U.S. GOVERNMENT PUBLISHING OFFICE

33–796 WASHINGTON : 2019

LACKING A LEADER: CHALLENGES FACING THE SSA 

AFTER OVER 5 YEARS OF ACTING COMMISSIONERS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON SOCIAL SECURITY 

OF THE

COMMITTEE ON WAYS AND MEANS 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

MARCH 7, 2018 

Serial No. 115–SS08 

Printed for the use of the Committee on Ways and Means 

( 

ii 

COMMITTEE ON WAYS AND MEANS 

KEVIN BRADY, Texas, Chairman 

SAM JOHNSON, Texas 

DEVIN NUNES, California 

DAVID G. REICHERT, Washington 

PETER J. ROSKAM, Illinois 

VERN BUCHANAN, Florida 

ADRIAN SMITH, Nebraska 

LYNN JENKINS, Kansas 

ERIK PAULSEN, Minnesota 

KENNY MARCHANT, Texas 

DIANE BLACK, Tennessee 

TOM REED, New York 

MIKE KELLY, Pennsylvania 

JIM RENACCI, Ohio 

PAT MEEHAN, Pennsylvania 

KRISTI NOEM, South Dakota 

GEORGE HOLDING, North Carolina 

JASON SMITH, Missouri 

TOM RICE, South Carolina 

DAVID SCHWEIKERT, Arizona 

JACKIE WALORSKI, Indiana 

CARLOS CURBELO, Florida 

MIKE BISHOP, Michigan 

DARIN LAHOOD, Illinois 

RICHARD E. NEAL, Massachusetts 

SANDER M. LEVIN, Michigan 

JOHN LEWIS, Georgia 

LLOYD DOGGETT, Texas 

MIKE THOMPSON, California 

JOHN B. LARSON, Connecticut 

EARL BLUMENAUER, Oregon 

RON KIND, Wisconsin 

BILL PASCRELL, JR., New Jersey 

JOSEPH CROWLEY, New York 

DANNY DAVIS, Illinois 

LINDA SA ́ NCHEZ, California 

BRIAN HIGGINS, New York 

TERRI SEWELL, Alabama 

SUZAN DELBENE, Washington 

JUDY CHU, California 

DAVID STEWART, Staff Director 

BRANDON CASEY, Minority Chief Counsel 

SUBCOMMITTEE ON SOCIAL SECURITY 

SAM JOHNSON, Texas, Chairman 

VERN BUCHANAN, Florida 

MIKE KELLY, Pennsylvania 

GEORGE HOLDING, North Carolina 

JASON SMITH, Missouri 

TOM RICE, South Carolina 

DAVID SCHWEIKERT, Arizona 

JOHN B. LARSON, Connecticut 

BILL PASCRELL, JR., New Jersey 

JOSEPH CROWLEY, New York 

LINDA SA ́ NCHEZ, California 

iii 

C O N T E N T S 

Page 

Advisory of March 7, 2018 announcing the hearing ............................................. 2 

WITNESSES 

Elizabeth Curda, Director, Education, Workforce, and Income Security, Government Accountability Office ............................................................................. 8 

Valerie Brannon, Legislative Attorney, Congressional Research Service ........... 31 

Max Richtman, President and CEO, National Committee to Preserve Social 

Security and Medicare ......................................................................................... 44 

(Truth in Testimony) ........................................................................................ 50 

Max Stier, President and CEO, Partnership for Public Service .......................... 51 

(Truth in Testimony) ........................................................................................ 61 

MEMBER SUBMISSIONS FOR THE RECORD 

Reuters: Banks scramble to fix old systems as IT ‘cowboys’ ride into sunset, 

by Anna Irrera ...................................................................................................... 65 

Wall Street Journal: Cobol is Dead. Log Live Cobol!, by Gary Beach ................ 69 

Daily News: Feds’ bureaucratic hellscape gnaws at New Yorkers’ Health, 

hope, by Glenn Blain ........................................................................................... 83 

QUESTIONS FOR THE RECORD 

Questions from The Honorable Sam Johnson, to Valerie Brannon ..................... 87 

PUBLIC SUBMISSIONS FOR THE RECORD 

Mary L. Jones, statement ....................................................................................... 92 

(1) 

LACKING A LEADER: CHALLENGES FACING 

THE SSA AFTER OVER 5 YEARS OF ACTING 

COMMISSIONERS 

WEDNESDAY, MARCH 7, 2018 

U.S. HOUSE OF REPRESENTATIVES, COMMITTEE ON WAYS AND MEANS, SUBCOMMITTEE ON SOCIAL SECURITY, Washington, DC. 

The subcommittee met, pursuant to call, at 10:02 a.m., in Room 

1100, Longworth House Office Building, Hon. Sam Johnson [chairman of the subcommittee] presiding. 

[The advisory announcing the hearing follows:] 

2 


Insert 33796A.001

(i) 

WAYS AND MEANS 

CHAIRMAN KEVIN BRADY 

Chairman Johnson Announces Hearing on Lacking a Leader: Challenges 

Facing the SSA after over 5 Years of Acting Commissioners 

House Ways and Means Social Security Subcommittee Chaim1an Sam Johnson (R-TX) 

announced today that the Subcommittee will hold a hearing entitled "Lacking a Leader: 

Challenges Facing the SSA after over 5 Years of Acting Commissioners." The hearing will 

focus on the need for a Senate-con finned Couunissioner to lead the Social Security 

Administration (SSA), the challenges and limitations faced by the SSA when it is led by an 

Acting Commissioner, and the legal framework that governs a vacancy at the SSA. T he hearing 

will take place on Wednesday, March 7, 2018 in 1100 Longworth House Office Building, 

beginning at 10:00 AM. 

In view of the limited time to hear witnesses, oral testimony at this hearing will be from invited 

witnesses only. However, any individual or organization may submit a written statement for 

consideration by tbe Committee and for inclusion in the printed record oftbe hearing. 

DETAILS FOR SUBMISSION OF WRITTEN COMMENTS: 

Please Note: Any person(s) and/or organization(s) wishing to submit written comments for the 

hearing record must follow the appropriate link on the hearing page of the Committee website 

and complete the informational forms. From the Comminee homepage, 

http://way sandmeans.bouse.gov, select "Hearings." Select tbe bearing for wb.ich you would like 

to make a submission, and click on the link entitled, "Click here to provide a submission for the 

record." Once you have followed the online instrnctions, submit all requested 

information. ATTACH your submission as a Word document, in compliance with the formatting 

requirements listed below, by the close of business on Wednesday, March 21, 2018. For 

questions, or if you encou111er teclmical problems, please call (202) 225-3625. 

FORMATTING REQUIR EMENTS: 

The Committee relies on e lectronic submissions for printing the official hearing record. As 

always, submissions will be included in the record according to the discretion of the Comminee. 

The Committee will not alter the content of your submission, but we reserve the right tO format it 

according to our guidelines. Any submission provided to the Committee by a witness, any 

materials submitted for the printed record, and any written comments in response to a request for 

written comments must conform tO the guidelines listed below. Any submission not in 
3 

f 

Chairman JOHNSON. Good morning and welcome to today’s 

hearing. 

Americans count on Social Security to provide important benefits. In fact, Social Security pays benefits to more than 60 million 

people a year, totaling nearly $1 trillion. It is the largest single 

program in the Federal budget responsible for a quarter of all Federal spending. 

When Social Security became an independent agency in 1995, 

Congress created the position of a Social Security Commissioner to 

run the agency. This position has a fixed 6-year term that must be 

Senate confirmed, just like the Department Secretaries and heads 

of other high level Federal agencies. But Social Security has been 

without a Senate-confirmed Commissioner since the most recent 

term expired on January 19, 2013. That is more than 5 years. This 

is the largest single period of vacancy for the head of a department 

or major Federal agency since Social Security became independent. 

And that is not right. Not only has Social Security been led by Acting Commissioners, but for over 3 years we haven’t even had a 

nominee for the Senate to consider. The President needs to nominate a Commissioner without further delay. And once he does, the 

Senate should move quickly because the American people have 

waited too long. 

Yesterday GAO announced the Social Security Administration is 

in violation of the Vacancy Reform Act. Without objection, the opinion will be made a part of the record. 

Chairman JOHNSON. This is a big deal and a reminder that Social Security needs a nominee now. Acting Commissioners can keep 

an agency on a course that is already set, but they don’t have the 


Insert 33796A.002
4 

same authority to lead as a Senate-confirmed Commissioner. You 

will hear today an Acting Commissioner just isn’t empowered to 

make strategic decisions regarding the long-term operation of the 

agency. The Social Security Administration needs the strong and 

consistent leadership of a Senate-confirmed Commissioner to keep 

the agency focused on providing the service Americans expect, 

need, and deserve. 

We are now more than 5 years into a 6-year term. The American 

people can’t afford to wait any longer. Mr. President, we need you 

to nominate a Commissioner now. 

I want to thank our witnesses for being here today, and I look 

forward to hearing your testimony. 

I now recognize Mr. Larson for his opening statement. 

Mr. LARSON. Thank you, Mr. Chairman. And I want to thank 

our witnesses as well for joining us here today. And I want to associate myself with the remarks of our chairman. 

This is a travesty that this position with so vital an agency 

hasn’t been filled. And as I think everyone will remember—and I 

want to commend the President. I recall vividly when he stood 

among 16 other candidates for office in his own party and spoke 

forthrightly about the need to not only preserve but to expand Social Security. So we know where his heart and his sentiment lies. 

But what we need, I think, as the chairman has underscored, is the 

need for us to take action and a need for us to put a commissioner 

in that position. 

I think what makes the sense of urgency for this, and I think as 

everyone in the audience knows, and certainly the people on this 

committee, that 10,000 baby boomers a day—let me repeat that, 

10,000 fellow Americans a day become Social Security eligible. So 

with 10,000 becoming eligible a day, it is paramount that we put 

somebody in charge at the head of an agency, an agency where we 

have seen a 15 percent increase, almost, of the number of people 

who are in need of Social Security and prevailing upon it while it 

has been cut 11 percent. We need to address that as well. And this 

committee is the appropriate place to do that. 

Both Mr. Johnson and myself have bills to address this. It is my 

hope that we will be able to have had a hearing on those bills and 

be able to address the underlying concerns that so many Americans 

who depend upon Social Security and for way too many the only 

source of retirement that they have. 

And so this is a vital lifeline to the American citizens. This is 

why it is paramount. I commend the chairman for calling this 

meeting. And I further commend him for his call of urgency to 

make sure that we install and confirm—nominate and confirm. 

Now, I have several suggestions as well for the President including 

amongst them Max Richtman, who is—you are going to hear from 

today, who heads-up the national committee that preserves Social 

Security and Medicare. 

And Nancy Altman, or Judith Stein, or Bill Archer, the former 

fellow Texan who is still quite active himself. Earl Pomeroy the 

former insurance commissioner from South Dakota. John Tanner. 

Or my predecessor Barbara Kennelly. 

I want to commend Nancy Berryhill for her work that she has 

been doing in an acting capacity. But truly, as the chairman has 

5 

indicated and underscored, we need to make sure that we both 

nominate and confirm and put somebody at the head of this vital 

agency for all of America. 

With that, Mr. Chairman, I will yield back and anticipate the— 

glad to participate in the questioning and listening to what our witnesses have to say. 

Chairman JOHNSON. Okay. Thank you so much. I appreciate 

your statement. 

As is customary, any Member is welcome to submit a statement 

for the hearing record. And before we move on to our testimony, 

I want to remind our witnesses to please limit your statements to 

5 minutes. However, without objection, all of the written testimony 

will be made a part of the hearing record. 

We have four witnesses today. Seated at the table are Elizabeth 

Curda, Director of Education, Workforce, and Income Security, 

Government Accountability Office. Valerie Brannon, Legislative Attorney, American Law Division, Congressional Research Service. 

Max Richtman, President and CEO, National Committee to Preserve Social Security and Medicare. And Max Stier, President and 

CEO, Partnership for Public Service. 

Ms. Curda, welcome. Thanks for being here. Please proceed. 

STATEMENT OF ELIZABETH CURDA, DIRECTOR, EDUCATION, 

WORKFORCE, AND INCOME SECURITY, GOVERNMENT ACCOUNTABILITY OFFICE 

Ms. CURDA. Chairman Johnson, Ranking Member Larson, and 

members of the subcommittee, I am pleased to be here to discuss 

the significant demographic, technological, and management challenges facing the Social Security Administration’s leadership as 

they seek to deliver timely and accurate services to Americans. 

In fiscal year 2017, SSA paid out nearly 1 trillion dollars in retirement and disability benefits to 67 million beneficiaries, and an 

average of 420,000 people call or visit one of its 1,200 field offices 

every day. However, with the baby boom generation entering their 

disability prone and retirement eligible years, workloads will continue to increase just as SSA faces a depletion of institutional 

knowledge and leadership from waves of retiring employees. 

SSA also faces rapidly changing demands from Americans increasingly seeking virtual access to services while it continues to 

rely on antiquated systems to process claims. GAO has issued numerous reports on these challenges with recommendations to address them and placed SSA’s disability programs on GAO’s high 

risk list. 

A common theme that cuts across our work is the need to modernize how SSA does business, which SSA has acknowledged. 

While SSA has agreed with and taken action on many of our recommendations, many also remain un implemented including some 

we have suggested are a high priority for top leadership attention. 

The challenges I will discuss today fall into three areas. First, 

managing disability workloads and program integrity. Second, 

modernizing physical infrastructure and service delivery. And 

third, modernizing information technology. 

With regard to managing disability workloads and program integrity, while SSA significantly reduced the number of pending iniVerDate Sep 11 2014 08:27 Mar 19, 2019 Jkt 33796 PO 00000 Frm 000009 Fmt 06633 Sfmt 06602 I:\WAYS\OUT\33796.XXX 33796
6 

tial claims over the past 7 years, pending appealed claims rose 

from 770,000 to 1.1 million over the same period. And these claims 

now take an average of 605 days to process. 

Although SSA has a plan and initiatives underway to reduce its 

appeals backlog, we reported that some of SSA’s appeals initiatives 

are either contingent on additional funding, such as hiring, or have 

met with limited success when tried in the past. Our work has also 

shown that SSA faces challenges ensuring the integrity of its disability programs. For example, one case of fraud reported by the 

SSA’s inspector general involved 70 individuals and 14 million in 

fraudulent benefits. 

In 2017, SSA established an office responsible for coordinating 

antifraud programs across the agency and gathered information on 

some fraud risks. However, we found that SSA had not fully assessed its fraud risks, had not developed an overall antifraud strategy, and did not have a complete set of metrics to determine 

whether its antifraud efforts have been effective. SSA has agreed 

to our recommendations and begun to take action on some of them. 

Turning to modernizing service delivery and infrastructure, advances in technology have the potential to greatly improve SSA’s 

service delivery while reducing its reliance on costly office space. 

For example, individuals can now apply for some disability benefits 

online rather than in person. However, we found that SSA did not 

have readily available data on problems customers had with online 

applications or why. In addition, the agency had not established 

performance goals to determine whether these new service delivery 

options, such as off-site kiosks, are succeeding. We also found that 

SSA has not developed a long-term plan for right-sizing its office 

space to reflect these types of changes in service delivery. We recommended that SSA improve its building space plans and do more 

to monitor and assess online and remote service delivery. And SSA 

agreed to take action. 

Finally, regarding the modernization of SSA’s information technology, SSA’s legacy information technology systems are increasingly difficult and expensive to maintain. We identified SSA’s 

spending on the operations and maintenance of its IT infrastructure as among the 10 largest IT expenditures of Federal agencies 

in fiscal year 2015. We recommended that the agency identify and 

plan to modernize or replace legacy systems in accordance with 

OMB guidance. SSA agreed and reported that it is finalizing an information technology modernization plan. 

In summary, the actions SSA’s executive leadership will need to 

take to modernize the management of its disability programs, its 

physical infrastructure, its online service delivery and information 

technology assets will require vision and sustained long-term attention. 

This concludes my prepared statement, and I am happy to answer the committee’s questions. 

[The prepared statement of Elizabeth Curda follows:] 

7 


Insert 33796A.003

For Release on Delivery 

Expected at 10:00 a.m. ET 

Wednesday, March 7, 2018 

GA0-18-432T 

United States Government Accountability Office 

Testimony 

Before the Subcommittee on Social 

Security, Committee on Ways and 

Means, House of Representatives 

SOCIAL SECURITY 

ADMINISTRATION 

Continuing Leadership 

Focus Needed to 

Modernize How SSA Does 

Business 

Statement of Elizabeth Curda, Director 

Education, Workforce, and Income Security 
8 


Insert 33796A.004

GltO 

Highlights 

~ofQAO.ta..&32T •teiU'I'IOtl1 

~ tht ~Mctl Soc:ral Secunty, 

CcwnmCN on We)'lllnd Housed 

--

Why GAO Old This Study 

SSA provides v.tal benefits and 

services tllot affect the lives of many 

Anwlcans In fiscal year 2017.1t paid 

out near1y $1 tnlllon in retir&ment and 

d•sabirity benefits to 67 miiiK>O 

beneftei8ries, end an average of 

420,000 ~·cell or visit one of its 

1.200 1104<1 olf,_ each day. 

Howe-. SSA has struggled to 

manogo lts_ty_. 

matntaln program tntegnty, and 

-··-delivefyand onlcwmotlon technology systems. GAO 

has tSs.ued a numbef of report$ on 

these chelllnges. and placed SSA's 

dosabll•y ptQgn~ms on GAO's H;gh 

Rtsk liSt, Jn pan due to ehalle"9f!S Ynth 

wol"kiOads and datms processing. 

GAO was asked to testtty on 

challenges facing SSA. This statement 

summanzes ongoing SSA Challenges 

desenbed In SSA's strategtc plan and 

past GAO 'NOI'k in three areas: 1) 

managing dtsablhly workloads and 

ensuring ptogram ontegrity: 2) 

modemlzlng pl>ysloal irlfastructure and 

se,.... dt1111ery methods; and 3) 

moderroMg onformauoo teollnology. 

Although GAO os not making recommtndlhons m thtS statement. 

our pclor WOit< onduded 

recommond8uoos to l'oetp SSA address 

these ohahnges. maony of wNoh SSA 

has agreed With and onot,.,ted aciJonS 

con SSA ptOVIded teohnooal comments 

on a draft of this statement, whiCh we 

lr>OOrpo<Otad, os appropriate. 

SOCIAL SECURITY ADMINISTRATION 

Continuing Leadership Focus Needed to Modernize 

How SSA Does Business 

What GAO Found 

GAO's prior v.orl< and Social Security Administration's (SSA) strateglo pion for 

fiscal year$ 2018·2022 highlight significant demographic end technological 

challenges rac>ng the agency. For example, SSA's v.oo1<1oads ere Increasing due 

to 80 millloo baby boomers entering their disabiity-prone and retirement years, 

and lnstilutlonol knowledge and leadership at SSA will be depleted due to an 

expected 21 .000 employees retiring by the end of fiscal year 2022. GAO's prior 

work has idenbroe<l related management challenges and opportunities for SSA to 

f\KIIlef moclemize end lmpte"" its disability programs. seMoe dtlo~. and 

information technology (IT) systems. 

• Managing disability worl<loads and program integrity. SSA hot long 

slruggled to pt-.. disebilily claims and, more recently. oppeels of denied 

claims, In a bmely monner. Consistent with our 2013 reootMlendallon, SSA 

ptoduced a !Hoed vision for improving seMoe delivery, induding ensuring 

prompt and accurote dosabilily decisions. Howeve<, SSA is sbl developing 

oooc:rete plans to implement fis vision. Although SSA has initiatives 

unde<way to imprO'IIfl appeals backlogs. GAO repo<led tho I some of SSA's 

appeals initiatives are either contingent on additionel funding or have met 

with limited suoceos wllen tried in the past. GAO's prior v.ork also Identified 

other challenges related to SSA's disability ptograms, and octlcons SSA could 

take, for example. to modemlze disability criteria, prevent and recover 

overpayments. end manage fraud risks. 

• Modernizing physical Infrastructure and service delivery. Advances In 

technology have the potential to change how and where SSA dehver$lls 

services. For example, Individuals can now apply for some dlsabiloly benefits 

coniine rather than In pe!$00. However. GAO found that SSA did not have 

reacloly avaloble data con ptoblems customers had w>th conlo~ applicatiOns or 

wily staff support was needed. Additionally. the agency had not esllltl41Shed 

pe<foonanc:e goals to determine ..nelher new serke cltiMtry oplienl, such 

as oll·site kiool<s, ore succ:eeding. In addition, we found that SSA hot noc deYetoped llong·terrn ploin lor is rutding space thai. among - thing$. 

includes • strategy lor downsizing offices to better rellect changes in ser'<k:e 

delivery. We reoommended SSA rnprove buolding plans and do more to 

a$$0$s and monrtor ser'<k:e delivery, with wllioh SSA agreed. 

Modernizing information technology. SSA•s legacy IT systems ere 

increasingly ddfieultond expensive to maintain and GAO idenbflad SSA's 

needed investment ln infrastructure operations and maintenance as among 

the 10 largest expenditures at federal agencies in fiscal year 2015. GAO 

recommended SSA identify and plan to modernize or replace legacy 

systems, In accordance with forthcoming Offooe or Management and Budget 

guidance. SSA agreed, and reported that it is finalizing its lnformatlcon 

Technology Modernization Plan. 

Continuing focus by SSA leadership Is critical to addressing these broad and 

long-lenn challenges end effeclively delivering benefits and serkes to the many 

Americans who depend on SSA programs. 

------------UniWdS~~A«.ountlbllttyOftlce 
9 


Insert 33796A.005

Chairman Johnson, Ranking Member Larson, and Members of the 

Subcommittee: 

I am pleased to be here to discuss the significant management 

challenges and structura.l issues currently facing the executive leadership 

of the Social Security Administration (SSA). 

SSA is a vast enterprise responsible for providing benefits and services 

that affect nearty every American at some point in their lives. In fiscal year 

2017, SSA paid out nearty $1 trillion in Social Security retirement, 

disability, and Supplemental Security Income benefits to 67 million 

beneficiaries. While the services it ptovides are vitally important, SSA 

faces significant demographic and technological challenges. For example, 

as SSA noted in its 2018·2022 strategic plan and as we have previously 

reported, SSA is experiencing increasing workloads due to 80 million 

members of the baby boom generation entering their most disability· 

prone and retirement years. '·

2 At the same time, SSA projects 21,000 of 

its employees will retire by the end of fiscal year 2022, resulting in a loss 

of institutiona.l knowledge and impediments to succession management 

and know1edge transfer. In addition, SSA noted that Americans are 

increasingly relying on technology to access services while information 

technology (IT) advances create opportunities for SSA to use 

substantially different tools and approaches than it has in the past. 

We have issued a number of reports with recommendations addressing 

shortcomings in how SSA has addressed these challenges. While SSA 

has agreed with and taken action on many of our recommendations, 

many others remain open. some of which we have suggested to SSA 

should be given high priority. 3 In addition, Social Security disability 

programs are on our High Risk List due to persistent workload and other 

challenges with processing disability claims. • A common theme that cuts 

across these issues is the need to modernize how SSA does business. 

SSA has acknow1edged the importance of modernization in its new 

1 See Social Security Administration, FtSCal Years 2018- 2022. AQency Strategic PCan. 

2 GAO. Social Secvrity Administration: Long-Term Slrst~gy Needed to Addtess Key 

Monagomont Challenges, GA0.13-459 (Waohington. D.C.: May 29. 2013~ 

3 See appendoc I fOt our February 2018 letter to SSA's Cotnnissloner, in which we call 

attention to open recommendations that should be given high priority. 

• GAO, High Risk Series: Progress on Many High-Risk Ares. Vv'hito Substanb'al Efforts 

Noe<Jodon Oihofs, GA0.17-317 (Wa.,.,gton, D.C.: February 15, 2017) 

Pagt1 GA0-18-432T 
10 


Insert 33796A.006

Background 

SSA Programs and 

Functions 

strategic plan. The actions SSA leadership will need to take to modernize 

the management of disability programs, facility planning and service 

delivery, and infonnation technology will require vision and sustained, 

long·tenn attention. 

My testimony today summarizes the results from a number of our past 

reports on SSA's operations and will focus on management challenges 

and structural issues facing SSA in three key areas: 1) managing its 

disability workloads and ensuring program integrity; 2) modernizing its 

physical infrastructure and service delivery methods; and 3) modernizing 

its information technology. 

In developing this testimony, we relied on reports that we have previously 

issued. These reports, cited throughout this statement, include detailed 

information on the scope and methodology for our reviews. • The work on 

which this statement is based was conducted in accordance with 

generally accepted government auditing standards. Those standards 

require that we plan and perfonm audits to obtain sufficient, appropriate 

evidence to provide a reasonable basis for our findings and conclusions. 

We believe that the evidence obtained provided a reasonable basis for 

our findings and conclusions based on our audit objectives. 

The scope of SSA's operations and responsibilities is vast. One of SSA's 

key responsibilities is to provide financial benefits to eligible individuals 

through three benefrt programs: 

Old-Age and Survivors Insurance (OASI)-provides retirement 

benefits to older individuals and their families and to survivors of 

deceased workers. 

Disability Insurance (DI)-provides benefits to eligible individuals who 

have qualifying disabilities, and their eligible family members. 

Supplemental Security Income (SSI)-provides income for aged, 

blind, or disabled individuals with limited income and resources. 

5 We asked SSA to review a.nd provide technical comments on a draft copy of our 

statement, and incorporated SSA's comments where appropriate. 

Page2 GA0.18-432T 
11 


Insert 33796A.007

In support of its mission, SSA maintains wort<ers' earnings information 

and in fiscal year 2017 posted over 279 million earnings items to wort<ers' 

reoords. SSA also determines if claimants are eligible for benefits, 

completing 10 million claims and more than 680,000 hearings decisions in 

fiscal year 2017. SSA also maintains birth and death reoords and issues 

Social Security Numbers. In fiscal year 2017, SSA issued almost 17 

million new and replacement Social Security cards. 

Beyond administering its programs and core missions, SSA provides key 

administrative support to the Medicare program, partners with the 

Department of Homeland Security in verifying employment eligibility for 

new hires, and assists with the administration of other programs, such as 

the Supplemental Nutrition Assistance Program and programs 

administered by the Railroad Retirement Board. 

SSA's workforce is large, as is its physical footprint. About 62,000 federal 

employees and 15,000 state employees administer SSA programs in 

about 1 ,500 facilities nationwide. These facilities include regional offices, 

more than 1,200 field off.ces, teleservice centers, processing centers, 

hearings offices, the Appeals Council offices, and SSA's headquarters in 

Baltimore, Maryland. 

Customers can access SSA services in·person at an SSA field office; by 

phone with field office staff or through a National 800 number; or online. • 

In 2018, SSA reported that, each day, about 170,000 people visit and 

250,000 call one of ~s field offices for various reasons, such as to file 

claims, ask questions, or update their information. SSA also reported that 

its national 800 number handles over 30 million calls each year. 

e SSA also receives communications from and sends eommunieattons to customer'$ by 

mail. For example, in fiscal year 2017, SSA mailed nearly 250 ~lion notices. 

Page 3 GA0.18-432T 
12 


Insert 33796A.008

Challenges to 

Managing SSA's 

Disability Workloads 

and Ensuring 

Program Integrity 

Making Timely Disability 

Decisions 

Complex eligibility rules and multiple handoffs and potential layers of 

review make SSA's disability programs oompticated and oostly to 

administer. 7 Program oomplexity arguably has made it challenging for 

SSA to make significant advances in efficiently managing high disability 

workloads, ensuring timely and consistent disability decisions, preventing 

benefrt overpayments, and mitigating fraud risks. 

Our recent work highlighted some of the challenges SSA faces in making 

disability decisions that are timely, consistent and based on current 

concepts of disability, while also preventing and deterring fraud and 

ensuring that only beneficiaries who are entitled to benefits receive them. 

These findings underscore the need for SSA leadership to approach 

these challenges strategically and follow through with rigorous plans in 

order to achieve significant improvements in its disability programs. 

In recent years, SSA made noteworthy strides in reducing its backlog of 

initial disability claims, but delays in deciding disability appeals continue 

to worsen. SSA has reduced the number of pending claims each fiscal 

year since 2010---from about842,000 in fiscal year 2010 to about 

523,000 in fiscal year 2017. However, the number of appealed claims 

pending at the end of 2017 was approximately 1.1 million compared to 

about 700,000 in fiscal year 2010, and the average time needed to 

complete appeals increased from 426 days to 605 days during that same 

time. 

In our 2017 High Risk Update, we reported that SSA had taken some 

steps to address its growing appeals backlog, such as hiring additional 

administrative law judges (ALJ)8 SSA also published a plan in 2016 to 

improve appeals timeliness that called for further hiring, improving 

business processes, sharing workloads across offices, and making better 

use of IT resources, such as increasing the number of video hearings. 

However, SSA's Office of Inspector General (OIG) found that many of the 

initiatives in SSA's plan duplicated past efforts that had met with limited 

7 SSA f!ekf offices and state Disability Oeterminatioo Setvioos both play a role in Initially 

detetmining eligibility for disability be-nefits. Claimants wtto are dissatisfted with their initial 

determination have multiple levels of appeal available to them. We reported in 2013 that, 

althOugh SSA's disability progmms aooount tor only about 23 peroent ot Its total b&nefit ouUays for its three benefit programs, they represent 66 peroent of the administrative 

expenses. 

8GA0.17-317. 

Page 4 GA0·18..a2T 
13 


Insert 33796A.009

Modernizing Disability 

Criteria 

success. SSA also noted that some efforts, such as additional hiring, will 

depend on resource availability. We also reported that SSA is still 

developing plans to implement its broad vision for service delivery, Vision 

2025, which addresses SSA's capacity to provide timely initial claims and 

appeals decisions• To address its appeals backlog and position itself to 

effectively provide timely disability decisions at all levels, SSA leadership 

will need to continue to operationalize Vision 2025, plan and implement 

systems support for initial claims, and implement and monitor the success 

of its appeals initiatives. 

While SSA has made significant progress in updating the outdated 

occupational and medical criteria it uses to make disability eligibility 

decisions, some of these efforts are multi-year and will require the 

continued focus of top leadership. Most significantly, SSA has made 

strides updating a decades old Dictionary of Occupational Titles with a 

new Occupational Information System (OIS), which contains occupational 

data to make disability determinations. '

0 SSA expects to have OIS in 

place by 2020, and currently plans to update OIS information every 5 

years thereafter. Regarding the medical criteria used to make disability 

decisions, we reported in our 2017 high risk update that SSA had 

published final rules for nearly all of the 14 body systems for adults and 

was on track to update criteria for all body systems every 3 to 5 years. 

