security Definition of Disability,’’ submitted by Mr. Daub 

with an attachment appears in the Appendix on page 58. 

its challenges. I urge you not to underestimate the scope of the 

problem. 

As your title for this hearing states, proposed process changes 

and technology improvements can put the Social Security Disability 

programs on the road to recovery. Traveling all the way down that 

road will also require addressing needs such as more—and more 

uniform—training. There must be a stronger policy development 

capacity. Better human capital planning is also essential. The crucial factor for really achieving these goals is an adequate level of 

resources. 

As the Board travelled around the country we were impressed by 

the dedicated and hardworking employees in Social Security offices 

and State disability determination services. They have been increasing their productivity. The Commissioner has proposed 

changes that will allow even greater improvements. That will only 

happen if Congress provides sufficient resources to handle the evergrowing caseload. 

The agency has carefully developed a 5 year service delivery 

budget for bringing the backlogs down to a manageable level. But 

a vital increase in administrative funding is needed and the President has endorsed a very modest increased funding level. It’s now 

up to Congress to decide whether to provide those resources or opt 

for growing backlogs. 

The Commissioner described today her immediate plans for 

changes that she can quickly implement administratively. There 

certainly also is room for Congress to consider legislative improvements. 

The Social Security Advisory Board, for example, has urged Congress to consider changes such as creating a Social Security court 

and changes in the hearing process itself. 

Finally, there are larger issues that must be dealt with. Social 

Security Disability program uses a definition of disability that is a 

half century old. Many today feel that the focus on ‘‘inability to 

work’’ does a disservice to impaired individuals and we should find 

ways to change the program to better support the desire of those 

individuals to continue leading productive, self-sufficient lives. 

The Board has recently issued a report on the definition of disability and is sponsoring a forum on April 14 to further explore this 

important issue. In fact, Senator, during recess you are invited, 

and if not you, your staff, to join us for that forum. It will be held 

on the Senate side. 

Along with my full statement, I would like to submit for the 

record a copy of a Social Security Advisory Board report from October 2003.1 It is a report on the need for fundamental changes in 

the disability programs and on the definition of disability. All of 

our reports can be viewed on the Social Security website, 

www.socialsecurityadvisoryboard.gov. 

Senator VOINOVICH. Mr. Robertson, I would like to say before 

your testimony, I appreciate your tremendous cooperation and help 

I received from the General Accounting Office. David Walker and 

I have become very good friends over the years and I just want you 

17

1The prepared statement of Mr. Robertson appears in the Appendix on page 107. 

to carry back to your associates how much this Senator appreciates 

the good work you are all doing at GAO. 

TESTIMONY OF ROBERT E. ROBERTSON,1 DIRECTOR, EDUCATION, WORKFORCE, AND INCOME SECURITY, U.S. GENERAL ACCOUNTING OFFICE 

Mr. ROBERTSON. Thank you very much. Let me begin, Mr. Chairman, reiterating one of your opening comments. That is, this is just 

a wonderful new building to have this hearing in. I’m also very 

happy that you invited me here for a discussion of what has to be 

one of SSA’s most pressing challenges—to produce timely, consistent, high quality decisions for people who are applying for disability benefits. 

As you indicated earlier, the stakes are high. The two programs 

we are talking about involve large numbers of people and large 

amounts of Federal resources. I’m going to be making four points 

this morning. 

The first is not news but it’s certainly worth stating. That is, the 

SSA disability programs have in the past and currently continue to 

experience problems in terms of producing timely, consistent disability decisions. There is some good news in the area in that SSA 

has made some short-term gains in improving timeliness for part 

of its decisionmaking process. The bad news is that, as the Commissioner has noted on previous occasions, the SSA system has a 

long way to go. For example, over the past 5 years the average 

time it takes to receive a decision at the hearing level has increased by a month, from 316 to 344 days. 

Second, beyond decision timeliness and consistency, the disability 

program suffers from more fundamental problems related to the 

basic concept that disability determinations are based upon. It’s 

been referred to in earlier statements. More specifically the programs are grounded in an outdated concept of disability that 

equates impairment with the inability to work. Under this concept 

a person is determined to be totally disabled or not. There is nothing in between. This all or nothing idea really is not in synch with 

medical advances and economic and social changes over the years 

that have resulted in greater work opportunity for people with disabilities. Further, employment assistance that could allow claimants to stay in the workforce or return to work and potentially remain off the disability rolls of Social Security are not offered until 

after a claimant has gone through a lengthy determination process 

to prove his or her inability to work. In short, the basic design of 

the program does little to recognize improved work opportunities 

for individuals with disabilities or to foster a return-to-work philosophy. 

As a brief aside here, the problems SSA faces with its disability 

program both in terms of the management of the program and the 

program’s basic design are not unique. There are other Federal disability programs that face the same types of problems. Based on all 

of these concerns we placed the Federal disability programs, including those at SSA, on our high risk list in January 2003. 

18

1The prepared statement of Mr. Williamson appears in the Appendix on page 121. 

My third point is to simply recognize and acknowledge that the 

Commissioner has placed a high priority on addressing problems in 

the disability program and is developing a strategy to improve the 

disability process. This has included expediting the new electronic 

disability folder and automated case processing system, proposing 

changes to the determination processing system intended to 

produce more accurate decisions, sooner, and testing concepts intended to foster a return to work at all stages of the process. 

My fourth and final point is to highlight what can only be termed 

as some very daunting challenges that face the Commissioner. 

Some of these have been mentioned earlier. More specifically, improvements in the claims processing time, are closely linked to successful implementation of the automated electronic case processing 

system. However, we have recently raised concerns about SSA’s 

plan to accelerate this system’s deployment. 

Additionally, we have reported that SSA faces human capital 

problems that affect the very people who are critical to implementing the proposed changes to the determination process. In particular, we found that the 5,600 disability examiners employed by 

the federally funded but State run DDSs, face high turnover, recruiting and hiring difficulties and gaps in key knowledge and 

skills. Finally, growing case loads can only exacerbate the challenges SSA faces. Between 2002 and 2010 SSA expects disability 

insurance roles to grow by about 35 percent. 

Mr. Chairman, that concludes my prepared remarks. I would be 

happy to answer questions at the appropriate time. 

Senator VOINOVICH. Mr. Williamson. 

TESTIMONY OF ERIK WILLIAMSON,1 ASSISTANT DIRECTOR, 

OHIO BUREAU OF DISABILITY DETERMINATION 

Mr. WILLIAMSON. Thank you, Mr. Chairman, for the invitation to 

participate in this hearing on improving the backlog of Social Security disability claims. The bureau is 100 percent funded by SSA 

and each State has a comparable Disability Determination Service. 

I would like to begin by briefly providing some background and 

data regarding the Ohio DDS. 

Ohio has the highest productivity rate of the country’s 12 DDS 

programs and based on the number of cases received, Ohio program is the fifth largest in the Nation. 

During fiscal year 2003 Ohio produced over 183,285 Social Security Disability claims. Since fiscal year 1996 the number of claims 

processed by Ohio increased by 25 percent. During the same period 

our staff increased by 6.8 percent. The bureau has remained highly 

productive despite the disparity in resources and we are committed 

to making the most of the resources available to us. However, additional staffing commensurate with our increasing caseloads will be 

critical to ensure that services to the public are not severely impacted. 

To prepare our workforce for the changes we see approaching, we 

provided over 9,000 hours of training to staff including vocational 

issues, medical issues and change management and problem solving for our supervisors. To prepare for the electronic disability foldVerDate 0ct 09 2002 13:05 Jul 13, 2004 Jkt 094200 PO 00000 Frm 00022 Fmt 6633 Sfmt 6601 C:\DOCS\94200.TXT SAFFAIRS PsN: PHOGAN
19

er, we improved our hiring process to include a computer skills assessment and invested in an online electronic learning program. 

We regularly provide training on pertinent issues conducted by employees and medical consultants who are strong in these particular 

areas. And we created a mentoring program and job shadowing 

program. Training strains our productivity, but we realize the impact to our quality if we do not continue to provide relevant training. We ask that adequate resources for training be provided to 

help us to continuously improve the skills of our workforce. 

The Accelerated Electronic Disability Process will transition our 

business process into a totally paperless environment. The Ohio 

DDS is scheduled for rollout later this year. 

We see great benefit in the increased efficiency of moving to an 

electronic environment. We are also cognizant of the fact there will 

be a significant learning curve during implementation. 

We are encouraged by our preparation today and believe it will 

minimize the impact to our organization. However, we do have a 

few concerns. 

Other States in our region will not be in a position to help us 

during the transition as they will also be implementing the electronic folder. Ohio’s caseload continues to grow at an ‘‘unprecedented rate’’ and we will need adequate staff to meet the challenges this presents. It takes 2 years for a recently hired adjudicator to complete training and work independently. In order to 

process the increased workload, the Ohio DDS budgeted to hired 80 

employees during fiscal year 2004. It has received authorization to 

hire 20 due to budget restrictions. 

