U.S. GOVERNMENT PUBLISHING OFFICE

33–616 WASHINGTON : 2019

DETERMINING ELIGIBILITY FOR 

DISABILITY BENEFITS: CHALLENGES FACING 

THE SOCIAL SECURITY ADMINISTRATION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON SOCIAL SECURITY 

OF THE

COMMITTEE ON WAYS AND MEANS 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 6, 2017 

Serial No. 115–SS06 

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 

PATRICK J. TIBERI, Ohio 

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 

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 

TOM RICE, South Carolina 

DAVID SCHWEIKERT, Arizona 

VERN BUCHANAN, Florida 

MIKE KELLY, Pennsylvania 

JIM RENACCI, Ohio 

JASON SMITH, Missouri 

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 September 6, 2017, announcing the hearing ..................................... 2 

WITNESSES 

Bea Disman, Acting Chief of Staff, Social Security Administration ................... 6 

Kathryn Larin, Director of Education, Workforce, and Income Security Issues, 

Government Accountability Office ...................................................................... 22 

Elizabeth McLaren, Bureau Chief, Iowa Disability Determination Services, 

on behalf of National Council of Disability Determination Directors .............. 39 

Marilyn Zahm, President, Association of Administrative Law Judges ............... 50 

Lisa Ekman, Director of Government Affairs, National Organization of Social 

Security Claimants’ Representatives, on behalf of the Social Security Task 

Force Consortium for Citizens with Disabilities ............................................... 62 

QUESTIONS FOR THE RECORD 

Questions submitted by The Honorable Sam Johnson, Chairman, Subcommittee on Social Security, Committee on Ways and Means, to Kathryn 

Larin, Director of Education, Workforce, and Income Security Issues, Government Accountability Office ............................................................................. 97 

Questions submitted by Amy Shuart, Staff Director, Subcommittee on Social 

Security, Committee on Ways and Means, to Elizabeth McLaren, PresidentElect, National Council of Disability Determination Directors ........................ 100 

Questions submitted by The Honorable Sam Johnson, Chairman, Subcommittee on Social Security, Committee on Ways and Means, to Bea 

Disman, Acting Chief of Staff, Social Security Administration ....................... 103 

Questions submitted by The Honorable Sam Johnson, Chairman, Subcommittee on Social Security, Committee on Ways and Means, to Marilyn 

Zahm, President, Association of Administrative Law Judges .......................... 118 

SUBMISSIONS FOR THE RECORD 

Peter J. Martinelli, U.S. Administrative Law Judge, Office of Hearings and 

Appeals, Social Security Administration (SSA) ................................................. 119 

National Association of Disability Examiners (NADE) ........................................ 128 

Philip B. Litteral, President, National Association of Disability Representatives (NADR) ........................................................................................................ 138 

Anthony M. Reardon, National President, National Treasury Employees 

Union (NTEU) ...................................................................................................... 142 

(1) 

DETERMINING ELIGIBILITY FOR 

DISABILITY BENEFITS: CHALLENGES FACING 

THE SOCIAL SECURITY ADMINISTRATION 

WEDNESDAY, SEPTEMBER 6, 2017 

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

The Subcommittee met, pursuant to call, at 10:03 a.m., in Room 

2020, Rayburn House Office Building, Hon. Sam Johnson [Chairman of the Subcommittee] presiding. 

[The advisory announcing the hearing follows:] 

2 

ADVISORY 

FROM THE COMMITTEE ON WAYS AND MEANS 

SUBCOMMITTEE ON SOCIAL SECURITY 

FOR IMMEDIATE RELEASE CONTACT: (202) 225–1721 

Wednesday, September 6, 2017 

SS–06 

Chairman Johnson Announces Hearing on 

Determining Eligibility for Disability Benefits: 

Challenges Facing the Social Security 

Administration 

House Ways and Means Social Security Subcommittee Chairman Sam Johnson 

(R–TX), announced today that the Subcommittee will hold a hearing entitled ‘‘Determining Eligibility for Disability Benefits: Challenges Facing the Social Security Administration.’’ The hearing will focus on the Social Security Administration’s plan 

to reduce the hearing backlog and claimant wait times, other efforts to modernize 

and improve the disability determination process, and tools available to expedite decisions for those with certain severe conditions. The hearing will take place on 

Wednesday, September 6, 2017 in room 2020 of the Rayburn House Office 

Building, beginning at 10:00 a.m. 

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 the Committee and for inclusion in the 

printed record of the 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 Committee homepage, http://waysandmeans.house.gov, select ‘‘Hearings.’’ Select the hearing for which 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 instructions, 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, September 20, 2017. For questions, or if 

you encounter technical problems, please call (202) 225–3625. 