11 

While SSA has addressed all our recommendations in this area, other 

opportunities exist for updating aspects of SSA's disability decision 

process. For example, SSA officials have acknowledged that the 

vocational rules it uses to determine eligibility may no longer accurately 

reflect the nature and scope of work available in the national economy 

and stated that the agency is conducting a review to determine if changes 

to vocational factors are necessary. Agency leadership will play a key role 

in ensuring SSA pursues these opportunities to further modernize its 

9 SSA issued its Vision 2025 in reSP<lf'lSe to our 2013 recommendation that SSA should 

prepare for wide--ranging management challenges by developing a long.term strategy for 

S<>rvice delivery. See GA0-13-459. 

10 As part of its disability determination process, SSA may determine whether the 

Individual is able to perform past relevant wof'k or any wol"k that exists in the national 

economy. To inform 111ese determinations, SSA uses a Department of Labor dal;lbase- known as the Dictionary of Occupational Titles-which is an inventory of occt~pations 

pertormed in the national economy. 

11 GA0-1 7-317 

PageS GA0-18-432T 
14 


Insert 33796A.010

Enhancing the Accuracy 

and Consistency of 

Disability Decisions 

criteria and devotes appropriate resources to continuously updating its 

occupational and medical Cfiteria on a timely basis. 

Our recent work analyzed variation in Che rate that different ALJs grant 

disability benefits when daimants appeal an eMier denial, and found Chat 

SSA's efforts to monitor the consistency of appeal hearing decisions are 

incomplete. In 2017 after analyzing data on hearings decisions, we 

estimated that the allowance (app(oval) rate could vary by as much as 46 

percentage points between different judges with respect to a typical 

claim. 12 SSA conducts various reviews to monitor the accuracy and 

consistency of ALJ decisions, but SSA has not systematically evaluated 

whether its reviews are effective. SSA has also struggled to sustain all of 

its quality review efforts, in part, because SSA reassigned staff to help 

expedite claims decisions. 13 We also reported on shortcomings in SSA's 

Compassionate Allowance initiative (CAL)- which fast tracks disability 

claims for severe medical conditions that are most likely to be app(ovedthat could prevent claims from being consistently and aocurately identified 

for e)(pedited processing . 14 T hese shortcomings include lacking a 

systematic approach and clear criteria for designating medical conditions 

for inclusion in CAL. 

W~h about one in three beneficiaries being granted benefits at SSA's 

appeals hearing level, it remains crucial that SSA leadership commit to 

ensuring appeal applications receive fair and consistent treatment, 

'

2 A typical daim had average values on all other factOI'$ we anal'yled (related to the 

claimant. judge. other participants i'l the prooess. hearing office. and economic 

characteristics). Our anarY$is was purely $lati5tical in ltla1 we did not ooncfuct the legal 

analysis needed to reach conclusions about >Mlat teo-1 factO($ rright have affeQe<t a 

judge's decision or whether the decision that was reached in any part"icular ca.se was 

correct. Similarty, we were not making any predictions about the COlT eel outcome of fub.Jre 

individual decisions. Each case is unique in both i1s facts and circumstances and must be 

examined on its own merits. GAO, SoQaJ Sec4.Jrity Disability: Additional Me8sures and 

Evaluation Needed to Enhance Accur&cy and Cons;stency of Hearing Decisions, 

GAQ-1&-37 (Wostw>gton, O.C.: Oocember 7, 2017), 

1

:) In its tec:hnical comments on our draft statement. SSA stated that, effective October 1. 

2017, the Acting Commissioner moved otrlCeS with responsa'bilities f<H overs.ght of 

disability decisions into the agency's Office of Analytics, Review, and Over$ighl. in order 

to use data oollected from quality reviews at all levels of acljuctic:ation to i~rove policy 

compliance of disability decisions. 

14 GAO, SSA ·s Comp&SiOt'Jbl$ Alklwance Jnitiativ$: lmptOWmtJI'IlS Needed to Mtlke 

Expedired Processing of Dissbtlity Claims More Consistent and Accurate, GA0-17 -625 

(WaSh;ngton, o.c.: August 11, 2017). 

GA0-18-432T 
15 


Insert 33796A.011

Preventing and Collecting 

Overpayments 

induding assessing persistent and unexplained variations in ALJ 

allowance rates. Ensuring oversight and scrutiny of $SA's CAL initiative is 

also essential to avoid potential equity issues with regards to $$A's most 

vulnerable daimants. 

Benefit overpayments represent avoi<lable losses to the 01 trust fund and, 

for the individual who may have incurred an overpayment despite 

consaentiously reporting wages, a financial hardship >M>en required to 

repay and a disinoentive to pursue worl<. In fiscal year 2015, the most 

recent year for >M>ich we have data, SSA identified $1.2 billion in new 

overpayments in its 01 program. and had S6.3 billion in total overpayment 

debt outstanding. In 2015, we reported that the SSA process for 

benefiCiaries to report earnings (and consequently infomn >M>ether they 

remain eligible for 01 benefits) had a number of weaknesses, including 

staff not following established procedures. limited oversight. and a lack of 

automated reporting options for beneficiaries, such as an automated 

telephone system or smart phone app. 15 SSA has made progress 

expanding electronic work reporting, but these efforts wm not eliminate 

vulnerabimies caused by SSA's multi-faceted processes for receiving and 

handling work reports. and will require additional management focus to 

shore up internal controls and avoid unnecessary overpayments. 

Once overpayments do occur. SSA will endeavO< to recover those 

overpayments. However, we recently found that the collection of 

overpayment debts warrants more attention than SSA has demonstrated 

to date. In 2016. we reported that SSA's largest source of debt recovery 

is withholding a portion of beneficiaries' monthly benefits payments. 15 

However. we found that amounts withheld may not consistently renect 

individuals' ability to pay, and that many repayment plans could take 

decades to oomplete. We recommended SSA improve oversight and 

pursue additional debt recovery options-recommendations that SSA has 

yet to implement. Absent clear policies and oversight procedures for 

establishing and reviewing withholding plans-SSA's main tool for 

recovering overpayments-SSA cannot be sure that beneficiaries are 

repaying debts in appropriate amounts within appropriate time frames. 

t$GAO, O/$a/Xhtylns~: SSA Could Ot>Mot&tt>Pte-vMtOvotp.aymMts()(/IJCOfftiCI 

w.,-..,., GA0-1&-34 (Washington. D.C.: Oetooe<29. 2015~ 

16 GAO, Disability Insurance: SSA Needs to Better Track Efforts and Evaluate Options to Recowr Debt and Deter Potential Fraud, GA0-16-331 (Washington, D.C.: Apfil 13, 2016). 

Page7 
16 


Insert 33796A.012

Strategic Approach to 

Managing Fraud Risks 

Challenges to 

Modernizing SSA's 

Physical Footprint 

and Service Delivery 

Further. by not implementing additional debt collection tools that would 

speed up repayment, which can extend past the beneficiaries' lifetimes 

and is diminished in value by inflation, SSA is missing opportunities to 

restore debts owed to the 01 trust fund. 

Although the extent of fraud in SSA's benefit programs is unknown, highprofile cases-such as one case reported by SSA's OIG involving 70 

individuals and $14 million in fraudulent benefits-underscore the 

importance of continued vigilance on the part of SSA leadership in 

managing fraud risks to prevent fraud. We reported in 2017 that SSA 

established a new offiCe responsible for coordinating antifraud programs 

across the agency, and had taken steps to gather infonmation on some 

fraud risks. 17 However, we also found that SSA had not fully assessed its 

fraud risks, had not developed an overall antifraud strategy to align ks 

efforts with those risks, and did not have a complete set of metrics to 

determine whether its antifraud effor1s are effective. SSA has already 

taken action on one of our recommendations by producing a fraud risk 

assessment, which we will evaluate, and has slated its intent to take 

action on our other recommendations. Nevertheless. leadership will be 

essential for developing and implementing an antifraud strategy aligned 

with the risk assessment and ensuring that SSA's efforts to prevent and 

detect fraud are effective, thereby helping to safeguard the integrity of its 

programs and its delivery of benefits to only eligible individuals. 

With one of the largest physical footprints of any federal agency, and in 

light of rising facility costs, SSA may be able to achieve efficiencies by 

reducing the size of its footprint and pursuing additional, cost effective 

service delivery options. However, as we repor1ed in 2013, rightsizing 

SSA's physical infrastructure can be complex, politically charged, and 

costly; expanding service delivery options is also challenging due to the 

complexky of SSA's disability programs and the varying needs of SSA's 

customers." Our recent review of SSA's plans to reconfigure its physical 

footprint and expand how it delivers services confirmed a number of 

17 GAO, SSA {);sabHity ~noms: Comprehensive Strategi< ApfXQOCh Nee<le<l to Enhonc. 

Ant"taudACIMI!i>$, GA0-17-228 (Washington, D.C.: Apnl17, 2017). 

18 GA0-13-459. 

p~·· GA0-18-432T 
17 


Insert 33796A.013

Reconfiguring SSA's 

Physical Footprint 

challenges SSA must navigate.••tt also highlighted the importance of 

approaching these challenges strategically and systematically, through 

strong leadership that guides robust planning, data collection, and 

assessment efforts. 

In our 2017 work, we ident~ied several challenges that could hinder 

SSA's abil ~y to readily reoonf19ure fts footprint, align it with evolving 

needs and potentially achieve desirable cost savings. 20 For example, we 

found that des~e progress reducing its square footage and the number 

of occupied buildings, SSA's inflation.adjusted rental costs have 

remained steady. SSA's ability to further reduoe or enlarge its physical 

space is constrained by rental markets, and by union and community 

concerns. According to SSA officials, high rents, limited building stock 

and complicated federal leasing processes present difficulties and 

community needs and union concerns may further complicate relocating 

offices. We also found that, even though SSA is expanding its remote 

delivery of services-online and through new technologies-overall 

demand for field office services has not decreased, although demand 

varied greatly across SSA's offices. 

Expansion of online service-such as the $$1 application, which became 

available online in 2017-present opportunities for SSA to further reduce 

or reconfigure its physical footprint. However SSA may miss those 

opportun~ es because we found that SSA had not fully integrated ~s 

strategic planning and facility planning, despite leading practices that 

indicate facility plans should align with an agency's strategic goals and 

objectives. 21 We recommended that SSA develop a long-tenm facility plan 

that explicitly links to its strategic goats for service delivery, and includes 

a strategy for consolidating or downsizing field offices in light of 

increasing use of and geographic variation in remote service delivery. 

19 GAO, Social Secun·ry Administtatlon: Improvements Needed in Facitit;es Planning and 

Service Delivery Evafuafjon, GA0-17-597 (Washington. D.C.: July 25, 2017). 

20 GAO, Sod81 Sttcun'ty Mministl8tion: l~ms Ne6dfi<J In F8cftitfes PIBnning 800 

Service Delivery Evaluation, GA0-17.s97(Washington, D.C.: July 25, 2017). 

21 we reeonvnended In 2013 tl'lat $$A determine if realigning its f&eilltiH structure. 

inc'uding fiefcl offices, oould yield incte3.Se$ ln the agerl()l's effectivene$$ and efficiency by 

as.ses.sing the uliity and feasibill'ty ol such a realignment or consolidation, AI the time, SSA offiCials saki they would begin exploring thM offtee strudure to find ways to increase 

effiCiency and etftctWeness: ~r. as of May 2017, this recommendatiOn remains 

unimplemented. Sec GA0-13-459. 

Paget GA0-18--432T 
18 


Insert 33796A.014

Expanding Remote 

Service Delivery 

SSA agreed with our recommendation, and has since formed a Space 

Acquisition Review Board to consider space reductions in light of 

operational changes. SSA executive leadership will remain an important 

factor in ensuring a concerted effort to align the agency's physical 

footprint with its vision for future service delivery. 

Our recent work also found that while the complexity of SSA's programs 

can make ij challenging for customers to use online services, the agency 

lacked data to identify and address challenges with online applications. 

The online disability applications in particular can be confusing and 

challenging for customers to complete, according to many SSA managers 

and staff we interviewed. n Applications that are submitted online often 

require follow-up contacts with applicants to obtain missing information. 

according to SSA front-line staff. However, while SSA has taken steps to 

make its online services more user-friendly, such as adding a click-to-chat 

function for customers who run into problems, the agency does not 

routinely collect data on the reasons for staff follow-ups with online 

applicants. Such data are critical to SSA's efforts to further improve its 

online applications and ultimately allow SSA to shift more of its business 

online and further reconfigure its physical footprint. 

SSA would also benefit from establishing performance goals to help it 

determine whether new service delivery options are suooeeding. To help 

address access challenges such as limited broadband internet in some 

rural areas. SSA has rolled out self-service personal computers in field 

offices, icons to link to SSA services on computers in public libraries and 

video services accessed from senior centers. SSA also recently 

completed a trial of customer service kiosks in seven SSA offices and 

third-party locations. SSA staff in field offices reported some positive 

impacts from these initiatives in terms of extending remote access to 

certain populations, but also cited challenges, such as with customers' 

varying ability to use self-service computers. While SSA collects some 

data on usage, n has not developed performance targets or goals that 

could help it assess these initiatives' success or identify problems. 

We recommended that SSA develop a cost-effective approach to 

identifying the most common issues with online benefit claims, and 

22 According to a survey conducted by SSA, the most common reason that applicants 

started but failed to complete a disability application online was that they did noc 

undemtand what th& questions meant see GA0-17 -597. 

Pa.ge 10 GA0.1a-432T 
19 


Insert 33796A.015

Challenges to 

Modernizing 

Information 

Technology 

develop performance goals and collect performance data for alternate 

service delivery approaches. SSA agreed with our recommendations, and 

has since reported taking steps to implement them. As SSA continues to 

expand its service delivery options, the agency's leadership will need to 

encourage data driven approaches to ensure high quality and effective 

altematilre service delivery. 

In 2016, we reported that SSA faces challenges with IT planning and 

management, based on over a decade of prior work that identified 

weaknesses in system development practices, IT governance, 

requirements management, strategic planning, and other aspects of IT." 

For example, in 2012. a GAO review reported that SSA did not have an 

updated IT strategic plan to guide its efforts and ~s enterprise arch~ecture 

lacked important content that would have allowed the agency to more 

effectively plan its IT investments." In addition, SSA and others have 

reported substantial difficulty in the agency's ability to implement its 

Disability Case Processing System-intended to replace 54 disparate 

systems used by state Disabil~y Determination Services-citing software 

quality and poor system performance as issues. Consequently, in June 

2016, the initiative was placed on the Office of Management and Budget's 

(OMB) government-wide list of 10 high-priority programs requiring 

attention. In February 2018, the SSA OIG completed an assessment of 

an independent contractor's analysis of options for the system. The SSA 

OIG concluded !hal several factors that limited the analysis supporting the 

contractor's recommendation f()( SSA to continue investing in a new, 

custom-build version of the Disabil~y Case Processing System2 ' 

Because OMB is no longer identifying high-priority programs. in 

November 2017, we recommended OMB resume identnying these 

ograms.~ We also recommended OMB ensure that the Federal Chief 

U GAO, Social Security Admirtistrstion: ElfectiWJ Pfa.nning and Managemflnt Pra<:tkes Are 

Koy to O>loroomlltf/ IT Modomization Ch8111Hlg0s, GA0-16-815T (W .. hington, O.C.: July 14,2016). 

2

' GAO, SOcial SeCUrity AdmimSUtJtion: Improved Plat'llling and PtJrtormanc~ ~tJSUIYI$ AroNOOdOdtoHo/p EnsureSUccossful TochnologyMod<lmization, GA0-12-495 (Wast>ngton, D.C.: Aprit 26, 2012). 

2$ SSA OtG. Contractor's Market Rese~Jrch and AMiysis f-or the Dis80iiily Css. 

Proc<~ssing 5Ystem, A-14·18-50506 (Febf\lary 5. 2018). 

2$ GAO, Information Technology: OMS NHds to Report On and lmprovt~lts Oversight of 

t/10 High9st Plforiry Progrlltn$, GA0.18-51 (Wasl>nglon, D.C.: Nov&mber 21, 2017). 

Page 11 GA0-1$-432T 
20 


Insert 33796A.016

Information Officer is directly involved in overseeing these high-priority 

programs as past experience has shown that this oversight could improve 

accountability and achieve positive results. OMB neither agreed nor 

disagreed with our recommendations, and has not indicated whether it 

will take action on these recommendations. 

Beyond the challenges identified in these previous reports, GAO's May 

2016 report on federal agencies' IT legacy systems highlighted the 

increasing costs that agencies, including SSA, may face as they continue 

to operate and maintain at-risk legacy systems. 

27 We identified SSA's 

investment in IT infrastructure operations and maintenance as being 

among the 10 largest expenditures of federal agencies in fiscal year 

2015. Further, we pointed out that legacy systems may become 

increasingly expensive as agencies have to deal with issues such as 

obsolete parts and unsupported hardware and software, and potentially 

have to pay a premium to hire staff or engage contractors with the 

knowledge to maintain outdated systems. For example. SSA reported rehiring retired employees to maintain its systems that include many 

programs written in Common Business Oriented Language (COBOL). 

28 

We highlighted a group of systems for determining retirement benefits 

eligibility and amounts which were over 30 years old, with some written in 

COBOL. We also noted that the agency had ongoing efforts to modernize 

the systems but was experiencing cost and schedule challenges due to 

the complexity of the legacy systems. We recommended that the agency 

identify and plan to modernize or replace legacy systems, in accordance 

with forthcoming OMS guidance. 

29 SSA agreed, and reported that it is 

finalizing its Information Technology Modernization Plan. 

To its credit, SSA has made progress in consolidating and optimizing its 

data centers. Specifically, in August 2017, we reported that, as of 

February 2017, SSA was one of only two agencies that had met three of 

27 GAO. Information Te<:hnology: ,_,, A~oncies Nee<! to Address Aging Legacy 

Systems, GA0-16-468 (Wash;ngtoo. D.C.: May 25. 2016). 

2

* COBOL ts a ptogramming language devefoped in the late 1950s and earty 1960s. TM 

Gartner Gtoup, a leading IT research and advisory company, has reported that 

organizations using COBOL should oonsider replacing tile language, as procurement and 

operating costs ...nit steadily rise, and beCause there is a deorease in people: avaiable with 

the proper skill sets. 

29 See GA0.16·468. 

Page 12 GA0.18-432T 
21 


Insert 33796A.017

GAO Contact and 

Acknowledgements 

the five data optimization targets established by OMB"' pursuant to 

provisions referred to as the Federal Information Technology Acquisition 

Reform Act." Meeting these targets increases SSA's ability to improve its 

operational efficiency and achieve cost savings. 

In conclusion, many of the challenges facing SSA today are neither new 

nor fleeting because they are inherent in the complexity and massive size 

of SSA's programs and the scope of broad demographic and societal 

changes over time. Our past work has pointed to the need for rigorous 

solutions to these complex problems, such as strategic planning, 

evaluation efforts, measuring for impact, and leveraging data-solutions 

that invariably require leadership attention and sustained focus. 

Chairman Johnson, Ranking Member Larson, and Members of the 

Subcommittee, this concludes my prepared statement. I would be 

pleased to respond to any questions that you or other members of the 

Subcommittee may have. 

If you or your staff have any questions about this testimony, please 

contact Elizabeth Curda, Director, Education Workforce and Income 

Security Issues, at (202) 512-7215 or curdae@gao.gov. Contact points 

for our Offices of Congressional Relations and Public Affairs may be 

found on the last page of this testimony statement. GAO staff who made 

key contributions to this statement are Michele Grgich (Assistant 

Director), Daniel Concepcion (Analyst-in-Charge), Susan Aschoff, Alex 

Galuten, Jean McSween, Sheila McCoy, Lorin Obler, Sabine Paul, 

Almeta Spencer. and Erin Mclaughlin Villas. 

30 OMB, Data Center Optimiletion lnil~tivt] (DCOI). Memorandum M-16-19 (Washington, 

D.C.: August 1, 2016). 

31 GAO, Oats Center Opb.mization: Agendes Need to Address Challenges and Improve 

Progress to AchieWJ Cost Savings Goals, GA0·11 -448 (Washington, D.C.: August 1 S, 201 7). Th& five OMB optimization tatgets are 1) setVer ublizatlon and autocnated 

moni1oring, 2) energy metering, 3) power U:$age effec;:tiveness, 4) faQif1y utilization, and 5) 

virtualization. 

Page 13 GA0-18..432T 
22 


Insert 33796A.018

Appendix 1: GAO Letter to SSA on Priority 

Recommendations to Implement 

GAO us coyFBNMtNIACCQllNJABII IUOFVCE 

441 0 & . N,W, G0tn$1Crolltr Otl'lfl'tl 

WuhlngtOtl, DC 20$48 of th4l United St1te• 

F'ebfUary 2e, 2013 

NaneyA.Benytllll 

cO'IgComm~ 

U.S. SocW ~ Adm"~nittration 

6401 S.Cvrity 801AeVilrd 

V&ldSOI' P41tk Suik!ing 

B&limOte, MD 212J.S 

Oear AetiOO CotntniSsiOtlet Be«yhill: 

The p.lfp0$e qf this let is 10 prQW;It yw with 01n u~~ on tho OV$rtlh ttftiA of t"e Socii!! 

SocUI'ity Adtnitlittration't (SSA) in'lpie~nta!iond GAO's ecomm~atiotls and to eaH your 

persot~al attention to arNs 'ttfloere open reooommet'ldaoons ahOt.lld be given high ptiofity. In 

Hovembef 2017, we reported tNI 01'1 8 ~~basis, ?'&percent of 0tt1 

recommend~ made 4 Y"af'$ <190wete Implemented.' SSA't ~nd:ation 

lmplemenl.alion r~e was 80 peroent.n of JanuiMY 18, 2018, SSAhacl94 cs:>en 

recomrnenclallons. Fully implemen!StlO lhese OJ)en reccnvnendatlons OOOid algnifitanlly lmptcWe 

agency oper!JIIoM. 

Sine:. <l'.lr JW'\4 20t71etter. SSA t\cls implemortc<l Qnt priority f'OQOmm~tion ~a od to 

tr.OdemiZingo disablhly J)(OQrams. The aoeney has ut'ICfel1akOt\ a study 0t1 tctvat~eemet\U itl 

au.l$11>te teeflnology andWOtf< aooeommodallons to inform b poiCey regar<Sitlg di&abiMy 

detarmk\atlons. Although the~' d !he study did not s.vpport changes In SSA'a decl51on m;king polqo, $SA Atpo!Wd thill il pi~ to ~urc intotm~ion on ~a!iont otforod by 

employers as pan Of itt natiOnal data «&ection on job reqlitements. and WOUld contidef ;ob teQUi ~tt ltlat klelude aecommodatiot'ls in maldng disability dete«ninarions. ~steps ~I 

he.-_, ss,&. target It$ rtaourct$ effoicqonUy, ef'I6Ure e<l'Jitable <Jwbilily decisions, and usi&t 

~1$wit:hdwbiltinin,...tn:gagjngwit.hll'le~. 

We a:sk your cootinued attention on the retneini!lg &e'Yen open pricdy rec:.omiT\WidllltioM 

lc!OO:ifltd ._,he 2017letlcw. (Sco the tntm~.n:~ tor lhe btof~ ~.,.,.tic>nt ) Thoso priority reccmmendations fall into the two ~jot a.eltls listed below. 

Ruli:ing Cost Savings and Reducing r~ud. ~sto, and Abun 

Sbc oC the seven priorily recommencla!lont COUld reauft m 00$1 HWigs and reduce fraud. W\l&te 

and •Wso. In August ~ 13. wo roccmmcnclc41hat SSA .-non tho CQ&ts ..-lei ieasibilty of 

est.tllishing a tntdl~riStn 10 deled potentiaty di$qllalifyitl0 earnings during the waibtlg period 

tOf Disability Insurance (01) caSh benefil paymenla. Aa ot Janult)' 2018, SSA.tlad not 

oondueled lhlt aue"""nt. We ttll'* thla 8$M$SmeM oouk:l providt SSA wilh more oornprohensiYe infOflllltic)n witt! 'l<flidlto de<:irJo on po&ot'l(ial rovisiorl$l0 U o~nl 

operatbn . 

.... , 

P :J$e 14 GA0 -18-<0ZT 
23 


Insert 33796A.019

Appendix 1: GAO Letter to SSA on Priority 

Rtcommtnd.ations to Implement 

In HoYtmbel2014, we recommended that SSA in¥Jtove ib etlon• to detect and prevent 

phyt;ldf~lt:ted fraud Uling data Mtfyticl by~ ~nm~pl.an toicSerftif)' 

•hoft· Wid lon;·Mrm Kllonl. Whle SSA It taking! 1-tfP' to eManoe ill hod detection and pr~ etf011lbrQ~ing~ari$k i<fMwnentofJt•dt»bil~yprogram-i. 

I)Ny«~~animplemeflta.tionplanehlt~Ndre»ftemployit\gdata~ 

to dtttQ potential traud lnvotving phy$iQal'l$, Thi$ pt.an lhoukf build on exil:ling accMtin to 

coordi'llt• arQ.frauci•IJott• aorOM the ~ $#\ detailtd platri'\g i$ tritical to ens;unng eM ~ ~ addrtft tl1k speci~ lflrnt. 

In Jlly 2015. Wit made two reeommendatJons that SSA (1) evaluate alletnaei\oh to ll'lt agttl(y"s 

~ ~ f«teduc:ii'ISJ ot Ovet'payments.stemming rtomthe COtiC\Ifl'ent r~ off~al 

wotk~' ~salion payments ard (2) stttngl!hen its rntemal c:onltOis ovor lhett 01 

0\'erpaymet!tt by implementing the a~nallve ~oaeh to self~il"'g that yJelds. thegrealett 

Mt benefll-. SSA aogreedwilh both ollhese reoomtnene~atiOM. Nor Januat; 2018, $SA had 

not Uy in~ ih plans to use F"edet81 Etnployeea' ~sationAct {FECA) data to 

reduce 01 benef!I.S In KCOC'dance \'lflh tederalllw «Implement an a'tematftoe ap9roach that 

ptO'ttdea ~alef ne1 benefitS. 

In ~r 201$, we teQOITITIOnded !hat SSA develop a ti'netatlle f«i-nplemanting ui>da* to 

il• Debe Uanagemtnt sy.wm to (a) <~Agn •Y•ttm Wltrdt Met\ SSA.P<>Iiqt • .o lhet waiveR 011er St,OOOg,mot be ~At:iv•ly wm.d, aM (b)~ 11\at tvldence ~ wMter <*ilion$ i$ ~cty rnainta~lnod to allow tOt wbtoqutnt monitoflng and over$1gtt, Although 

SSA ~nted lht MQOtld Plll1 ollhtr~lion. eoncn,.ing limitation• in SSA's OdlC 

Mal\lge~nt Sys;ttm ~al ow t1aft to tdmirlistrat!Yoly a~ wafvtrt grtJttr tf\;ln $1.000 

withOut ttYiew ot ~ion by m~s in viOCatJOn of S$A policy SSA tJ'Iovld fif!f~e cNnoe• to is Debt M~nagement SY$1.t m lo pre<vent administntive waNOI'$ ewer $1.000, n alignment -S$A- In Aptl20t6, we recommended SSA Increase lhe mlr*oom amooot that II feOOUPI from 

overpaid 0. bene&claries from $1 0 to 10 peroenc wlihholclng hm their mon!Ny benefll amount 

Thlt: d\ange WOIJkf inore-. ac:hedUied ooledioot and reOJce the M~Oid of time to ful)' 

~ overpa)'l'flfiM$, while mir*nil:in9 the effeoc:l en bent&larias receiWig the klwe~t monthly bene6ts. It WOUkl abo promoce equity in how SSA <lea >Mth overpayment• acrou ill dinbllity 

benefit progr11ma.. SSA ~Hdwilh thit~ion and"» lCJbmitted legittaM 

ptQPOAI5 ~ lh4t Presidoent's fllcat year 2017 • 201tbudglat• to"tilblilh a mlnimumwithholcling 

ror oYtrJ)a)'mtnt. ot 1 0 patWnl of a btneteiar(• monthly bentfrt. 

lmptOvlng Flina.ltCisl lnformstlon fot the Aotno Population 

Thil <~tea invotve& the information SSA proW:kn to c:fientl on their e&tima4ed ben8fits to help 

Wnprow ftnaneial Wormacion for the aglnQ population. 

0... September 2018 pricrity teoOn'lt'nt'ndStion ellled tor SSA ctaims ~listt to consistently 

Pf'O'tide infonnarion 10 ~ial dalmaMS fot rebrM'IeN beneUs ll'laldelayil"'g daimlnO will result 

in petm~t~ently higt'IH moo1hly benefit 8ti'IN"'tS, h sccordanee -Mtn tht SSA PtC9*M 

Opetwtlons Manual ~tem. As ol2013, tnOSt<*Jer Atnefic:an& relied oo Sodal Security lot the 

ma}otty of !heir Income ancllndMduals M'IO dalm earty rill< lOsing lens of tOOUUnd!l of dollars 

lrt recb:ecl beneofo 0\'er their htetlme tklders~ this Wormadon k cenlt81 to malelng 

lrt!onned decision$ ab04Jt when to Cla&'n Soclal Se<vlt)' benefU, Ullirnately affectllo otcter Atnefk:ans• lifetime benefit amount. end re;lrement Mcurity, To fully ..,pjement thl• 

~tJOn. SSA lhould oontinoe to lat«J $tep$ to e:n&~.R that~ J.PGdaJi$1$ know to 

..... 

Page 15 GAO. 18o432T 
24 


Insert 33796A.020

At:»pendlx 1: GAO Letter to SSA on Prlorfty 

R~mmtndations to Implement 

pcovlde thltlnforM81iotl, Sid! at additiOnal pet\odlel'e~t& andj)OSSi~ N'YII'Ig field 

m;m~ cfs.t;uS$ bt;st prKCicft for provicing lhilinfonnatiOI'I to daimanlt, 

In acklillon tothoH priQrity ~lion$. tlnOit 19$1), we nave maintaJ'Ieda Htgl't Risk 

progtatn 10 eat a~e.ntion to ~liOns and ptOQtatnS II'IM are high risk c1ut tc> lheirgr•.r.e.r 

""***~' to h\.11:1, wnw. ~buM. anc1 ml&management, «eM I'IMd fOf tranaJonnacioC'I Io 

add!ess economy, efl'kienc:y. or efl'oc!Mneu challenges! Our High Risk progri!m has MN«! 

lo identify nd h4llp l't$Oiv$ serious wellknoesses In aren that lrwo!Ye tUbatatllial resources and 

1)(0\lide etlblteMoe to the public. Progrest en high titk ist()C'S 1\h been poulllo ltvot;lgtl tho 

~~anc:fttfotttotCongreu.OMB. andtl'leleadef'sNpanclstallil\~, 

inducing v.iehin $SA. 