Perhaps most importantly, we need the process to become fully 

electronic as soon as possible. The key to this issue is the National 

Archives and Records Administration approving the electronic file 

as the officially recognized document. We do not have adequate resources to support both a paper and electronic system indefinitely, 

which will affect our ability to serve the public. We see tremendous 

advantage to this project and hope that we can move to the electronic environment quickly as possible. 

We agree improvements can, and need to be made, in the overall 

disability process. I will outline some of our concerns on the Commissioner’s approach. 

In-line quality reviews. An in-line review process can identify potential problems early in the process before the claim is completed, 

saving time and resources for our claimants and the DDS. We 

strive to prepare our claims for the next level of review, and therefore, we have begun piloting the in-line review concept in conjunction with our end-of-line quality assurance efforts. We would add 

to Commissioner Barnhart’s proposal implementation of formal 

quality review for the field offices to ensure accuracy of application 

forms and also for the regional expert review units and reviewing 

officials. 

We agree that centralized quality control would improve consistency over the current regional disability quality branch process. We 

are always willing to improve, and we would welcome national 

input to help us with the overall process. 

Additionally, as far as demonstration projects, we believe there 

is tremendous potential in exploring new ways of doing business. 

20

We are interesting in working in collaboration with the Ohio Vocational Rehabilitation bureau to determine if early intervention with 

SSDI applicants will help them to reenter the workforce and 

achieve financial independence. We would like to explore a temporary allowance project that will provide immediate cash and 

medical benefits for a specified period to applicants who are highly 

likely to benefit from aggressive medical care and/or vocational rehabilitation. We see great value in exploring these projects suggested by the Commissioner and look forward to the opportunity to 

work with SSA on the initiatives. 

In closing, I would like to emphasize our desire to work with internal and external components to improve the disability process. 

We strongly support the transition to the electronic environment 

and we are excited about the benefits it will bring to our organization. 

We are committed to providing the highest levels of public service possible and making the best use of our existing resources. 

We ask for your consideration in providing us with adequate 

funding to continue to offer the level of service expected of our organization in light of the growing demands that we face. 

Mr. Chairman, thank you for the opportunity to testify and I 

would be happy to take any questions. 

Senator VOINOVICH. One of the Commissioner’s approaches require State DDS examiners to fully document and explain the basis 

for their determination. The Commissioner contends this should result in more accurate decisions. In 2002 initial denials across the 

country ranged from 34 to 731⁄2 percent which is an unbelievable 

difference. The Ohio DDS initial denial rate was about 70 percent, 

which was the fifth highest in the Nation. 

To what extent do your examiners document and explain their 

decision and do you feel that Commissioner’s documentation requirement will improve the overall disability process at the State 

level. 

Mr. WILLIAMSON. Our adjudicators document their decisions in a 

PDN or personalize denial notice that goes to the claimant. The difference between what the Commissioner said would go into greater 

detail and perhaps be a far more technical audience to explain essentially how we got where we did in terms of the decision. 

We think that the centralized quality review that she’s proposed 

would go a long way to adding consistency to the States. So I don’t 

know if that answers your question. 

Senator VOINOVICH. Well, I mean it seems to me that more documentation requirements will cause more work or do you think that 

a standardized form will bring about a more accurate determination in regards to an individual and down the road result in less 

requests for reconsideration and appeals to the judges? 

Mr. WILLIAMSON. Frankly, I have to believe it would improve the 

process. My personal opinion and position of the agency is, I think, 

it would take more resources, it would take longer to do that. I 

think we have to decide that it may be an investment we need to 

make. 

Also in the Commissioner’s plan she did indicate that resources 

would be redirected to DDS in terms of taking away some of the 

quick decisions and taking away the reconsideration step that 

21

would allow our staff more time to do that inter-department analysis. 

Mr. DAUB. I look at it from a perspective that on the front end 

a little more time will be required and will be appropriately invested for a more thorough examination of that citizen’s disability 

request. Then, as a result of that, a quicker decision can be made 

and the benefits will be delivered quicker. And then those claims 

that take a little more time will be so thoroughly documented that 

they won’t be in the queue for a year and a half waiting for the 

administrative law judge process after reconsideration. If you look 

at the total process it will take more time and resources on the 

front end, but really shorten the appeal process dramatically. 

Senator VOINOVICH. One of the things we did with our workers’ 

comp system was we had a procedure with these boards of revision—from a hearing it would go to the board of revision and we 

eliminated some of the procedural steps to streamline the process. 

Hearing people come in rather than doing it the way we were doing 

it in the past and it expedited things for the claimants. 

Has anybody looked at it, GAO looked at it, does this system 

make sense? Do you believe that having the States do the initial 

disability determination is the best way to get the job done? Would 

they be better decided by the Federal Government instead of the 

State? In other words, your retirement Mr. Williamson, you are 

part of the whole Public Employee Retirement System. Has anybody looked at that whole process procedurally? 

Mr. ROBERTSON. Two points to make. The first one is that the 

decision itself, the disability determination itself, is a very complex, 

difficult decision to make. So you start with that and then you put 

that decision in a process that is, as Hal noted earlier, very fragmented—it involves 1,300 field officers, 50 some odd DDS’s, and 

140 hearing offices. That makes the determination process even 

more difficult. 

Senator VOINOVICH. Do you think the Commissioner, according to 

the information I have, would replace the State’s reconsideration 

process with new SSA reviewing initiative? 

Mr. ROBERTSON. I think the Commissioner is pushing for process 

improvements and looking at the process in its entirety. We haven’t 

seen the details on a lot of the design yet and, of course, the devil 

is in the details. But much of what she is talking about in general 

makes sense. 

Mr. DAUB. There are two changes, Mr. Chairman, that I don’t 

think the Commissioner decided yet, but her approach to the process is looking at eliminating reconsideration and looking at the administrative law judge stage and subsequent appeal review being 

streamlined. It is amazing how many days it takes for a determination and then the appeals, as you point out. Interesting things are 

happening. In recessionary times, unemployment rises and disability claims tend to rise. The next thing that is happrning is the 

aging of our society. The baby boomers are coming in here. Disability tracks age; the older you get, the more disability claims 

come into the system. 

This movement into electronic files is absolutely critical. The 

whole reform process is predicated upon the electronic file. That 

has to work first. And assuming that is on track and resources are 

22

in place for that, the streamlining of the administrative review can 

occur. And the Commissioner has not decided yet which pieces will 

be taken out of the system but at least there are two that should 

cut a lot of processing time for the applicant. 

Senator VOINOVICH. It gets back to the issue of, Mr. Robertson, 

do you think Social Security has the staffing capacity at the Federal level to meet the challenges you discussed? 

One of the things, if I’m not mistaken, in the background material I read was that State disability determination systems are having human capital challenges. I hope that the Social Security 

Adminstration will work to alleviate these challenges. That is, why 

we elevated human capital as officers in each of the agencies and 

it’s very important that they turn their reports in every year. 

In terms of SSA’s last GPRA report we didn’t think there was 

enough attention made to the staff capacity that would be needed 

to achieve the agency’s goals. Mr. Robertson, I would like you to 

comment on that. 

Mr. ROBERTSON. As you know, Mr. Chairman, SSA is in the process of really transforming itself. Its like taking a big ocean liner 

and trying to make it change directions. As you know, we have examined other organizations that have successfully transformed 

their operations. The absolute key to their success was the human 

capital aspect of their plans. From Social Security’s standpoint, 

they have to have a strong human capital management plan. However, when we looked at the DDS part of it recently we saw some 

things lacking. 

Mr. DAUB. The comment was made earlier that it takes about 2 

years to train a person to make disability determinations and learn 

the medical listings. It’s a very complex process. And that is just 

to recruit and then to retain that person in the State process long 

enough to get them trained. Now we are going to put them through 

a process of getting on-line and understanding that whole new complicated process. We see a turnover factor on human capital in this 

agency of about 13 percent. It’s a resource issue. The 5-year budget 

plan that the Commissioner developed would have eliminated backlogs. That budget proposal did not occur but they’ll do their very 

best, I’m sure, to try to handle that increasing case load. It is clearly a resource and training commitment that has to be made to turn 

this ship around. 

Senator VOINOVICH. Mr. Williamson, one of the things that the 

Commissioner mentioned was the fact that those States, for example, Mississippi have gone forward and implemented the program 

and seems to be happy about it. And the word at least around the 

country is it’s a good system. First, do you hear good things about 

the system and, second, you mentioned something about training 

and I would like to know what you are doing in order to train your 

people so they can use the new system when it comes in. I know 

that’s a lot of work because when I was county auditor we went 

from paper files to electronic files and frankly we had to retrain 

employees and some of them we weren’t able to retrain. They 

weren’t able to do it. This is a whole business of computer familiarity and all of the other tasks that are necessary. Also, from what 

I read about your operation I understand you’ve had some turnover 

problems. 

23

Let’s put it this way, are your employees going to be trained 

enough when AeDib reaches Ohio? Are you going to be able to handle this system? Do you have training going on, do you have the 

number of people you need and so on? 