FORMATTING REQUIREMENTS: 

The Committee relies on electronic submissions for printing the official hearing record. As always, submissions will be included in the record according to the discretion of the Committee. 

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 compliance with these guidelines will not be printed, but will be maintained in the Committee files 

for review and use by the Committee. 

All submissions and supplementary materials must be submitted in a single document via 

email, provided in Word format and must not exceed a total of 10 pages. Witnesses and submitters are advised that the Committee relies on electronic submissions for printing the official 

hearing record. 

All submissions must include a list of all clients, persons and/or organizations on whose behalf 

the witness appears. The name, company, address, telephone, and fax numbers of each witness 

must be included in the body of the email. Please exclude any personal identifiable information 

in the attached submission. 

3 

Failure to follow the formatting requirements may result in the exclusion of a submission. All 

submissions for the record are final. 

The Committee seeks to make its facilities accessible to persons with disabilities. 

If you are in need of special accommodations, please call 202–225–1721 or 202–226– 

3411 TDD/TTY in advance of the event (four business days notice is requested). 

Questions with regard to special accommodation needs in general (including availability of Committee materials in alternative formats) may be directed to the Committee as noted above. 

Note: All Committee advisories and news releases are available at 

http://www.waysandmeans.house.gov

f 

/ 

Chairman JOHNSON. Good morning to all of you, and welcome 

to today’s hearing on the challenges Social Security faces when deciding if a person should receive disability benefits. Since I have 

been Chairman, we have held 18 hearings, including today, on the 

disability insurance program, on one topic or another. Now, that is 

a lot of hearings, but the disability insurance program is too important for Social Security not to get it right. 

Americans pay taxes on their hard-earned wages for the promise 

of future Social Security benefits when the worker retires, is unable to work due to a disability, or dies. These benefits are an important part of a family’s financial security, and Americans rightfully expect that when they apply for benefits, if they are eligible, 

that they will receive them quickly. But for those applying for disability benefits, that isn’t the case. 

Today, over 1 million people are waiting for a hearing with Social 

Security administrative law judges, and on the average these folks 

will wait around 600 days to get that hearing. That is nearly 2 

years. And that is after waiting almost 4 months, on the average, 

for an initial decision, and more than 3 months for a second look, 

known as reconsideration. 

While not all of them will qualify for benefits, all of these people 

deserve an answer in a timely fashion. And for those who don’t 

qualify for benefits, these long wait times make getting back to 

work even harder. 

With backlogs at record highs, it is more important than ever for 

Social Security to ensure that the Compassionate Allowances program is working as intended. The Compassionate Allowances program was created in 2008 as a way to help those with the most 

severe impairments jump to the front of the line. But as we will 

hear today, this program doesn’t always work the way it should. 

It is clear Social Security has serious problems when it comes to 

making sure people get the disability decisions as quickly as possible. But Social Security problems and the disability insurance 

program are more than just long wait times. Since 2003, Social Security’s disability programs have been on the GAO’s high risk list, 

in large part because of outdated criteria to determine eligibility for 

disability benefits. While some progress has been made, there is 

more work to be done to modernize Social Security’s disability program. 

As we know, more money isn’t always the answer. This year, the 

Social Security Administration received $90 million in dedicated 

funding to address a disability backlog. Yet, wait times continue to 

4 

grow. Social Security used some of this funding in much-needed information technology improvements that should pay dividends in 

the long run. The Social Security Administration must find ways 

to be more efficient and modernize the disability insurance program. And today, we are going to hear about how Social Security 

plans to do just that. This won’t be easy work and there is plenty 

to do. 

Social Security needs more than just a plan to fix this; it needs 

real leadership, and that is a large part of management’s problem. 

Since 2013, Social Security has had an Acting Commissioner. In 

February, Ranking Member Larson and I, along with our colleagues from the Human Resources Subcommittee, sent a letter to 

President Trump, asking that he nominate a Commissioner without delay. 

Social Security needs a Senate-confirmed Commissioner who can 

lead the agency and focus on providing the service Americans expect and deserve. Social Security provides important benefits that 

many Americans rely on. With the right leadership and a good 

plan, Social Security can get back on the right track, but until 

then, this Subcommittee will keep asking tough questions about 

how to get this done. The American people deserve nothing less. 

And I am sure that my compatriot next to me agrees with that. 

With that, I will recognize Mr. Larson. 