Along will\ these higtl priorily ~rdations.. Wit also ~neod to Gall your ~Wrtion to four 

goyemrne-nt-w4de high rl$k weas: Sln!eglc Human CapiUI Managetnenl; Managit'IO Federal 

Real Property; EnsurirlJ tho Stoovrilyof ~iii Information SY$-Itm$ Md Cyt.t Crlllc$1 

lnlrt$t!Udute and Protec:Wg ltle Pt'l\oaey or Personally td&nllllable lnfcwma!lotl; aM Improving 

Man;tgtmenl of Wormatbn Tedlnology (IT) ~isillons ~nd ¢ptrMiont. Regarding IT 

Security, we espeeialy 81"10()U1'8Qt you to give anentieln to any re¢e~mmendl6ons lhM yo11 

lrtt~GenmrlrnJYtlaW~Ia;edtolrn~ a~intOtmatlonseeuMy 

t)(ogc'atl\. To assistageneies in theiref'forts. 'A'el'lave issuod'work onaclions nMdtd toirnpro"" 

cybersec:ui!y and agtneylrllormttl()(t se<lll'lty programs! Regarding rr aoQuisllk>tls, we have 

ICief'dled 1M need kit Mder.1 agencies tooonlil'lue to e.xpediliotlsly i:npJemenllhe ,. ,~ 

ol ~mbet 2014 IT ecquitltlon refonn ltglslatbn. ~ as1he Federlll'*""'atloo 

Tedlnology ~Reform A4 {FITAAA}. IItld to report aldat.a ceneor oonsolidition ~ 

$8W'Igls to OM& end tsweak.ne$$t$1n their m~tottoftwtte tleenses.4 

t ~•te $SA-. oonMuecf eot'M'Iitment tolheM • ttant ISsues. tf you 1\a.,.. •ny qut~stioM 

or would~ to diKun ¥fY of me lnu.s out~ In thit ~rtne . ~~se do not hetlt.ate! to contact 

rne or &!lrb8ra ~. Matlagi~ OiredOt, Edl.leMiOn, Wortd'oroe, al'ld Income Security at 

'CA.C>.~Sw:W,-~.,.~~I'IrskAI-. Mllt~8rom"'-MMot06'Mfii,GN).17· 3t7(W~OC.: F-. $,~17),_ 

"sH.,b~OAO.FtdMII~~~~,a,tldiet NMIIJIM~ 

~llonol~sw~~n<$f-9~ .: SfS)t..U.20 7). 

•mAA.t. ... "'*'"Wio .... ••""-oi11'4Clf'll.mn~P.'&.I«~N""-t~ ~ttloti/\CIIIotfitctiY ... tot$. 11\.ob,I.. No U$-2$1.di¥ A. ._...,._~O. H~I-NT I21$11t3m. 

:W3$.)4$(1(201C .. S..,Iot~,GNl./Nttc-.t~M!M Af*'ldHNH410~,....10....,. 

~J·~~GN).I7·3M~O.C.: Milytl,'2011)11111Ad«lli~ 

oc

tit:ol:lfu; · ... .,-22.20tc), ...... ~NHdod«>~~~~""* GA0-144 3~ 

..... 

Page 16 
25 


Insert 33796A.021

AppendiX 1: GAO Len t r to SSA on Priority 

Re-commendactons to mp~tment 

~gbOgiQOQVOt202·$12 7'21$ 0ur~•-M~<lOtltK!utto~-Mthyour•lalfOtl 

t1 &e opMr~tJont . .swel aslt!Ose 8CkMiot\81tecotM'IMdeliOM ~me ~ 

we as kK 'l'lflic:fl SSA l'las a te.a6ng role. 

e.-... 

TM Honorable Mlc:k MUfYMey, Oireclcw, OMB 

..... 

Page 17 GA().18432T 
26 


Insert 33796A.022

Appendix 1: GAD Lener to SSA on Priority Recommend,..ons to Implement 

~· Ptio tlty O~f'l Retomtntf'odtt:IOf'ls to SSA 

Bg !fi!nq Cotl Sey1nqt and Rtduslna f[Jud Wutt tod Ab:ug 

OtsablMy bUIAI'IWICe. ~ ActMly lndic{N_es C.rlM SociM Secunty Disabllly l'ri$1Jf8(1(.;9 

~ytnfHUw..-.Po46f'lliaHyt~. GA.0-13-$3S{YI~ton OC ~t 15. 2013) 

commend~tlon: To improvo SSA's ltlility to dcJloet and prt'YtnC PQ!en!i-' Oitabilty lns..nnoe 

(Qt}~ bfntfit ~yrotnts dutlO WOfl( ~during Cho 5-month WCIIibtlg penocl, lhe 

Committioner d Soc:illl Sec\lrity t.I)Quld ,, .. " lho eotts .,..;~ teftibllly oC es"blishii'Q • mech...-..m to debed poeo:ntitly di$qualifying eatni'lgs dUring al montM of the wtN!il'$ periOd, 

ine1uc:f1r10 those tnOnltlt 01 eltTiingtthlllhe ~· enforoetnetlt opect~liOn ooes ~ CMren~ly 

de4ect and lmpletnenlltlit tneehlni&M.. to the exwrt lhll ananetysll detetmlnes It it cost· 

~lveandfeasib'e. 

ActiON NM<Itd: $$A JQteed v.iCh !his r~ However, -.s of Jltl..,ary 2018. SSA 

has no1 ~ .sMSS«<N eost.s ard fe"~ of ts1a~ • rned\alf'lltm to dtteoet poeentialfy 

disquali¥tlgtatrings <1u11ng till months or tht-lrlo periOd. tns1ead. SSA~ that 

~a study at !his time would ~ld unrebble lrlt¢nnation because the aget~ey"t abky to 

obetrn and uad< eat'f'lin9t ttom aJ!ernatNe sourcet II d'langtng clle to several reql.llret'Mflts of 

!toe 8iptctihn Budget Act c4 2016, \WIIch SSA beteVes .. ..., aNect OACrs conc:ems. 

GAO continues to believe that ~rtaki'lg an~ to assess «~Sts ard feasibility 00'-"d 

prtMcte SSAwflhmoce c:otnpt""~ inf.on'N6of'l wil:hwNeh to~ on po!eMial revisions to 

Its ~tll~iOt'l. To flllt irl'lpleometC thiS reoornrnendaelon,. SSA ..... noted IO .. MS$ttle 

cost al'd feasibility of a mechanism to t1etea benetidatln' WOflt actMiy lhalls. bey¢nd program linilt and auspend beneMI epproptlalely. 

Oitec-tor. S.Co 81Qd0yln-. For~Audilt tlnd ~;v. s.Moe ContKt inform:.don: a.QdoyanS@g.o.gov (202) S12.e722 

SSA Os.s&bllty Bffte(~ts. Elll.a~IC«< Pdtcie1 ltlld M~nt FOCU$ NHded loA4t:kess 

i>oletw.fitl PflrSJOM-Assisl.ed Fr'tlvd GJ\0.-1$.19 (Wa&hl'lgton., OC: November 10. ~14) . 

R.c:omm•nd~tion : To impl'ove tl'4' Clll)ility fA the .-gency to oe.CKt and J)revcnc S)Oienti<lll 

phy$~»151ed hue~, end to twMp •n~ • "*"' lniliMNn lh• us. M~ lo identify 

potweill flwcf w.n.t aro suetlttsM, $SA $hol.lld deYelop an implementation plan that 

i6etlCifies bolh thorl:•tnd 101\g•lierm a<:eions, ir'dldng! (1)timeftames tot imptel'nef'lllltiOf'l: (2} 

r~ and statflt'l/iJ net<tt: (3) dalll rt(fUiretnents. e.g.. tht c:cledlon d UI'IIQUt medleal 

ptOYkler Wotmabon: (4) hOw technology improvement 'Mil be integrated Wo exlsting tecMology 

lmprO'Yef'Mtltl aueh as lhe Disability Case Procetdng System ancf Natlon.al Vendor FW. and (5) 

hOW d!ll'erenl fni~!Ne• will Interact and f1JW011 each oct10t. 

Actions Netdtd: SSA agreed Wlll'l tNs ~iOn. To futy ltrl()letl'leol'lt INS 

r~IJOI'I. SSA win need 10 deWIIO!> an ""'*'mer.-8tlon plln for an~l4 8Ud effont.lhal 
27 


Insert 33796A.023

Appendix 1: GAD l etter to SSA on Priority 

Rtcc>mmtondatlon.s to ltnplomtnt 

llddfeu.s hOw•.,.. ~data anatyl)ct to de.ed potMIIII fraud lnvoMrv phytidans. TI'IIS 

P'an ahOukf btMd on elds!ing aetW!Iies to oootdir\ate d..ftluct tff.otts actO» the agency 

Ohctor. Elzabelh Cvcta, EdUcation, WOI'ktotot-, ancf 1noome Secl.rity 

Cont.ct ln orm.~Uo : OJrdaEOgao.gov {202) S12~0 

Reeommtndatlon: To Vnprcwe SSA.'s ability b) deled.~. anct reotWtr potetlllal 01 bMafil 

cwerpaymentt dut to !he coneurrtnt ~or Ft6ttal E~~· · Cor'npfnsO'tion Ad (FeCAl benet~:$. the Co;ntnlsSionet or Soda! Secut'lty Should,~ ~ will'! OMB guidanc., 

~re the eot:l$ and benefits (llallemetiVes to $SA's (:UtTMI ~tor rech,tcing !he 

poce"'l .. '« OYefP'Ymet'U lhlt resultff'Oil'l the~ rteo~ of FECA bol'ltiilt. Wf1i;h rtliH 

on blnetJcilrits IG ufoftt)Ott any FECA benefits~~. Thete 8!ltmMi~ ~ld ch.ldt, 

WI'IOt'O oth6rt. fOubn6ly tnMCWng Department (II Lab«'t (DOl) FE CA. J)fogram dill with 01 

ptOg,.tn diU. !o detect potenb;al 01 ~ymet~tt, 

R•eorntMndatlon: Tolmprcwe SSA's 8bilrty to detect. pr.-..en~, and tet::JN« potet~~ial ot bef'letll 

cwerpaymerudoe to 1t1e cone~Mrent rece4>t or FECA benefiiS... lhe CommiUiot'\er of SOCIII s.e.oun.y 'Shol..t:l sit~ hemal controls deslgMclto prevenc 01 <w«payment't dUe 10 the 

concurrtn1 ttctlp( o1 FE:CA benefitS by 1m~ the all.ema1ivt thai prOVidH the gttatast netbel"'8fitf. 

Ae-lions Needed: SSA agrtoe<Jwith lhest fecct'l'ln"'erwSations. To im~ lhe$e 

feeotnmel'ldations.., $SA ntOds 10 fUlly in,.,tement ~S plwl$ to \11$0 FECA d~ to rtdi.U 01 

beotftU h toccOto.nct wi(h fo0et11 llw. ¢1 ir'l'f)lemtnl .., ~ ll)l)fo.ch th• provldM 

gruser not benoflls. 

Db.ctor. Seto Bagdooyan. F()(ensleAud1t't and lrwesbgati'tt SeMoe Cont1ct lnform~tlon : SagdoyanSQ9ao.gov (202) S12-et22 

Dl'ssbl.ily tttSUfance. SSA Could Oo Mofe toPteveN ()vf(paymM!tOf lflCOO't'CI W.W.tt to 

8Mef/CiNies. GA0-16-34 (Wash~kW\ DC. Oetcbet 29, 2015) 

Reeommend• tion: To lmp(ove ~nee With wai'tef J)Oides. SSA Should develop a timetable lot lmplementhg updates tolls Oebt Managernena Sys1emto: (a) align system 

controls wlth $$A pofey, so that watt«s over $1.000 CWW'IOt be ~11vely wa~vecs: atiCI (b) 

~etha1 e-.tienee ·~ w~Mwdeclslons Is Wl'lldenl:lymaintaiMCI to allOw t« subsequent rnonlloring .ncs ~· 

Actlom Need.cl: SSA agreed wilh lhis re«>mmendation. In .lanYary 2018, SSA repoOed Chat tt 

Augult 2017 , lhe agency'a Srwestment Rev;ew Board approwd the Overpayment Re6ea.%1n 

Project TNt~ project Ml WQlCie ~to ensure tedlnlcians cannoc 

admWWatively waive overpaymentt over S 1,000. Howe-ver, wd SSA finalz" changes to liS 

Debt Management SYf(em lo ai9'Wll:h poliq, SSA lld<J auuranc:e lt\at statf d a~ 

prooe$5 w._. gru;EW than $1,000 . 

..... 

Page 19 GA0·18-432T 
28 


Insert 33796A.024

~pendlx r: GAO Letter to SSA on Prtortty 

Recommendations to Implement 

it~t<> : EliZabeth Curcta, Ed~ iOn. Woflt1orco • .ond ~ S.QI.Irity COflti<:t lnfonnatlon: et.claEOgao.p (202) 512-4040 

Oit~bllity In$~. SSA /Wteds lo &~ret Tt¥:}( Eff<Jrl$ and £v.wate Opoott;t to R&C<NM Debl 

and Oeler PoletttiN Frtwd, OAQ.18·331 (W4$hing!on, OC April 13, 20 l $) 

Recommendation: To en•uc• 9ffective and allf'tQilriat. t9CO'Yef)' of 0 1 oYefJ)e)'ment.l Wid 

adr'rWiistre:iOn Of pet~altiet and unctiotlt. tt\4 Acting Commis$ioner of tn. ~ Sewrity 

Ad'n'W'llstredon $hOOid ad)l&t the mWmum wlll'lhOkllnQ rate t<> 10 pefe&nt Of tnontl'lty 0 1 l>ttlefltt: to allow quicker recovery ol . 

Actions Needed: SSA ~ wilh thi$ recommen!Utlon. SSA. neectt to lnortaae the atnO!.Wll 01 

0 1 ove-rpayments it ~rs by ~US1ii'IQ ats minimum bene&: tMWiolcling rate fr()fl"' $10 per 

month to 10 percent of monchb' bwletca. We reported that''* Change WOUld result in an additional $278 million in ov~~nt c1tt1t ~..-ed OWif a S.)'t"ar period. 

Director: Ehabeth eurtt.. uc~ion. W~. •net lnQOmt Sec:urity 

Contact ln f<>rrna.U<>n: OJrd.e~.gov (20'2) 512-.4040 

Improving Flnanclal lnfo.t....,.tion for tht Aqlno Popu!tt!o o 

SOCiM Sf.twily. lll?~!t"OWm61'1llt 10 CI,.IIYI$ ~.S$ Coord Help P90{Jit~ Milk• S.tttN MO«Md 

l>flcjsions aboUt RetirenHHW. Benetti.$. GAC>-16-786(Wtihin!(lt()(l. DC; ~ember 14, 2016) 

.c:Otl"'mt~atlon: To M&Ufe that key ir'l!ormatiM pt(W~ by doims spocia!ists to potcn(ll!l 

c;!;Nm;~nl$ of Social Security reci"ement benef1b It dNt and consi!Jent wi1h SSA.'s Ptogrsm 

OpetaeiOns fA#>~I Sys.tem (POMS), th$ Comrni.sioMr oC th$ SSA ai'IOIJcl tal:e IMPS to ensure. 

when applieeble, <:IM'na speefalitltlnform daim.ant41hat delaying ellirning will result tt 

porm01ntnltt highoor monthly benefit .. mountt, and ill feast otlet to pt'O\ISde dai'natlts tMit 

estlma!ed beflefits at ~ curteflt aae. at ru• r!Hiretnent 119' (FRA) (l.lnfoes.lt1e c;:l;firnant it already Ok:t$r than fAA), ancf 811118 1'0, 

Actiont t~t : SSA ageedwith this recomman<Sa~loo. On October 19, 2018, SSA. issued an 

actrninis:tralive mess• remind~ l~ '*I<W14 (lnc:fvding dcllms apecialist. wt10 dlseo» 

dalnWtg Yo{lh potential Clair'niantt) to (1) Inform elairnants ti1'1Q tot rr.irement M~Qneo bonefll$ INC dcl;lp,g rosvll$ in pem\il~l)' higher benefit ""'~ •u: and (2) ptovkte elaimaMs Wjth 

et'!itnaled b&f'l!f1l'S at different daiming ages. To fully """"mont !.his rowmmonc~Mion. SSA wil 

ne9d to \at. additional petlocflc acdons to enaure ltlat c:lalme sl)f!dab.IS int'Ot'M potet&l 

=imants, <M'Ien Ol~blo. t~t OtJ.oy;ng c:iairning \WI ffl.!AIIn permanently higher retirement -L 

Director: Cllafles JHleek, E<Sucallion, WC>Motce, and Income S&eutily 

Contact lnfonn01tlo.-.: Je uc:kc; gov (202) 512·'1215 

.. ,., 

Page 20 GA0·16-432T 
29 


Insert 33796A.025

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f 


Insert 33796A.026

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31 

Chairman JOHNSON. Thank you. I appreciate your testimony. 

Ms. Brannon, welcome. Thanks for being here. Please proceed. 

STATEMENT OF VALERIE C. BRANNON, LEGISLATIVE ATTORNEY, AMERICAN LAW DIVISION, CONGRESSIONAL RESEARCH SERVICE 

Ms. BRANNON. Chairman Johnson, Ranking Member Larson, 

and members of the subcommittee. My name is Valerie Brannon. 

I am a legislative attorney in the American Law Division of the 

Congressional Research Service. Thank you for inviting me to testify today on behalf of CRS. 

I will be addressing the statutes that may authorize someone to 

serve as acting commissioner of Social Security in the event of a 

vacancy in the office. There are two statutes that may authorize a 

governmental official to serve as acting commissioner. The first is 

the Federal Vacancies Reform Act of 1998, or the Vacancies Act, 

which generally governs acting officers serving in vacant advice 

and consent positions in the executive branch. The second statute 

is Section 702 of the Social Security Act which contains a provision 

pertaining specifically to a vacancy in the office of the commissioner. 

The first statute, the Vacancies Act, generally governs vacancies 

in executive branch positions that require appointment through the 

advice and consent of the Senate. It usually provides the exclusive 

means for temporarily authorizing an acting official to perform the 

functions and duties of any such position. The Vacancies Act places 

two kinds of limitations on acting service. First, the statute only 

allows certain classes of employees to perform the duties of a vacant position. And, second, it specifies that such employees may 

perform these duties for only a limited period of time. 

The Vacancies Act allows three classes of officials to serve as acting officers. First, as a default rule, once the office becomes vacant, 

the first assistant to that office automatically becomes the acting 

officer. Alternatively, the President may direct two other classes to 

serve as an acting officer instead of that first assistant. Either a 

person who is currently serving in a different advice and consent 

position or certain senior employees working in the same agency. 

The Vacancies Act also limits the amount of time that a vacant 

advice and consent position may be filled by an acting officer. 

There are two independent time limits. The first is a fixed term of 

days that runs from the date that the vacancy arose, and the second allows an acting officer to serve while a nomination to the position is pending in the Senate. 

The second statute that may govern a vacancy in the commissioner’s office is Section 702 of the Social Security Act which creates the positions of the commissioner and the deputy commissioner. Section 702 states that in the event of a vacancy in the office of the commissioner, the deputy commissioner shall be acting 

commissioner unless the President designates another officer of the 

government as acting commissioner. Section 702 does not explain 

who these other officers that may be directed by the President are, 

and it also doesn’t contain any expressed time limitations on acting 

service. 

32 

As mentioned, the Vacancies Act usually provides the only way 

for an employee to temporarily perform the functions and duties of 

a vacant office. However, on its own terms, it is only exclusive unless another statute expressly designates someone to serve as an 

acting officer. Section 702 does designate another government official, the deputy commissioner, to temporarily perform the commissioner’s duties as acting commissioner. 

But just because the Vacancies Act does not apply exclusively to 

the position of the commissioner, that does not necessarily mean 

that it does not apply at all. It is possible that both the Vacancies 

Act and Section 702 could apply to a vacancy in the commissioner’s 

office. If the two statutes are consistent, then this doesn’t present 

any problems. But if there are inconsistencies between those two 

statutes, this could lead to challenges to an acting officer’s authority. Imagine that one statute authorizes acting service but the 

other prohibits it. An acting commissioner might take an action 

under the more permissive statute, but someone could argue that 

the limitations of the other statute prohibited that action. If such 

an action was challenged in court, the judge would have to figure 

out not only whether this first possibly more permissive statute actually did permit the action, but also it would have to figure out 

which of the two conflicting statutes should prevail. 

With respect to the commissioner’s office, such a conflict is possible. The Vacancies Act creates a detailed scheme setting out who 

may serve and how long they may serve. On the other hand, Section 702 is silent on a few issues and could possibly be read as 

more permissive. However, it is also possible to read these two 

statutes as consistent. 

There is very little case law interpreting these two statutes, so 

ultimately it is hard to reach any definite conclusions on this issue. 

Thank you very much, and I will be happy to answer any questions you may have. 

[The prepared statement of Valerie Brannon follows:] 

33 


Insert 33796A.027

~ 

~ Congressional Research Service Informing lhe legislative debate since 1914 

Statcmcol of 

Valerie C. Brannon 

Legislative Attorney 

Beron~ 

Committee on Ways and Means 

Subcommittee on Social Security 

U.S. House of Representatives 

Hearing on 

"Lacking a Leader: Challenges Facing the SSA 

After Ove1· 5 Years of Acting Commissioners" 

March 7. 2018 

CRS TESllMONY 

Congn-ssional RI.'"S<'a«h S<'rvice 

7-.5700 

WWW ,(:I'$,S0V 

<J>roduct Code> 

PteperedfofCongress--------------------------
34 


Insert 33796A.028

Chairman Johnson, Ranking Member larson ~ and Members of the Subcommi«ee: 

My name is Valerie Brannon. I am a legislative auomey in the American Law Division of the 

Congressional Research Service (CRS). l11ank you for inviting me to testify on beh.alf ofCRS regarding 

the vacancy in the office of the Conunissioner of Social Security (Commissioner). My testimony will 

broadly addi'C$$ the $131Ul01')' 3uthori(y for Other governmental Officials tO tenlporarily perfonn the dutieS 

ofth:u office in an acting capacity. 

1 

As discussed in more detail below, there arc two statutes that could govern the ability of a govcnuncnt 

employee to serve as the Acting Commissioner. The first is the Fcdcrnl Vacandcs Reform Act of 1998 

(Vac-ancies Act), the statute lhat generally govcms the a.biliry of govemmcnr employees to pel'fonn the 

functions Md duties of vacant advice and consent positions in the executive brnnch.: The second is 

Section 702 of the Social Security Act (Section 702), which creates the pOSition of the Commissioner. 

aJong with a number of other high· level offices in the Social Security Administrntion (SSA) . .J Noutbly, 

Section 702 also conuains n provision pcrtllining 10 a vncanty ia) 1hc office of the Conm1issioncr ... 

Vacancies Act 

TI1e Vacancies Act generally provides "the exclusive means for tempomrily authorizing an acting official 

to perform 1hc functions and du1ics of :my office of an Exceuti\'e agency . . , for which appointment is 

required to be madt by the President by :md with the advice and consent of1hc Senate."~Tht law is 

triggered if an officer serving in M advice and conscnl position in the executive br.meh "dies. resigns, or 

is otherwise unable to perfonn the func1ions and duties of the office. "6 With very few cxceplions, the 

statute applies to mosl \':!.cant advice and conse01 positions in the executive branch. 

7 Lmportnntly, the 

Vac-ancies Ac.t place-s 1'\vo kinds of limitations on acling sctviee. Fi.rSt, the statute allows only ccnain 

I Thi$ k$timcmy i:s«ntrntlyc(Jnc;.:rnal willtthc tluthc)ll"i1y Con~ hJi$ rrovickd 10 flllowan actinaoflittr to tempt>mrily 

c;ccrci.~e nn o01cc't~ powo.T$.. 'llu.u mll)' be e>tllcr 1esal i~ nti~ by lllln ~~C ing onico:r ~r.ing 11$ lhc C.:ommissloncr o(S<>Cnl 

S«Vrity, such ;a.s tile 11bility of the Commtuioncr to <klcpte dutiC$lO Olhtt officiaJs lo p.-r(orm in tlleir own tt~paCtliC$. Se. 42 

U.S.C. f 902(•)(7) (authorizing ConunissiooC'f to assign tlulics and dckgate authority). 'Ibm fUJI)' •lso be ooastitulional 

linlitatH:msoo l.b¢ abilit)' ofothet'offtciak to pctfonn lhcduti~'$ oflh.e Cornmiss:ion«. &.<, q .. Bud;ky \'. Valoo, 424 U.S. I, 

126 (1976) (p~"f ettrillft'l) ("(Ajny appointe.: t:<c((:isjng.sisnifteant autborityputsttlltltto the lawsoftlk United St31d i!at\ '00i~r 

oftht V11ittd S~k'S, • a1xl must, tlk'tCflln:, be appoimctl it1thc Jtt:'ltl.tltt pi'CSC!ibed by [the Appoi.tlltiK-1li.S Clauk of tboe U.S. 

ConstiTtui<nt}:' (ctuoting U.S.Co.,'ST. an. II,§ 2, d. 2)). l1un ~Y to tJqlln« nny ofthot$e nddit ona l~-a.'lJ qu~i()sl$ althe 

\1~1 of the- Suhalnuniu .. -e, 

'5 U.S.C. §§ JJ4S·3349\:, Fort (J)(MC tborougll discussion of the Vtc'~ncies Aet. :o>ec CRS Rcpol1 R-'4997. 11/(f VoooMft-.1 Mt: A 

1~1 fA~. b)' Vakrie C. Brannon, 

J 42 tJ.S.C. ~ 902~ 11\Jb. l ... No. 103·2%, f 102, lOS Stu. t467 (1994). SpttifkaUy, S«tioo 702 alii() cn::Uo:Ji the afli«~Ofthc 

Ocpu yConuni~ ~r ofS«ial S~·c-utity, d~e Cbid Atnul)'. tl~£ Chid 1-' inaneial Onicet, ~ l.he ln.'9)cttor Gnlctal. kl. 

'42 u.s.c § 902!bX4). 

s 5 U.S.C. f ~34 7(a). The Vacancies Act ool)• applies to funeuoos or dutic$ that •rc (I) cs.tablishc:d eithC'f b)• st.ttutc or tcgulation 

and (2) ''rtquitcd" by 11'1111 statute or regulatiOil "''o be petf<>ntll'd by 1M applicable offie<1 (aiM& only that offi«t)." /J 

§ 3.l48(a)(2). Ao:rofdin,81)', the Vaeaneid Aet :lJl(lllttnlly rc:s-uiet!l 1he c:<misc of nondtlegabk duti('-lt by otbe't SJ,-.wttnnxnl 

o!Yki11b. S" hi.; .5« also $ch~ rol.:c 'rriblll Nation v. Kcnq,thorne. S8? F. Suw. 2d 389,420 (1). C(lnn. 2003) . 

• 5 u.s.c. f§ .l345, 3348, 

' .Sec-id. U .l.l45{a), .l347(a), 3.l4S(b), 3.l4?(a) (cxeludi.n8 the Gow:mman Aeoounu.bility Office); id. f 3349<: (t:xctuding 

1t1etnbrnl of certain boards and romtn ll~iOO!I,II.Io t& \Vith fcdc~l judges): id. § 3.l4.8(c) (c:ctll.tdins Mllruloril)' s.pttif.ed oll1ca 

fn)m the provit:ioo (Jf ll~ Vt1eane~ Acllb:U render$ nMI:Ofl1f!ilflnlll~'1iOitS oi ). ('j iJ. ~ )J49b (J.ri>VIdin:s l.h,'ll tlle V:t~'3nclcs 

Acl ''lb:•U nol .,, alf«l- bol{kWi..'T •Lah i~) 

CRS TESTIMONY 

Prepare<fforconor'"s--------------------------
35 


Insert 33796A.029

classes of employees to pcrfonn the duties of a v:t~m advice and conscm position.3 Second, the 

Vacancies Act specifics that such employees may perfom1lhesc duties for 01lly a limited period oftimc.9 

Who Can Serve as an Acting Officer Under the Vacancies Act? 

TI1ere arc only three classes of govcrnmem officials or employees who may temporarily perform the 

functions 3Dd duties of a vacant advice and consent office under the Vacancies Act.1° First. as a ~fault 

and <'lutomatic rule, once a11 office becomes v::~can . "the first assistant to the office" bccomcs1he acti11g 

officer. 

11 Alternatively, under the Vacancies Act, the Prcsidcm '"rn::~y direct'' two other classes of people to 

serve as an acting officer instead oft he "first asslstant."'1

: First, the President may direct a person 

curTCntly se-rv ing in a different advice 3Jld COtlsem positiotl to serve as acting officcr.u Scoond, the 

President can se-lect a senior "officer or employee'' of the same executive agency, if thai employet strvcd 

in tbat agcney for at lcast90 days d'nring the year preceding the ''acaney and if the rate of pay for that 

employee is at least GS·I S on the fcdernl pay scale. H 

How Long Can an Acting Officer Serve Under the Vacancies Act? 

TI1e Vacancies Act also limits the arnoun.t of time that a vacant advice and conscm position may be filled 

by an acting officer. An acting officer may scrvecither(l) during a fixed 210.day period beginning on the 

date th<'lt lhe vacancy occurred, or (2) during 1he period while a '"firs1 or setOild nomination for the office .. 

is pending in the Sennte ~ These nvo cime periods nm independently and concurrently." Conscqucndy, 

the submission and pendency of a nomination allows an .ac1ing officer 10 serve beyond the initini2H)-day 

period. 11 The legislative history of the Vacancies Act suggests that an acting officer may serve during the 

pendency of a nomination even if that nomination is submitted after the initial 21 day period has 

expired.•• 

1 /d. §;t.WS . 

• JJ. §§ 3346, 3349a. 

" hi, f JJ4S. ri.IJ1ho:r. eo."<n mdi~ls olbcrwise Calling v.1thin one oftha~e 111m: das:scs mtght be prohibited (rom seo•ing •s oo 

accing offic..., i(tbey we: th('IUS()\'<!S nominated by the: ~sidau to S«Ve: permanently iJllha1 position.~ /d. § 3345{b)-. .'>Nflisc 

SWGen., Inc. v. NLRB, t37 S. Ct 929, 938(2017)(holdingSU.S.C. § 334,S(bXI)appticstoatlll11ccdasscso(pe:tSOOs"'ilo 

11'1igh1 scn'C a$ a<ting officer$ ut'Kkr the Vaca ~ies Act. rather lha.- only 10 lin. au iSJa.us saving utldct S U.S.C. f 314S(aXI)). 

lndi,idl.llll!f i.n one add.ition:d cl~ may $1-"T\'C as an actina oflic·cr. $p«ilic:~Uy, II~ Vac:wcics Act PfO\'Kkll t.h.~t if 1111 oflittr 

$CI"C$ 11- li:t~d l~"fm r:1tltcr th:m ~n·ing at lhc pkl.l$u~ oftho:: n.."S~dcnt, :.nd tllc Pre$ido::ne ll:as oominatcd th11t uffic..., "for 

r~~ntmcnl for un t<klitO.all«m to the pme offi~;e in IIJl Exccl.llivc <kpnrtmcnl witbo~Jt a brCAk in ~rvicc," l.ho.--n lhc Prc:sidc:nt nll)' din."\.1\M:I offJC<r lo serve. Sl.lbj«t to the san)( time lin1itatlons imposed b)' tbc V.cancie;s Act on WI)' other t1C:Cing 

offK'ff. Jd. § 334S(c)(l). D«ause the Commis.sio•K-r .s<n'« a fix<"d siX·)'<'IIr tern\. it is pos.-sibk tbattbis pro,isioo could aliO'o\' :1 

Com•t~is.siMer who is r~ominatcd to the pos.1tioo to (» ~inuc: ~-rvicc. Su 42 U.S.C. ~ 902(a)(.l). 