Mr. WILLIAMSON. Thank you, Mr. Chairman. We have been doing 

significant training. We started E-learning to get everyone’s skills 

up, computer skills assessment. We have training that Social Security provided us on what employees can expect in the new environment. We have a technological issue of getting all the equipment 

in and working, and working with our Legacy software and to 

make sure it’s user friendly and working properly for our staff. 

We named one of our managers as project manager to oversee it 

from start to finish. And as I said, we have some concerns but we 

are very enthusiastic about getting the electronic folder in. And 

think it’s going to provide significant benefits. While we are concerned somewhat about training, we think if we have the resources 

and staff we’ll be able to meet that challenge. 

Senator VOINOVICH. You said two big ifs, resources and staff. 

What is the likelihood you are going to have resources and staff. 

Mr. WILLIAMSON. I think we’ll get some of the staff we need and 

I think we’ll get a fair number of the resources. Frankly, it remains 

to be seen. Our budgets aren’t all final in terms of how much the 

DDS will get as it rolls out. We have been assured as we roll out 

with Levy Corporation, we’ll have their full support in bringing it 

on and teaching our staff how to physically use it. 

Senator VOINOVICH. I would like to have something in writing 

from you about that, where you are, what you think you need, 

what your resources are, and what is the probability you are going 

to be able to achieve what it is you are supposed to. And also is 

the amount of the money that you are getting from the Federal 

Government adequate enough to hire staff. For example, how about 

your classification and your salary, are they competitive enough 

you can bring people? 

Mr. WILLIAMSON. I think they are relatively competitive. 

Senator VOINOVICH. Why do you have the turnover you have? 

Mr. WILLIAMSON. Our turnover is not quite as high as many DDS 

experience. For fiscal year 2002 we had 6.7 percent attrition. If you 

took our retirees, it’s 3.48 percent. I don’t think we are having 

quite the problem with that. Ninety-two percent of our workforce 

has 20 years experience or less. Where we are seeing the growing 

pains, we have approximately 54 percent of our workforce with less 

than 5 years experience. 

Making sure they have adequate training is one of our primary 

goals. Interestingly, though, as far as rolling out electronic folder 

the people just from college are familiar with the electronic environment and aren’t struggling with that transition at all. 

Senator VOINOVICH. What about the ones that weren’t doing it? 

Mr. WILLIAMSON. They are responding very well to our training. 

Like I said, we put in our electronic learning. We asked all staff 

to complete a certain amount of courses by May before the folder 

comes and they are responding quite well. A lot of people are saying, gee, I wish I tried this sooner. This isn’t as bad as I thought 

it was. We had a lot of electronic forms up on our system and use 

the E–View system so we can look at the same application on the 

24

screen that the field office does. In a sense we implemented several 

parts of what we’ll be doing and we feel relatively well prepared 

for both our future staff and existing staff to make that transition. 

Senator VOINOVICH. Did you teach Q–Step? 

Mr. WILLIAMSON. No, sir. 

Senator VOINOVICH. How long have you been with the agency? 

Mr. WILLIAMSON. Fourteen years. 

Senator VOINOVICH. When we started quality service through 

partnership you weren’t part of that program? 

Mr. WILLIAMSON. No, sir. 

Senator VOINOVICH. Are you familiar with it at all? 

Mr. WILLIAMSON. I’m not. 

Senator VOINOVICH. We’ll send you some stuff on it. 

Mr. DAUB. The Commissioner also emphasized in-line quality review from the beginning to the end. That is a real need as you implement a new system. I take it you took a similar approach, in 

your work as governor. I think the reviewing officer and the closing 

of the record at the administrative law judge level will help. The 

number of days that it takes once a denial is turned into an appeal 

is somewhat misleading because if you don’t like the judge you are 

assigned and you know there’s another judge that’s a little easier 

or a little more willing to overturn a decision, your attorney might 

just be busy that day and take a continuance or postpone the case 

in hopes that another judge will hear it. Forum shopping to a degree does occur. I think GAO discovered this. 

Also, if the record is kept open as it has been up to now, you can 

hold back information and wait to see how you are doing on overturning the disability determination from the beginning all the way 

to the final review. What that does is simply adds more days in the 

averaging as that case stays in the system longer. With the closing 

of the record and the other changes the Commissioner is thinking 

about we are going to get, I think, better due process to the claimants who rightfully should have a chance for an appeal and rightfully have their case reconsidered. It’s going to work a lot more efficiently for the claimants. 

Senator VOINOVICH. We are going to have people representing 

claimants in the next panel. I would like to hear what their reaction is. 

Mr. DAUB. It’s going to take some time to get the system going. 

We have been without all the judges that we needed to do some 

of the work for a long, long time. And then, as you know, the Congress just passed the drug bill which is also going to change the 

situation—about 50 to 70 judges are going to leave SSA and go 

over to HHS to handle Medicare appeals. That will make the SSA 

system short again a number of judges. Again it is a resource issue 

and funding issue. 

Senator VOINOVICH. Seems to me that at this stage in the game, 

and I am going to have a hearing on April 8 next month on the 

new prescription drug program. I’m bringing HHS in to talk to 

about whether they have the capacity to implement the new Medicare modernization program and prescription drug program. I 

think it’s important that we find out about this portion of it because one of the things we are trying to do is to make sure we have 

enough employees focusing on enforcement. As we are looking 

25

through and comparing all the employees in Homeland Security we 

may find large discrepancy in salaries in relation to enforcement 

positions at other agencies. We have people outside of DHS in the 

other agencies and we don’t want to see employees flowing from 

one agency to the other because they are going to get a big bump 

in their salary. 

What you are saying to us today is you are concerned that some 

of your judges are going to be moved out of SSA over to Medicare 

to deal with their appeals process? 

Mr. DAUB. That’s a major situation. Somebody ought to relook at 

that whole big picture in terms of capacity. 

Senator VOINOVICH. That gets back to you, Mr. Robertson. How 

do you feel? You looked at this thing. Where are they in terms of 

capacity to do this? 

Mr. ROBERTSON. I know what I would like to say. Part of me 

would like to sit here and say we have a big resource concern. 

When we did our work on the DDS human capital side of things, 

many of the DDS directors we talked with noted that there are 

some resource constraints. The problem I would have with saying 

there’s a resource problem, however, is that, in that same review, 

we found that the planning wasn’t there. So, it’s hard to say there’s 

definitely a resource problem when we haven’t seen the plan either 

at the DDS level or Social Security level. That’s where we come out 

on that question. 

Senator VOINOVICH. The point is, that the plan has not been finalized and it’s difficult for you to determine if they have adequate 

staffing. 

Mr. ROBERTSON. Yes. 

Senator VOINOVICH. I’m interested in that and as chairman of 

the Advisory Board you ought to be also. I would like to know 

when you think that is going to come to be. 

Mr. DAUB. Your mandate says the conversion has to be by October 2005. So it’s between now and then that the details of the plan 

have to be finalized. 

Senator VOINOVICH. In the meantime the Medicare thing is going 

in 2006. 

Mr. DAUB. You are going to have a hearing on Part D. It’s going 

to be interesting to see what you discover. 

Senator VOINOVICH. We are having it because you are concerned. 

Mr. DAUB. Congress has provided funding for SSA to hire the 

people needed to implement the new Part D. Once that system, 

Part D, is implemented, there’s going to be a real pool of talent 

that was hired to accomplish that initial start up for Medicare eligible individuals. It would be a shame to have them hired only 

temporarily and then to leave the system again short. We need to 

look at this as a human resources potential. 

Senator VOINOVICH. To see the opportunity that is there. 

Mr. DAUB. It can be very helpful. Some of those folks may be 

available for State DDS work, too, which would be terrific. 

Senator VOINOVICH. Probably what we ought to do is call a meeting with OPM and Clay Johnson and get some folks together and 

talk about that to see if there is some way to expedite it within the 

framework of the current law or whether we need some changes in 

the law to have it. 

26

Mr. DAUB. Along with electronic folders and with better planning 

for resource allocation, we also need judges to be better trained and 

continuously trained on medical evidence because medicine 

changes. Getting all of this in the system would eliminate the need 

to hire more people over time. It would take a couple or 3 years 

to accomplish all of this. 

Senator VOINOVICH. One thing I would like to mention to you, 

Mr. Williamson, is the issue of the quality of people that you have 

working. You have medical doctors on your staff. There has been 

some controversy about your head doctor because he lost his ability 

to treat patients. That’s been pretty well vetted. But my concern, 

I don’t know whether you recognize it or not, you are going to have 

less doctors because we are losing doctors right and left today giving up the practice of medicine because of malpractice lawsuits, 

premiums are going sky high. And, frankly, we are starting to see 

that in terms of medical school. It’s having an impact on the number of people that want to go into medicine. 

So if you look at agencies that need M.D.’s to review the disability cases, we may have a human capital crisis in that area. 

Mr. WILLIAMSON. It’s definitely a concern for us. We need to attract quality physicians and psychologists to do what is a very unprecedented growing rate of claims. So certainly that’s a concern of 

ours and we may need to review what resources we may need. 