Mr. LARSON. Well, I thank our distinguished Chairman, and I 

certainly concur with that. And, most importantly, concur in saying 

your continued leadership to your country in every capacity is 

greatly respected. And I would say that we are in agreement on a 

number of the problems that Social Security is set with. As you 

know, Mr. Chairman, millions of Americans rely on Social Security 

for basic income when they retire, or if they are severely disabled 

or can no longer work. Social Security is also there to help widows 

and children who have lost a parent. There is no private plan on 

the market, simply put, that can compare to Social Security. That 

is just a fact. 

And we are living that fact currently. And the people at Social 

Security deserve a lot of credit. In the midst of Harvey, and what 

is going on and the devastation and the people of Texas in the 

greater Houston area, and with Irma bearing down upon Florida 

now, I think it is heartening to know that Social Security hasn’t 

missed a payment. And that on the ground, Social Security has 

people working with the Red Cross and other volunteer agencies. 

And even in the case where people do not have electronic transfers, 

that they are there to help and make sure that America gets what 

is America’s number one program, the Social Security program. 

Natural disasters remind us of how important it is to fight back 

against calls to cut Social Security, and instead, come together in 

a bipartisan way to make commonsense adjustments to strengthen 

Americans insurance plan and protect the benefits Americans have 

earned and rely on. Both the Chairman and I have offered comprehensive plans to address the long-term shortfall in the Social 

Security system so Americans can continue to count on these benefits, whether they become disabled or retired or they should die 

prematurely, leaving their young children behind. 

5 

By offering—while differing in our approaches, I hope we will be 

able to have a hearing. I keep on plugging for a hearing in Plano, 

Texas, with our distinguished Chairman, but anywhere in the 

country where we will have an opportunity to let the Congress 

work its will. Let the vitality of ideas come forward. We both share 

the same goals, we just have a different path of getting there. 

But today’s hearing is focused on a problem of record-high delays 

in processing disability applications. This is just simply unacceptable, and deplorable, at its very core, of what everyday average citizens in this country have to endure. As the Chairman pointed out, 

more than 600 days? It is unconscionable. 

Since 2010, the number of beneficiaries, though, has grown by 13 

percent as baby boomers reach retirement age, and especially as we 

saw after the Great Recession, a number of people who lost jobs 

and are scrambling for their positions. Social Security operating 

budget in this same period of time has fallen by more than 10 percent, after accounting for inflation. This has made it difficult, if not 

impossible, for Social Security to serve our constituents promptly 

when they need help the most. And that is where I think that 

money does matter, and that money in these budgets, so that we 

can get the front-line people who can handle these. 

We have had many discussions about technology and there has 

been technological advances, but not on the grand scale that we 

need to address this, and nothing on a scale that will assist us in 

a way that that caseworker can—who can deal with an individual 

personally, like what these people are currently enduring and suffering through in Houston. 

There are delays throughout the Social Security Administration. 

Today’s hearing is focused on the lengthy waits, and the Chairman 

went over this, the administrative law judge who can decide on disability benefits appeal. These hearings are important. And for the 

first time, an applicant can get to meet face to face with an examiner, in many instances, these hearings are the first time the Social 

Security administrator has an applicant’s complete medical evidence in hand, and the applicant can seek help from an attorney 

or a professional, which is important, given how complex the law 

is in this area. 

But so far this year, the wait, as the Chairman underscored, is 

600 days. I have several constituents in my district, and I am so 

glad that Ms. Ekman is here today, and we are going to get to hear 

from her. But when you find that people are committing suicide; 

when you find that, in many cases, they lose their homes; when 

you look at what happens to them mentally, and I am talking 

about people that have served in our armed services who have 

post-traumatic stress, who then find that their greatest post traumatic stress becomes dealing with the Social Security system that 

is there to help them. 

And so, it is unconscionable that this goes on, and we have to 

solve this problem on behalf of the citizens we are sworn to serve, 

by correcting and making sure that America’s primary insurance 

program for its citizens is there to provide them relief on a timely 

basis. I say ‘‘insurance program’’ because that is what it is. Citizens 

have contributed to this program. They deserve the best, as the 

6 

Chairman underscored in his remarks, from this Committee. I am 

looking forward to the testimony today. Thank you, Mr. Chairman. 

Chairman JOHNSON. Thank you. As is customary, any Member 

is welcome to submit a statement for the hearing record. And before we move on to our testimony today, I want to remind our witnesses to please limit your oral statements to 5 minutes. However, 

without objection, all of the written testimony will be made part of 

the hearing record. We have 5 witnesses today, and seated at the 

table are: Bea Disman, Acting Chief of Staff, Social Security Administration; Kathryn Larin, Director of Education, Workforce, and 

Income Security Issues, Government Accountability Office; Elizabeth McLaren, Bureau Chief, Iowa Disability Determination Services, on behalf of the National Council of Disability Determination 

Directors; Marilyn Zahm, President, Association of Administrative 

Law Judges; and Lisa Ekman, Director of Government Affairs, National Organization of Social Security Claimants’ Representatives, 

on behalf of the Social Security Task Force Consortium for Citizens 

with Disabilities. 