11 S U.S.C. ~ l34S(aXI)-. 

J! ld. § 334-S(a). lhi:s ciJm:II\'COifl)' may come from the l?n:$id\.'111. /d 

u td.f3J,4S(a)('2). 

11 M.§ll4S(a)(l). 

n kl. § 3J46(a). Jfthe first or .second oomin~uion lo tbc ofiioc is "rejected by tbc Sc:Nle. witbdmwn. OJ Ktumed to lhe Pr<sidcnt 

by the Seruu~.·· the acting oA:iQCr m.~ycontinuc to &C'f\'t' fOf 11 Zt<kl<~y period be& inning on the <bte o(,hnt t.:jection, mlll<Jnwal, or rcmm. Jd. § 3346(a). 

" Set' id. § 3346(b), 

,, .se~ id, § Jl46. 

1' 144 CONe. Rr.c. Sll02.2 (d111lyed. Sept. 2.1~. 19?8) (~Aotcmcnt o(Sen. llWMnpsoo). A('('()¥'(1 0\lidanoe on AppticaLion off\."d'l VII _,.,IW"iNRf'(M,..-ANt'l( ?\0(1 0 1 I' M.AA (IQoQoO) 

CRS TESnMONY 

Pte!*C>dforCon;rHs--------------------------
36 


Insert 33796A.030

Congressional Research Service 

However, if the vacancy exists during the 60-day period beginning on the day a new President takes 

office, then the 21 0-day period begins the later of either 90 days after inauguration or 90 days after the 

date that the vacancy occurred. 19 Therefore, with respect to vacancies that existed on January 20, 2017, 

the Vacancies Act appears to have authorized certain government officials to serve in an acting capacity 

for a 300-day period beginning on January 20,2017, and likely authorizes certain qualified officials to 

continue to serve upon the submission of a nomincc.20 

How is the Vacancies Act Enforced? 

The heads of executive agencies arc required to report any vacancies, along with infom1ation about acting 

officers and nominations, "to the Comptroller General of the United States and to each House of 

Congress."" Funhcnnorc, if an individual is not serving in compliance with the Vacancies Act and 

attempts to perfom1 "any function or duty of a vacant office," the Vacancies Act provides that such an 

ac-tion "shall have no force or effect."" Therefore, if an acting officer is not one of the three classes of 

government officials authorized to serve under the e.~ es Act or if an acting officer is serving after the 

relevant time periods have run, any attempt br that officer to perfonn a function or duty of an advice and 

consent office will have "no force or effect."' This provision migbt be enforced in courts if, for example, 

a private suit challenging the authority of a person to act seeks to nullity any noncompliant agency 

actions." Additionally, if the Comptroller General delennines that an officer has served "longer than the 

21 0-day period," the Comptroller General must report this finding to the appropriate congressional 

committees, the President, and the Office of Personnel Management.>$ 

Section 702 of the Social Security Act 

Section 702 creates the positions of Conunissioncr and Deputy Conunissioncr of Social Security (Deputy 

Commissioner), along with a few other high-level positions, defming their duties and terms of service. 

26 

This provision was added to the Social Security Act as pan of the 1994 reorganization that established the 

SSA as an independent agency." Both the Conunissioncr and Deputy Commissioner positions require 

appointment through the advice and consent process. 20 Section 702 provides in relevant part that: 

The Deputy Commissioner shall be Acting Commissioner of the Administration during the 

absence or disability of the Commissioner and, unless the J)tesident designates another Qfficcr of 

1' 5 U.S. C. § 3349a(b).11lis provision refm co the "tnmsition;d inauguration day," defi ~cd as he d:ne 011 which 1.11y perS<m 

swears ora01rms the oath or office as Prcsidau. if S\ICh pcroon is no1 the President on the dnte prcc-cdiJlg tbc date ofsw«;;~ri g or 

allinning such o.,th of office." ld. § 3349a(a). 

"'See kl. §§ 3346; 3349a. 

" /d. §3349(1). 

" !d. § 3348(dX I). 

" !d. 14 St.·c: S. REP. No. I 05·250, at 19·20 ( 1998) (""The Conuninee expcccs t11at Jitig.ants. with Mnnding to challenge pui'J)Orttd agmcy 

actions taken in violation of these pro,•isi<ms will taise llOJ~ ooC01npli<'lnee with this leg.islation in a judicial proceeding chnJknging 

the lawfuh)(SS of the agency aetiOil.}. See. ~:.g .. NLRD v. SW G<:n .• lnc., 137 S. Ct 929. 944 {2017) (llolding govcnlme,u 

oOidal violated Vt~crulcic.-s Act and t~01rming deciston below that found an act 13.ken by llle official was in"alid). 

"s u.s.c. § 3349(b). 

,. 42 u.s.c. § 902. 

" Pub. I.. No. t03·296, § 102, 108 S••c t467 ( 1994). 

" 42 U.S.C. §§ 902(a)(t), (bXll. 

CRS TESTIMONY 

Pre~r~ «Co~~n -------------------------------------------------------------
37 


Insert 33796A.031

Congressional Researeh Service 

the CovC'J'nmcnt a~ A(ti_,,S Cornrnis$ioner, j,, the event o f' a vacancy in the office of the 

Conunis.sioncr. 

29 

Therefore, pursuant to Section 702, as a general matter, the Deputy Commissioner "shall be Ac.ting 

Commissioner" in three situations: (I) the absence of the Commissioner; (2) the disability of the 

Commissioner; or (3) a vac~ cy in the office of the Commissioner."' In the case of a vacancy in the 

office, however, the Deputy Commissioner serves as Acting Commissioner "unless the President 

designates another officer of tl1e Government as Acting Commissioner,"'' Accordingly, in this third 

situation, if the President designates "another officer of the Government" as Acting Commissioner, the 

other "officer'' will serve in that role instead of the Deputy Commissioner'' 

Seetion 702 is silent on two critical issues. First, Section 702 docs not define who is an "officer oft he 

Government" that could be designated to serve as the Acting Commissioner in lieu of the Deputy 

Commissioner.'' Second, Seetion 702 docs not expressly limit the duration of an Acting Commissioner's 

scrvicc.l4 

Interaction between the Vacancies Act and Section 702 

At first glance, both the Vacancies Act and Section 702 could potentially be viewed to govern a vacancy 

in the Conm1issioncr's office. Section 702 expressly provides that in the event of a vacancy, the Deputy 

Commissioner shall serve as Acting Conunissioncr.

3

• ln tum, the Vacancies Act generally governs acting 

service for most executive branch officcs,36 and none of its limited exceptions seem to exempt the 

position of the Commissioner" Any inconsistences between these rwo statutes may proonpt challenges to 

the authority of an Acting Commissioner, if that official is not complying with one oft be two statutes." 

Where two statutes encompas! the same conduct, courts will, if possible, "read the statutes to give effect 

to cach."39 Courts are generally reluctant to conclude that statutes conflict and will usually assume that 

two laws "arc capable of co-existence, . . . absent a clearly expressed congressional intention to the 

"' /d. § 902(bX4). 

30 M. lbc Pnesidau .~,d the SSA havt provided a furlherordcrofS\Iec::cssiOI' in the c:vcn.t that thcofficesofb<>tbthc: 

Commissioner and th-e Oqmly Comn1issioncr ;uc \•acant. See SSA Orgtmi:<rtl<mol Mtuwol, Cltaptu S: S<Jcitll Security 

Adminlstf'(ltitm, Soc. SEC. A0).11N., htt:ps:l/www.ssa.go\'/orglorgOC.htm (lasl visited Mnr. 2, 2018) (referencing Presidential 

Mnnorandum on Providing an Order of Succession Withi:n the Social Security Administmtion, 79 Fed. Keg. 63305 (Oct. 24, 

2014)). See also Presidential MemortndlUn on Providing an Order of Succession Within the Social Security Administmtion, 8 1 

Fed. Reg. %337 (Dee. 30, 2016). 

31 Se• 42 u.s.c. § 902(bX4). 

n Seeid. ;cf Unitt'd States v. Morrow, 266 U.S. 53 1, 534 (192S) ("The general oflic.-e of a provi.;;o is k)cx.IXP' something from 

the n~tc ing clau~. or to qualify and rcstmin its gcnt.'l'alily and prewnt misintctpr<.1ation."'). 

"s.. 42 u.s. c. ~ 902(b)(4). 

J.4&~id. 

)$ ~id . 

... 5 u.s.c. § 3347. 

l1 !kc ,pro note 7. 110\VC'o'Cr, the V1:anci\.'S Aet d<>cs provide that it will not be cxclusi'-c if another .. statutory provision 

cxpt(SSiy .. authorizes "an oflitc'r or onployce: 10 ~rform the fuoctiOilS :md duti.:s of a specified office tcmpotru"ily in an ftCting 

capacity, .. ) U.S.C. § 3347(a)(l). \Vk ther 42 U.S.C. § 902 rcndc:rs the Vacancies Acl ll()ne:tclusive as applied to this position 

will be discussed in greater detail bcbw. 

13 Set-, e.g .. Lower E. Side People's Fed. Credit Union v. Trump, No. l:l7-c:v-9S36, 2018 U.S. Oist. t.F..X1S 17S87, at ~-4 

(S.O.N.Y. Feb. 1, 2018) (dismissing on standing grounds a suit thall.:nging1he: au1.hority of an acting ofiieer designated undct the 

V3caocies Act that argued tb:u an tgtn<:y·s:pc:<:-ific s.unute ptovided the sole authority for so t~ne to SCf'\'e as acting director of 

the: agency). 

" Wan v. At.,ka, 4 51 U.S. 259, 267(198 1). 

CRS TESTIMONY 

PreparedforCongtess------------------------------
38 


Insert 33796A.032

Congres$ional Research Service 

comrary."40 Wi1h rcspec1 10 1hc 1wo SlatuiCS a1 issue here, as is discussed in more demit below, Con~1:ress 

provided some clues abou1 how 1he Vacancies Ac1 should imcrac1 will1 agency-specific s1anues 1hrough 

1hc s1a1U1c's exclusivity provision." 

Exclusivity of the Vacancies Act 

As no led above, the Vacancies Ac1 generally provides "lhe exclusive means" for aulhorizing acting 

scrvice.'

2 However, 1he slatulc is only exclusive "unless" ano1hcr swtulory provision "expressly ... 

aulhorizes an officer or employee 10 perform 1he funclions and dUiies of a specified office 1emporarily in 

an ac1ing capacity; or .. . dcsigna1es an officer or employee 10 perform 1hc fuoc1ions and du1ies of a 

specified office 1cmporarily in an ac1ing capaci1y.'''3 Seclion 702 docs authorize or designa1e ano1hcr 

govemmcn1 official- 1bc Deputy Commissioner- 10 1cmporarily pcrfom11hc Commissioner's du1ies as 

"Ac1ing Commissioner."" Accordingly, il is likely I hat on iiS own terms, 1he Vacancies Acl is nor the 

exclusive means 10 au1borize an Acting Commissioner.'s Put ano1ber way, the Vacancies Acl allows for 

the operation of Sec1ion 702. 

Open Questions Raised by Section 702 

lfScc1ion 702 governs a vacancy in the Commissioner's office, there rnay be some open questions 

regarding the scope of I he autborily that lhe provision grants 10 acting officers. Firs!, il is unclear who 

Sec1ion 702 aulhorizcs 10 serve as the Ac1ing Commissioner beyond the Deputy Commissioner. Section 

702 appears to provide lhalthc Depuly Conunissioner will automatically succeed the Conm1issioner in an 

acting capacity in 1he case of a vacancy in the Commissioner's office."' However, Scc1ion 702 places a 

condition on this aulomatic succession by providing that the Deputy Commissioner is Acting 

Commissioner "unless the President designates another officer of the Govern men! as Aetiog 

Commissioner. "'41 

II is not entirely clear whelhcr this language merely recognizes 1hat other provisions of law might grant 

the President !he authority to designate another acting officer or whether Section 702 itself grants 1he 

President thai authorily.'8 One plausible reading is lhatlhis clause refers 10 the designalion of other 

.., Morton v. Mancari, 417 U.S. 535, 551 (1974). 

"5 u.s.c. § 33~7 . 

"Jd. § 3347(a) • 

.l) /d. 

•• !ke 42 U.S.C. § 902(bX4). 

" &c 5 U.S.C. § 3347(a); 42 U.S.C. § 902(bX4). TI>is undcrs1anding oflhe staluiOI)I tcXI finds suppM in the Vacancies Act's 

lcgislalivc hiSiory. SeeS. REP. No. 105·250, al I 5·16 (1998) (describing 42 U.S.C. § 902(bX4) ns one of the "cxiSling Slalut.,;'" 

govt1"ni.ng acting sei'Vice th:ll "would be retained by" the Vacancies Act); 144 CO:-oo. RF.C. S64 14 (daily ed. June 16, 1998) 

(suueme11t of Sen. Thompson) (stating that the bill""prcscrvcs those specific statutes .. that alre;)dy "provide a process by which 

persons can serve as acting onicers whc."ll particulat ofliees are vacant"). The tt:levant text of the proposed bill at the time of these 

st.'llcmcni.S was substantially similar to the tc.xt Congress \lhimately ena<::tcd. ComJ'(Ire S. REP. No. I 05·250, at 26 (1998), ant/ 144 

Co~G. Roc. $6415 (dailyed. June 16, 1998), w#ll 5 U.S.C. § 3347 . 

.,. !ke 42 U.S. C. § 902(bX4) ("'The Deputy Commissioner silo// b<: Acting Commissioner .. . ."")(emphasis added); see, e.g .• Nat"! 

Ass•n or I lome BujJd ... -rs v. Defenders of Wildlife. SSt U.S. 644. 65 1 (2003) (noting aW' is mandatol')', not disc:tttionaty). 

4

' !ke 42 U.S. C. § 902(bX4). 

" Cf Alaska Bulk Carriers, Inc. v. Kreps, 595 F.2d 814.835, 835 & n.IOS (D.C. Cir. l979), rev"d , Sctt1rain Shipbuilding Corp. v. 

Shell Oil Co .. 444 u.s. sn (1980) (discussing "housekeeping Sl.'HUIC:S .. thal "ddnillJ the mcuns and lltclhods or implementa·tion 

of specific powc:J'$ whic-h are granted elsewhere in the sttttutc" but do not constitute ••an indc..-pcndcnt grtuH of power"): Colo. Gen. 

Assembly v. L.amm. 700 P.2d 508, 518~ 9 (Colo. 1985) (holding state statute ''Tererring to lrans-!'ers "uthorizcd by law ... refers 

only to transfe-rs which are authori7.cd by some other provision of law"). 

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officers under rhe Vacancies Act.•~ This reading may be persuasive because in 1994, at the time the 

currelll version of Section 702 was enacted, 50 the Vacancies Act's provisions allowing the President to 

direct someone other than a first assistant to serve as an acting officer also referred to "officers."51 

Specifically, the prior version of the Vacancies Act allowed the President to designate only heads of 

departmems or Senate-con finned officers to serve as an acting officer instead of a first assistant. 52 A 1979 

Department of Justice opinion recognized "the close relationship" between the language of the Vacancies 

Act and a distinct statutory provision that, similar to Section 702, provided for a deputy to fill a vacancy 

in an acting capacity "unless the President shall designate 'another officer of the Governmcnt.'"53 That 

opinion concluded that the agency-specific statute's proviso should be given the same meaning as the 

Vacancies Act. s• 

On the other hand, an argument can be made that the plain language of the proviso in Section 702 

independently allows the President to designate another "officer of the Government" to serve as the 

Acting Commissioner "in the event of a vacancy in the office of the Commissioner."55 Courts do 

sometimes interpret provisos to have independent effect. 5

6 For example, in one case, the U.S. Court of 

Appeals for the Ninth Circuit examined a bankruptcy statute concerning the legal effect that would result 

from dismissing a case, which provided in relevant part that the statutory outcome would occur "unless" z 

court "order[ cd] othcrwisc.''57 The court concluded that this " unless" clause itself authorized a court to 

dismiss a case with prejudice, so as to avoid the legal consequences that would have otherwise resulted 

under the statute. 58 

If Section 702 is interpreted to affirmatively authorize the President to designate "another officer of the 

Government as Acting Commissioner," this interpretation raises another issue: the meaning of the phrase 

"officer oftbe Government."59 In the context of executive branch employees, an "officer" often refers to < 

' 9 See 42 U.S.C. § 902(b)(4): 5 U.S.C. §§ 3345(a)(2)·(3). 

"'Pub. 1... No. 103-296, § 102, lOS $m1. t467 (1994). 

" SeeS. REP. No. 105·250, ol26 (1998). 

n SeeiJ. 

" Memorondurn for 1hc General C<>uns<l, General Sc"'ces Admini.s1m1ion, 3 Op. O.L.C. 148, 149 ( 1979) (quoling 40 U.S. C. 

§ 75J(c), a provision lhal is now codified at40 U.S.C. § 302(b)). 

S.t !d. a1 1 SO. Anotllcr argument in favor of reading Section 702's proviso more narrowly is that in the context of executive 

agcmcies, cou!'ts are gcnetally reluclant 10 construe ambiguous provisions to c1·eate new authority. See (ionzales v. Oregon. 546 

U.S. 243. 262·63 (2006). Cj., e,g., Chrysler Co'l'· v. Brown, 441 U.S. 281 , 309·10 (1979) ("'llding "housekeeping Slalule"to 

grant heads of agencies authority only to regulate intcmal affairs, rather than creating substantive regulatory powers). 

}} See42 U.S. C.§ 902(bX4). We could find no C3SC law interpreting the express proviso in Section 702. Moreover, eotu1s have 

JlOt inte11)rcted statures with similar langu:1ge. See 38 U.S.C. § 304 ( .. Unless the President designates another officer of the 

Govcmment, lhc D<.:puty Secretary shall be Acting Secretary of Vetenms AfJ3irs during the absence or disability oft he Secretary 

or in the event of a vacancy in the otlicc of Sccrctary.t·)~ 40 U.S.C. § 302 ("The Deputy Administrator is Acting Administrator ol 

General Senriccs during the absence or disability of the Administrator and, unles.~ the President designates another officer oft he 

Federal Govcnunent. when the office of Administrator is vaca1H."): ~1 44 U.S.C. § 304 ("l_n case of the de.ath, re-signation, 

absence, or sickness of the Director of the Government Publishing Office, the D<.'Puty Director oft he Government Publishing 

Office shall perfonn the duties of the Director of the Government Publishing omec until a successor is appointed . .. ; but the 

President may direct any other officer of the Govcrnme~ , whose appointmClH is vested in the President by and \\~th the advice 

11nd consent oft he Sentlle, 10 pcrfOn:n the dutie-s oftJ1e vacant office until :• successor is appointed .. . ,"). 

$< See Republic of Iraq v. Beaty, 556 U.S. 848, 858 (2009) ("'The principal clause granted the l'rcsidenl a power; the se-cond 

proviso purported to grant him an adlUiiOnlll power. It was not, on any fair re-ading. an exception to, qualification of. or restraint 

Ol'lthe J)rincipal ))Ower.'') (emJ)hasis in original). The proviso at issue in that case re-ad, "The J>rcsidenl may suspend the 

application of My provision of[ a certain law]; .. , Provided fiu·the.r, 1lu11 the President may mnkc inapplicabh: , .. any other 

provision of law .. . . " ld. at856(quoling Pub. L. No. 108·1 I,§ I 503, 117 Sial. 579 (2003))(inlcmal quotation marks omincd). 

" t..eavin v. Solo (ln1-c Leavin), 171 F.3d 121 9, 1223 (9th Cir. 1999) (quoting I I U.S.C. § 349). 

" /d. 59 42 U.S.C. § 902(b)(4). 

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special class of high-level officials who qualify as "officers of the United States" pursuant to the 

Appointments Clause of the U.S. Constirution.60 However, this interpretation is not the only possible 

reading. Congress and the courts sometimes refer to lower-level government employees as officers,'' 

even if those employees arc not "officers" for the purposes of the Appointments Clause. Accordingly, if 

the exception contained in the vacancies clause of Section 702 has independent effect, it is unclear 

whether this provision would allow the President to designate only constitutional "officc.rs of the United 

States'"' to serve as the Acting Commissioner or whether the starute would also allow the President to 

select other govenunental employees. 

Further, Section 702 does not provide any limitations on the duration of acting service." This silence 

could be interpreted to allow the Acting Commissioner to serve inddioitcly.

64 However, even grior to the 

1998 enactment of stricter and more broadly applicable time limitations in the Vacancies Act, it was not 

necessarily the case that an acting officer could serve indefinitely. 06 The Dcparunent of Justice stated in at 

least one opinion that if a statute did require a position to be filled by advice and consent, it was 

"implicit" in such a statute that another official "may not properly serve indefinitely as Acting Director."" 

According to the Department of Justice, if there was no specific time limit provided in a statute allowing 

for acting service, tltc acting officer could serve for a "reasonable timc."68 

60 U.S. CoNST. art. n, § 2. cl. 2 ("(1'hc President I shall nominate, and by and with the Advice and Consent of the Senate. shall 

appoint ,,. all other Officers of the United States, whose Appointments are not herein otherwise provided for, t~nd \\'hieh $lml1 he 

establishe-d by Law: but the Congress may by Law vtst the Appoirumcnt of such inferior Ofllct'l'S, as they thirlk proper. in the 

President alone. iJl the Courts of Law. or in the Heads ofDep.aronents."). Sctt l}ucklcy v. Valco, 424 U.S. I, 126 (1976) (per 

curiam) ("[A)ny appointee exercising significant authority pursuant to the law$ of the United Sttllcs is an 'Officer of the Uni1cd 

State.s,' tuld must, the1't'forc, be appointed in the ma.nntt prcscribed by (the Appointments Clause of the U.S. Constitution)." 

(quoting U.S. CONST. an. 11. § 2. cl. 2)). CJ Memorandum for the General Counsel. General Services Administ.rntion, 3 Op. 

O.L.C. 148, 149 ( 1979) ("We •.. conclude that a military officer who docs not oe<:upy a stauaory office in a military department 

is oot eligible for designation as Acting Administrator ofGent.-n~l Services •..• ") (c:mphasili tHided). 

61 Se•. <.g., United Stales v. Dubili<r Condon'"" Corp., 289 U.S. 178, 199 (1933) (Slating law thai waivtd patent fee. lor "any 

officer oflht! go\>enJment, except officers am/ employees of the Patent Office" was "evidently intend(."<! to encourage govcnunent 

emplt>yee:r to obtai11 patents" (cm1>hasis n.d.dcd) (quoting Act ofMareh 3. 1883, ch.. 143, 22 Stat. 625.)). 

61 U.S. CONST. art. II ,§ 2-. cl. 2. The u:nn .. Officers of the U11itcd States•• includes both principal and inferior officers. See 

Edmond v. United States, S20 U.S. 651, 662-63 ( 1997) (discussing the distinction between principal and inferior officers) . 

., See 42 U.S.C. § 902(bX4). 

6-l .. ~e. e.g., S. RF.P. No. 105-250, at 3 (1998) (noting position of J)cpartment of Justice, prior 10 cn!M:11ncnt of current version of 

Vacaneles Act. that .. whert a department 's orga11ic act vests the power'S a1ld fuJlCtiorlS of the: deparunent in its head and 

nuthoritcs that oflicer to delegate such powel"'$ and functions to subordinate officials or employees as she sees fit. such authority 

~up<:rsc:des tbe V:,cancie$ Act's restrictions on u.-mpororily lilling vae.ant ndvice nnd cc.m~nt positions. allowins for dC$ignation 

of ncting officials fOr an indefinite period"). 

•$ Sec, e.g., S. Rt.P. No. IOS-250, at 7 (1998) C"A limit must be !>laced on the Prc.sident•s time to net to fill a po.~ition . tfthe 

purpose of the Vacancies Act i.s to limit the President's power to designate tcmpornryofliccrs, a position requiring Senate 

confirmation m.1.y not be held by atempomry nppointmerlt for fi.'i long as the Ptc:sident unilaterolly d~idcs."); 144 Coxo. R£C. 

S 11022 (dnily ed. Sept. 28, 1998) (stateroc.-nt of Sen. TilOiliJ>SOn) (d cu.~sing indefinite length of acting servioe as signific-ant 

probltm contrary 10 legislalive inlcnl); t44 Co:<o. Roc. Sl 1024 (daily ed. Stpl. 28, 1998) (stalcmcnl of Sen. Byrd) ("II is 

precisely that tirne restriction on the filling of these vacnnt positions tlutt is.. I believe, lhe linchpin of this issue. j . 66 See, e.g .• Oenni$ "'· t .. uis. 741 F.2d 628. 634 (3d Cir. 1984) (holdi_ng there mus1 be some limit on the time period an acting 

officer n\ay serve because otherwise '"there could be a COI'R"J>IC1e nullification ofthc Jegisliuu.re's power of advice and consent,•• 

which would "oblitcrole tltc concept ofscparatio11-of-powers"). Cj Williams v. l'billips, 482 F.2d 669, 671 (D.C. Cir. 1973) 

("The Govc:mment concedes that the Ptc:Sident cannot dc-sig.nutc an ncting oOiccr indefinite-ly without any presentation 10 the 

Senate for oonfim1ation. An indication of the re-asonable time reql1ired by the PtC$idcnt to select persons for rtomination :tpt>eiU"S 

in the 30-day period provided in the Vacancies Ac.t for temporary appointments of Executive Dq>artment officers J>'..~ding 

nomim11ion to th~ Senate ••.. •'). 

67 Slatus of the Acling Dir<-.:lor, Office ofMonagcmenl and Budgel, I Op. 0 .1- C. 287,289 (1977). 

61 fd. at289-90. (J., e.g .• Mc.nlOrandurn Opinion for the Deputy Counsel to the P~si dent, 6 Op. O.l..C. 119~ 120 (1982) (noting 

dis.1grecrncnt witJl Comptroller General. who took .. the position that the 30-day limitation of 5 U.S.C. § 3348 must be read into 

(tonlinucd .. . ) 

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Possibility of the Vacancies Act Applying 

Even if the Vacancies Act docs not exclusively apply to the position of the Commissioner, that docs not 

necessarily mean that it does not apply at a/1.<>9 Section 702 does not itself expressly state that it is the 

exclusive means to temporarily fill a vacancy or state !bat the Vacancies Act is inapplicable.

70 Indeed, as 

discussed above, the "unless" clause in Section 702 at the very least comemplates that the Prcsidem can 

designate "officers of the Government" under the authority of another statute. 

11 It is possible, therefore, 

that both sta!U!es might be available to temporarily fill the vacancy" If both statutes apply, any 

inconsistencies would continue to present the question of which statute governs in the case of an 

unavoidable conflict. If an Acting Commissioner is authorized to serve under one statute but not by the 

other, this raises the possibility that her actions were unauthorized and subject to legal challenge, if the 

more resrrictive statute governed her service. While the two statutes are generally consistent with each 

other, there arc two possible areas of conflict between the Vacancies Act and Section 702. 

Turning first to tbc question of whQ may serve as Acting Conunissioncr, both statutes arc consistent in the 

sense rhat they both appear to contcmplare !be Depury Commissioner automatically becoming Acting 

Conunissioner in the event of a vacancy. Section 702 expressly provides for this,

73 and it is likely that the 

Deputy Commissioner would be the "first assistant" who automatically steps into the role under the 

Vacancies Act." Although the term " first assistant" is not expressly defined in the Vacancies Act, and 

there is no statute or regulation that expressly defines any given official as the Commissioner's "first 

assistant,"" it seems likely that tbe Deputy Cotmnissioner, as the second in command in the SSA, 76 

should be considered rhe Commissioner's first assistant. 77 

( ... continued) 

all statutes authori.:dng the temporary filling of vacancies. bccatiSC othcnvisc the President could circumvent the power of the 

Senate to advise and conS(.·nt to appointments"). 

~ l'Xsignating an Acting Oir. of the t•w.~ • of Consumer Fin. Prot., 41 Op. O.L.C. _ . slip op. t S (Nov. 25, 2017), See (1/so 

I looks'" rei. NLRB v. KiiSap Tenant Sut>P<>rl Servs., 816 F.3d SSO, SS6 (9tlt Cir. 20 t6)("[The VacMcics Ael( fonn(sl the 

exclusive means for filling a vacancy Ln an Excctnive agency office unless another statute expressly provides a means for filling 

such a vacancy. Be<:'au.se (29 U.S.C. § 153(d)] docs so, neith<.'f the [Vacancies Act] nor (29 U.S.C. § I 53( d)) is the exclusive 

means of appointing an Acting Gcncml Counsel of the (National Labor Relations Boord):') (emphasis in originaJ). 

70 See 42 U.S.C. § 902(bX4). 

71 /d, 

11 See English v. Trump. No. t 7-cv-2534, 2018 U.S. Dist. LEXJS 4S71. at *24 (O.D.C. Jan. tO, 20 18), approlfilt<i, No. 18-S007 

(O.C. Cir. Jan. 12. 2018) (holding tha1 Slntutc providing that Deputy Oir<.'Clor"shall ... sen:e as ttcting l)in."'Ctor•· or the Consumer 

Fi1lan<:iaJ ProtcctiOil Burc.\u in ease oft11e L>ircctor's "absence or unavailability'' did not displace the Vacancies Act (quoting l2 

U.S.C. § S49t(bXS)) (internal quolation mark omiU<>d)); S. REP. No. IOS-250, at 17 (1998) ("(E(vcn with rc>p«:l IQ the specific 

positions in which temporary officers may serve UJlder the specific statutes this bill rctaiJlS, the Vacancies Act would continue to 

provide an altemntive pr()I.'Cdurc for tetnJ>Omrily occupying I he oflice.'~)~ Tcmp<.mny ill ing of Vacancie.o; in tbe OOicc of U.S. 