Senator VOINOVICH. Are you seeing anything like that now in 

terms of your situation? 

Mr. WILLIAMSON. We have been retaining fairly well. We have 92 

doctors or M.D.’s and psychologists. And we, for the most part, 

have been retaining them without a lot of difficulty. But attracting 

new candidates has been an issue for us. 

Mr. DAUB. Are they contracted mostly or employees? 

Mr. WILLIAMSON. All consultants. 

Mr. DAUB. Some States are mixed—employed and contracted. 

Senator VOINOVICH. I read an article about it and about this particular individual, why don’t you share that because there may be 

people in the news media that want to get your statement in regard to that. 

Mr. WILLIAMSON. I would say first, Dr. Cantor does hold a medical license. He has more than 20 years experience with our organization. He’s very knowledgeable of the SSA program and is well respected and he meets the position requirements set forth by SSA. 

So at this point we are very comfortable with him continuing in 

that position. 

Senator VOINOVICH. The fact he lost his ability to treat patients 

because he was administering drugs to his family and friends 

doesn’t give you any pause. 

Mr. WILLIAMSON. He did lose his ability to prescribe medication, 

that is true. Although that does not interfere with his ability to do 

his duties with our organization. 

Senator VOINOVICH. And you are sure that you monitored him so 

he’s no longer——

Mr. WILLIAMSON. Yes, sir. 

Senator VOINOVICH. You feel very confident of that? 

Mr. WILLIAMSON. Yes, sir. 

27

Senator VOINOVICH. From your perspective he’s a competent individual doing the job he’s doing but he’s not able to practice medicine is not a concern to you, or see patients? 

Mr. WILLIAMSON. I understand. Many of our physicians do not 

practice medicine. Many of them are retired or for one reason or 

another not practicing, including their medical insurance premiums. 

Senator VOINOVICH. You may be getting more. 

Mr. WILLIAMSON. We may have the opposite happen because of 

that, because they don’t need that coverage with us. My answer 

would be I’m comfortable with him and we did monitor his work. 

Mr. DAUB. There’s another point you raised serving the rural 

populations of a State, and there the medical physician shortage 

that you are talking about is very serious. The Commissioner, in 

thinking through how to make good decisions at the in-take level 

is particularly interested in a regional kind of medical unit. It 

won’t take away anybody’s job currently working in the process, 

but to have regional specialists available to consult, particularly in 

a smaller community, can help expedite a person’s application. 

GAO pointed this out in a number of studies, and it can be very 

important to a State like this for the determination folks to have 

the ability to pick up the phone or to video conference with physician subspecialists. 

Senator VOINOVICH. There is lot of that going on today in terms 

of video conferencing and diagnosis in rural areas because of lack 

of physicians that are in those areas. 

Mr. ROBERTSON. Those regional units will help with the consistency of the decisions, too. 

Senator VOINOVICH. Has there been any study made as to why 

you have this large discrepancy in initial disability determinations. 

The range falls between 79 percent rejection and 35 percent? How 

do you reconcile that? 

Mr. DAUB. It’s very hard to explain. That’s probably the most 

baffling part of the system. I think that it gets down to a training 

issue. In the system of administrative law judges there isn’t any 

published precedent from one State to another as to how a particular diagnosis would be looked at on appeal. So from different 

parts of the country different judges and different doctors look at 

each human being differently as a separate unique case. I’m not 

sure we should get fully alarmed by the inconsistency but it’s 

enough that I think part of the answer is in better training, and 

I said it a minute ago, more and regular medical training for ALJs. 

Senator VOINOVICH. How about DDS? 

Mr. DAUB. I think if the judges had the same training the DDS 

had, you would see a lot more uniformity. 

Senator VOINOVICH. But the fact is the rejection rate on the 

State level is marked. Ohio has one the highest rejection rates, 

don’t we? 

Mr. WILLIAMSON. Yes, sir. 

Senator VOINOVICH. Why are we rejecting more people than 

other States? 

Mr. WILLIAMSON. Mr. Chairman, we looked at several facts of 

whether we can draw comparison with unemployment rates, demographics or downturns in the economy and we have not been able 

28

to draw a direct nexus to those factors. We have to rely on quality 

statistics from Social Security Administration to make sure we are 

following rules and regulations and so far our quality has been 

very good. 

I do think, as Mr. Daub said, the Commissioner’s approach to 

centralized quality review would be a great benefit to all the States 

in terms of providing consistency. 

Senator VOINOVICH. It’s important somebody from Indiana and 

somebody from Ohio, Indiana says OK and Ohio rejected, why is 

one approved and why is one not approved, I think that in terms 

of fairness to individuals. 

Mr. DAUB. One of the biggest difficulties is the review of mental 

illness disability. Physical disabilities, there’s a lot more uniformity 

but it’s less clear in the attempt to determine that someone is mentally unable to continue to perform the work they did do. And, of 

course, with medications today and other improvements there’s so 

many more ways somebody can go back to work and be productive. 

But the definition of disability doesn’t take that into account. And 

so everybody is working really hard to make sure you give the benefit of the doubt to that individual. I think that mental impairment 

in the most difficult one. 

Senator VOINOVICH. What percentage of the cases are for mental 

impairment. 

Mr. DAUB. It’s over half, well over half of disability claims involve mental issues. 

Senator VOINOVICH. I would like to see a breakdown of where the 

claims are coming from and I would like to have somebody dissect 

the thing a little bit and come back with some real thoughts. What 

are you doing with it, is anybody looking at this and if people who 

claim to have mental impairments—how are those being decided. 

The issue becomes quality of the individual that is reviewing their 

case and if one is reviewed and the situation can be remedied with 

the use of medication, you are saying that that doesn’t count in 

terms of whether somebody should be disabled or not. 

Mr. DAUB. It is a very difficult thing to look at aggressively with 

a degenerative circumstance in an individual and to know whether 

at some point that person will be able to work or not. There are 

so many people making judgments. To move that case along 

through the system you don’t get time to check to see, if we prescribe medication, will that person be able in 6 months to go back 

to their job which they lost in the meantime. It’s a difficult process. 

Senator VOINOVICH. It’s one that would be worthwhile if you are 

talking about half the cases we are seeing such a dramatic change 

today in terms of mental illness. That is one I think we should 

really look after. 

Mr. DAUB. Looking at other countries, Scandinavian countries, 

Netherlands, you are seeing, I want to put this in a tactful way as 

I can, the process of disability is becoming so easy, with all due respect, that it’s become a much better way to take early retirement 

until you are 62 or 65. In our system it’s not to say we have malingerers or people are cheating. I don’t know that at all. 

The process makes so many judgments along the way that in the 

process of appealing, if you appeal long enough, you are going to 

win. And some of it is due to degeneration in the claimant’s condiVerDate 0ct 09 2002 13:05 Jul 13, 2004 Jkt 094200 PO 00000 Frm 00032 Fmt 6633 Sfmt 6601 C:\DOCS\94200.TXT SAFFAIRS PsN: PHOGAN
29

1The prepared statement of Mr. Dugan with an attachment appears in the Appendix on page 

126. 

tion over the 2 or 3 years that the case stays in the system. Rather 

than pointing to any fault I think it’s time in our modern society 

to take a look at how we define disability. 

Senator VOINOVICH. I want to thank you very much for coming 

today. It’s been very instructive today. I appreciate you getting 

back to me. 

I’m going to recess the hearing for 5 minutes. 

[Recess.] 

Senator VOINOVICH. The hearing will come to order. We have our 

next panel and we are fortunate to have the Hon. Kevin Dugan, 

administrative law judge in Charlotte, North Carolina, collective 

vice president of the Association of Administrative Law Judges. I 

take it that all your judges belong to this, is that right? 

And James Hill, Attorney Advisor in the Cleveland office of hearing and appeals. He’s also President of Chapter 224 of the National 

Treasury Employees Union 224 and we are here to hear from you. 

I’m interested in hearing professionals and members of unions, and 

Colleen Kelly is a great friend of mine and has been very helpful 

to us in all of the work that we have done in human capital, not 

necessarily agreeing with all of it but she’s been very constructive. 

I want you to know as a member of her union she’s an outstanding 

individual trying to find a way to make things work. 

Marcia Margolius who is an attorney with Brown & Margolius in 

Cleveland and I saw a couple people shaking their heads during 

some of the testimony and hopefully she will give us a perspective 

of the individual that represents the clients who go through this 

whole system. 

We’ll begin the testimony with you, Mr. Dugan. 

TESTIMONY OF HON. D. KEVIN DUGAN,1 VICE PRESIDENT, 

ASSOCIATION OF ADMINISTRATIVE LAW JUDGES 

Mr. DUGAN. Thank you, Senator. Thank you for the opportunity 

to testify today. This statement is presented in my capacity as Vice 

President of the Association of Administrative Law Judges (AALJ). 

It represents the professional interest of 900 administrative law 

judges in the Department of Health and Human Services where the 

new Medicare is going, by the way. 