Ms. Disman, welcome. Thank you for being here, and please proceed. 

STATEMENT OF BEA DISMAN, ACTING CHIEF OF STAFF, 

SOCIAL SECURITY ADMINISTRATION 

Ms. DISMAN. Thank you, Chairman. Chairman Johnson and 

Ranking Member Larson, and Members of the Subcommittee, I am 

Bea Disman, Acting Chief of Staff for the Social Security Administration. Before I begin, on behalf of the Social Security—— 

Mr. LARSON. Is your mic on, ma’am? 

Ms. DISMAN. Yes. Before I begin, on behalf of the Social Security Administration, our thoughts are with those affected by the 

devastation in Texas and parts of Louisiana by Hurricane Harvey. 

We know Chairman Brady’s district in Houston is especially affected by the storm, and that districts across Texas, like Chairman 

Johnson’s, are providing disaster relief services. 

Even though some of our field offices were closed, as Mr. Larson 

said, we were on-site with FEMA over the weekend at three sites 

in Texas, and two in Louisiana, where Social Security and Supplemental Security Income beneficiaries could request immediate payment in person if they did not receive their regular payment. We 

will continue to be on-site in three locations in Texas this whole 

week. And all but two of our field offices in Texas have opened 

again. 

Thank you for inviting me to discuss how we are taking a systematic approach to modernize our disability policies and processes. 

We appreciate the Subcommittee for its ongoing oversight of the 

disability programs and your recommendations. With over 50 years 

of experience at Social Security, I can assure you that we are committed to serving the public effectively and compassionately, and to 

preserving the integrity of the Social Security programs. We are 

mission-focused, mission-driven, in developing disability policy and 

processes. 

The Social Security Act defines disability as the inability to engage in any substantial gainful activity due to a medically determinable physical or mental impairment that is expected to last at 

7 

least 1 year or result in death. While this definition provides the 

statutory foundation of our Social Security disability insurance, 

and SSI income processes, our management of the program is also 

informed by both technology and policy advances. 

Changes in healthcare delivery require us to rethink our use of 

medical source information and its supportability and consistency. 

With that in mind, the policy updates and revisions we have recently made establish the foundation for an integrated systematic 

approach to disability decisionmaking. For example, we have revised most of our listings of impairment criteria. After we finish 

the updates in fiscal year 2018, we will then update the listings on 

a flow basis using a 3- to 5-year update cycle. We have the expertise in place to meet this objective. We are developing an occupational information system that will be the primary source of occupational information used in disability adjudication. 

We are committed to providing accurate, high-quality policy research in support of this initiative. And we have been working with 

the Bureau of Labor Statistics, which has been collecting data for 

us since 2015. We plan to implement this occupational information 

system in 2020, with the introduction of a vocational income tool 

that adjudicators will use to decide claims. 

In January 2016, we developed our plan to improve hearing 

workloads and service delivery. We updated this plan in August of 

2017 to meet our changing needs. We greatly appreciate the $90 

million anomaly funding that Congress has provided. The plan will 

permit us to enhance our business efficiencies, such as expanding 

our prehearing conferences. It will also allow us to increase our adjudicator capacity by hiring additional ALJs, decision writers, and 

other support staff. The plan also supports technological investments in our hearings process, such as using natural language 

processing to improve the quality of our decisions. 

The quality of our decisions has always been a paramount concern to us. To this end, we are establishing the Office of Analytics, 

Review, and Oversight, which will improve coordination on the 

oversight of the disability adjudication process. This new office centralizes all agency offices that analyze data in our disability programs and conduct quality reviews of our DDS and hearings process. 

We appreciate GAO’s work in assessing our Compassionate Allowances, or CAL program. CAL delivers faster services by making 

policy compliant benefit decisions quickly to eligible individuals 

with the most serious disabilities. We are working to incorporate 

their recommendation to strengthen the CAL program. For example, we have updated our CAL website to be more transparent, and 

to include useful information for advocates to submit CAL conditions. 

CAL will be the focus of our November National Disability 

Forum. We are looking forward to holding our outreach meetings 

again, with an eye to improving how we communicate about our 

CAL policies and updates. We are enhancing our internal processes 

as well as developing and updating CAL conditions, including the 

development of enhancements that would give us more flexibility to 

the program. 