Auorncy, 27 Op. O.L.C. 149, t49 (2003) (concluding thai the Vo<Mcics Act and a SCprulllc slalulc, 2S U.S.C. § S4G(a), were 

\xlth "available" to temporarily fill the posilion). 

n 42 U.S.C. § 902(b)(4) ('"M1e Dcpuly Commissioner shall be Acting Commissioner ... in the cvcnl of a vacancy in the onlcc of 

the Commissioner."). 14 SeeS U.S.C. §§ 334S(aX,l) ("[Tihc first aS$istant to the office ofstach officer shall perform the ftmctions and duties of the 

oOice tempomrily in an acting capacity ... . "). 

u See 42 U.S.C. * 902; 28 C.F.R. § 422.1; SSA Orgoni:otlonol Mtmual. Chopre,. S: Social Security Adminisrrotion, Soc. Soc. 

J\l)).1iN .. h1tl>s://www.ssa.gov/orglorg0C.htm (last visited Mar. 2. 20 18). Sec gtll(t.r{l/ly Guidance on Applic.ttion of fcd'l 

Vacancies Refcmn Act of 1998. 23 Op. O.L-.C. 60, 63 ( 19')9) ("At a minimum. a dc:;ignation of a lirs'l assistant by statute. or by 

regulation where oo statutory first assistant exists. should be adequate to establish a first assistant for purpose3 of the Vacancies 

Rcfonn Act:} . \f., e.g., 28 U.S.C. § 508 (''[F]or the purpo.:ic of SC."Ction 334S of titleS the Deputy AIIQmey General is the first 

assistant to the non ey General.') : 28 C.F.R. § 0.1 37(b) (20 17) ("Every office within the Department Lof Justice) to which 

appointment is rcquiR:d 10 be nt:~de by the President with the advice and consent of the Senate . . . shall have a First Assistant 

wit1\i1t the meaniJlS oflhe l::ederal Vacancies. Reform Act of 1998. Wbei'C thcl'c is a position of Princi1>al Dcpuly 10 the . .. oftice, 

(rontinucd ... ) 

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However, both statutes also provide for the possibility that the President might designate someone other 

than the Deputy Commissioner to serve as Acting Commissioner." The Vacancies Act would allow the 

President to select either a person currently serving in any other advice and consent position or cenain 

senior employe.es from the SSA. 79 As discussed, it is unclear whether Section 702 merely reco&>nizes that 

other provisions of law-like the Vacancies Act-might allow the President to designate others as Acting 

Commissioner, or whether it instead independently grams the President the authority to select "another 

officer of the Government," whatever that phrase might meao.80 The statutes may conflict if Section 702 

and the Vacancies Act arc interpreted to aJiow the President to direct different classes of individuals to 

serve as Acting Cononissioner. 

The statutes might also conflict with respect to how long a person may serve as Acting Commissioner. 

The Vacancies Act would only allow an Acting Commissioner to serve for either a limited, precisely set 

period of time starring on the date of the vacancy or while a nomination to the position is pending in the 

Senate. 

81 Section 702 does not provide any express limitations on the duration of acting service, and on its 

own tenns, might allow an Acting Commissioner to serve for a "reasonable" period of time, which could 

conceivably last longer than the period outlined in the Vacancies Act.82 

Conclusion 

The Vacancies Act scrs out a detailed scheme delineating which governmental officials the President may 

direct to serve as acting officcrs83 and expressly limits the duration of an acting officer's service." 

Section 702 is largely silent on these issues and could possibly be read as more pennissivc than the 

Vacancies Act." Accordingly, if, for example, an Acting Commissioner is not one of the classes of people 

authorized to serve under the Vacancies Act or is serving beyond the time limitations outlined in that law, 

but may otherwise be complying with Section 702, a potcmial conflict may exist between tbe two laws.

80 

In such a situation, if the actions of the Acting Commissioner were challenged in a court as violating the 

Vacancies Act, the court would likely interpret the two statutes so that they arc in hannony with each 

other."' One way to do this would be to read Section 702 narrowly, so that the limitations in the Vacancies 

( ... con m~<.-d) 

tbc i1~ al Deputy shall be the First Assistrun.''). 

16 See Or au ::L~ti nal Cha,.t. Soc. SEC. ADMIN .• hups:://''""w.ssa.gov/orglssaehan.pdf (las1 visited Mar. 2, 201 8). 

n See 144 CONG. Roc. S II 037 (daily ed. Sc]JI. 28, 1998) (statement of Sen. l .. icbcnmm) (describing ··first si il nt .. as ··a tc,.,'f'm of 

al'l that genemlly refers to the top deputy}; 42 U.S.C. § 902(b) (Cl'eatiJlS position of Deputy Cornmissioa-.er and providing that 

Deputy Conunis.siooer will serve as Acting Commissioner during the Coouuissioocr's absence or disability or in the event of a 

vacancy in the onlce). 

711 See42 U.S.C. § 9Q2(b)(4); 5 U.S.C. §§ 3345(a)(2)-(3). 

,. Sue 5 U.S.C. §§ 3345(a)(2)-(3). 

80 See 42 U.S.C. § 9Q2(b)(4). 

"See 5 U.S.C. § 3346, 

" See 42 U.S.C. § 9Q2(b)(4); Staws of the Acting Director, Office of Managemem and lludget, t Op. O.L.C. 287, 29Q ( t 977) 

(outlining factors that d~t rmi c what p<riod is rcason c 'mdcr the circumstances) . 

., See 5 U.S.C. § 3345 . 

... ltl. § 3346. 

*' See 4 2 U.S.C. § 9Q2(b)(4). 

86 Cf CRS Legal Sidebar LSB t0036, UPDATE: Who's the &.ssmthe CFPB?, by Valerie C. l,lmnnon nnd Jared P. Cole 

(describing conOict over vacancy in the position of the Director of the Consumer f inanciaJ Protcc·tion Bureau in which the 

outgoi.ng Director invoked an ag.ency-specit'ic smrute to name an Acling Dire<:tor. and the Presidt.':JU subsequently invoked the 

VacMcics Act to nrunc a diOCrcnt person as Acting Director). 

31 See, e.g., Wnu v. Alaska, 4St U.S. 259, 267(198t). 

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Act govern. An alternative way to reconcile the two statutes would be to conclude because both statutes 

confer discretion on the President, whichever the President invokes sbould control.88 If a court determined 

tbat the statutes instead irreconcilably conflict, it might rum to trad itional principles of statuto?; 

interpretation, such as the rule of favoring the more specific statute over the more general law. 

Ultimately, however, because of the dearth of case law interpreting either statute, it is difficult to draw any 

definite conclusions as to how a reviewing court might resolve a legal challenge over tbc actions of the 

Acting Commissioner. 

83 See Hookso-rel. NLRO v. Kitsap Tenant Support Se1vs., St6 F.3d 550, 556 (9th Cir. 2016); English v. ·rrump, No. 17-.:v2534, 2018 U.S. Dist. L£iXIS 4571, at •24 (I).O.C. Jan. 10, 2018), appeal filed, No. 18-5007 (D.C. Cir. Jan. 12, 2018). h could 

be atgued, however, that this teadingofthe statute re-ndetS the express lil'nit:ltions of the Vacanc-ies Act supel't1uou.s, suggesting 

that such an intCI')>rcunion might not properly give effect tO both statute-s.. See Conn. Nat'l Bank v. GerOlain, 503 U.S. 249,253 

(1992) (noting that courts should give efTect to two Sll.Uutes iflhtn "w-ould not render one or the other whoHy sup'-'Tfluous"). See 

also Morton v. Ma.nc;.~r . 4 I 7 U.S. 535, SS0-5 l (1974) ('11lc coons are not ;tl Liberty to pick and choose among congressional 

enactments..'')~ bm .ree Hooks. 816 F.3d at SSG (concluding thnt Congress intended the Vacancies Act to provide an alternative 

process fortcmt>Orarily occupying the ollicc) (citingS. REP. No. 105-250, at 17 (1998)). 

st Sec Radzanowcr v. Touche Ross & Co., 426 U.S. 148. 1 S3 ( 1976) (noting ';basic principle of statutory constn1ction that a 

statute dcaJing \\~th a narrow, precise.::, and specific subject is not submerged by a later enacted statute covering a 1norc 

generalized spectrum"); Nitro-Lin Techs., L.L.C. V. Howard, 568 U.S. 17, 21 (20 12) (noting tlmt in "conflict[ s) between laws or 

equivalent dignity." "the specific governs the genern1"}. In such a situation, a court might conclude that Se.ction 702 should 

control becaui>e it is the more specific statute: Secti011 702 applies solely to che Commissioner, while the Vacancies Act Se-Jlerally 

applies to the entire executive branch. Compare 42 U.S.C. § 902(bX4), with 5 U.S.C. § 3347. 

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Chairman JOHNSON. Thank you. 

What is the one thing you want us to get out of that comment? 

Ms. BRANNON. There are some complicated statutes that govern this vacancy. 

Chairman JOHNSON. And you follow the statutes? 

Ms. BRANNON. I do. 

Chairman JOHNSON. Thank you very much. 

Mr. Richtman, welcome. Thanks for being here. Please proceed. 

STATEMENT OF MAX RICHTMAN, PRESIDENT AND CEO, NATIONAL COMMITTEE TO PRESERVE SOCIAL SECURITY AND 

MEDICARE 

Mr. RICHTMAN. Thank you, Mr. Chairman, Ranking Member 

Larson, and members of the subcommittee. On behalf of the National Committee to Preserve Social Security and Medicare, I want 

to thank you for inviting me to testify at this morning’s hearing regarding the challenges faced by Social Security after being led for 

5 years—over 5 years by a series of acting commissioners. 

Before I present my statement, I just want to say on behalf of 

the millions of members and supporters of the national committee, 

I would like to express my thanks to you, Chairman Johnson, for 

your many years of leadership on matters involving Social Security 

and, of course, for your distinguished service to our country for 

many years prior to that. 

Turning to the subject of today’s hearing, I believe that extended 

periods without a confirmed commissioner is obviously not desirable. When Congress decided to make the Social Security Administration an independent agency back in 1994, one of the goals of the 

legislation was to provide the agency with continuity of leadership. 

In fact, I am told the Senate-passed version of the bill required the 

President to nominate a new commissioner within 60 days of enactment. 

While desirable, we do not believe that the problems confronting 

Social Security can be fixed simply by nominating and confirming 

a new commissioner. Congress must also provide the new commissioner with the resources he or she will need to do the job, and that 

means adequate funding for this important agency. Unfortunately, 

what we have seen in recent years is a steady decline in funding 

for the agency at exactly the same time the workload has soared. 

Mr. Larson mentioned 10,000 people being added to the roles 

every day. It is about a million additional people added every year 

for the last few years. This is not a time to be reducing funding. 

In fact, the Social Security Administration’s budget has been cut by 

a total of about 11 percent adjusted for inflation. These cuts have 

forced the closing of field offices, shortening of office hours, reductions in overtime, shrinking of staff. And automation has helped 

some but not enough to prevent the deterioration in levels of service. 

So it is not surprising that the quality and timeliness of the service has declined. Getting an appointment to file a claim can take 

weeks, and some offices—and those who visit an office without an 

appointment have to wait hours in many cases. Service on the 800 

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utes. Many seniors simply hang up—give up and hang up. In fact, 

we called the 800 number when you gaveled the hearing to order. 

We are still on hold. We are told it will be about an hour. 

So I wanted to also make a comment about how disturbing it is 

when you look at the disability hearing situation. Over the past 

few years, a historically high backlog has grown. There are over a 

million cases waiting to be heard. Right now it takes about 600 

days on average for a decision to be made. The human hardship 

caused by these delays is enormous. People are losing their homes, 

delaying healthcare declaring bankruptcy. And they are dying. 

About 10,000 people die each year while waiting for a decision. 

If this hearing goes for about 2 hours, two people will die during 

the course of the hearing waiting for an appeals decision. Social Security’s administrative funding has been neglected for far too long. 

I believe it is time for Members of Congress to adequately fund Social Security so it can provide the vital services that American seniors expect and deserve. 

During the debate on the 2018 omnibus appropriations, the national committee urges members to provide the agency with 560 

million additional dollars over this year’s appropriated level of 

$12.4 million. This will increase and help restore some of the cuts 

that were made since 2010, and cover—or begin to cover inflation. 

We believe similar increases should be in the 2019 appropriations 

bill. 

To conclude, Mr. Chairman, we agree completely that having a 

confirmed commissioner is important, but it is also important that 

the agency has adequate funding. These two must be united if the 

special—if the Social Security Administration is able to meet its obligations to the American people. 

Thank you very much. 

[The prepared statement of Max Richtman follows:] 

46 


Insert 33796A.038

- !fl1Dill CfDPttl8 tartan& 

@•® ;somal ;security&Medicare· Ill Trusted · Independent · Effective 

Statement of 

Max Richtman1 President and CEO 

National Committee to Preserve Social Security and Medicare 

Before the Committee on Ways and Mean.s 

Subcommittee on Social Security 

House of Representatives 

Hearing on 

"Lacking a Leader: Challenges Facing the SSA 

After Over 5 years of Acting Commissioners"' 

March 7, 2018 

Chairman Johnson and Ranking Member Larson: 

On behalf of the millions of members and supporters of the National Committee to Preserve Social 

Security and Medicare, I want to thank you for holding this hearing focused on the challenges facing 

the Social Security Administration (SSA) after over five years of acting commissioners, highlighting the 

need for stable leadership for SSA. I am honored to testi fy before the Subcommittee today. 

First a few words about our organization. National Committee members come from all walks of life 

and every political persuasion. What unites them is their passion for protecting and strengthening 

Social Security and Medicare, not just for themselves, but for their children and grandchildren as well. 

Our members see Social Security as an inter·generational compact that protects all members of the 

family. To them, it is a single integrated system of benefits that provides protection from birth to 

death. It is a system where all of its parts are equally important. 

Through the services it provides, the SSA touches the lives of virtually all Americans, including the 67 

million indivirlual~ whn rPrPiVP Snr.i;.t Ci.POifity and Sl.lppiPment.;tl Ci.Ptt.lrity lnr:omP (SC\1) henefit~ ;~net 

the over 173 million workers who are contributing to Social Se<:urity today. One out of every five 

Americans receives monthly cash benefits from Social Security or SSI, the major programs that SSA 

administers. This fact alone highlights the critical role customer service plays in the functioning of 

this agency as it provides services to millions of Americans. 

Importance of Today's Hearing 

The National Committee agrees with you, Mr. Chairman, that the Social Security Administration 

needs strong leadership. We also believe that the problems confronting SSA cannot be remedied 

simply by nominating and confirming a new Commissioner. We urge Congress to also provide the 

tools needed by a new Commissioner to deal with the agency's challenges~ and that means adequate 

1 I 1 K Street. NE. Suite 700 • Washington, DC 20002 • 202-216.0420 • www.ncpssm.org 
47 


Insert 33796A.039

funding for this critically important agency. Unfortunately, what we have seen in recent years is a 

steady decline in funding for the agency at exactly the same time that its workload has soared. 

Magnitude of SSA's Responsibilities 

Social Security is an essential economic lifeline for millions of America's most vulnerable people, 

including aged individuals and persons with disabilities, as well as their spouses, dependents and 

survivors. At the end of 2017, 45.5 million people were receiving retirement and survivor benefits 

and another 10.4 million disabled workers and their family members were receiving disability 

benefits. In fiscal year 2017, SSA: 

Paid approximately $990 billion in benefits to over 69 million Social Security and SSI 

beneficiaries; 

Served about 42 million visitors to its networ·k of 1,200 field offices nationwide; 

Completed over 5.6 million new applications for Social Security retirement, survivors and 

Medicare benefits; almost 2.5 million applications for initial disability claims and almost 

187,000 SSI aged claims; 

Handled over 36 million calls on the agency's toll-free telephone service; 

Completed nearly 3.5 million program integrity reviews; and 

Posted over 279 million earnings reports to workers' records. 

While there is no denying the extraordinary magnitude of these achievements, recent reductions in 

the agency's administrative budgets have taken their toll on the quality and timeliness of the services 

the agency provides. 

Effect of Budget Cuts 

Budget cuts since 2010, estimated to equal ll percent (after adjusting for inflation), have led to long 

waits on the phone and in field offices for taxpayers and beneficiaries, as well as record-high disability 

backlogs. While SSA's appropriation for FY 2018 is still a work in progress, both the Administration 

and House appear intent on basically flat-lining the agency's appropriation relat ive to FY 2017. 

Unfortunately, the Senate Labor-HHS Appropriations Subcommittee has proposed to reduce the 

House's proposed funding level for the agency by $493 million. We strongly urge that funds made 

available in the recently-enacted budget agreement provide SSA with at least an additional $S60 

million over the FY 2017 SSA appropriated level of $12.482 billion. This increase will help to restore 

the cuts made since 2010 and cover inflationary increases in operating costs. We also believe a 

similar increase should be included in the FY 2019 appropriations bill which would strengthen the 

ability of a new Commissioner to address issues currently plaguing SSA. 

SSA has already made cuts in customer service to stay within the confines of these extremely tight 

budgets, forcing it to close field offices, shorten office hours and shrink its staff. While SSA has 

increased automation and reduced the number of Social Security statements that it provides, these 
48 


Insert 33796A.040

efficiencies cannot compensate for the fact that SSA serves an additional one million beneficiaries 

each year. 

As workloads and costs grow and budgets shrink, SSA's service has worsened by nearly every metric. 

Further cuts-and make no mistake, static funding is a $350 million cut-would force the agency to 

freeze hiring, furlough employees, shutter more field offices, or further restrict field office hours 

leading to longer wait times for the vulnerable seniors for whom SSA's services are an essential 

lifeline. 

Additional reductions in SSA's funding will only lead to further reductions in service. The agency has 

already cut service significantly. Rather than compelling agency officials to cut even more deeply into 

the sinew and bone of the agency, we call on the Congress to provide SSA with the resources it needs 

to do its job as it should be done, with accessible, timely, and accurate service to all who need it. 

Take a Number and Wait ... 

The American people can conduct business at SSA field offices in almost every community in the 

country. last year, 42 million people visited field offices to apply for benefits, replace lost Social 

Security cards, and to report changes that might affect their future eligibility for benefits. 

Since the end of FY 2016, SSA lost over 1,000 field office staff, bringing the loss since 2010 to 3,500. 

Under the funding level for FY 2019 proposed by the Trump Administration, those losses would 

increase by another 1,000 staff. These reductions have taken a toll on customer service. Field offices 

must serve nearly the same number of visitors with far fewer staff available for doing so. The result 

has been increases in the length of time visitors must wait for an appointment. In some offices, 

seniors are required to wait weeks for an appointment to file a claim while those who come to an 

office without having an appointment may wait for hours to speak with an agent. America's seniors 

deserve better than this. 

SSA's Toll-Free Telephone Service Also Faces Problems 

SSA's national toll-free telephone number is the gateway to the agency's services. Thirty-six million 

individuals used SSA's toll-free service in FY 2017. Agents take claims for benefits, schedule 

appointments and answer questions about SSA's programs. Automated services are also available 24 

hours a day, seven days a week. 

Unfortunately, budget cuts have degraded the level of service provided by the teleservice centers as 

well. Recent performance data indicate that most Americans who call the toll·free service experience 

difficulties using it to resolve questions. The majority of callers give up without even getting through. 

They either get a busy signal or hang up after lengthy waits. Wait times have worsened. In 2010 each 

caller waited about 3 minutes to speak to an agent. Currently callers wait for an agent, on average, 

about 20 minutes. This is unacceptable. 

3 
49 


Insert 33796A.041

Most Workers No longer Receive Social Security Statements 

The President's FY 2019 budget proposes to mail only 15 million Social Security Statements, mostly to 

individuals who are 60 or older and who have not yet filed for Social Security benefits. This is down 

from over 150 million statements being produced as recently as 2010. These reductions, driven by 

budget cuts, have occurred, even t hough section 1143 of the Social Security Act unambiguously 

requires SSA to provide statements annually to most workers 25 and older. 

This is yet another example of the harmful effects of budget cuts at SSA and illustrates how t hey have 

sapped the ability of the agency to fulfill its obligations under the law. Congress should restore 

funding for Social Security statements so that all Americans are informed annually of their rights and 

benefits under the Social Security program. 

Disability Appeals Backlogs are at Historic Highs 

SSA administers the Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) 

programs. Under these two programs, SSA pays benefits to workers with impairments that are so 

severe that they cannot support themselves and their families. The average processing time for 

initial claims has held fairly steady at about 3 to 4 months. 

Unfortunately, the same cannot be said for those individuals who appeal when their initial application 

for benefits is denied. In that situation, the next step in the appeals process is to appear before an 

administrative law judge, who decides the case. Over the past few years a historically high backlog of 

hearing cases has developed. Currently, over one million individuals are caught in this backlog, and 

each will wait over 600 days, on average, for a decision. 

The hearing backlog has an enormous human cost associated with it . Waiting nearly two years for a 

final decision, as a typical appellant does, causes financial and medical hardship. Some applicants will 

lose their homes or have to declare bankruptcy while waiting for a decision on their appeal. Many 

will experience a decline in health, and unfortunately, some will die. An estimated 10,000 individuals 

died in FY 2017 while waiting for a decision. To set this in context, during the course of this hearing, 

more than two individuals will have d ied while waiting for a decision on their disabil ity claim. This 

should not be an acceptable outcome. 

The Path Forward 

To summarize, the Social Security Administration faces enormous challenges in the years to come. 

The largest age cohorts of the baby boom generation are only now reaching retirement age and their 

need for services can be met only if the agency is enabled to meet these challenges with both strong 

leadership in the form of a confirmed Commissioner and with adequate funding from Congress. 

These two considerations must be united in tandem if SSA is to provide a level of service the 

American people expect and deserve. 

4 
50 

f 


Insert 33796A.042

Committee on Ways and Means 

Witness Disclosure Requirement- "Truth in Testimony" 

Required by House Rule XJ, Clause 2(g) 

YourNamc: MAX A I CHTJ1.AN 

I. Ate you testifying on behalf of o Federal, State, or Local Government entity? 

a. Name of eutity(ies). 

b. Briefly describe the capacity in which you represent this entity. 

2. Ate you testifying on behalf of any non-governmental entity(ies)? 

a. Name of entity(ics). 

NA-rtOifAL C0HH!TT£e TO f~f:5{/<.V6 Str/AL ~CUI<rfj 

b B 1N'g Mffr_tCA.f£.. h. h thi . . nc y cscn c capactty m w tc you represent s enuty. 

Pl<8tDbff I 

:? CE.o 

Yes 

0 

~ 

3. Please list any Federal grants or contracts (including subgrants or subcontracts) which you bave 

received during the current fiscal year or either of the two previous fiscal yc:us that are related to the 

subject matter of the hearing: NONe 

No 

rg 

No 

0 

4. Please list any grants, contracts, or payments originating from foreign governments which you have 

received during the current calendar year or either of the two previous col en dar years that arc related to 

the subject matter of the hearing: NONe 

5. Please list any offices or elected positions you bold. 

6. Docs the entity(ies) you represent, other tban yourself, have parent organizations, 

subsidiaries, or partnerships you are not representing? Yes No 

0 eg 

1. Please list any Federal grants orcontract:s (including subgrants or subcontracts) which were received 

by the entity(ies) you represent during the current fiscal year or either of the two previous fiscal years, 

which exceed I 0 percent of entity(ies) revenues in the year received. Include the source and amount of 

eacb grant or contracl Attach a second page if necessary. 

NoNf 

8. Please list any grant~. contracts, or payments originating from foreign governments which were 

received by the cntity(ies) you represent during the current fiscal year or either of the two previous fiscal 

years related to the subject matter of the bearing. Include the source and amount of eacb grant or 

contract Attach a second page if necessary. AlONe 
51 

Chairman JOHNSON. Thank you, sir. 

Mr. Stier, welcome, and thanks for being here. Please proceed. 

STATEMENT OF MAX STIER, PRESIDENT AND CEO, 

PARTNERSHIP FOR PUBLIC SERVICE 

Mr. STIER. Yeah. Thank you very much, Mr. Chairman, ranking 

Member Larson, members of the committee. My name is Max Stier. 

I am the president and CEO of the Partnership for Public Service. 

We are a nonpartisan, nonprofit organization working to make the 

Federal Government more effective. 

This hearing is a terrific hearing to focus on a critical issue. We 

have a broken system. No other democracy on this planet has a 

new administration walking in with the requirement of putting in 

4,000 political appointees, 1,200 of them requiring Senate confirmation. So this is an issue that actually extends beyond Social Security but clearly is a big issue here as well. And your hearing is critical to make sure that the spotlight is placed on it. 

The problem is a big one. No administration has staffed quickly. 

This administration is well behind prior administrations. We 

tracked the top 630-some-odd appointments of those 1,200 that require Senate confirmation. Of those, only 274 are actually filled. 

And you are looking at 218 where there is no nominee. That is a 

big problem. There are big chunks of government where a critical 

leader is simply not in place. 

Mr. Chairman, you made a great point in your opening comments. It matters. To have a temporary or an acting individual, in 

my terms, it is the equivalent of a substitute teacher. They may be 

a wonderful educator, but they get no respect. Everyone knows 

they are not there for the long-term. People understand that they 

are not going to take on the tough issues or think about long-term 

solutions. And their decisions aren’t going to be viewed as final. It 

is a real problem. Great people may be operating in those positions, 

but they are operating with two hands tied behind their back. That 

is no way to do things. 

At SSA, it is not just the commissioner. You are talking about 

three Senate-confirmed positions, and all three don’t have a permanent person in place. You only have one nominee for the IG. That 

is a big problem. And then it cascades through the rest of the organization where you have acting individuals in critical spots. So you 

have an acting deputy commissioner for operations, an acting deputy CIO, acting chief information security officer. And three of the 

ten regional commissioners are also acting. 

Having acting leadership at the top has consequences throughout 

the organization. Hard to recruit people, hard to make decisions for 

full-time folk if you don’t know who the real boss is going to be. 

That is a big problem. These positions are critical to all kinds of 

issues that are fundamental to the operations of SSA. And we need 

to make sure we get folks in there. 

A couple of facts about SSA that are worth focusing on for a second. Note: Only about 4.3 percent of the SSA population workforce 

itself is under the age of 30. There are six times as many people 

in the IT workforce over the age of 60 than under the age of 30. 

You are not going to get done the critical work you need to do without the right workforce, and you don’t have it there right now. 

52 

So, one—so what can you do about it? This committee hearing is 

fundamental. So kudos to you for doing it. Five ideas for you. I am 

going to run through them fast. 

Number one. It is not just getting someone in place. That is fundamental. But you need to find the qualities and competencies 

needed for these roles that are open. It is not good enough just to 

have someone in the seat. You need to make sure you have got 

someone who has got large management capabilities, can deal with 

the IT transformation that needs to take place. So identify those 

capabilities. 

Number two, you need a job—that is a job description. Number 

two, you need a performance plan. You need to make sure that 

they are actually being held accountable for specific things that 

need to be changed, and that needs to be transparent in real-time 

so you understand whether they are doing the job and it is being 

done well. 

Number three, use the data that you already have. The Federal 

employee viewpoint survey is a powerful tool to tell you what is 

going on in these agencies. Not a good story at SSA. In 2012, it was 

number six in our best places to work rankings. Today it is number 

12 out of 18. That is a big drop. And if you look at the numbers 

themselves, there are some big issues. So on the question, for example, employees are encouraged to find better ways of doing 

things, at SSA, that is only 55 percent of the employees would say 

yes. That number is 18 points lower than our private sector benchmark. On the questions about are my talents being used while in 

the workplace at SSA? Again, that is 54 percent. That is 23 percent 

below a private sector benchmark. 

Fundamentally, though, you have an incredibly mission-driven 

workforce. So one area where their numbers are better than the 

private sector to the question, I am willing to put in the extra effort to get my job done. You have got 95.6 percent of the employees 

that are saying that. They care about what they are doing. 

So now number four recommendation, consider tying the 6-year 

term to confirmation. The chairman noted that you are 5 years into 

a term. You do need a long tenure if you are going to get real work 

done and to do real transformation. You know, average tenure of 

an ordinary public political appointee is 18 months to 2 years. That 

is one of the big problems for government. You have got short-term 

leaders not aligned to the long-term needs of the organizations they 

run. A 6-year term makes sense, but only—it makes sense only if 

it is real, if the person walking in has that full tenure. That is not 

what you have right now. 

And then you all have responsibility for more than the Social Security Administration. Please do this for the other agencies you are 

looking out for as well, because these same issues play out across 

the board. 

Thank you very much. 

[The prepared statement of Max Stier follows:] 

53 


Insert 33796A.043

• PARTNERSHIP FOR PUBLIC SERVICE 

Statement of Max Stier 

President and CEO 

Partnership for Public Service 

Written statement prepared for 

The House Committee on Ways and Means Subcommittee on Social 

Security 

Hearing entitled, 

" Lacking a Leader: Challenges Facing the SSA after over 5 Years of 

Acting Commissioners" 

March 7, 2018 
54 


Insert 33796A.044

Chainuan Johnson, Ranking Member Larson and members of the s\obcomminee, thank you for the 

opporruni1y to appear before you today. I am Max Stier, President and CEO of the Partnership for Public 

Service, a nonpartisan, nonprofit organization that works tO revitalize our federal government by inspiring 

a new generation to serve and by transforming the way government works. 

The Parmership works to inspire and educate mission-eritical talent on the importance and rewards of 

public service. We also work with government leaders tO prepare them tO build strong reams. drive 

innovation, and work across organizational boundaries to deliver results for America. Our work includes 

all aspects of how the federal government manages people- attracting them tO government, leading and 

engaging them, supporting their development, managing performance - all the essential ingredientS for 

creating, developing and maintaining a world-elass workforce. We also honor the important contributions 

that federal employees make every day to help strengthen and protect our country through our annual 

recognition of excellence in the civil service with the Samuel J. Heyman Service ro America Medals 

program. 

The Partnership's programs and activities largely center around the need for strong, capable leaders in the 

federal government, in both career and political leadership positions. The reason for that is simple and 

straightforward- leadership is imrinsically tied to the abilily of any organization to be successful. I hope 

that my testimony today will provide insight into the effects that leadership vacancies have on agencies, 

the crucial need for early and ongoing planning by both presidents-elect and presidentS on how to fill 

those vacancies, ways that the administration and Congress can each work to reduce vacancies in 

lc.~dcrs ip positions, and ways to increase transparency into which important federal positions arc vac.~nt. 

Impact of Yacancies 011 AgenCJ~ Operations 

The Subcommittee on Social Security is right to focus on leadership positions left vacant within the 

Social Security Administration (SSA). SSA is not a cabinet level agency but is more familiar to most 

Americans than other federal agencies. Americans e><pcct ~Je agency to provide financial securily to us in 

the later years in life and ensure needed support for those who qualify for disabilily paymeots. 