One of the stated purposes of the AALJ is to promote and preserve the claimants right to full due process hearings. As such our 

association has spent a substantial amount of time and resources 

to create a system that will deliver fair and expeditious adjudications for the American public. 

The SSA administrative hearing system began in 1940 with 12 

referees and it has grown to the largest adjudicative system in 

America. Along with the growth in size, there has been a growth 

in complexity. Unfortunately SSA has been unable to adequately 

address the difficulties that are inherent in the high volume but 

complex area of law. We are of the strong opinion that changes 

must be made if we want an efficient and fair adjudicative system. 

The Association of Administrative Law Judges believes the plan 

put forth by Commissioner Barnhart promises lasting and meanVerDate 0ct 09 2002 13:05 Jul 13, 2004 Jkt 094200 PO 00000 Frm 00033 Fmt 6633 Sfmt 6601 C:\DOCS\94200.TXT SAFFAIRS PsN: PHOGAN
30

1The letter referred to appears in the Appendix on page 149. 

ingful changes that will produce high quality decisions in an expeditious manner. We applaud her for her bold and courageous leadership. 

The plan makes many changes to the current system but promise 

to preserve the right of the claimant to a due process hearing. The 

changes that are proposed are predicated on the premise that the 

way to increase speed of adjudication is to first improve the quality. This is a stark contrast to many past initiatives. 

We agree that improving quality at the beginning of the adjudicative system confers benefits throughout the system as the cases 

move forward. If cases are fully developed and fairly evaluated 

from the beginning some cases will be paid more quickly and the 

more difficult cases will be properly prepared and presented for 

hearing, this will lead to more consistency at all levels of adjudication. 

As Commissioner Barnhart noted, however, the changes, technological changes she needs to do this will not be completed before 

October 2005. Meanwhile we must acknowledge that the pending 

backlog demands our best efforts with the tools we have now. 

The consensus is that the past initiative HPI failed to such a degree it caused an immediate decrease in cases decided in OHA offices here and nationwide. Fortunately, the best managers in local 

and regional offices were able to adapt and, to some degree, lessen 

the negative impact of HPI. Those offices are often characterized by 

a cooperative atmosphere which utilizes the skills and resources of 

the judges and staff. Other offices, however, were not able to soften 

that negative impact and they failed to a greater degree. We believe such offices should look to the practices used by the more successful managers. 

The AALJ has long been concerned about the growing backlog in 

Cleveland, as well as throughout the region. We have made informal suggestions and more recently put together a more comprehensive plan for the consideration of SSA managers. A copy of that letter is attached to my testimony.1 Our suggestions include reorganizing staff to providing additional management training and increasing resources. Until OHA returns to a modified unit staffing 

system, however, we will not be able to fully and effectively utilize 

your current resources. 

We have also suggested changes in case practices that could 

quickly increase case dispositions without additional resources. 

Some of the suggestions include using prehearing orders that fully 

involve the claimant bar in the process. This would shift some of 

the case preparation from the overworked staff. On a national level 

we have urged the adoption of rules of practice and procedure and 

the ABA Ethical Code of Conduct for administrative law judges. 

The plan presented by Commissioner Barnhart promises to 

transform the disability system into an efficient and fair system 

and we ask that you and the rest of your Subcommittee to fully 

support her efforts, her budgets requirements. The association will 

continue to work on improving the hearing process for the benefit 

of the American people. 

31

1The prepared statement of Mr. Hill appears in the Appendix on page 133. 

Thank you again, Senator, and I am happy to answer any questions. 

Senator VOINOVICH. Thank you very much. I appreciate you coming here today. Mr. Hill. 

TESTIMONY OF JAMES A. HILL,1 PRESIDENT, CHAPTER 224, 

NATIONAL TREASURY EMPLOYEES UNION, OFFICE OF HEARINGS AND APPEALS, SOCIAL SECURITY ADMINISTRATION 

Mr. HILL. Good morning. My name is James Hill. I’m the Attorney Advisor at the Cleveland hearing office for over 21 years. I’m 

also the President of Chapter 224 of the National Treasury Employees Union (NTEU) that represents attorney advisors and other 

staff members in the approximately 110 OHA hearing and regional 

offices across the United States. I thank you for inviting me to testify at this hearing. 

The disability backlog problem at OHA is neither recent nor 

unique to the Cleveland Hearing Office. From the mid-1990s the 

backlog grew to approximately 550,000 cases nationally and WITH 

over 9,000 cases in Cleveland. Several highly focused initiatives, 

most notably the senior attorney program, produced over 220,000 

fully favorable on the record decisions with an average processing 

time of just over 100 days. By October 1999 it reduced the number 

of cases pending to 311,000 nationally and slightly over 4,000 cases 

in Cleveland. I point out currently there are 625,000 cases pending 

nationally and over 8,500 in Cleveland. 

Since that time a number of factors including the termination of 

the senior attorney program, increased receipts, inadequate staffing and implementation of the disastrous Hearing Process Improvement plan have resulted in the record number of cases currently 

pending. The sheer mass of cases pending has raised the processing 

time to nearly 400 days nationally and over 550 days in Cleveland. 

This is simply unacceptable. 

There is no question that the current disability system is fundamentally flawed and wide ranging systemic changes are necessary. 

Commissioner Barnhart and Deputy Commissioner Martin Gerry 

conducted a truly objective review of the entire disability system 

accurately identifying its strengths and weaknesses. I believe that 

for the first time a senior SSA official truly understands the 

strengths and efficiencies of the current system. This insight combined with the Commissioner’s commitment to create a process 

that serves the needs of the public rather than the dictates of the 

bureaucracy has lead her to propose a plan for implementing fundamental process changes that will provide a level of service of 

which we can all be proud. 

The plan is comprehensive and involves extensive changes such 

as replacement of paper folders with electronic folders, elimination 

of the reconsideration determination, elimination of the appeals 

counsel, a completely revamped quality assurance system and creation of a reviewing official process to provide an intermediary between the State agency and administrative law judges. 

32

1The prepared statement of Mr. Margolius appears in the Appendix on page 144. 

I am convinced this plan, if implemented, will result in efficient, 

effective and most importantly a fair adjudicatory reprocess. 

As good as this plan is, it does not provide immediate reprieve 

for the Cleveland office. SSA has implemented some temporary 

measures that are limited in scope and have little effect nationally 

or in the Cleveland office. 

The Cleveland office faces an emergency and fortunately actions 

have been taken to significantly improve the level of public service. 

Three additional ALJs will shortly be assigned to the Cleveland 

hearing office. Additionally during the past several months over 

4,000 Cleveland cases have been transferred to ALJs at other hearing offices for hearings held in Cleveland in person or via video 

teleconferencing. More could be done. But it is essential that SSA 

be provided with the funding necessary to promote current and 

long-term initiatives to improve the level of service. 

However, not every improvement is extensive. Revising the senior attorney program would during the next year result in over 

60,000 fully favorable on the record decisions without a significant 

drain on SSA resources. The Social Security Administration and its 

employees recognize that significant improvement in the disability 

must be made if the public is to receive the level of service it has 

every right to expect. 

I know you, Mr. Chairman and Commissioner Barnhart are committed to the SSA disability system on a short-term and long-term 

basis, as well as providing resources necessary to the Cleveland 

hearing office to provide the wealth of services that the people of 

this community expect. Thank you. 

Senator VOINOVICH. Ms. Margolius. 

TESTIMONY OF MARCIA MARGOLIUS, ESQ.,1 BROWN AND 

MARGOLIUS, L.P.A. 

Ms. MARGOLIUS. First, I would like to thank you, Senator 

Voinovich, for initiating this field hearing to address delays in the 

Social Security claims. 

Under the current system people with severe disabilities are 

forced to wait years for an ALJ decision. These delays are harmful 

to the individual, undermine public confidence in the program and 

damage the integrity of the whole system. As a disability advocate 

I support any efforts and initiatives to make the process more efficient. However, any changes must ensure fairness and protect the 

rights of people with disabilities. 

The Commissioner’s plan includes several changes at the front 

end of the program that can have an immediate impact on new applicants and improve backlogs and delays later. Hopefully this will 

move forward at all possible speed and I hope it is up and operational by June 2005. However, like our Federal court system there 

needs to be a read-only online access to the program for the attorneys so that all parties involved can have the information and be 

involved in the processing of the claims. The current proposal does 

not allow such read-only online access that has been provided, for 

example, in the Federal courts. 

33

The position of the reviewing officer is very promising as it provides that necessary point person to help expedite critical cases. 

However, an appeal from the reviewing official to the ALJ which 

is currently proposed is a duplication in the reconsideration level. 

Beyond duplicating a step, the way the Commissioner has proposed 

to rid the system of it will be confusing to the public. The way the 

program is proposed currently there will be an appeal from the initial level to the reviewing official and then again to the administrative law judge. However there should be one appeal from the initial 

level to both the reviewing official and ALJ together. 