8 

Thank you for your interest in discussing disability with us. SSA 

disability programs serve the most vulnerable segments of our society. Moving forward, we are and will continue to be mission-driven, 

mission-focused, as we serve the millions of individuals who need 

our help. We look forward to continuing to work with you and the 

Subcommittee. 

[The prepared statement of Ms. Disman follows:] 

9 


33616A.001

COMMITTEE ON WAYS AND MEANS 

SUBCOMMITTEE ON SOCIAL SECURITY 

U.S. HOUSE OF REPRESENTATIVES 

September 6, 2017 

STATEMENT FOR THE RECORD 

BEA DISMAN 

ACTING CHIEF OF STAFF 

SOCIAL SECURITY ADMINISTRATION 
10 


33616A.002

Cbaim1an Jobnson. Ranking Member Larson. and Members of the Subcommiuee: 

Thank you for inviting me to discuss our administration of the Social Security Disability Insurance 

(SSDI) and Supplemental Security Income (SSI) programs. I am Bea Disman, acting Chief of Staff for 

the Social Security Administration (SSA) for the last seven months. For nearly 20 years. I served as the 

Regional Conuuissioner for our New York Region. working closely with Stare Disability Determination 

Services (DDS), and SSA 's regional hearing offices. Prior to that, 1 served for over seven years as that 

region's director of program and integrity review. My frrsrjob at SSA was on the from line and included 

taking disability claims applications from members of the public. 

We appreciate the Subcommiuee 's ongoing oversight of the disability programs. and input on possible 

regulatory changes, hiring. and backlog reduction. In addition ro providing an overview of our disability 

decision framework and disability adjudication process, I am pleased to provide an update on recent 

efforts we have made to modernize our disability criteria and expedite decisionmaking, including our 

recent efforts to reduce the hearings backlog. 

Background 

Few govermnelll agencies touch the lives of as many people as we do. Social Security pays monthly 

benefits to approximately 61 million individuals. During fiscal year (FY) 2017, we expect to pay about 

$935 billion to Social Security beneficiaries. In addition, in FY 2017, we expect to pay over $54 billion 

in Federal benefits to an average of approximately 8 million SSI recipients. We cominue to be missionfocused and mission-driven as we serve millions of beneficiaries, applicants, and other Americans who 

need services from us. 

The Social Security Act (Act) provides for benefits to persons with disabling physical and mental 

inlpairments under the SSDI and SSI programs. SSDI provides benefits to workers who meet the Act's 

disability criteria, and to their dependents and survivors. On average. we pay SSDI benefits each month 

to approximately nine million workers with disabilities and two million of their dependents. Workers 

become insured for SSDJ based on contributions to the Social Security tmst funds through taxes on wages 

and self-employment income. 

The SSI program provides monthly payments to people with limited income and resources who are aged, 

blind, or disabled. Adults and children under age 18 can receive payments based on disability or 

blindness. On a monthly average, we pay approximately six million blind and disabled adults and over 

one million blind and disabled children SSI benefits. Genera l tax revenues fund the SSI program. 

Evaluating Disability Claims and Recent Improvements to Our Disability Rules 

Staii/IOIJ' Framework 

The same statutory definition of disability is used to determine whether an adult is disabled under SSDI or 

SSI. The Act defines disability as the inability to engage in any substantial gainful activity (SGA) by 

reason of any medically determinable physical or mental impairment which can result in death or has 

lasted or, can be expected to last for a continuous period of not less than 12 months. In making this 

determination, the Act requires us to consider how a clainlant's condition affects his or her ability to 
11 


33616A.003

perfonn previous work or, considering his or her age. education, and work experience. other work that 

exists in significant numbers in the national economy.' 

To carry out this starutory definition, we have established regulations that, among other things, describe: 

(1) how we evaluate medical evidence; (2) medical conditions that we consider severe enough to prevent 

work: and (3) bow we assess whether an adult can pe rfonn otl1er work that exists in the national 

economy. Below, we describe the basic framework for adjudicating disability, as well as the important 

steps we have taken in recent years to modernize our regulatory criteria. 

Regu/alo1y Framework for Decision making 

For SSDI and SSI. we evaluate adult claimants using the following five-step sequential evaluation 

process: 

Step one: We consider a claimant's work activity. We deny the claim if the claimant is doing 

"substantial gainful activity," or SGA (i.e., a certain level of wages or self-employment income). 

This year. earnings of $ 1,170 in a month are generally considered SGA2 

Step two: We consider the medical severity of a claimam's impainnent. We deny the claim if the 

clain1ant does not have a severe medically determinable physical or mental impainnent (or 

combination thereof) that meets the statutory duration requirement. 