SSA employs a workforce of more than 60,000 full-time equivalent employees through a network of 

1,200 field offices across the country and the world. SSA benefits will reach approximately 71 million 

individuals this year. Through administration of the Old-Age Survivors Insurance, Disability Insurance 

and Supplcmc.ntal Sccuri1y Income programs, SSA distributed approximately $985 billion in payments in 

fiscal year 2017. SSA also in fiscal year 2017 completed 5.6 million survivor claims, 2.4 initial disability 

claims, over 595,000 disability reconsiderations, and handled over 36 million phone calls through itS 

national 800 number. 1 

SSA serves every American at some point iJ>their Jives, and its m.iss.ion requires sustained anention and 

consistent leadership . .Each year, the SSA Office of Inspector General (itself under acting leadership since 

May of2016) identifies the top management and perforn>ance challenges facing the ageocy. The list 

includes: 

improving customer service; 

modernizing information technology infrastructure; 

securing information systems and protecting sensitive data; 

reducing improper payments and increasing overpayment recoveries; 

improving administration of the disability programs; 

strengthening planning, transparency, and accountability: and 

1 "Annual Pcrfonnancc Report FY 2017 - FY 20 t9." Social Security Admiuistratiou, Febmary 20 I 8. pp. 3-4, 32-34. 

37, huos·/lw"~v.ssa goy budgct!FY I 9Filcsl20 I 9APR.odf. 
55 


Insert 33796A.045

strengthening the integrity and protection of the social security numbcr.

1 

These arc daunting challenges, and addressing them successfully starts with a vision and a strategy set by 

a dedicated team of both political and career leaders. 

There are three full·time Senate-coofim>ed positions within SSA, both the commissioner and deputy 

commissioner as well as the inspector gcnc.ral' Of these positions, there arc no nominees for 

commissioner or deputy commissioner, and the nominee for inspector general has been pending in the 

Senate since October 2017. The last Senate-con finned commissioner ofSSA left the agency in 2013 and 

the position has been filled by acting officials over the last five years. 

Vacancies in presidentially-appointed Scnatc-confom>cd (PAS) positions across the government arc 

expected, given the short·tem> nature of political positions. Even so, the number of vacancies and their 

duration can be diminished through advance planning and effective actions by an administration and the 

Senate. 

Career civil servants arc often designated to serve temporarily in vacant Senate-confirmed positions in an 

acting capacity because they are senior and highly-regarded leaders in their agencies- as is the case of 

SSA's current acting commissioner. In other cases acting officials arc political appointees who have had 

distinguished careers and have earned the confidence and trust of the president- as was the case of the 

previous 3Ciing commissioner. 

The reality is, though, that acting officials often are not able to operate with the full perceived authority 

that flows from Senate confinnatioo. Some acting officials do not feel like it is their place to make long· 

tcnn policy. operational. or management decisions that wiiJ bind their successors. I often make an analogy 

to substitute teachers here - they are skilled professionals who have much to offer their students, but they 

arc not perceived by those around them as having the full authority of the teacher, and d1ey do not view 

themselves as having the right to make decisions with long-term impact. Saying .. ) am acting"' is simply 

not as powerful as saying "I was nominated by the President and confirmed by the U.S. Senate." 

Vacancies in top leadership positions may cause harm roan organiz.1tion's ability to carry out its mission. 

The Partnership has found that high-level vacancies in particular can have the effect of slowing decision· 

making, ultimately diluting agencies' ability to best serve the public interest. For example, the Partnership 

believes that over the years, frequent and often lengthy vacancies at the Department of Homeland 

Security have been a key driver of the agency's performance and morale challenges.' n>ad Allen, the 

former commandant of the Coast Guard, bas s.1id that when there is a vacancy, ''people who arc in an 

acting capacity feel they do oot have the power to make long·term changes and do what they nee.d to do." 

Another senior official who held positions at the departments of State and Defense under Presidents 

George \V. Bush and Barack Obama characterized agencies as being lhrown into neutral gear when there 

are acting officials. He said that those serving in an acting capacity usually "take the path of least 

resistance."$ 

2 "Fiscal Year 2017 Inspector General's Statement on tltc Social Security Administration's Major Management and 

Perfonnance Challenges." Offi<'.e ofllw Inspector General, Social Security Administration, November 

2017. 3 Three of the seven members of the agency's part-time advisory board arc also Senate-con finned positions. _. Wliucu h.::,thuuHy ofMu.'l. Sljc .. , ,.m:p;ucU fo1 l11C HouM.: Couuuincc uu HuwclmuJ St-...."'tuily ce:uiu~cutitiOO. "Hclv 

Wanted a1 DHS: Implications of Leadership Vacancies on the Mission and Morale.•• t'artncrsftip for Public 

Service. D<:ccmbcr 12,2013. 

$"Government Disservice: Ovcrcomjng Washington Dysf1mct.ion 10 Improve Congressional Stewardship of the 

Executive Branch." Parlncrsltip for Public &.rvice, September 2016. p. 29. 

hupsi/oumublicscrvicc orglpublications(viewcontcnldcL3ils.php''id=589 
56 


Insert 33796A.046

Another impact of long-term vacancies at the top of an agency is that decisions about filling other senior 

leadership positions are sometimes put on hold. An agency's ability to recruit the best candidates for these 

jobs is diminished with0111 permanent leadership. A big factor for anyone considering a job is who the 

boss will be. Uncertainty cremod by temporary leadership exacerbates what is already a tough recruiting 

environment 

The vacancy at the top is likely contributing to the existence of vacancies in other politic.~! or career 

leadership positions within SSA. The position of deputy commissioner for operations is vacant, having 

previously been held by the individual now serving as the acting commissioner. As of January 2018, the 

position of acting associate commissioner for intcmational programs is vacant, and acting officials arc 

serving as 1he deputy chief infonnation officer and associate commissioner for information security/chief 

information security officer- two key positions responsible for taking on the agency's cnonnous 

challenges with information technology modernization and ensuring the agency's cybersccurity. Other 

positions filled by acting officials include three of the agcncy•s ten regional commissioners.. the deputy 

commissioner for communications, and the deputy commissioner for legislative and congressional 

affairs.6 

And finally, vacancies also create ripple effects that can cause stress on the agency. When leadership 

positions are vacant, employees may feel uncertainty about the future direction of their agency. Also, each 

level of leader must move up a notch in a temporary capacity when there is a vacancy. This disrupts 

agency operations and in reality puts many leaders in the position of being "dual-batted"-they assume 

duties of the position one notch above but are expected to ensure the execution of their regular jobs. ln 

panicular, oversight of an agency's management can suffer when the deputy- who is supposod to be the 

chief operating officer of the agency - must serve as the acting head of the agency. 

lmportmrce ofTran~ition Plttnning 

Whi.le presidents should be prepared to fill vacancies at any point in an administration, the need for 

attention to vacancies obviously becomes more acute during presidential transitions. The task of a U.S. 

presidential rransition is one the greatest organizational challenges in the world. There are about I ,200 

Senate·confim1od positions and about 4,000 pol tic~lly appointed positions overall. 

The Partnership and Washington Post have been tracking the stallls of nominations and confrrmations for 

638 key positions requiring Senate confirmation. 7 for these positions as of March 4, 2018, 273 nominees 

have been confim1ed, 139 have been nominated but not yet continnod, and eight have been announced 

but not fonnally nominated. There arc no announced nominees for the other 2 18 positions. 

Vacant positions with significant responsibilities related to security and the economy include the 

ambassador to the Republic of South Korea, the assistant secretary for nuclear energy at the Department 

of Energy, director of the National Counterterrorism Center and, of particular note to this committee, 

nurnerotas top positions at the Treasury Department, inc.luding deptaty secretary, c-hief fin.aocial officer. 

undersecretary for domestic finance. and several assistant secretary positions. Other important vacant 

positions include the commissioner of the internal Revenue Service, which is undertaking the enormous 

task of implementing the new tax law. and the director of the U.S. Census Bureau, which is in an intense 

period of planning for the 2020 decennial census. In total, these widespread vacancies have negative 

implications on the administration's ability to govern effectively and implement management reforms. 

~·~social Security Administration Organization Chan." $()Ci(JI Securily Administrati<m. January S. 2018. 

https://www.ssn.gov/orWsaehart pdf 1 https://v.•ww washingtonoost.com graphicslpo it cs/tnunp~adrninistration~ 

apoointectmckcr/databascOutm temr-= 98bftdl47095 
57 


Insert 33796A.047

The number of key nominations put forward by President Trump at this point in the presidency is lower 

than that of his three most recent predecessors. But it is also important to remember that the average time 

that it has taken the Senate to confirm President Trump's nominations, 79 days, is also considerably 

longer than the average time for bis predecessors at this point in their terms (60 days for President 

Obama, 42 for President George W. Bush, 47 for President Clinton, and 51 for President George H.W. 

Bush). Many non·coutroversialnominees experience tnmecessary delays- delays which have the 

negative impacts discussed above but also discourage qualified people from wanting to serve in Senatecon finned positions and place nominees in limbo while awaiting Senate action, often for months at a 

time. 

The nomination and confinnation process is a shared responsibility of the President and the Senate, and 

the data make clear that there is room for imp,·ovement on both ends. Given that the process requires a 

series of complicated sequential steps-like financial disclo>ure, a background investigation, and Senate 

confinnation-it is critical that transition teams begin identifying and vetting potential nominees for these 

major positions as early as possible during the election and transition period. This reduces the amount of 

time that these critical positions experience leadership gaps that are dangerous for our country's security 

and well-being. The Senate also should consider process refonns that would preserve its role of diligent 

vetting yet ensure that non-controversial nominees are not delayed in the continuation process. 

Jmporltlnce of Leatfersllip on Agency Morale 

The Partnership releases the annual Best Places Jo Work in the Federal Government" rankings of federal 

agencies based largely on d1e results from the Federal Employee Viewpoint Survey (FEVS) administered 

by the Office of Personnel Management. We rank agencies by size and function, and we also analyze the 

key drivers of employee engagement -in other words, the factors that have the biggest impact on how 

employees view the agencies in which they work. 

Employee engagement and commitment arc two necessary ingredients in developing high-pcrfonning 

organizations and attracting top ralent. The rankings are also an important tool for congressional oversight 

and for ensuring that employee engagement is a top priority for government managers and leaders. They 

provide a mechanism for holding agency leaders accountable for the health of their organizations, serve as 

an early warning sign for agencies in trouble, offer a roadmap for improvement and give job seekers 

insight into how federal employees view their agencies. 

Since the rankings began in 2003, one thing has been clear - leadership is the nwnber one driver of 

engagement. Employees wbo hold their leaders in high regard arc more likely to be motivated, and that 

drives better performance. 

In the 2017 Best Places rankings, SSA ranks 12 out of the 18 large agencies in overall employee 

engagement, with a score of 63, which is the same score that the agency had in 2013 but is down from a 

score of66 two years ago. In the years that we have been tracking Best Places scores, SSA's highest 

score was in 2010, with a score of71.6. From2007 to 2016, SSA's engagement score exceeded the 

median score of large agencies, but dipped slightly below the median in 2016. 

The Best Places report tracks results of questions related to senior leaders, who arc dcfmed in the FEVS 

survey as the heads of departments and agencies and their immediate leadership team who arc responsible 

for dirccring the policies and priorities of the deparonent or agency. This "Effective Leadership: Senior 

Leade.rs" category measures the employees views on: respect for the organization's senior leaders; how 

well senior leaders generate high levels of motivation and commitment in the workforce; whether senior 

4 
58 


Insert 33796A.048

leaders maimaio high standards of honesty and integrity; and how well management communicates 

information to employees. 

In this "Senior Leaders" category, SSA ranks 13 out of the 18 large agencies, with a score of 46.5. This 

marks the second year of a decline in score in this category, from 49.4 in 2015. The highest score in this 

category over the last decade was 57.4 in 2011. While the score has fluctuated in recent years, the long· 

term trend shows that SSA was in the upper quartile of large agencies from 2007 to 2012, dropped but 

was still above the median from 2013 to 2015, and then slipped below the median in 2016. On one of the 

key FEVS questions about senior leadership in the latest survey, only 37.8 percent of employees agreed 

that the senior leadership generates high levels of motivation and commitment to the workforce. 

A strategy to improve these scores begins with filling key vacancies, starting with the commissioner and 

the senior leadership team. Permanent leadership would also enable SSA to better address other areas 

where the Best Places scores show need for improvement. For example, SSA ranks 16 out of 18 of the 

large agencies in the "Empowem1ent" category, which measures employee satisfaction with their 

involvement in decisions affecting their work. ln1provittg employee empowem1ent is particularly 

important given that the agency has shed nearly 6,000 employees since 2010 while serving an aging 

population that increases its workload. 

Senior leadership performance plans should ensure that the senior leaders arc held accountable for 

improving employee engagement. These efforts should include reducing communications barriers, 

building employee trust and confidence through open communications, holding employee listening 

sessions, and taking concrete actions to respond to employee concerns, ideas, and feedback. Broader 

efforts should include making leadership development a priority and investing in cultivating the next 

generation of career leaders within the agency. In all these efforts, solicitation of employee feedback and 

fostering effective working relationships with unions and employee representative organizations can help 

agency leaders better identify, understand, and respond to employee perspectives. SSA should monitor 

and measure the resultS of its employment engagement effortS, including through "pulse'' surveys to track 

progress on key mctrics. 

Recommemllltions ta Reduce Vacancies mul/m:rease Transparency of Jlacancies 

Through itS Center for Presidential Transition, the Paro1crship serves as a repository of institutional 

knowledge from previous presidential transitions and provides hands-<>n assistance to both outgoing and 

incoming administrations on the execution oftr:lnsitions. Fill ing critical Scnatc-confinncd positions as 

quickly as possible with the right people should be a priority of any presidential transition. Through our 

work with past tr:lnsition teams of both panics, the Partnership has identified a number of ways to reduce 

the number of vacancies in Senate-confirmed positions, improve oversight of the transition process and 

provide transparency into appointments. 

I. Congressional commillees should perform rigorous oversight. 

Congressional committees and subcommittees should do exactly what this subcommittee is doing today -

conduct oversight of the operations of their agencies. Committees can help draw attention to the 

importance of filling key vacancies- as Chairman Johnson and Ranking Member Larson did in their 

loner of February 2017 to dtc president urging prompt nomination of a commissioner for SSA, and as the 

subcommittee is doing today. Congress also should signal to agency leaders, whether acting orconfinncd, 

that they hold them responsible for forward-looking stewardship of the agencies. One of the best ways 

that members of this subcommittee and staff could do this is to visit SSA field offices and processing 

centers to meet and sec firsthand the work of employees on dtc front lines, who through their unfiltered 

views can otTer valuable insights d1at can help guide oversight. 
59 


Insert 33796A.049

2. Congress should reexamine !he Vacancies A cliO ensure clarify in 1he law and creOle a cen/ral 

locmionfor reponing vacancies in rea/lime as !hey occur. 

The Federal Vacancies Reform Act addresses the issues of who can serve in an acting position and how 

long an individual can serve in an acting capacity. The Act has generated some confusion over where and 

how its limits are applied. Moreover, agency reporting on vacancies typically is not timely, and therefore 

no reliable public source for capturing govemment-wide data on federal vacancies exists. Congress 

should conduct oversight of the Vacancies Act, ensure that Jines of succession are understood, and require 

real-time reporting into a public database for positions subject to Senate confirmation. 

3. The administrOiiOn musl idemify, vel and submilnomineesfor lop Sena!e-confirmed posilions 01 a 

quicker pace. 

The president needs to ensure that his White House has a robust system for developing a pipeli ne of 

qualified candidates, vetting those candidates, and submitting nominees to the Senate at a much quicker 

pace to fill existing vacancies. 

4. The Senale should slreamline !he process for non-controversial nominees. 

Building on an expedited process established in 20 I I for certain nominees, the Senate should improve 

rules that enable prompt confinnation of non-controversial nominees. 

5. Nominee papenvork musl be slreamlined. 

The amount aod complicated nature of the paperwork that a nominee is required to complete is daunting, 

often duplicative and discourages qualified people from serving in these positions. 1l1c paperwork 

required for both pre-nomination and Senate vetting must be reexamined and streamlined in order to 

move nominees through the process more quickly and remove some of the overly burdensome 

disincentives for serving in these positions. 

6. Reduce !he number of nominations !hal require Senale confirmation. 

Currently, the Senate must advise and consent on about I ,200 PAS positions. 

8 Congress should work to 

reduce this number where possible - either by eliminating the Senate confirmation requirement or 

converting them to career positions- to enable the White House and the Senate to concentrate vetting on 

the highest-level positions. For example, the Senate provides advice and consent on a number of positions 

that arc primarily managerial, such as chief financial officers. These types of positions that arc less 

partisan by nature could be converted to career positions, thus reducing the burden on both the White 

House and the Senate. Congress should also consider whether there arc other Senate-confirmed positions 

that should have fixed terms such as the six-year term that the SSA commissioner has, in order to provide 

stable, long-term leadership. 

7. The Office of Presidemial Personnel and agencies should maintain de/ailed posilion descriptions for 

all prior fly Senate-confirmed posilions, and political appointees should have clear pe1jormance 

plans. 

Transition personnel teams spend much of the initial transition period in trying to understand exac.tly wha~ 

each political position does and what qualifications a nominee should possess to succeed in a given 

• Ln addition, more tban 900 judicial oomiJJations require advice and conscut. 

6 
60 


Insert 33796A.050

position. The Partnership found in 2016 that the transition teams did not have this information in any 

comprehensive or consistent way, and so we created over 400 position descriptions for the transition 

teams with the input of experts and fonuer office holders. Having a comprehensive and up·to·date 

position description for each of these jobs would allow the transition teams to focus immediately on 

recruiting and vetting high quality nominees, thus reducing the amount of time needed to identify quality 

candidates. Also, unlike senior career leaders, wbo are required to have pcrfom1ance plans, political 

appointees often lack performance plans, wbich help bold officials accountable for management 

responsibilities and employee engagement. Congressional oversight can help ensure that these position 

descriptions and pcrfom1ancc plans arc in place. 

8. There should be greater 1ransparency info non-Sena1e confirmed po/ilical appoinlmenls. 

Political appointments that do not require Senate confirmation often are not publicly announced. Yet 

these non-PAS appointees arc often very senior officials within agencies, and sometimes can serve as 

acting officials for unfilled Scnatc-confinncd positions. The public should have visibility into who the 

non· PAS appointees are and what positions they bold. 

Conclusion 

Chainnan Johnson, Ranking Member Larson and members of the subcommittee, thank you again for the 

opportunity to share the Partnership's views on the impacts of vacancies and our recommendations on the 

way forward to help SSA and the federal government as a whole operate effectively with a core team of 

leaders in place. We look forward to being of assistance to you as you consider these issues. 

7 
61 

f 


Insert 33796A.051

Committee on Ways and M .. ns 

Witness Disclosure Requirement - •Truth in Testimony~ 

Required by House Rule XI, Clause 2(g) 

Your Name: /1.:;_y S-h~r I. Are you testifying on behalf of a Federal, State, or Local Government entity? 

a. Name of entity(ies). 

b. Briefly describe the capacity in which you represent this entity. 

2. Are you testifying on behalf of any non-governmental entity(ies)? 

a. Name of entity(ies). 

~-tt,- .Q.:b\l.c....~\ CQ_ b. Briefly describe the capacity in which you represent this entity. 

Cf.D 

Yes 

0 

Yes 

R 

3. Please list any Federal grants or contracts (including subgrants or subcontracts) which you have 

~ 

~ 

received during the current fiscal year or either of the two previous fiscal years that are related to the 

subject matter of the hearing: 

4. Please list any grants, contracts, or payments originating from foreign governments which you have 

received during the current calendar year or either of the two previous calendar years that are related to 

the subject matter of the hearing: 

S. Please liSt any offices or elected positions you hold. 

6. Does the entity(ies) you represent, other than yourself, have parent organizations, 

I~ subsidiaries, or partnerships you are not representing? Yes 

0 

7. Please i~tany Federal grants or contracts (including subgrants or subcontracts) which were received 

by the entity(ics) you represent during the current fiscal year or either oft he two previous fiscal years, 

which exceed I 0 percent of entity(ies) revenues in the year received. Include the source and amount of 

each grant or contract. Attach a second page if necessary. 

8. Please list any grants, contracts, or paymttlts originating from foreign governments which were 

recei•ed by the entit){ies) you represent during the current fiscal year or either of the two previous fiscal 

yea~ related to the subject matter of the hearing. Include the source and amount of each grant or 

contracL Auach a second page if necessary. 
62 

Chairman JOHNSON. Thank you, sir, for your testimony. 

We will now turn to questions. 

As is customary for each round of questions, I will limit my time 

to 5 minutes and will ask my colleagues to also limit their time to 

5 minutes. 

Ms. Curda, yesterday GAO confirmed what we all know—Social 

Security has been led by an Acting Commissioner for too long. 

What does it mean for an agency to be in violation of the Vacancies Reform Act? 

Ms. CURDA. Chairman Johnson, after the expiration of an official’s allowed period of acting duty, the position is to remain vacant. And the nondelegable functions and duties of that position 

can only be performed by the head of the agency. To determine any 

impact, the agency would need to determine if any actions that 

were taken by the acting commissioner after November 17 were 

nondelegable. In other words, they could only be performed by the 

commissioner and nobody else. Any such action taken in violation 

of the act would have no force or effect and may not be ratified. 

Where violations have occurred in the Vacancies Act, it is the agency’s responsibility to determine if any actions that were taken were 

nondelegable. 

Chairman JOHNSON. Thank you. 

Ms. Brannon, right now we are more than 5 years into the current 6 year Commissioner’s term. Knowing how long the Senate 

can take sometimes, if the President wanted to, could he nominate 

someone for the next term right now? And if not, why not? 

Ms. BRANNON. The President could probably nominate someone 

for the next term. I think the Social Security Act, however, would 

prohibit—while there is still a vacancy in the office, I don’t think 

someone could be appointed to that next term because the statute 

says that if a commissioner is appointed to the term of office after 

the commencement of that term, they may only serve for the remainder of that term. So so long as there is a vacancy in the office, 

anyone who is appointed in the middle of a term can only serve for 

the remainder of a term. 

Chairman JOHNSON. So do we need to change that rule? 

Ms. BRANNON. You could. 

Chairman JOHNSON. Thank you very much. 

Mr. Larson, I recognize you. 

Mr. LARSON. Well, thank you, Mr. Chairman. I want to thank 

the witnesses as well. 

I am struck by a number of things, and I will start with what 

Mr. Richtman had to say, and that is that by putting somebody in 

place is not going to solve, at least listening to all your testimonies, 

the problems that Social Security faces long and short-term. And, 

Mr. Stier, I especially liked the example where you say we put 

somebody in for a short-term period to solve what are long-term 

problems for the country. 

Ms. Curda, you elaborated a lot on the technology aspects of this 

and said while, on one hand, that Social Security was addressing 

some of these issues, that they failed to follow through. That failure, is that based as Mr. Richtman said, on lack of resources, or 

is it technical ability? Is it because of what Mr. Stier said? Because 

63 

the age of people is different and people with different capabilities 

aren’t in those positions? 

Could you elaborate more on what GAO’s findings were? 

Ms. CURDA. Certainly. 

I think the main issue with SSA’s information technology is the 

size of the legacy IT operations that they have. They have systems 

that are running on software that uses a programming language 

that was most prevalent in the 1950s and the 1960s called—— 

Mr. LARSON. Wonderful. 

Ms. CURDA [continuing]. COBOL. 

Mr. LARSON. Is it radioactive? 

Ms. CURDA. I don’t think they even teach it anymore. And so 

they are dependent on people—— 

Mr. LARSON. So we are operating in the—and Social Security 

takes great pride in saying that its loss ratio is like 99 percent, 

which makes it one of the most—and the envy of the private sector 

insurance world would love to have that kind of loss ratio, and yet 

we see these glaring failures. You know, wait times, 600 days, as 

the chairman was saying, to me, that is totally unacceptable, 4- 

hour waits. Are they still on hold waiting for your call, Max? 

Mr. RICHTMAN. Yes, sir. 

Mr. LARSON. This is just—we cannot, as an institution, as government, you know, sworn to serve our constituents, to allow this 

to go forward. 

What improvements could be made and does it need the funding 

of these resources to overhaul a system that has been in place since 

the 1950s? 

Ms. CURDA. We would recommend that they—we have recommended that they modernize their legacy systems. 

Mr. LARSON. Well, when you recommend that, what does that 

mean? Do you suggest a specific remedy? Do you—specific technology? 

Ms. CURDA. Well, let me just break it down for you. 

They spend currently $1.8 billion on information technology, and 

that is split into two major categories. 1.1 billion is spent on operations and maintenance of those legacy systems. 

Mr. LARSON. Oh, wow. 

Ms. CURDA. And only 0.7 billion is spent on development, which 

is essentially where you get to create new and better systems. 

So a focus on shifting more resources into the development side 

is needed. They have 66 total systems, of which six are major systems. 

Mr. LARSON. So let’s take it as a given based on what you are 

saying, and we can gather this from the written information as 

well, that we are woefully negligent on the technology side. But as 

Mr. Richtman pointed out, still for that human contact, and as Mr. 

Stier pointed out with the age of the agency people there, what will 

we have to do there as well? 

Mr. Richtman, you know, it seems to me like we have a—— 

Mr. RICHTMAN. I think the resources are inadequate across the 

board. I don’t have a specific number. I did point out that we have 

written to the appropriators asking for an addition of about $460 

million for fiscal 2018 and about that much for fiscal 2019. 

64 

You know, I mentioned to Mr. Larson when—before the hearing 

started that I was in Florida for a townhall meeting with one of 

your colleagues last Friday night. And a woman asked a question. 

She started by saying she waited for 4 hours to talk to somebody 

in a Social Security office. And then she said, ‘‘Don’t you people in 

Washington understand what it means to have to wait 4 hours or 

to wait 600, 700 days to get a hearing?’’ And she included me in 

‘‘those people in Washington’’ when she said that. 

And she did want to understand why Members of Congress don’t 

appreciate all of that, and I didn’t really have a good answer for 

her. 

Mr. LARSON. Well, I know my time is up, Mr. Chairman, but 

I would like, in a second round, to come back to Mr. Stier. 

Thank you for your five recommendations, because I would like 

to explore those further. And, Ms. Brannon, we both commented 

when you were speaking that, wow, did Congress really write that? 

Based on how you were explaining it, we could barely follow it. 

But one thing we would like to see is what your recommendation 

would be to improve it. This happens frequently at hearings. I don’t 

know if my other colleagues feel the same way. But oftentimes we 

get people who tell us very specifically what they think is wrong 

but then don’t offer a suggestion as to how we should improve it 

or how we could make it better. So in the next round. 

Thank you Mr. Chairman. 

[Member Submission for the Record follows:] 

65 


Insert 33796A.052

Reuters: Banks scramble to fix old systems as IT 

'cowboys' ride into sunset 

By Amw lrrera, April I 0, 2017 

NEW YORK (Reuters)- Bill Hinshaw is not a typical75-year-<>ld. He divides his time 

between his family- he has 32 grandchildren and great-grandchildren - and helping U.S. 

companies aven crippling computer meltdowns. 

A worker guides the first shipment of an IBM System Z mainframe computet' in 

Poughkeepsie. New York, U.S. March 6, 2015. Picture taken March 6, 2015. Jon 

Simon/IBM/Handout via REUTERS 

Hinshaw, who got into programming in the 1960s when computers took up entire rooms 

and programmers used punch cards, is a member of a dwindling community of IT 

veterans who specialize in a vintage programming language called COBOL. 

The Common Business-Oriented Utnguage was developed nearly 60 years ago and has 

been gradually replaced by newer, more versatile languages such as Java, C and Python. 

Although few universities still offer COBOL courses, the language remains crucial to 

businesses and institutions around the world. 

In the United States, the financial sector, major corporations and partS of the federal 

govemment still largely rely on it because it underpins powerful systems that were built 

in the 70s or 80s and never full y replaced. (GRAPHIC: tmsnrt.rsl2nMfi8G) 

And here lies the problem: if something goes wrong, few people know how to fix it. 

The stakes are especially high for d1e financial industry, where an estimated S3 trillion in 

daily commerce flows through COBOL systems. The language underpins deposit 

accounts~ check-clearing services, card networks, ATMs, mortgage servicing, loan 

ledgers and other services. 
66 


Insert 33796A.053

The industry's aggressive push into digital banking makes it even more imponant to 

solve tbe COBOL dilemma. Mobile apps and other new tools are written in modern 

languages that need to work seamlessly with old underlying systems. 

n1at is where Hinshaw and fellow COBOL specialists come in. A few years ago, the 

nonh Texas resident planned to shutter his IT firm and retire after decades ofworl<ing 

with financial and public institutions, but calls from fonner clients just kept corning. 

In 2013, Hinshaw launched a new company COBOL Cowboys, which connectS 

companies to programmers like himself. His wife Eileen came up witllthe name in a 

reference to "Space Cowboys," a 2000 movie abom a group of retired Air Force pilotS 

called in for a trouble-shooting mission in space. The company's slogan? "Not our first 

rodeo." 

Of the 20 "Cowboys" that work as pan-time consultantS many have reached retirement 

age, tl1ough there are some "youngsters." Hinshaw said. 

"Well, I call tltem youngsters, but they're in tl1eir 40s, early 50s." 

Experienced COBOL programmers can cam more than SIOO an hour when they get 

called in to patch up glitches, rewrite coding manuals or make new systems work with 

old. 

For their customers such expenses pale in comparison with what it would cost to replace 

the old systems altogether, not to mention the risks involved. 

Antony Jenkins, the former chief executive ofBarclays PLC, said for big financial 

institmions - many of them created through multiple mergets over decades - the 

ptoblems banks fuce when looking to replace their old technology goes beyond a 

shrinking pool of ex pens. 

"It is immensely complex," said Jenkins. who now heads statlup lOx Future 

Technologies, which sells new IT infrastn1cture to banks. "Legacy systems fi·om different 

generations arc layered and often heavily inte1twincd." 
67 


Insert 33796A.054

IBM engineers work with a System 360 mainframe computer using business programs 

wrinen in an early version of the COBOL language in this undated handout photo 

obtained by Reuters March 31, 2017. 1BM/Handout via REUTERS 

Some bank executives describe a nightmare scenario in which a switch-over fails and 

account data for millions of customers vanishes. 

The industry is aware, however, that it cannot keep relying on a generation of specialists 

who inevitably will be gone. 

The risk is "not so much that an individual may have retired," Andrew Starrs, group 

technology officer at consulting fim1 Accenture PLC, said. "He may have expired, so 

there is no option to get him or her to come back." 

International Business Machines Corp. which sells the mainframe computers that nm on 

COBOL, arh'lles the future is not so bleak. It has launched fellowships and training 

programs in the old code for young IT specialists, and says it has trained more than 

180,000 developers in 12 years. 

"Just because a language is SO years old, doesn't mean that it isn't good," said Donna 

Dillenberger, an IBM Fellow. 

But COBOL veterans say it takes more than just knowing the language itself. COBOL· 

based systems vary widely and origina l programmers rarely wrote handbooks, making 

trouble-shooting difficult for others. 