As currently proposed the reviewing official and administrative 

law judge will be in the same office of hearings and appeals. This 

is going to be very misleading to the public and people will mistakenly give up appeal rights. 

Senator VOINOVICH. Will you repeat that? I’m not sure I understand. 

Ms. MARGOLIUS. The way the program is now, the reviewing official and administrative law judges will be housed in the same office 

of hearings and appeals. The Commissioner is proposing if a claimant is denied initially, they will be appealed to a reviewing official 

and if a favorable decision isn’t issued you appeal from the reviewing official to the——

Senator VOINOVICH. Eliminate the reconsideration at the local 

and go right to a reviewing official. Would that reviewing official 

be working in the State operation or for the Social Security Administration? 

Ms. MARGOLIUS. For the Social Security Administration. 

Senator VOINOVICH. That should help to alleviate some of the 

burden on the State offices in terms of the reconsideration. 

Ms. MARGOLIUS. At the State office. But to be true to the position 

of reviewing official one appeal from the initial level should get the 

individual to the SSA level rather than making them go through 

two appeals. It’s duplicating. 

Senator VOINOVICH. The State does it, State denies, goes to the 

reviewing official and from reviewing goes to a judge. 

Ms. MARGOLIUS. But you have to appeal from the reviewing official to the judge. You are shifting focus from the State to Federal 

but still making the claimant undergo as many hurdles. 

Senator VOINOVICH. What would you do, eliminate the reviewing 

official? 

Ms. MARGOLIUS. Appeal of the initial decision goes to the Federal 

branch of the Social Security Administration, let the reviewing official approve it or make a recommendation to the judge and then 

have it go right to the judge without an additional appellate procedure. 

Senator VOINOVICH. I see. In order so that you don’t have the paperwork that is involved, the reviewing official gets the file, looks 

it over, they approve it and it’s done. 

Ms. MARGOLIUS. Correct. 

Senator VOINOVICH. You don’t think it should be I will take the 

file and move it, any appeal is to the judge. 

Ms. MARGOLIUS. Correct. Continuation of the appeal also protects 

the claimants. The current review process satisfies the claimants’ 

need to have oversight of the administrative law judges decision. 

34

A major basis for remand by the appeal counsel is not submission 

of new evidence but legal error committed by the ALJ. The Commissioner should maintain this process for rectifying errors administratively rather than forcing a court review. 

To date, though, Senator, the fundamental problem has been 

staffing at the Office of Hearing and Appeals. However, judges are 

only part of the solution. Support staff is based on the number of 

judges not the number of cases. So as long as we have the current 

backlog that exists at the Office of Hearing and Appeals, the delays 

are endemic and will continue without that much needed support 

staff. 

Senator VOINOVICH. What you are saying is even though you 

think we are going to bring two or three——

Ms. MARGOLIUS. Three more judges by June. 

Senator VOINOVICH. And of course they are farming out a lot of 

these cases to other offices, I would be interested to hear from you 

how you feel about that, maybe not in your testimony but as a 

question, but it’s the old staff thing. 

Ms. MARGOLIUS. Correct. 

Senator VOINOVICH. The thing that would be interesting to know 

why it is that Ohio has all these backlogs versus other offices, why 

is it we are farming cases out to someplace else and is it reflective. 

I thought this over, not in this area but even with immigration, 

same problem, it seems like we get shortchanged. So it would be 

interesting based on case load to see how the staffing levels fit with 

the judges. And, Mr. Hill, you might comment on that. Put that one 

down as a question. 

Ms. MARGOLIUS. Finally, to respond to Mr. Daub’s comment, I believe, forum shopping is not part of the system. If a case must be 

delayed, the claimant is unhappy. The case gets rescheduled with 

the same judge who also is not happy with any of the delays. So 

delays are avoided at all costs. You cannot postpone a case and 

have it reassigned to another judge. It goes back to the same judge. 

That’s the same procedure with appeal counsel remands also. If 

you do appeal, you get a remand, it’s returned to the same administrative law judge to deal with the issues that were raised on remand. That’s the end of my comments. 

Senator VOINOVICH. Thank you very much. That’s a good suggestion. Mr. Hill, what is your comment in terms of the staffing level 

here? 

Mr. HILL. Staffing, there are two distinct problems. You don’t 

have the funding for enough staffing. And I think the second is——

Senator VOINOVICH. Have you looked at your staff here versus 

other parts of the country to ascertain whether or not you are 

being shortchanged. 

Mr. HILL. We are being shortchanged I suppose if you look at it 

that way in terms of we have fewer judges than we need. And it 

has been pointed out staffing is based on the number of judges. So 

if you are short of judges, you are going be short of staff. If you 

don’t have enough staff, you are not going to get more judges. 

Senator VOINOVICH. I think to start off with you need judges. But 

the question I have is for the judges that you have in terms of 

staffing compared to other places, are the staffing levels to support 

the judges same as in other jurisdictions. 

35

Mr. HILL. It’s slightly higher. When we get the three new judges 

it will be about the national average. 

Senator VOINOVICH. You have more staff then you need right 

now. 

Mr. HILL. Temporarily, only temporarily because we have lost 

three judges in the last year and we are acquiring three judges. 

Senator VOINOVICH. You lost three, you got the staff that supported those judges, now you are going to get the three judges. 

Mr. HILL. I don’t believe we have had any hiring in quite some 

time as far as staff. 

I think the second problem we need to look at with staff is one 

of the problems HPI introduced is the group system where you 

group employees with a group administrative law judges. In my 

opinion that has been a disaster. I do support Judge Dugan when 

he says we need to go back to a modified unit system where we 

have specific people working toward specific judges rather than a 

generalized system. 

Senator VOINOVICH. Like a pool. 

Mr. HILL. It’s hasn’t worked as well as some of the people in Baltimore thought it would. It’s not very efficient. 

Senator VOINOVICH. Commission Barnhart is going to change 

that, right? 

Mr. HILL. I hope so. We haven’t changed it as of yet. 

Senator VOINOVICH. That’s an aftermath of the——

Mr. HILL. HPI. 

Senator VOINOVICH [continuing]. HPI and it hasn’t been changed 

and you are hopeful for it to be changed. The question to the Commissioner is it one of the things she’s going to change. Mr. Dugan. 

Mr. DUGAN. On that issue it’s kind of funny, it has been changed 

in some offices to some degree. It has been finessed a little better 

in others but in Cleveland it hasn’t for some reason. They brought 

more accountability in other offices where you can match people up 

so people know what cases belong to who and who you go to but 

when you have this group thing you have a whole bunch of people 

responsible for a whole bunch of stuff. No one is responsible for 

anything and it makes it—that’s why when an attorney sends in 

evidence, it doesn’t get into files, that’s why sometimes these hearings get delayed. By the date of the hearing the judge gets a stack 

like that. It’s not the attorney’s fault. The attorney is probably 

sending it a month ago or 6 months ago. 

Senator VOINOVICH. The question is you are saying where they 

have changed it——

Mr. DUGAN. I can get you some offices where it’s been changed 

for the better. 

Senator VOINOVICH. It seems to me that your organization should 

be looking at best practices and try to share that information with 

your colleages. Who is the boss in Cleveland in terms of the office 

procedures, are you, Mr. Hill? 

Mr. DUGAN. The chief judge is Alan Ramsay. 

Senator VOINOVICH. So your organization could compile best 

practices and send it to Chief Judge Alan Ramsay. If some offices 

have changed the process from HPI, why don’t the rest of the offices? 

36

Mr. DUGAN. We have sent suggestions, I said in my testimony, 

sent them up to the associate commissioner. I’m not in a position 

to suggest to Judge Ramsay how he is going to run his office. We 

sent them to the head of the organization. It’s up to them to decide. 

That would be outside of my realm. 

Senator VOINOVICH. I would think that Ms. Barnhart would be 

interested if this is working some places. We ought to see if we 

can’t get it done. So you could do that in Cleveland, right? 

Mr. HILL. Yes, I suppose. Again, it’s bureaucracy whatever the 

instructions are above you. Currently it’s a group system. Because 

all of the offices are located all over the country there are probably 

more variances than a lot of organizations but technically speaking 

according to the rules, the group system is still in place. 

Senator VOINOVICH. Why don’t you let me know when you are 

going to get it changed. I want you to personally look into this, Mr. 

Hill, and get a letter to Mr. Ramsay. I want to get a letter to Mr. 

Ramsay, I want to know what other places are doing and get that 

to Ms. Barnhart so she can give her blessing that he get going on 

this thing. Ms. Margolius, do you think that would help a lot? 

Ms. MARGOLIUS. It would help because it would allow assignment 

to individual judges quicker. 

Senator VOINOVICH. How long have you practiced? 

Ms. MARGOLIUS. Twenty years. 

Senator VOINOVICH. So you’ve had a chance to compare the old 

system versus the new system? 

Ms. MARGOLIUS. Yes. 

Senator VOINOVICH. What is your comment about the new system? 

Ms. MARGOLIUS. Cleveland hasn’t seen the new system yet. 