Step three (Listing of Impairments): We consider whether the claimant has a severe impainuent(s) 

that meets or medically equals a listing in the Listing of lmpainnents (listings), and meets the 

durational requirement. under our regulations. The Listing oflmpainnents describes for each major 

body system, impaim1ents that we consider to be severe enough to prevent an individual from doing 

any gainful activity. regardless of his or her age, education, or work experience. We find the claimant 

disabled if his or her impaim1eot meets all of the criteria in one of the listings, or is medically 

equivalent in severity to a listing. A claimant whose impainnent(s) does not meet or equal a listing 

may still be disabled. 

Residual functional capacity (RFC): A claimant whose impaim1ent(s) does not meet or medically 

equal a listing may still be disabled, because we must consider whether a claimant has the physical 

and mental capacity to perfonn his or her previous work or perfonn other work that exists in 

significam numbers in the national economy. Consequently, we assess what the claimant can still do 

despite his or her physical and mental impainnents. 

Step four: We consider whether a claimant can still pcrfonn past relevant work in light of his or her 

RFC. We deny the claim if the claimant can perfonn his or ber past relevant work. 

1 The Social Securif)> Amendments of 1971 created the SSI disability program for children under age 18, using a 

defmition of disability tl1a1 was based on "comparable severity" 10 an impainneut that would be disabling for an 

adult. The Personal Respousibiliry aud Work Opporrrmiry Recouciliariou Acr of 1996 amended the Act to create a 

separate defmition of disability for children seeking SSI. To qualify for SSJ disability benefits, a child must have a 

physical or mental condition that results in marked and severe fm1ctionallimitations. This condition must have 

lasted, or be expected to last, at least one year or result in death. My testimony will focus only on the definition of 

disability for SSDJ workers and SSI adults. 

2 This figure is for individuals who are not blind. For individuals who are blind, the SGA amount is $1,950. 

2 
12 


33616A.004

Step five: We consider our assessment of the claimant's RFC and the claimant's age, education. and 

work experience to determine whether he or she could perform other work that exists in significant 

numbers in the national economy. We deny the claint if the cla imant could do so. 

Keeping Disability Policy Current 

We arc dedicated to preserving the soundness of our disability programs. and our stewardship 

responsibilities make up-to-date policy a top priority. To that end, we strive to keep our rules and policies 

aligned with contemporary medicine, hcahhcarc, and new technology. and to ensure policy decisions are 

evidence-based. We develop, in consultation with medical and other experts, new medical policies for the 

administration of the SSDI and SS! programs. These policy revisions reflect our adjudicative experience, 

advances in medical knowledge and treatment of disorders, recommendations from medica l experts, and 

comments we receive. 

Last year. we updated four listings and revised the way we evaluate treating source opinions. These 

changes were significall! steps that aligned our disability programs more closely with contemporary 

heahhcare. I will briefly describe those steps, and then discuss our efforts to revise our vocational 

criteria. 

Updated Listings 

We have taken significant steps in recent years to comprehensively \tpdate our Listing of Impairments for 

nearly all body systems. Between February 2013 and September 2016, we published 12 final rules that 

updated II of our 15 body systems listings. For instance, in 20 16, we updated the listings for 

Neurological Disorders (prior comprehensive update, 1986), Menta I Disorders (prior comprehensive 

update, 1985), and Respiratory Disorders (prior comprehensive update, 1993). We are currently working 

on completing the remaining comprehensive listings updates, including the Musculoskeletal System 

(prior comprehensive update. 1985 and minor updates, 2002). 

When updating the listings for a body system. we consider current medical literature. information from 

medical experts. disability adjudicator feedback. public comments. and research by organizations such as 

the National Academies of Sciences, Engineering, and Medicine. Our objective is to revise the listings' 

criteria on an ongoing basis, using a three to five-year update cycle. We believe we now have a process, 

the staff. and expenise needed to meet this objective. 

Evaluating Treating Source Opinion 

In addition to updating our medical criteria in the listings, we have modernized our rules regarding how 

we evaluate medical evidence to reflect current heahhcare delivery practices in this country- including 

how we consider opinions regarding a claimant's limitations offered by treating physicians.