"Some of the software I wrote foo· banks in the 1970s is still being used," said Hinshaw. 

That is why calls from stressed executives keep coming. 

"You better believe tl1ey are nice since they have a problem only you can fix," he said. 

Hinshaw said tl1e callers seem willing to pay almost any price and some even offer full· 

time jobs. 
68 


Insert 33796A.055

Oliver Bussmann, former ch ief infom1ation officer ofUBS AG, said banks usually tap 

into their networks of former employees to find COBOL experts. Accenture's StatTS said 

they go through a "black book" of programmer contacts, especially those laid off during 

or after the 2008 financial crisis. 

The industry appears to be reach ing an inflection paint, though. In the United States, 

banks are slowly shifting toward newer languages taking cue !Tom overseas rivals who 

have already made the switch-over. 

Commonwealth Bank of Australia, for instance, replaced its core banking platform in 

2012 witb the help of Accenrure and software company SAP SE. The job ultimately took 

five years and cost more than I billion Australian dollars ($749.9 million). 

Accenture is also working with software vendor Temenos Group AG to help Swedish 

bank Nordea make a similar transition by 2020. IBM is also setting itself up to profit 

!Tom the changes, despite its defense of COBOL's relevance. It recently acquired 

EzSource, a company d1at helps programmers figure out how old COBOL programs 

work. 

In the meantime, banks' scramble has revived careers of those who retired or were let go, 

and whose expertise, until recently, was considered obsolete. 

One COBOL programmer, now in his 60s, said his bank laid him off in mid-2012 as it 

tumed to younger, less expensive employees trained in new languages. 

In 2014, the programmer, who declined to be named to avoid jeopardizing current 

professional relationships, was brought in as a contractor to the same bank to fix issues 

management had not anticipated. 

"The call back to the bank was something of a personal vindication for me," he said. 
69 


Insert 33796A.056

Wall Street Journal: Cobol Is Dead. Long Live Cobol! 

By Gmy Beach. O<:tober 2, 2014 

Want in on an amazing fact? 

Eighty percent of the world's daily business o·ansactions rely on a 59-year-old 

programming language called Cobol, short for"Common Business Oriented Language." 

Global commerce depends so much oo Cobol that if its' 220 billion lines of installed code 

were mysteriously erased business would be catapulted back to the ''B-Commerce" ern. 

As in "ba11er., 

While the pivotal importance of Cobol is clear, its' image among C!Os is a murky mashup between Rodney Dangerfield aod Mark Twain: it eams little respect as a strategic 

as~et, even among ardent supporters; and reports of its impending death arc exaggerated, 

with even staunch critics claiming Cobol could be operational deep into tl1e 2030 decade. 

What accounts for the longevity of Cobol? 

As Scott Colvey, a writer for The Guardian wrote in 2009, HCobol is to business what the 

combustion engine is to motoring: it has been around so long, and instal led in so many 

places. that doing something differem would be impossibly costly." 

If you run hardware long enough, it breaks. lf you run software long enough, it works. 

Cobol works. As the CIO of a Fortune 350 firm who requested anonymity because he 

didn't wam to be associated with a story about Cobol, told me, "Cobol is the most 

extraordinarily efficiem pl'ogramming language ever wrinen." 

"Cobol is alive and well," says Steven A. Mills, IBM senior vice president and group 

executive, Systems and Software. He should know. Decades after journalist Stewart 

Alsop predicted the last mainframe would be unplugged, over 20,000 mainframe 

computers, 49% of them from IBM, remain tetl1ercd to their power sources. Most running 

Cobol. 
70 


Insert 33796A.057

But the technological health of Cobol is not its' biggest future challenge. As hundreds of 

thousands of Baby Boomer tech workers with Cobol experience retire, and younger 

workers prefer tO code in Java and C#, the future of Cobol is very human. 

Cobol needs more mechanics. 

One of Cobol's most senior mechanics is Edmund Lalli. a 73-year old senior systems 

programmer with AriFieet. Mr. Lalli, who wrote his first line of Cobol in 1964, says "it is 

understandable that younger people are attracted tO the newer languages, but they should 

also learn Cobol. I worry about a tipping point in five years where the number of Cobol 

programmers drops precipitously." 

lltat tipping point doesn't worry David Dischiave, associate professor and director of 

Global Enterprise Technology, Syracuse University, who says. " I don't buy into the idea 

that there is a shortage of Cobol programmers. If there is a shortage, why aren't 

employers responding to my calls to get jobs for majors with Cobol experience? What 

employers do, rather than what they say, matters most." 

According to Dr. Leon Kappelman, professor of lnfonnation Technology at the University 

ofNo11h Texas, Dallas employers are doing a lot of "doing". "Four years ago,'' he says, 

"local Fortune 500 employers encouraged the university to offer Cobol courses. Now, 

graduates who take Cobol electives earn starting salaries of$75,000 compared to starting 

salaries of$62,500 for those who did not." 

A review of the major job posting sites underscores Professor Dischiavc's claim: while it 

is easy to find d1ousand of Java job postings, it is hard to find more than 300 Cobol jobs 

on any site. 

That makes sense to Rick Mears. Senior Vice President/CIO at Owens Minor who says, 

"am I ever going to post a job to hire a dedicated Cobol programmer? Probably not. But 

we arc always looking for candidates with Cobol skills. My team's job is to grow the 

business. If that requires a Cobol rewrite, we all jump in and wash the windows.'' 
71 

f 


Insert 33796A.058

Steven Haindl, senior vice president and CIO for Atifleet, agrees. "It is impol1ant our 

staff be proficient in multiple programming languages, including Cobol, in order to have 

a deeper understanding of the business as it exists today, and more important. what it 

might look like tomorrow." 

Supp011ing multiple languages worries Syracuse's Mr. Dischiave. "Mixing the natural 

business language of Cobol i~1 newer languages is a uightmare waiting to happen. 

Why? Because the programming difficulty of~te newer languages can lead to sloppy 

coding." Edmund Lalli agrees, claiming, "programs like C#, with its reliance on complex 

S}onbols. are harder to understand." 

Is a pending Cobol skills gap fact or fiction? 

David Eddy, an industry analyst, says "the approaching Baby Boomer Cobol retirement 

brain drain is going to make Y2K look simple," But Don Resnik, program manager for 

IBM's Academic Initiative. disagrees. "Every I 0 years a Cobol skills crisis atises. Most 

CIOs are resourceful enough to attract, train or source for needed Cobol expertise. The 

more important issue going forward is tltat Cobol continue to be an essential component 

of enterprise computing strategies.'' 

Alberto Ruocco. vice president and CIO for American Electric Power, is in sync with 

Mr.Resnik's observation. Tite company is implementing a multi-faceted enterprise 

computing approach that supports the firm's Cobol code base. Mr. Ruocco says, "it is 

strategically important to extend the professional life of Cobol-trained staff with 

programs that accelerate Cobol knowledge transfer." Mr. Eddy is wary of most Cobol 

knowledge transfer programs, which he observes, ''are usually four years into a two year 

project" 

So what is the future of Cobol? 

When asked, Mr. Ruocco framed it succinctly, "Cobol is dead. Long live Cobol." 
72 

Chairman JOHNSON. No. Thank you for the questions. And 

thank you for your responses. 

Mr. Holding, you are recognized. 

Mr. HOLDING. Thank you, Mr. Chairman. 

Mr. Stier, I am going to follow up a little bit on my friend Mr. 

Larson’s line of questioning. This subcommittee has talked a lot 

about the critical need for SSA to update its seriously aging IT systems. What is it called? Thought it was Cobalt, COBOL from the 

1950s? And even SSA has stated that their previous strategy of incremental modernization isn’t going to get the job done, and there 

is a critical need to undertake a large multiyear approach to updating its aging IT. In 2016, GAO testified before this subcommittee 

about SSA’s struggles, the strategic planning and long-term planning when it comes to IT. 

So, Mr. Stier, maybe you could speak to the importance of having 

a confirmed commissioner in place to implement and execute a 

long-term multiyear task like IT modernization which seems to be 

a big issue not only for SSA but a lot of other government agencies 

as well. 

Mr. STIER. Yeah. Absolutely. And I think you put your finger on 

something vital there. It is across government. The Federal Government spends $80 to $90 billion in IT. The overall numbers are even worse across government than in SSA. It is about 70 percent in operations and 

maintenance. And the workforce challenges are also spread across 

government. 

You do have to have long-term leadership to—not only to be able 

to see a project like that through but also to make the commitment 

to prioritize it, because it is so hard and so difficult. No one in their 

right mind is going to do it if they are going to be around just for 

the first year of paying and not see any benefit later on down the 

road. I would say that GAO is one of the best run organizations 

in government, not in—substantially because you got a 15-year 

term. And whether it is Dave Walker or Gene Dodaro, you know, 

they know that, when they make the investments in their people, 

their systems, whatever, they are going to see that pay off for 

themselves. So, again, you have a better alignment. 

Here is what I think—what I would argue that you need to do 

in addition to the resource question here. One, it is not just the 

amount of money. It is actually having multiyear money and certainty. One of the big challenges, you know, you think about a 

business that you are running. You have capital budgets. You have 

the ability to actually think longer term about the kinds of investments that you are going to make. And agencies don’t have that. 

When you talk about these IT system, large investments, very, very 

hard to actually see them through when you have very short-term 

money. 

Number two, you need executives that actually understand technology. It is not just your IT workforce. You need executives themselves that understand how to drive these transformation projects. 

When the IRS had its major transformation the last go-around, for 

the first time in maybe ever, and certainly a long time, they didn’t 

hire a tax expert. They hired a technology guy, Charles Rossotti. 

And he was able to change the IRS in a pretty dramatic way. DifVerDate Sep 11 2014 08:27 Mar 19, 2019 Jkt 33796 PO 00000 Frm 000076 Fmt 06633 Sfmt 06602 I:\WAYS\OUT\33796.XXX 33796
73 

ferent model. You had someone who understood the large scale 

transformation that needed to take place the technology around the 

IRS. Problem being that once you do it, you know, 15, 20 years ago, 

it is not good enough. 

One of the challenges for government is we are catching up to 

the past. And you see these big long projects that fundamentally 

aren’t agile, that are not actually using the techniques that the 

best in class companies do, because they are thinking about a 10- 

year project, or whatever it might be, rather than the more 

iterative ‘‘We can make mistakes, but we are going to get better 

and better.’’ And that kind of development is fundamental, especially as the shelf life of technology is getting shorter and shorter. 

It is not good enough to build these long-term systems, expect 

them to live 30 or 40 years. They ain’t going to do that. You have 

to look at more commercial, that is practice, off the shelf stuff. You 

need a very different level of technology. You need different kinds 

of people like what you will see in the United States digital service, 

which I think is a good resource. 

But I think this is a great topic for you. You know, absolutely 

it begins with leaders. If you don’t have leaders, none of this other 

stuff is going to matter. But it doesn’t end with leaders. You need 

to have the technology transformation to change the capability of 

the organization. 

Mr. HOLDING. Thank you, Mr. Stier. 

Now, I want to switch gears really quickly to Ms. Bannon. And 

if this is beyond your brief, you can get back to me in writing. 

I understand there is a lawsuit pending at the Supreme Court 

related to the appointment of a handful of SEC administrative law 

judges. And in response to the case, the SEC commissioners have 

recently ratified the appointment of all the ALJs to ensure their legitimacy. But the Supreme Court’s ruling in the case could have a 

serious—could have serious consequences for all of SSA ALJs appointed by an acting commissioner. 

If you are able, could you walk me through these possible legal 

ramifications? 

Ms. BRANNON. So the concern in that case is that these ALJs 

are officers of the United States within the meaning of the appointment clause of the Constitution. If they are officers of the United 

States, then they have to be appointed in accordance with the constitutional procedures. The ratification was an attempt to appoint 

them in accordance with those procedures. 

The situation I think is analogous to the ALJs in Social Security. 

There are possible differences. And I think that was recognized by 

the courts that are considering this issue. 

I would be happy to—there are a lot of complex issues involved 

in this, so I would be happy to explore that more at a later date. 

Mr. HOLDING. Right. Thank you very much. 

Mr. Chairman, I yield back. Chairman JOHNSON. Thank you. 

Mr. Pascrell, you are recognized. 

Mr. PASCRELL. Thank you, Mr. Chairman. 

Good morning. All of you are experts, really, in this area. You did 

a terrific job. I am very interested in your testimony, Mr. Stier, because I think it is really a pass for us. You are demanding more 

of us, and we should have oversight that fights. Right now it is 

74 

kind of vague, foggy. And that is how a lot of people like it. So 

thank you for holding this meeting, Mr. Chairman, ensuring we 

have leadership in this critical area of Social Security and the Social Security Administration. 

There is no way an organization can effectively do its job without 

someone at the top planning for the long-term. We heard from Mr. 

Richtman the long-standing problems at the Administration, Social 

Security Administration. And that simply is not going to be remedied by appointing, confirming a new commissioner. We don’t even 

have a nominee yet let alone a person to take the job. That is unacceptable. We need to provide the Social Security Administration 

with more resources to reduce wait times for paying benefits, approving benefit applications, and responding to inquiries from the 

public. 

You can do go down many lists whether you are talking about 

transportation, educational technology, regardless of what you are 

talking about. Trade negotiations. We don’t have people to do the 

job. We just don’t. And you can’t ignore that issue. 

This is a pattern, a plague on both parties. No one is individually 

responsible. No party is individually responsible for this. We go 

along to get along here. 

Across the country there have been a closure of 64 field offices. 

Disability hearings backlog with an average of 605 days. I am just 

thinking of all the folks that I have come to my office for help for 

this, 605 days. 

In New Jersey, wait times in Newark average 668 days. That is 

almost 2 years. I mean, how long do we have to live? That is an 

interesting question. In Jersey City, 703 days. The South Jersey 

hearing office has one of the worst processing times in the Nation, 

739 days. And we talk about our responsibility to our veterans. 

What about our responsibility to our seniors? They served the 

country. They gave it the best. They made it the greatest country 

in the world. 

You know, this amounts to nearly 25,000 cases waiting to be 

heard. It sounds like the VA. These types of numbers are outrageous, and they are unacceptable, and we cannot argue them 

away. They didn’t happen overnight. It is not a Republican problem. It is not a Democratic problem. It is our problem, lack of oversight. They happen when congressional Republicans choose many 

times to starve the agency. Fewer resources mean fewer staff and 

tools which means more people are left out in the cold waiting for 

help. 

Adjusted for inflation, the Social Security Administration, the 

budget has declined 11 percent in the last 7 years. During this 

same period, the number of Americans receiving Social Security 

benefits has climbed by 15 percent, 8 million people. We are going 

backwards. 

Mr. Richtman, let me ask you this question. Can you talk about 

the enormous service delivery challenges facing Social Security in 

future years as baby boomers reach retirement age? What impact 

is that going to have? 

Mr. RICHTMAN. I think the problems that you have outlined 

will be aggravated. There will be more people brought into the system. If the trajectory of funding continues, there will be less money 

75 

to help more people. So I think it is pretty obvious, as you said, 

we are going the wrong direction. 

Mr. PASCRELL. And what that does is increase the lack of credibility in government. And it seems to me that that may be an objective of some people who get elected to come to this House. 

Just one more question, Mr. Chairman. 

Will these service delivery challenges be helped or hurt if the So- cial Security agency receives the additional $560 million Ranking 

Member Neal and Larson and Davis have requested? Is that going 

to help it? Hurt it? What? What is it going to do? 

Mr. RICHTMAN. Absolutely help it. We sent a letter to the 

House endorsing the legislation you just talked about. And we 

think it would make an enormous difference. 

We are trying to catch up now, and that is what this additional 

funding would allow. 

Mr. PASCRELL. I want to thank the honesty of all the panel 

members and thank the chairman again for bringing this subject 

to the American people. 

Thank you. 

Chairman JOHNSON. Thank you. 

Mr. Schweikert, you are recognized. 

Mr. SCHWEIKERT. Thank you, Mr. Chairman. 

And forgive me if I take a slightly one-off. I absolutely agree with 

everything that has been said here about, you know, the time for 

revolution and technology, you know, the mechanisms, if it is—and 

I think the actual number is, what, 10,300 baby boomers functionally retiring a day now since 2008. 

So if you—10,300 is 3.7 million a year. But my fear is—and some 

of this is going to be to you, Mr. Richtman. I actually think we are 

whistling also by the crisis. If I sit here and do math, Medicare Social Security will be adding 130 billion a year in additional entitlement spending. Okay. Think of that. Every 5 years that is the 

value of the entire Defense Department. So every 10 years, just the 

increased spending is two defense departments. Since 2008, Social 

Security Medicare account for 72 percent of all the inflation adjusted growth and spending here in government. 

Today, someone retiring in Medicare, inflation adjusted dollars, 

like-for-like dollars, put in $140,000 and takes up $420,000. My little girl, when she is a teenager, there will be only two workers, so 

one couple supporting a single retiree. Yeah, we have problems in 

their IT system, problems in their budget, problems in the outreach 

and the quality of customer service. And we have a crisis that becomes one of the greatest systematic threats ever to this Nation, 

and it is not decades away. It is in a dozen years. 

And so, Mr. Richtman, first, is there something wrong in anything I just said mathwise? 

Mr. RICHTMAN. Well, you know—— 

Mr. SCHWEIKERT. Is there anything wrong I just said 

mathwise? 

Mr. RICHTMAN. What is wrong with what you said is that these 

programs, Social Security, and a good part of Medicare is paid for 

by the payroll tax. And that is money that is dedicated to these 

programs. 

Mr. SCHWEIKERT. Okay. And your point is? 

76 

Mr. RICHTMAN. My point is, you know, we are not a group that 

has our heads buried in the sand. We realize if nothing happens 

in 2034 there will not be enough money to pay every beneficiary 

every penny that they are supposed to be paid. We are not saying 

don’t do anything, ignore the problem. First of all, it is not a crisis. 

The crisis was 1983 when we were looking at six months. 

Mr. SCHWEIKERT. So the—— 

Mr. RICHTMAN. So my—if you can let me answer. 

The answer is not to start talking about cutting benefits, cutting 

the COLA, raising the retirement age. The answer is looking at 

ways, reasonable ways, to bring more revenue into the program. 

Mr. SCHWEIKERT. Okay. So your solution is the additional tax 

revenues. 

Mr. RICHTMAN. My answer is to make—the payroll tax—— 

Mr. SCHWEIKERT. Let me finish. Let me finish. 

Over the next 30 years—and, now, this is not inflation adjusted 

dollars, just Medicare adds $40 trillion in debt. Just Social Security 

adds 19 trillion. I think the greatest systematic threat to seniors 

is almost what you just said, the unwillingness to actually either 

get leadership at this agency, leadership from all of us, leadership 

from the advocacy groups to actually do math, because, Mr. Chairman, math always wins. 

Chairman JOHNSON. Thank you. 

Mr. Kelly, you are recognized. 

Mr. KELLY. Thank you, Chairman. And thank you all for being 

here. 

Ms. Bannon, you had talked about the SSA being in violation of 

the Vacancies Act. If the President were to nominate a commissioner, would the SSA still continue to be in violation? 

Ms. BRANNON. So the Vacancies Act says that someone can 

serve either for a 300 term of—term of days starting from the vacancy. That is gone. Or can serve during the pendency of a nomination. So Ms. Berryhill would likely be serving in compliance with 

the Vacancies Act if she meets the criteria for a senior official who 

is permissively directed by the President to serve and if a nomination other than her is submitted to—— 

Mr. KELLY. Okay. I want to make sure we are doing that. 

Now, the other thing—question I want to ask, because I think we 

are all on the same topic and the same concern, and that is the viability of what it is that we put out for folks and the fact that it 

is funded by people in the workforce, because it is that—the wage 

taxes that fund us. 

I want to ask you something, because sometimes it comes down 

to how do we spend the dollars we get in. In 2008, the previous 

administration decided to develop an in-house software program to 

replace the commercial off-the-shelf disability determination system. The goal was to save money, right, and improve efficiency. 

However, to date, we spent hundreds of millions of dollars, missed 

all the deadlines, and don’t still have the project complete. SSA has 

spent well over $420 million on this project even though a commercial off-the-shelf program has existed for decades at a cheaper cost. 

And, unfortunately, under an interim director, this effort for an inhouse program has continued. 

77 

Are any of the witnesses familiar with the issue? And do you 

think not having a confirmed SSA commissioner has been part of 

the problem? 

Mr. Stier, I think you are spot on with this. So if we had somebody there—and I think the thing that we lack, and I think we all 

talk about this, Social Security can continue on this type of a program because it is not in the private sector. And what I am wondering about is, is it the process that is the problem? 

Mr. STIER. So I think that, unfortunately, there is a—and I am 

answering the question—— 

Mr. KELLY. No. It is okay. Because you are all—we are all concerned about the same thing. 

Mr. STIER. I mean, I think the—there are multiple contributors 

to the challenge here and—— 

Mr. KELLY. But my question, if you are in the private sector 

and you have a problem that you have to solve; and the reason you 

have to solve it, because if you don’t solve it, it means you go out 

of business. Unfortunately, there is no deadlines for any of this. 

There is no possibility this ever going away. And we keep saying 

what we have to do is find more revenue somewhere. 

And so I look at this, and we say we sent $420 million on a 

project even though there was an off-the—there was already a commercial off-the-shelf piece available. But we decided not to do that. 

And you could only do that if it is not your own money. But if it 

is your money and you have to stay open, you do what is in the 

best interest of the people you serve and the money that you have 

to work with. So I have always wondered is it a lack of money or 

is the fact that we don’t spend money the right way? 

Mr. STIER. So my view is you are going to have, again, a combination of multiple things here. It actually is more complicated. So 

sometimes the model for folks in thinking about how you run a 

government agency is just run it like a business. The answer is you 

cannot run the government like a business. You—— 

Mr. KELLY. I understand that. We are $20 trillion in the red. 

Mr. STIER. There you go. Correct. But you can apply business 

principles. It is not sufficient simply to look at—— 

Mr. KELLY. Okay. Can I ask you? Because you just said we 

could apply business principles. 

Mr. STIER. Yes. 

Mr. KELLY. There is no CEO serving on any private entity right 

now that would be looking at this and say ‘‘I still deserve to be in 

charge.’’ 

My concern is, as we go through this—we have been waiting 5 

years, right, for a commissioner? So it just didn’t start now. But 

this process of getting through—and I have got to tell you, if somebody from the private sector who is looking to come on and somehow help his country or her country by serving in government and 

then looking at the process they have to go through and be on the 

sidelines waiting to be approved, you would have to be a damn fool 

to sit there waiting for that to happen. I just think we lose so much 

enthusiasm, so much passion. The fact that we leave people sit on 

the sideline and say, ‘‘Some day you will get a chance to get on the 

field, but not yet.’’ 

78 

Mr. STIER. Yes. And your proposition is absolutely correct for 

the political appointees. It is also true for the career folks as well. 

So you have a lot of great talent that actually would like to serve 

their country. The process of hiring is overly complex. It is too long. 

Mr. KELLY. That is my point. 

Mr. STIER. You are entirely right. There is opportunity to bring 

great talent in. And the process itself is dissuading really good people from pursuing those options. And that is something that ought 

to be changed, and it is something that, you know, frankly, again, 

that you have some opportunity to change. 

So when you would think about the rules that govern the way 

our government operates were largely created in a different era. 

You have a legacy government that hasn’t kept up with the 

world—— 

Mr. KELLY. One of the things I have noticed since I have been 

here is, you know, when you ask somebody, So why do we do it this 

way? They say, well, that is the way we have always done it. And 

I said, well, that that is not a good process going forward. 

I find your testimony really good. And I just—and I know. There 

are so many really patriotic people that serve in the government. 

It has got to be very frustrating to be watching this and say ‘‘I 

know it could be better if we could just get this process changed 

and make it more—make it something that makes sense. 

So I appreciate you being here. Mr. Chairman, thanks for having 

this. I think we all want the same thing for all our people because 

we know who funds it. It is the people who are working and the 

people who pay them to work. 

Mr. STIER. Yep. 

Mr. KELLY. That is at a wage tax. 

So thanks for being here. Thanks, to all. I really appreciate everything you all are doing. 

Chairman JOHNSON. Mr. Rice, you are recognized. 

Mr. RICE. Thank you, Mr. Chairman. I am struck by the continued testimony we hear about various government agencies and 

their inability to modernize their IT. And I think that, you know, 

certainly it is not going to solve all the problems but it is going to 

go a long way toward solving a lot of these problems. I think it 

would definitely affect the 600A wait time. I think it would probably cut down on the need for some of the employees and probably 

cut down on some of the needs for funding. 

So Mr. Stier, I want to ask you. This, today, is about Social Security and—I guess, Ms. Curda. You said they have how many systems running on legacy programs? 

Ms. CURDA. They have a total of 66 systems. 

Mr. RICE. Sixty-six systems. 

Ms. CURDA. Yes. 

Mr. RICE. That seems like an awful lot. Do they really need 66 

systems? 

Ms. CURDA. That, I don’t know. But someone had referred to 

the modernization of their disability case processing system, and 

that is a case of where you have got 54 disparate systems operating 

across the States that are used to process the disability claims. And 

the point of the modernization is to bring all those together. 

79 

Mr. RICE. So right now there are 54 different systems across 50 

States? 

Ms. CURDA. Yes. 

Mr. RICE. So some States have more than one system, and they 

can’t necessarily talk to each other? 

Ms. CURDA. Probably not. 

Mr. RICE. Do you know how many of those are these legacy programs that have been around for 50 years? 

Ms. CURDA. I am sorry. Could you repeat that? 

Mr. RICE. Do you know how many of those are these legacy programs that have been around for 50 years? 

Ms. CURDA. No, not specifically. 

Mr. RICE. Okay. You know, we met with the IRS a month ago, 

and they said that they had 300 points of failure, which means 

that—over 300. It was like 320. Which means that they have programs that they are running, 300 different systems, where they 

have just one guy who knows how to program it because it is so 

old. And if he dies or he retires, they are in trouble. 

Ms. CURDA. Yes, there is the same problem at the Social Security Administration. They have had to rehire people who have retired who have the knowledge to do the programming of the 

COBOL systems. 

Mr. RICE. You know, Mr. Larson likes to say that Social Security is a really good insurance policy. It is the most effective insurance policy you can buy. So just think of an insurance company, 

say MetLife or Aetna. Do you think they are all running these legacies programs, any of them? 

Ms. CURDA. Probably not. 

Mr. RICE. Probably not. 

Mr. Stier, why is it that, you know, it is not just Social Security, 

it is not just the IRS. CMS, they testified in front of us last week 

about the opioid crisis. And I asked them, can they track the prescriptions? You know, we are paying for it. I mean, the Federal 

Government is the biggest drug dealer in the world. I mean, we are 

the source of the money that buys these opium prescriptions. 

Medicare and Medicaid. And I asked them if they could track 

those prescriptions and tell how many pills people are buying. She 

said, We could in 40 States. Well, we have 50 States. 

Air traffic control, we are working on a system that is developed 

just after World War II. They are handing slips of paper back and 

forth. Why is this a systemic problem in government. Why is it 

that, you know, you look at every private agency, and they have 

all long, they don’t even know how to spell COBOL. That is long 

forgotten. Why is this a systemic problem in government? 

Mr. STIER. Three answers: Number one, when you look at the 

top of the House, the leadership, you have got the short-term leaders that are not aligned to the long-term needs of the organizations 

they run. That is the fundamental here. Very hard to get, you 

know, you get the exception. You will get someone who comes in, 

who is willing to make all the hard calls, take all the lumps, even 

knowing that they are not going to get any of the benefit on their 

watch. But that is number one. 

Number two, is you have real challenge around realtime performance information in government. In a private sector organization, 

80 

you have clarity of outcome because you have a financial metric 

you are trying to achieve. Government is trying to seek public 

goods—— 

Mr. RICE. In other words, it is not their money. 

Mr. STIER. I am sorry? 

Mr. RICE. It is not their money. 

Mr. STIER. No, it is not—— 

Mr. RICE. The people who are running it—— 

Mr. STIER. It is a different point. It is not that it is not their 

money, it is that their performance goals are not about money. 

Their performance goals are about a public good. So if you are 

working at the State Department, it is about national security. 

The measurement in government in the public sector is harder. 

So I am trying to give you what I think are the root causes. And 

the third one is—I am going to say this and I am hoping that it 

will be taken in—is you. And it is Congress. And the reality is Congress has a fiduciary—— 

Mr. RICE. Amen. 

Mr. STIER [continuing]. Responsibility for the executive branch 

in four different ways. Number one, is the budget. You are not giving budgets—you talk to me about any private sector executive out 

there, they could not run their organization. They had everything 

else that they needed with the kind of runway you give them. And 

it is not the amount of money, it is the fact that they don’t have 

a budget. You have 21 CRs, or rather 21—yeah, it has been like 

21 CRs in the last, whatever, how many, years. It is nuts. Can’t 

be. 

Number two, and this is on the Senate, is they have a role, to 

play obviously, in the confirmation process. Number three, it is 

your oversight. This is a rare kind of hearing that you have here. 

You need more of them. You need to be holding the leadership and 

the executive branch accountable. 

And number 4, you need to look at the underlying authorization 

laws. Because, again, you have legacy organizations. You have legacy understanding of what the mission and goals are, and that 

work hasn’t been done by this body. So with all due respect, those 

are my three reasons. 

Mr. RICE. I am glad you said that. I am making it my goal in 

the immediate future to try to drag some of these agencies into the 

21st century. 

Mr. STIER. I would love to be of any assistance that I can possibly be on that goal. 

Mr. RICE. Thank you, sir. 

Chairman JOHNSON. Mr. Crowley, you are recognized. 

Mr. CROWLEY. Thank you, Chairman Johnson. Let me yield a 

minute to my colleague from Connecticut. 

Mr. LARSON. You know, I just wanted to followup on what Mr. 

Stier had to say. And I think the line of questioning here is great. 

I think there is some great common ground here that we can find. 

But I want to go back to another point. And I do believe that this 

is an insurance issue, and this is an actuary issue. 

Mr. Stier, have any of your insurance premiums gone up since 

1983? 

81 

Mr. STIER. This sounds like it is going to be an ugly line of 

questioning. That sounds like a rhetorical question to me. 

Mr. LARSON. It is—— 

Mr. STIER. Yeah. 

Mr. LARSON [continuing]. A rhetorical question, because they 

have. 

Mr. STIER. Yeah. 

Mr. LARSON. But to your three points, one, and I think you also 

mentioned lack of a capital budget, but with this kind of oversight 

and with some of the people that we have here on this committee 

and some of their knowledge, I think with a capital budget, getting 

those kind of improvements that CEOs of a private sector company 

would do would come automatically. But when Mr. Richtman was 

asked before, I mean every, you know, everyone in America understands, whether it is your homeowners, your automobile, your 

health, whatever, it has risen actuarially. That hasn’t happened 

since 1983, so it is no wonder without any kind of investment on 

our part that, you know, we find ourselves in this situation. And 

yet, what is Social Security but the full faith and credit of the 

United States Government. 