Senator VOINOVICH. Before they came up with HPI, they had 

staff that would be working directly with a judge, working the 

cases up, they would be responsible for it and then apparently they 

changed the process with HPI. Did you see it at that stage? 

Ms. MARGOLIUS. I did. And it was much better before. 

It gets to the issue of accountability, a judge could be accountable 

for cases earlier on, his staff was accountable, it gave you individuals to talk to. If you have a case that is sitting in the Office of 

Hearings and Appeals for years not assigned to a judge, it’s sort 

of hit or miss if you can find someone for a dire need case, critical 

case to pick up that file and deal with it. It’s an issue of accountability. 

Senator VOINOVICH. You have heard testimony of Ms. Barnhart 

and others about the fact that they are farming these cases out to 

other places. Have you had any experiences with cases in that new 

system? 

Ms. MARGOLIUS. Yes, both farmed out and with video conferencing. It’s a short-term help, I mean, again, like looking at the crisis that we are trying to deal with. 

Senator VOINOVICH. Is it working? 

Ms. MARGOLIUS. It is working. 

Senator VOINOVICH. And your clients don’t feel like they are getting shortchanged because of it? 

Ms. MARGOLIUS. No, sir, not at all. 

37

Senator VOINOVICH. The idea would be getting more judges here, 

replace the three that you didn’t have. Are you sure if you are replacing three you didn’t have, seems to me you need more than 

three. You have this backlog building up. How many judges do you 

need? 

Mr. HILL. I think Cleveland probably needs about 14 judges to 

be fully staffed. 

Senator VOINOVICH. How many do we have? 

Mr. HILL. We have eight right now. 

Senator VOINOVICH. We go from 8 to 11 and you think we need 

an additional three judges? 

Mr. HILL. Yes. 

Senator VOINOVICH. We should ask about these 50 coming in. I 

will send a letter to the Commissioner on this. The 50 new individuals coming on, maybe you can respond to this, are just to replace 

those who have retired? 

Mr. DUGAN. Yes. Commissioner Barnhart testified in September 

that she was short 200 judges nationwide. So this 50 is kind of you 

lose about 50 a year so it really just keeps us treading water as 

far as that is a concerned. 

And connected to that is the Medicare that is coming on line. 

And they are going to probably take 70 immediately but eventually 

going to need close to 200 judges themselves. 

Senator VOINOVICH. And they are going to go over and do what 

again? 

Mr. DUGAN. Medicare Part B and hearing all the appeals from 

denials or overpayments under the Medicare system. And they are 

going to go into HHS, Congress is moving HHS. 

Senator VOINOVICH. You are saying these are appeals with the 

current Medicare system? 

Mr. DUGAN. Yes. 

Senator VOINOVICH. This has nothing to do with the new system? 

Mr. DUGAN. With the current system. All the Medicare cases, 

SSA is currently handling. They handle a contract with CMS. That 

is now moving on October 2005 into HHS and all those judges will 

have to move plus they are going to pick up some more because of 

the new system. 

The point I am trying to make is that over the next 4 years it 

looks like the Federal Government is going to be hiring close to 400 

to 500 administrative law judges. The problem is that Office of Personnel Management which has been responsible for that has abolished its office of administrative law judges and it is not focused 

like it used to be on the administrative law judge system. And that 

is a problem. 

Senator VOINOVICH. Where has that gone? 

Mr. DUGAN. They farmed it out as we can tell to different functions within the agency. 

Senator VOINOVICH. Who did they farm it out to. 

Mr. DUGAN. In their own system. It was in one office and farmed 

out the function to a different division within OPM. There is no one 

person in charge of the overall function. 

Senator VOINOVICH. When did that happen? 

Mr. DUGAN. That abolishment was probably in the last 2 to 3 

years. Meanwhile we had that stay as well and they were not creVerDate 0ct 09 2002 13:05 Jul 13, 2004 Jkt 094200 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 C:\DOCS\94200.TXT SAFFAIRS PsN: PHOGAN
38

ating, part of the Azdell case that was whether they were going to 

create a new system and OPM never moved forward with that. 

Now that the stay is lifted, we have the old register and from what 

I was told recently, OPM is going to close that register and create 

a whole new one with their new system but they haven’t started 

that yet. That could be awhile down the road. It takes a year to 

get another register. 

Senator VOINOVICH. Could you put that down in a letter to me 

and I will send it over to Kay Coles James and get a reaction from 

her, she is the head of OPM. 

Mr. DUGAN. I would be glad to. 

Senator VOINOVICH. You see how many you need, and it’s also 

phasing in people over a period of time. Somebody has to look at 

what kind of capacity you are going to need to meet some of these 

responsibilities that are coming up. 

Ms Margolius, do you have some other comments you would like 

to make? You had a chance to sit in and listen to the other witnesses and I think you may have some colleagues attending the 

hearing that also represent clients. Could you comment about some 

of the things that you heard and what do you think of them? 

Ms. MARGOLIUS. Yes, sir. First the greatest concern which I 

touched on very briefly was the issue of forum shopping. And I just 

want to make it clear that is not a practice. Certainly anyone representing disabled people wouldn’t take such a step that would 

harm them and it would be an action very much frowned upon by 

judges we appear in front of repeatedly. It’s just not an issue. 

Second, on the issue of closing the record, the hearing record is 

closed after the judge’s decision. There are good cause standards to 

get new evidence in at later appeals but this has been dealt with 

by the Sixth Circuit Court of Appeals which covers new material 

evidence and good cause standards. I don’t think closing the record 

after the judge’s hearing is really an important issue either since 

this is closely monitored and taken care of. 

Concerning Commissioner Barnhart, I think the bar associations 

are very impressed with her and with her initiatives and what she 

wants to do. Again, I see most of her initiatives at this point being 

at the front end and that’s not dealing with the crisis that your 

constituents and our clients are dealing with now and that the actions being taken as far as video teleconferences and farming out 

the cases to other regions and more judges hopefully will deal with 

the backlogs and what we see as a greater crisis currently. 

Senator VOINOVICH. You were saying something about the read 

only files for attorneys. Tell me about that. 

Ms. MARGOLIUS. Yes. With the AeDib program what they are 

proposing that the electronic folder is going to be available only to 

Social Security personnel. When we get up to a level where we will 

be appearing in front of a judge, they’ll burn a disk for us so we 

can see the records. I see that as a great problem. For one thing, 

no judge wants me to turn in duplicate evidence but if I can’t see 

the electronic file I’m going to be submitting evidence sort of in the 

dark. I don’t know what they have, I am duplicating information, 

even though I’m submitting the most pertinent information. 

The Federal courts have a read-only file, everything is electronically filed with the Federal court. We can get in and read the deciVerDate 0ct 09 2002 13:05 Jul 13, 2004 Jkt 094200 PO 00000 Frm 00042 Fmt 6633 Sfmt 6601 C:\DOCS\94200.TXT SAFFAIRS PsN: PHOGAN
39

sions and court order. If this can be done with the court system, 

it seems like Social Security could duplicate that system, where we 

can go on line, read the records, read what is transpiring in the 

case but not have any right to alter any of the documents at all. 

Senator VOINOVICH. So the point is that the electronic file would 

be worked up on the State level with all the information. If we 

eliminate the reconsideration in going to a hearing officer then that 

information the hearing officer puts in would be in the record and 

you would be able to access it. 

Judge Dugan, can you tell us what do you think about the suggestion she’s making? 

Mr. DUGAN. I’m really not up to date on what she’s saying. But 

it’s clear the representative has to have access to what it is. How 

they are going get it, I suspect they’ll work it out. We would support them having access one way or the other. 

Some kind of read only file it’s a little more complicated because 

there’s a security problem when we are accessing these medical 

problems and getting into the database. I think that’s what they 

are struggling on how to solve security problems and what the system needs and they are well aware of that need but I think they 

haven’t solved it yet. 

Senator VOINOVICH. Ms. Margolius, why don’t you get me a letter 

on that. I will send it over to the Commissioner and ask her to respond to me where they are with that and if it’s allowed in the 

Federal courts why can’t we be doing it with your files if you think 

that would help expedite things. 

What some of the difference you are asking for, I suspect a lot 

of the case material in Federal cases is similar to the information 

contained in disability files. I don’t know why it could be a problem. 

Mr. HILL. Probably one of the underlying problems is privacy. 

The medical records associated obviously with Social Security are 

numerous. What needs to be worked out is a secure way to transmit that information to only the people who are entitled to it. District court information is public information. I can go on and look 

at any case. I think we are really trying to shy away from that 

kind of situation. It’s a technical matter IT people are going to 

have to work out. There is no question the representatives and 

claimants themselves have a need and right to see the material 

that Social Security Administration has, no question. I think it’s a 

technical matter to get it straightened out. A little push would 

help. 

Senator VOINOVICH. I would like your consensus, particularly Mr. 

Dugan and Mr. Hill, about this marked difference between the rejection of cases around the country as little as 35 percent, as high 

as almost 70 percent. Shouldn’t we try to get more uniformity? We 

talked about having the State DDS employees better trained. You 

think that having a common school that they go to, is that it, and 

Ms. Barnhart talked about this forum, is there a uniform forum 

you use, Mr. Williamson, on the State level, is your forum taking 

information exactly the same as other States? 