3 Under rules 

adopted in 199 1, we established the "l'reating source" rule, which provided that a treating physician's 

opinion about tl1e nature and severity of a claimant's impainnent is entitled to ''controlling weight" if it is 

well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not 

inconsistent with the other substantial evidence in the case. However, in the intervening years, the rule 

came under increasing scrutiny, as it was perceived to be outdated: eliminating or modifying the treating 

1 Final mles, Revisions to Rules Regarding the Evaluation of Medical Evideuce, 82 Fed. Reg. 5844 (Jan. 18, 201 7). 

3 
13 


33616A.005

source rule was considered to be a way to enhance !he disability program's integrity and to prevent 

potential fraud. Further, a report by the Administrative Conterence of the United States (ACUS) called 

into question whether controlling weight deference should be afforded to medical practitioners given 

changes in healthcare delivery. In our recently issued final rules, we stated that we are not retaining the 

treating source rule because: 

the healthcare delivery system has changed in significant ways that require us to revise our 

policies in order to reflect this reality. Many individuals receive health care from multiple 

sources, such as from coordinated and managed care organizations. instead of from one treating 

[source]. These individuals less frequently develop a sustained relationship with one treating 

physician. . .. [Instead], (t)he extent to which a medical source's opinion is supported by relevant 

objective medical evidence and the source's supporting explanation- supportability- and the 

extent to which the opinion is consistent with the evidence from other medical sources and 

nonmedical sources in the claim- consistency- are also more objective measures that will foster 

the fairness and efficiency in our administrative process that these rules are designed to ensure. 

Occupational Information System and the Medical-Vocational Guidelines 

We are also progressing deliberately on modernizing the occupational information we use to evaluate 

claims under steps four and live of our sequential evaluation process. Our main source of occupational 

infonnation, the Dictiona1y of Occupatio /Ia/ Titles. was last updated by the Department of Labor, (DOL) 

in 1991, and dates back to 1938. To ensure our decisions remain accurate, we are developing a new 

Occupationallnfonnation System (OIS) that will be the primary source of occupational information used 

in our disability adjudication process. We are working closely with the DOL's Bureau of Labor Statistics 

(BLS) and will have our ftrst complete set of occupational data in 20 19 after BLS completes its third year 

of data collection. We plan to implement the OIS in 2020 with the introduction of a Vocational 

Information Tool that adjudicators will use to decide claims. Working with us. BLS will innnediately 

begin a new data collection cycle that will allow us to update the OIS at regular five-year intervals. 

Parallel to our efforts to develop the OJS. we are working on updating our Medical-Vocational 

Guidelines. which were issued in 1978. At step five of our sequential evaluation process, we evaluate au 

individual's ability to adjust to other work that exists in the national economy. TI1e Medical-Vocational 

Guidelines are a crosswalk used by adjudicators when considering an individual's RFC in relation to age, 

education, work experience, and work that exists in the national economy. We nee curremly considering 

potential evidence-based approaches to updating these guidelines to ensure we remain current with 

changes in medical and vocational practice, technology, and the workforce. We are closely coordinating 

any potential changes to bow we consider vocational efforts with our development of the OIS. 

Adjudicating Disability Claims and Steps We Are Taking to Decide Claims More Timely 

In most cases, we decide claims for benefits using an administrative review process that consists of four 

levels: (I) initial detem1ination; (2) reconsideration: (3) hearing; and (4) Appeals Council review. I will 

briefly describe each level of this process, as well as our efforts and proposals to improve our timeliness 

in deciding claims. 

4 
14 


33616A.006

Initial Determination Level 

At the initial detenuination level, cla ims are filed with us in field offices, over the phone, or via the 

Internet. Some claims may be denied for technical reasons- for instance, if a claimant is working and 

earning above SGA, or if a SSDI claimant is not fully insured to receive benefits. However, w1der the 

Act, most cases are sent to a State DDS, which is responsible for developing all medical evidence and 

initially determining whether a claimant meets our definition of disability. Nationwide, we expect to 

receive approximately 2.5 million initial disability applications in FY 2017. This is a decline from the 

level of applications we received in FY 20 16 (approximately 2.6 million) and FY 2015 (over 2.7 million). 

Generally. the disability examiner works with a medical or psychological consultant. or both. to 

determine whether tbc claimant is disabled. When deciding the claim, the disability examiner and 

medical or psychological consultant must consider all of the evidence in tbe file, both medical and 

vocational, to make a determination.' For the past several years, the DDSs have allowed approximately 

33 percent of the claims decided that year at the initial level. Our adjudicative teams that make disability 

determinations for us are highly accurate. Through Ju ly of this year, the perforn1ance accuracy rate of our 

initial level detern1inations for FY 2017 was 95 percent.' 