I make this point because I think this is easily addressed. But 

if we just address, and this is a point my colleague was making, 

if you just address the spending side but we don’t address the technology and capital improvement side, and do that in terms of the 

revenue, then, you know, I think that we have a balancing out in 

a way that we could phase this in and work through this in a way 

where all Americans would benefit. 

And we could take Social Security off the list of concerns that we 

have here and let Americans all take a deep breath, including 

millennials and Gen-X’s know that—— 

Mr. CROWLEY. One minute. 

Mr. LARSON [continuing]. We have solved the future. I am 

sorry, Joe. Go ahead. 

Mr. CROWLEY. That is a long minute. Thank you. Thank you. 

Mr. LARSON. I was a former chairman. You know how that is, 

Joe. 

Mr. CROWLEY. You are killing me here. 

Let me thank you for this hearing today. 

And Social Security is what keeps millions of Americans from abject poverty. It ensures that if you are injured on the job and you 

can’t return to work, you have the affordability of disability insurance. And it really affects the neediest, the most vulnerable 

amongst us. 

It is something that they have earned. It comes out of their paycheck each and every month. And that is why, this is what makes 

what has been done to the administrative part of the program so 

unconscionable, in my opinion. 

I agree with the chairman that we need a Social Security commissioner who is permanent. I appreciate the bipartisan work on 

this. And I really don’t understand why the President hasn’t even 

nominated one to be the Social Security commissioner, but the 

main problem is that the administrative funding for SSA has been 

seriously hurt since my Republican colleagues have taken office. As 

a result, we now have a wait time in Queens and the Bronx of over 

82 

700 days. That is 700 days wait time. That is nearly 2 years. And 

Americans are quite literally dying while they were waiting for 

their benefits to be approved. Thousand of Americans. 

And, again, we are talking about benefits that they have earned. 

I have a Daily News article that I would like to enter into the 

record, Mr. Chairman, that talks about the ridiculous wait times, 

including for a man who has spinal cord injuries. And he waits for 

his disability. It shows why we need to make sure that people actually get the benefits that they have earned. But the article also 

shows how this is a manmade crisis. 

[Member Submission follows:] 

83 


Insert 33796A.059

Daily News: Feds' bureaucratic hellscape gnaws at New 

Yorkers' health, hope 

fJyG/enn IJ/oin, December 25,2017 

ALBANY - Thousands of injured or sick workers in the New York City area are 

spending the holiday season in bureaucratic limbo as they wait to see iftbey qualify for 

federal disability payments. 

They a1'e among more than a million injured or sick workers nationwide whose initial 

claims for Social Security disability benefits were denied and are now stuck in a 

monstrous backlog of cases waiting for an administrative law judge to decide their 

appeal. 

"It is just awful," said Elsie Nelson, 59, a former school bus attendant from Brooklyn 

who suffers from rheumatoid arthritis and has been waiting for a hearing on her appeal 

since March 2016. 

" I am on the verge of bankruptcy," Nelson said, adding that she's been infom1ed by 

federal officials that her appeal could take an additional nine months to be resolved. 

Five years ago, most cases were decided within a year, but the average processing time is 

now nearly double that- about 606 days. 

In the New York City area, however, waits arc much longer, often stretching well beyond 

700 days, according to data from the Social Security Administration. 

The administration estimates that over the past two years, more than 18,000 people across 

the country have died while waiting for their appeals to be heard. 

" It is a really long haul where the odds are against you from the minute you come in the 

door," said Mary Da le Walters, a senior vice president at Allsup LLC, a fim1 that 

represents applicants. She noted tbat only about 33% of people have their initial disability 

requests approved. 

Walters and other advocates blame several factors for ihe backlog, including a lack of 

judge$ and suppoct staff to decide cases and not CtlOu!)h fundin!!t fforn Congress. 
84 

f 


Insert 33796A.060

' 'Instead of making common-sense investments. Republicans have cut Social Security's 

budget," said Rep. Joseph Crowley, a Queens Democrat and member of the Ways and 

Means Committee. "Because of these cuts, there are not enough examiners and judges 

available to make decisions about benefit applications, resulting in this outrageous 

backlog. They are punishing people wbo are hurt through no fault of their own, and it has 

to stop." 

Rep. Sam Johnson, a Texas Republican who is chairman of the Ways and Means 

Commillee's subcommiuee on Social Security, agreed the backlog was unacceptable but 

placed blame for the situation on the fact that the agency has not had a full-time 

conm1issioner since 20 I 3. 

"Without a commissioner, Social Security is just spinning its wheels." Johnson said in a 

suuemcntto the Daily News. 

Darren Lutz, a spokesman for the Social Security Administration, said the agency is 

working to reduce the backlog but conceded "previous hiring freezes" had slowed its 

abili ty to hire new judges and staff. 

"For several years in a row, the agency received a record number of hearing requests, due 

primarily to the aging of the baby boomers as they entered their disability-prone years," 

Lutz said. 

"\Ve also received an increase in applications during the economic recession and its 

aftermath. During this time, our resources to address disability claims did not keep pace 

with the increase in applications, and backlogs grew." 

Lutz insisted, however, that the agency is making progress in reducing the backlog and 

still plans to bring on hundreds of new judges. 

"Reducing dJe wait times for a hearing decision is of u~nost importance," Lutz said. 

In the meantime, inj ured workers are left to wait. 

"It's pretty damn frustrating when you have no money coming." said Michael Schwartz, 

62, of Forest Hills, Queens, who says he c.an no longer work because of spinal cord 

injuri<:s he suffered in a 2015 fall. "T11crc is something wrong with the system he~ ... 
85 

Mr. CROWLEY. There is a simple fix to the problem, which is 

to provide funds to help process benefits and adjudications. But the 

Congress has kept SSA administrative budget basically flat. And 

when you add in inflation, we are talking about massive cuts. Is 

it really too much to ask for proper funding so people can get 

through on the 1–800 number? Is it really too much to ask to hire 

more staff so people can get their benefits on time? It shouldn’t be. 

So let’s make it happen. 

I know over 100 of my colleagues have joined myself and my 

good friend from Connecticut, Mr. Larson, in sending a letter to the 

administration urging a fix for this problem. And if this Congress 

can afford to cut trillions in taxes for the wealthiest, can’t we also 

ensure that people get the Social Security benefits that they have 

earned and they deserve. 

Mr. Richtman, I have just a quick question for you. Would additional funding allow Social Security to hire judges, attorneys, decision-writers and clerks needed to reduce the delays in disability appeals hearings? And would additional funds help Social Security 

decrease wait times in places like my district in Queens and the 

Bronx? 

Mr. RICHTMAN. The answer is yes. Before you arrived at the 

hearing, I commented that the National Committee to Preserve Social Security and Medicare has endorsed increasing the funding by 

$465 million this year, and about the same next year. 

It is not only the points that you raised, but there are people who 

actually develop and write the opinions. There aren’t enough of 

them. That is part of the delay. And waiting 700 days is not unusual. 

And, you know, I just wonder how many Members of Congress 

would be willing to wait 700 days to have a decision that important 

made, or to wait 4 hours to talk to someone in a Social Security 

office. Four hours, that is how long a lady that I met with in Florida last Friday had to wait. There is—and I may not make any 

friends, but there is a Social Security office in the building next 

door, and there are two people there that serve everybody. And 

anybody can use it, but hardly anybody knows about it. And you 

don’t have to wait 4 hours to talk to someone. You can talk to 

someone immediately. I have been in that room. I worked for a 

Congressman here, I worked for Sid Yates years ago, and I know 

where that office is. You don’t wait at all. 

So I think it is important for Members of Congress to understand 

the reality of having to deal with these kinds of waits, or having 

to sell your home because you are waiting so long to get a benefit 

that you deserve. So the short answer was yes. The long answer 

I just gave you. 

Mr. CROWLEY. Mr. Chairman, let me once again thank you for 

holding this hearing and in a bipartisan spirit as well. I think 

there are things we can do to reduce this wait time and to help our 

constituents. This is not a Republican or a Democratic cause. It 

just so happens you all are a majority now. The responsibility here 

is more incumbent upon you all, but we want to help. Democrats 

and Republicans want to work together on this issue to address the 

waiting period. It is just unconscionable, as I mentioned earlier. 

So thank you, Mr. Chairman. 

86 

Chairman JOHNSON. You are welcome. You know, as we have 

heard today, Social Security has been without a Commissioner for 

5 years. We have also heard that Social Security is facing critical 

challenges that aren’t going to get any better without real leadership. Social Security is just too important to continue to leave on 

autopilot. And that is why today, I once again ask the President 

to please nominate a commissioner without delay. 

Mr. President, we need a nominee, and we need one now. America deserves nothing less. 

Thank you to our witnesses out there. We appreciate all of you. 

Thank you for your testimony. Thank you to our members for being 

here. 

With that, the subcommittee stands adjourned. 

[Whereupon, at 11:14 a.m., the subcommittee was adjourned.] 

[Member Questions for the Record follows:] 

87 


Insert 33796A.061

COMMITTEE ON WAYS AND MEANS 

U.S. HOUSE OF REPRESENTAllVES 

WASHINGTON, DC 20515 

Valerie Brannon 

Legislative Auomey 

Congressional Research Service 

Library of Congress 

I 0 I J ndependenee A venue SE 

Washington. DC 20540 

Dear Ms. Brannon, 

March 22,2018 

·Thank you for your testimony before the Commiuee on Ways and Means Subcommittee on 

Social Security at the March 7, 2018 hearing on "'Lacking a Leader: Challenges Facing the SSA 

After Over 5 Years of Acting Commissioners." In order to complete our hearing record, we 

would appreciate your responses to the following questions: 

I. A violation of the Federtd Vacancies Reform Act of 1998 prohibits the exereise of 

nondelegable functions and duties of an office. What is a nondelegable function or duty? 

How is a function or duty determined to be delegable or nondelegable? 

2. What are the nondelegable functions or duties of the oflice of Commissioner of Social 

Security? Are there common nondelegable functions or duties exereised by other heads 

of federal departments and agencies that are considered delegable functions of the 

Commissioner? 

We would appreciate your responses to these questions by April S, 2018. Please send your 

response to the attention of Amy Shuart, Staff Director, Subcommittee on Social Security, 

Commiuee on Ways and Means. U.S. House of Representatives, 2018 Rayburn House Office 

Building, Washington, DC 20515. In addition to a hard copy, please submit an electronic copy 

of your response in Microsoft \Vord format to mm.russcllfii>mail.housc.gov. 

Thank you for taking the time to answer these questions for the record. If you have any 

questions concerning this request. you rnay re<~ch Amy at (202) 225-9263. 

Sincerely, 

Sam Johnson 

Chai1·man 

Subcommiuee on Social Security 
88 


Insert 33796A.062

~ ~ • Congressional Research Service 

,,::::;;;=;;;;;;;;;;;;;;;;;;;i'i., Informing tho fogis.latjvo debate since 1914-------------

MEMORANDUM 

To: 

From: 

Subject: 

Hou-se Committee on Way$ nnd Means.. Subcommittee on Socinl Security 

Attention: Amy Shuart, StafTOireetor 

Valerie C. Brannon. legislative Anomcy. vbrannon@crs.loc.gov. 7-0405 

Rt.i"tH.mses co Questions for the Rt'tord 

March 30, 2018 

Thi$ memomndum responds to Chninnan Johnson's letter of March 22, 2018 requesting a response to 

questions for the record in CQnncction with the March 7, 2018 hearing entitled "Lacking a l.cttdcr: 

Challenges Facing the SSAAfler Over 5 Years of Acting Commissioners" before the Commiucc on Wnys 

and Means, Suboommiuec on Social Scc:urity. 

Question I. A violation of the FcdcroJ Vottmtics Rejom1 Acl of /998 prohlbilS the exercise of 

nondelegable fuoctions and duties of M office. Wh<lt is a nondelegable function or duty'! How i.s a 

function or duty dctem1ined to be delegable or nondelegable? 

Answer. The Fcdcrnl 'f.tcancics Rcfom1 Act of 1998 (Vocanc.ics Act) gcnc.rally provides ''the exclusive 

means for tcmpOmrily 3uthorizing an :~cting omc~'llto perfom1the functions Md duties of any office of 

Dfl Excc:utivc agency •• , for which appoinlm¢nl is required to be made by the President by and wilh the 

ndvicc al)d consent of the Senate. •·t The Vacandcs Act defines " function or duty .. to include only 

functions or duties that arc (I) C$toblishcd either by stotutc or regulation, and (2) "required .. by that statute 

or regulation "to be pcrform«t by the applicable officer (and only that officc,r) ... l Accordingly, the 

Vacancies Act nppc::us to npply only when n govcmment official pcrfom1s a nondelegable duty of a vacant 

office, defined as a function or duty that is "required" to be pe,rfonned by a particular officer. If a fiLnct.ion 

or duty is not cxclusivdy assigned to a particular officer, it is outside the purview of lhe Vacancies Act 

There is very liulc C3$C law interpreting what types of duties arc nondelegable for purpoSC$ of the 

Vacancies Act.) Nonetheless. some laws might obviously signal through their text that ecrtttin duties arc 

nol)deleg3ble. For ex..,mple, :1. statute or I'Ctuhnion th3t expressly prohibits deleg.11ion or t1 duty likely 

renders th.::tt duty nonddeg.nblc for the purposes of the Vacancies Aet.t Altcmatively, n suuute or 

' S U.S.C. § Jl47(a). 

: frJ §J348(•)(2), 

J .W Scha~ icokc Tnhal N':mon \', K.:11lC'IhM1o:, S87 1'. Supp. 2d }89, 420(1>. C~;onn . 2008), o.ff'd, 587 F.Jd tJl (24 C ir. :ZOOCJ). 

1 -SNS. REI'. NO. IOS..l $0. a1 18 ( 1998) ('Thr: f~oW~Ctiv.-.s ordi.Jiics of !be offi« t.h.u (:Ill be forme..l (tl'llyb)• 1M head ofdt¢ 

cxeo.-uli\'C o~.q•~ lhtt ~ <k.-fmod as 1be not' bl~ ~~~~Clioos or dU11i<es.()(1be offi«J, ••. "'): .u.. ~g .. 22 U.S.C. ~ 

436S(D)(2)(Jl)(iiXI) ("TOO St•c.:n.'lary I of Stat.:) MU)'NOI ~kxart•lhc v.11i\'<'f ll~:<bilrit und.:rcbu,;c (i) v.iih l"C:'Jli.'Ct to • thllnr:«y 

nt tw'lf UI:Wo!:l.lild ~"(l.'t'l'fl~•""".i ) 

(coolurucd.-) 
89 


Insert 33796A.063

rcgulatiorl thnt cxpl'cssly provides that "orlly'' a certain officer may pcrfoml a cc.rtain duty would also 

likely make that duty nondelegable ~ 

Outside the context of the Vacancies Acl, the Supreme Court has recognized that if a statute specifically 

vests authority in certain n:uncd officers. chc statute may probibic any delegation oftbot authority to 

officials other than those specifically named in the statutc.6 Abscnl such an express Limitation. however. 

courts have not yet weighed in on what language suffices to make any particular duty nondelegable for 

purposes of the VacanciC$ Act. The Government Accountability Office (GAO) suggested in one opinion 

thnt it migln not be enough for a statute or rcgula.tion to "assign'' a furlctio'' to a particular office.

7 ln that 

opinion, the GAO concluded that the Vacancies Act .. requires langJ.ragc that clearly signals duties or 

functions th:ll cannot be delegated, such :lS providing. final t~pprova l or final dccisionm:tking tauthority in 3 

particular position.'" This opioion indicates th:n whether a job responsibility is nondelegable may rum on 

whether that duly represents no exercise of"fina1'' autborily.' Ultim:~ ely, the GAO decided thatthc duty 

disputed in that c.aso-thc: general responsibility of the As.sistttnt Auomey (ic:neml for the OAice of Leg:~ l 

Counsel to supervise the dcpanmcnt-\vas delegable because the regulations •·comainfcdl no language 

indicating that this responsibility (or any of the other cnumemtcd responsibilities) may not be 

delegated. "

10 

Question 2. What are the nondelegable func tions or duties of the office of Commissioner of Soe-i:al 

Security? Arc there common .,de egt~b c functioos or duties cxc.rciscd by other heads of fcdcr.~ l 

dcpanmcnts and agencies that arc considered ddcgable functions of the Commissioner'! 

Answer. The inquiry into whether a function or du()' is ndelcg:~blc is highJy f.'lct-spccitie and depends 

on the n:aturc of the particular duty being pcrfom1cd. Accordingly. il is difficvlt to compare I he functions 

or duties of the Commissioner to those of othC:::-1' fcdcr:al agency heads. 

As a g.cnera1 1U3ttcr, the Soci3l s~ ri y Ac.t broadly provides that the CommissiO!lCt .. may 3Ssign duties, 

:md delcg:ue, or authorize successive rcdelcg_ations of, authority to act and to render decisions, to such 

officers and employees of the [Social Sccurilyj Administr.uion as the Commissioner may find 

neccssary.''

11 Additionally, the section ofll,e Soci31 Sc:::curity Act that outlines the proc:::edu.rcs to dctennine 

individuaJs' eligibility for benefits specifically authOriZC$ the Commissioner "to delegate to any member, office.r, or employee of1be Social Security AdminismHion designated by lhe Commissione-r any of the 

powers conferred upon the Commissioner by" thai suuutory section.

12 These provisions suggest thallhc 

Commissioner nt:ay gencrnlly delegate ttuthority to Soci:al Security Admitlistration officials. 

There arc 1hree more provisions in 1he Social Security Act lh1't expressly 3ddrcss-:\nd implicilly limitthe Commissioner's ability to delegate certain 3Uthority. The firs1 provision allows the Commissioner to 

'SN 5 U.S.C. ~ 3348(a)(2) (de lining "function or ~y'" a:> any runctioo «duty "rcqu.irod" by a slaLUtc or regula~ ion "to be 

pcrfomled b)' the applicable officer (and mJy that oflittr) .. <~-mphas s added)). 

6 .Xtt Ur'litcd States v. Giordano. 416 U.S. SOS. 501.08 (1974) (lt()lding tl'llll wlt~tte t8 U.S.C. § 2516 \'CS:t«< cutaill authority in 

tbc-Attom.-y Gcni.Tal, Of any .A$$aslanl Altornc)' Ocnerul spec"'IIY <1¢._.,jgnatl'd by thi: Attorney Gcncr.d.- ''Co ~i'S: did no4 

intcJMIIhc po..-.'tr to autborizc wircUip llJl'p)tcadons to be exercised by any ull.tividwls otllt'f lban tbe Attorney (ia)tl'tl) «an 

Assimnt Attcmcy General spcciaiJy <b:ignated b)' him'') 

'··('d, Vac-fUlcies Rcfonn Aet of 199S • A$."i51illlt Anomey C'~~t ,. for the OOice of l.epl Co..1nsel, l).S. t)ep'1 of Ja;tiee, l\-:\10780, 

200SU.S. <:omp. Gtm. I .. I!XIS IOI. :.t •11 (Con'lp. Ci.."Jl.June 13, 2008). 

' ld. at •12 . 

• ,d, 

10 IJ. urll~r. lb: OAO bcli .. .....W thilt ''the Depanment 's pru<;tke or dekguti.l'l!, \'lriOI.lSdtlllil'8 t;~gnl.-d to the 1\'IICaiJI otr.cc) .. 

indic-ates that tile Department's inccrpretation oftbi$ regutatof)' pr<Wisioo lw. pcnniucd stiCh dc:kgatioo in the regular coul'llC." /d. 

II 42 U.S.C.. § 902(11)(7). 

I t /d, ~ 4\1)(1). 

(continued .•. ) 
90 

f 


Insert 33796A.064

emer into agrec1'11C1ltS with state and locaJ govcnln\cnts to extend services 10 those entilics' employces.

1.J 

This st:~hltc provides that the Commissioner .. is ;~uthorizcd, pursuant to agreement with the head of any 

Federal agency. to de-legate any of the Commissioner's func-tions under t1liS section to any officer or 

employee of such agency."1

" Second. two separate statutes - give the Commissioner the powe.r to address 

fr.lud :tnd provide th;u the Commissioner n.1ay delegate chose powers .. co the Jospcctor Gcncral."u By 

expressly naming the officc.rs to whom the Commissioner m~y delegate 1hese specific powers, these three 

provisions appear to implicitly prohibit the Commissioner from delegating those powe-rs to any o1hcr 

officers. ul 

As discussed, absent such a clear limitation on dclcgability, it is difficult to dctcnnine whether any given 

duty oft he Commissioner is nondelegable. The fact that a duty is expressly assigned to the Commissioner 

in a Starute or regulation is like?: a necessary condition for a duty 10 be e:onsidered nondelegable, but may 

oot be sufficient to make it so.• The Soci31 Security Act assigns a v.idc vnriety of respoosibilitics to the 

Commissioner, expressly identifying .. the Commissioner" as the person co carry out these ducics.

18 

However. tbc.re appear to be no provisions within the Social Socurity Act lhat assign a duty "only:· 

"solely," or "exclusively .. to the Commissioner. 19 

Moreover. the dclegability of a duty will likely tum on the nature of the task.:. For example. there arc 

three statutes that designate 1he Commissioner an ex officio member of the Board of TruStees of certain 

1.rus1 funds. !I An e.'t officio member of a board serves "by virtue of holding 3Jl office .. ·m Arguably, bceausc 

the duty to sit on these boards is inJJcrently tied to the office ofthc Commissioner itsclf.

23 any ex officiq 

duties rel:ncd co these boards would be nondelegable. 

Ultimately, bec-ause there is so little case lnw defining wh:lltypcs of duties arc nondelegable for the 

purposes of the Vacancies Act, it is difficult to come to any definitive conclusion regarding whether the 

Vacancies Act W011ld govern the pcrfonuanec of most of the duties assigned to the Commissioner. 

"S«UJ. §418(a). 

14 /J. §418(h). 

u /d. u 1320: •• S(i). 13201>-6(i), 

•• See U'Ritcd States'· Giordano. 416 U.S. 505, 507-08 (1974). 

11 St~e,. e.g., Fed Vlle4ncics RtfOfnl ACI o( 1998· AUiSlllt.llAttOOI<:)'Gcn. forllle0flioeofl..c&-'1 COI,u~ . U.S. Ocp'tofJ~iee. 

B-310780. 2008 U.S. Con.,. G.'11. U.XIS 101 (Comp. G"'fl June 1), 2008). 11 Sre, e.g., 42 U.S.C. § 4Q5(a) ("lbc. Qmwnis:s-ioocrorSocial Securi1y .shall have full JlO"''"" ood autOOrity to mnke rules- and 

regula. toM nnd to es.1ablis;h proc~·~ I),)( inc(lllSistcnt \'lith ll~~: provisions or this lille. v•hi<.h are necess:uy or appro,xiate to 

eafty Otll sudl >tovisioo.~ .••. ''). 

111 No $\l(;b !>l::tllltt.'S " 'l:re n.1umt.V after running U1e following s .... ..._rctl of the United States Code s._.,...;oe uSiRJ IA:xis A"'-anee: unnnno((oommi:ssi<n"f l:s (only OR c:.xdusively OR Slt)ldy))/p ··:wx:.-1 s .. 'Ctlrity/. 

10 .See Ft-d. Vacancies Rerorm Ad of 1998 • As:siS1atU Attorney ('.c~,. for the Office o(l£gal Counsel, U.S. Otp't of Justice, Jl. 

310780,2008 U.S. C(lft'lp. (i(:n. l.EXIS 101, at •tl (Con19- Gen. Jmw: 1.). 2008). 

· 42 U.S.C. § 401(c:) Q:i.'dcrll Old-1\g(' and Survivors nsumn~ Trust 1'\md and lbt ~dcr.tl Disability lnst.nllCc: Trust t'und); l<l 

§ 1395i(b) (F .. -dcral S~mtntary kdkallnsusance Trust fund); ld. § I 395t(b) (fcderoJ H06pilallnsl.l"ancc: Tn•st J:Und). 

n 01.AC'K's LAw Dtcno~.o.R.Y (lOch Q;l 2014) (<.kfmitl8 "menlblT ex omcio·· as '"(:a) mtml>er who so·,-es oo a bo.'lrd Cl OC)Inminec 

by virtue of holding an oiY~«-.11nd wbo$c mc.ro."rSJUp will Ow:rcfor-e ~ "'ith the oiYh:e to bl$ or h..,. suc«:ssor·). !We ()/.w icl. (<ldirong '"ex offioo .. ns lbl)' vtrtuc or beta~ or.n otfioc: by vtrtuc fu~e a\lhonty impticd b)' office·). 

U&ekL 
91 

[Public Submissions for the Record follows:] 

92 


Insert 33796A.065

M.arch 12,2018 

Social Se-curity Suhi "' .. rtllnitltt 

My tl31l)C is M:uy 1 .. Jones, private cit Z~o."'l. 

·~tr:insalndc1: halln~ttes F{l(:irtg the SSA A.flet S Ye:m qf ActiJtg Commi.uiOtiCI'$ .. i$ :a sut>je<:~ th:n I 

fed I must addi\.'S!t. ·11\c J)«lplc d~ndc-nt of Social $1.-ctarity in\'Oivc my family ;nember~t, born i*' the 

1930's and 1940's., who worked hatdef than any ocher subscquan generation f01ging out a lire for 

thcrnscl\'es and their fa ie~t. TI.cir benefits are miniscule for the: hard physical labor that they put into 

their work. The pcq>k who are dcpc:ndent on Soc.ial S«urity are disabk'd military personnel Of disabled 

pcopkd by no fault o(their 0\\U. lh~ populations ncod - I dar<: say dcs«ve the best !his country has to 

offer. 

Soc~l S\.'(urity C\'CU "'ithotlt a Cornmissimt'f h3S dcdieat~o.-d p4.-oplc "''ho truly care ~bout d~e public th"'Y 

$(r\'e ;mel about the <p.&ality of work ttk..-y provi<k. As. we kno-w tbe baby boom« population hu.s re;K:.b\XI 

n.1irem1.:ntnge. Mw\y of thi.."'TT do oot \'lllntto rile oolinc applieatiom.thl.-y 'vant faoe to face intm•i-I.:W$ so thc,:t'l: i$ a J)(.'f'$()1)J)tQ\•c:h 10 tlti$ life ehangi ~ cvet\1, 'lll.is krvie<.: 1\':qi.M:St, 3 face: 10 f;.t¢e iottrview, i$ one 

tllat they d~n'(: bee2use tbey \'l()(ked fot ~tircment (I( Mt' di$at>kd. 

SSA is locking in staiTto pro«ss t1tesei:laimsaud thus are pushing the 011line services. Appointmc:nt 

calendars going out for two months are complctc.ly book1."d C'.\USillg an Wl(hM: hardship on the public as far 

ail St;hotluling 3pp<>intn:~ent.s.. Offtc:~ ~r Washington. DC Slaffhas b«n pushed so liard tmtthcy are lib 

ro~s aod not pcn;onable. ·rms. there are fast growi11g numbc:r:s of people driving nn boor or two to gc.1 

to u.n oflice with p.-oplc wtl() an: 001 robots. PeOple an: $pn:ndina tht word.my cot~m is tNt these will 

bt offi~ J)\lShcd into bc."tomin.g tobol$ by the lt:\'CI ofwod! th:u 1W:ed$IO be COOlJ))ded by :i It$$ tktn 

ad¢ql.lll1C number of $1atY. If ttk..,.e is any <!<Kille 10 tbc t:n~b in tJ)CSt state.nen", lll\0\l)'ITl<>usly ~o~~it onice$ 

1)(:ar mcttopolita•l Washill$10•'1, then visit oflices ~1ts.idc mettQpolit:ltl Wa:shint;ton . .. $it in the i()bb c$~ 

list .. ,.. to what lhc: pOOiic is sayi~tg. I can pretty much gu31'1lntcoc tl!at yoo. wm sec no e1nployce standing 

a(()W.dthe watct fowuain talk.lng tlbout Ll~ weather. 

SSA sta.ITrctirnnents, hiring frccT.e, and l..ck of an txpcricnccd job J>OOI are crc:at.ing unbearabk 

coaditkms "'ithin the SSA. (.\arrent stafhre bclng requited to prodlhX numbers and nu.mbtts of claims 

tmdc.-r astronomical pressure from the numgcmcnt team w.dthe public. The stress is wc:aring on the sla.O·. 

afl·l"C'Ling morale, and the quality o(work physically possible lUldcr such oo1Miitions. The Public de9Ctves 

bc:tt(r. lhe hard working s'u.lf descn·c bcua-. 

It woo.ld be my .siiK'ere ho1:w:. that having an act1.1a.l Commissioner who has strength and intl'grity c.-wid 

tum the dO\,nhiU slide of mo111k to 1.1.11 \lpward :;wing. AW1rvni!O$ilmcr who(.C)Uid bold the man:ag.cnwnt 

1e:un l'IOC(KIIIt;tblc fot tJw: w;ty tbe: tn.-a' thdt S-taff, 11()1<.1 nl.'lti:Jgt'tllC:nt 3«(l~.l.nt blc for the-ir b<:J.a,•M>r or L'lcl< 

of management $kill, A C.:<.llnrnill$ioiK'f wbo \\'0\lld in:;i:s:l !holt first time ma.nag.c,:r,s hav;.: ttl he Vi;r)' l¢.1:>1 

good intCf))1.'1'SOI~"'I n.:latJonsllip skiiJs. ratbt.'t th.'ln no $kills :u all and C:XJ>ce:t l!'lt:nltO team otlthe job, •• a 

job where their Stt'C$$ is hi,gh, lc:tmin.g the: pc~ difficult, and the lnQSI imf)C)Itant quality from the start 

illiCtpCI'$0llltlr<:l:tt*'$hip skills thi'O\\'n $$ide:. SQ.nc or the ma.n.as.cltlt'nt pe!Wntld L'lek ~he intc:gtity d~t 

the rmru line: workCfS are c:hars-cd witb ha\•ing. It is as if, their integrity flies out the window when tlw.-y 

bc:oome managers. Not all managers but more than tlll.'f( should be. Some lte re-garding personnel ls:sucs, 

son-.c are sneaky trying to catch a sean· member wilh something \\TOI'£ when they f:Uito admit 1hcir own 

mistakes. Management is supposed lo lead by cxrunple. I grow C'\'('r oonocrncd with what is happening in 

thernnkandtileofSSA 

Howcvt-r. on a positi,•e note, there has been oo front-po;gc scandals involving cmpi0)'1."C'S o(the SSA11s 

th.cre has~, with other (cdoeral ~nc:ies. SSA does u tmncndou:; job "';lh what little th«.-')' have n.'QCivQI.I 

as far t~s f111M.Iing and staffing. 
93 

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Insert 33796A.066