Mr. WILLIAMSON. Yes. 

Senator VOINOVICH. So it’s uniform. That seems to be something 

that really needs to be looked at. 

40

Mr. DUGAN. I agree. But before I get into that, I have to say that 

I am familiar with DDS throughout the Nation. And these people 

are very knowledgeable, hard working people. They are under a 

crush. There’s a bias at the DDS level to deny a claim. If you pay 

a claim, you have to work a little harder to pay it and that——

Senator VOINOVICH. You what? 

Mr. DUGAN. You have to justify it a little more. Just like OHA 

level, if you are going to deny, you justify more than if you pay a 

claim. It builds in a bias at different levels. Why is there an inconsistency? It’s very difficult to answer. But I think what the Commissioner is doing with that reviewing official is going to be a key 

to getting that consistency that we want nationwide because that 

reviewing official is going to be able to send cases back, as I understand it, with instructions so that you’ll get some feedback. Currently there is no feedback in the system. 

Senator VOINOVICH. So if she gets her way and you have the reviewing officer that would be kind of the quality control person 

that would look at the case and maybe send it back to the agency 

and say I have observed certain cases coming here by certain people that appear not to have enough information or there seems to 

be some lack of effort there to do the job, is that what you are saying? 

Mr. DUGAN. I think it would be along that way. She calls it inline quality control. 

Senator VOINOVICH. Your DDS people in Ohio, do they go to the 

same training nationally? 

Mr. WILLIAMSON. We have our own training department. 

Senator VOINOVICH. In terms of the consistency of the training 

in various places, it may vary substantially. 

Mr. WILLIAMSON. Ours is based on SSA rules and regulations but 

we do. 

Senator VOINOVICH. That’s another area somebody ought to look 

at with the training. Do you have continuous upgrading of training, 

your judges do. Don’t you have training programs for judges? 

Mr. DUGAN. When I came to SSA I was shocked by the lack of 

training that they provided. The training provided to judges primarily is provided by the judges. We pay our own way. Only recently with the prodding of Congress did we get time off and get 

some small stipend but not a per diem or anything like that. It’s 

put on by our association. 

Commissioner Barnhart and Martin Gerry have worked hard to 

try to upgrade that but we don’t get the type of training at the 

level we should. 

Senator VOINOVICH. So that’s another issue, training. That 

doesn’t surprise me. When I came in I was trying to bring quality 

management to the Federal Government and I realized they had a 

human capital crisis. I sent out letters to 12 agencies and asked 

how much money they spend on training and 11 came back and 

said they didn’t know. One letter came back and said they did 

know but wouldn’t tell me. It’s a major problem I think right across 

the board even with, I’m sure, these people that work these cases 

up that they need better training. 

41

Are you able to attract the right people in these cases, Mr. Hill? 

Do you have any problems hiring people? Is the salary level adequate? 

Mr. HILL. OHA level it’s adequate. I don’t think there’s a significant problem. I think there might be a problem retaining people. 

Again, a lot of that is—a lot of things are involved when you have 

a national program. There are cultural differences and regional differences. I think you tend to find OHA employees in the Rust Belt 

stay a lot longer than they do in California where we have a steady 

turnover of attorneys. It’s very unusual in the Rust Belt. A lot has 

to do with the economic well-being of the area. 

I think to some extent regional differences show their faces in a 

number of areas, not the least of which may be even payment rate. 

Senator VOINOVICH. In what way? 

Mr. HILL. Pay rate of DDS. I don’t have the statistics. I’m not 

management. 

Senator VOINOVICH. Who determines the wage level of DDS people? 

Mr. HILL. States. 

Senator VOINOVICH. You could have marked differences between 

the pay somebody is getting in Mississippi versus Ohio or Indiana 

and so on? 

Mr. HILL. Yes, sir. 

Senator VOINOVICH. I would like to get that, too. Find out what 

the pay level of these people are across the country and get an idea 

what it is. 

Mr. DUGAN. May I respond? First of all, we want to thank you 

for introducing our pay bill in the Senate. Part of the problem with 

regard to pay is that in 1990 the entry level for administrative law 

judges was about 15 step 6 or so. Because of a pay cap that has 

dropped to a level of 14 step 7. So someone like Ms. Margolius if 

they were to take a job as an administrative law judge not only 

would she have to probably take a pay cut, she would be closing 

down her practice and so are we getting the best people on that list 

is the problem. So that pay bill is important to us and we have 

been working on trying to put together some kind of pension so it 

recognizes people coming in from private industry for a shorter period of time for a career that we have put forward with your staff. 

Senator VOINOVICH. One of the things we did in this legislation 

is it’s simple but gets to the issue of whether someone is going to 

be willing to come to the Federal Government. But if you come in 

to work for the Federal Government the first year you get 2 weeks 

of vacation and 3 years you get 3 weeks and then at 15 years of 

service you get 4 weeks. So we changed that. We provided this 

flexibility for Sean O’Keefe, at NASA. It’s a simple thing, but it’s 

a big deal to someone out there working. Perhaps it will help recruit successful business professionals to Federal service. By the 

way you are here 15 years, you are going to get time off, I’m not 

sure how much time you get off anyhow in private practice. I didn’t 

get that much. But those are some of the practical things that we 

are dealing with but I really would, Mr. Hill, get your point of view 

or from the judge that runs the Cleveland office. 

Mr. HILL. Judge Ramsay. 

42

Senator VOINOVICH. I would be interested to see just how our 

staffing levels compare with other places. That just seems like we 

are shortchanged. What we should be striving for is getting the 

three judges, replace those we have and try to get three more. Do 

you think that would help a lot? 

Ms. MARGOLIUS. Greatly, Senator. But one point on the staffing 

levels, though, that the staff is tied to the number of judges but 

if you have judges already over worked if you are going to have too 

many cases for any one judge you really need to base the staff on 

the number of cases rather than the number of judges. 

Senator VOINOVICH. The thing to look at—are these places being 

allocated because right now they are going to be sitting in Washington or Baltimore looking at the deal? Where are we going to put 

these judges and we should be putting in a real effort to say, look, 

we need these judges and part of the problem that we have is we 

just haven’t had them. 

Ms. MARGOLIUS. When I started 20 years ago, Cleveland had the 

highest number of judges they ever had. They were up to 18. And 

Mr. Hill says that he thinks they need 14 to work efficiently but 

we had 18 with fewer cases and the waiting period was minimal 

at that point in time. 

Senator VOINOVICH. Mr. Dugan, do you have any kind of standard that you use? I’m getting into the nitty-gritty here but that 

kind of stuff really makes a difference in terms of case loads of various judges and in terms of productivity or anything like that if you 

got X number of cases that’s a pretty good year or pretty good docket and when you get to this point maybe it’s a little bit more than 

it ought to be in standards. 

Mr. DUGAN. If you are looking for something like that, look at 

preHPI because HPI skewed everything. You can see judges doing 

somewhere between 25 or 50 cases. 

Senator VOINOVICH. How many? 

Mr. DUGAN. Twenty-five to 50 if they have the staff. If they have 

the staff that’s the key. If the staff was assigned to them and can 

get the cases worked up. What happened after HPI was a terrible 

thing. There were judges sitting nationwide in their offices waiting 

for cases to come to hearing but they were not being prepared. I 

could ask for 45 cases to be scheduled, that’s 45 hearings, they say 

we can only give you 20. And as that was happening, that happened for a couple years, and the backlog just continued. 

If I may, that letter you wrote, someone wrote me a letter once, 

and this was before HPI, I paid this claim after a hearing and paid 

it pretty quickly, a week or two. It wasn’t a hard case. And about 

3 weeks after that I got a letter from his wife, she told me he had 

died. And she said, you don’t know how important it was to him 

that he was validated before he died. 

If that same thing were to happen today, that poor man would 

be dead before he would even get to the hearing much less before 

I could get a decision out. That’s how bad it is. That’s how angry 

we got about what was happening in the system. 

Senator VOINOVICH. And you think that the Commissioner really 

has listened and has a good idea what to do now? The issue is, is 

she going to have the resources to get the job done. 

43

Mr. DUGAN. I absolutely do. I have never met anyone in government who is so knowledgeable and open and ready to make the 

changes that need to be made. This is a big plan she’s got. It takes 

a lot of courage to do it. She has a good guy, Martin Gerry, working 

with her. A hundred percent, the right person. Now she just needs 

the tools. 

Mr. HILL. I concur with that 100 percent. 

Senator VOINOVICH. That’s good news. What we want to do is to 

take care of Cleveland and get those cases down and get this office 

geared up to what it ought to be and deal with the national problems to get moving. Any other comments anybody would like to 

make? 

I thank you for coming here. This has been a really great hearing. I’m so glad you came and we decided to do this. Hearing is adjourned. 

[Whereupon, the Subcommittee was adjourned.] 

(45)

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