We have developed several important programs to help expedite processing times, including for our most 

vulnerable claimants. For example, we established the Compassionate Allowance (CAL) process to 

quickly identify (through an automated process) and prioritize medical conditions that invariably qualify 

for disability under our rules. In addition. individual adjudicators also can Oag an individual for CAL 

processing when the automated process does not identify the case. Tbe CAL process helps deliver our 

services by making benefit decisions, often within days, to eligible individuals with the most serious 

disabilities. We currently have 225 CAL conditions. including certain cancers. 

Today. we are a lso announcing that we have identified and vetted three new CAL conditions. and we are 

ready to proceed with their inclusion in our disability processing. Effective September 16, applicants 

afflicted with Congenital Myotonic Dystrophy, Vanishing White Matter Disease, also known as 

Childhood Ataxia with Central Nervous System Hypomyelination (CACH), and Kleefstra Syndrome will 

be quickly identified for CAL expedited review. 

We maintain a public website explaining our CAL process. We are updating it to make it easier to 

suggest potential CAL conditions. It will also include information about our renewed outreach efforts and 

systematic details about bow the CAL process works. We are a lso revising our COllllllunication plan to 

promote public engagement with this program. We appreciate the Government Accountability Oflicc's 

(GAO) work in this area and their recommendations on how we can strengthen the CAL process. 

4 In some States, experienced disability examiners, known as single decisioumakers, may make certain disability 

detetminations alone m1der our current mles authorizing us to test, individually or in any combination, certain 

modifications to the disability detenninatiou procedures. However, under section 832 of the Bipartisa11 Budget Act 

of 2015 (BBA), we are required to end the single decisioumaker test. In light of Ibis recent legislation, we are in the 

process of requiring that an MC or PC review the medical portion of a DDS-level disability claim. We have phased 

in U1is requirement in over half of the States that used single decisiomnakers, and we expect to complete this 

requirement by the end of FY 2018. 

s There are several reasons why a later appeal of a clain1 denied at the initial level may result in an allowance. For 

instance, a claimant's condition may worsen over lime. Furthennore. a claimant may submit new medical evidence 

at the reconsideration or hearing level that was not previously available. 
15 


33616A.007

In addition to the CAL process. our Quick Disability Determination process uses a computer-based 

predictive model in the earliest stages of the disability process to identify and fast-track claims where a 

favorable disability detem1ination is highly likely and medical evidence is reactily available. Both of 

these programs have helped us better serve people who are so severely disabled and clearly meet our 

disability defmition. 

We are modernizing how we will collect medical evidence and will provide greater analytical tools for 

our adjudicators (at all levels). For instance. currently we gather most of our evidence by manually 

requesting it from providers. We are in the process of expanding the amount of electronic medical 

evidence we receive through computer -generated requests to expedite the receipt of the evidence and the 

processing of claims. Further, most of the evidence we currently gather is stored in fLxed inlages (such as 

Tagged Image File Formnt (TIFF)). which is time consuming to process, review. and ana lyze. As we said 

above. we are planning to obtain additional evidence in a format that allows greater decision support, 

predictive analytics, and machine learning. 

We created the National Disability Policy Cadre (NDPC) in the fall of2015. consisting of DDS and 

Federal subject mauer experts to address operational challenges associated with policy changes. NDPC 

input has helped with making disability policy more clear and concise, allowing us to strengthen the 

disability program and inlprove our service to the public. 

These programs complement other recent initiatives to streamline the disability claims process. For 

example, we require our DDS examiners to use the Electronic Claims Analysis Tool (eCA T). eCA Tis a 

policy compliant web-based application designed to assist the user throughout tl1e sequential eva luation 

process. The tool aids in documenting, analyzing, and adjudicating the disability claim according to our 

regulations. 

Moreover. as required by the Act. we perform reviews of at least 50 percent of all DDS initial and 

reconsideration allowances for OJ claimants before payment effectuation is made. These reviews. which 

we call preffectuation reviews, allow us to correct errors we find before we issue a final decision, and to 

provide instntctional feedback to our DDS adjudicators. These reviews help ensure consistency at all 

levels of the process. 

We also created the National Disability Quality Cadre (NDQC) in the fall of 2016. consisting of DDS and 

Federal subject matter experts to identify methods to sustain and improve DDS quality. The NDQC 

focuses on quality reviews and identifying training needs based on data trend analysis. in an effon to 

identify problem areas before the DDS makes the final dcternlination. 

Certainly, our disability beneficiaries comprise one of the most vulnerable segments of our society. We 

remain committed to finding ways to serve them compassionately, while maintaining the trust of the 

American taxpayer. 

Reconsideration Level 

[n most States, a claimant who is dissatisfied with our initia l detennination may request a reconsideration. 

However. many claimants denied at the initial level may choose not to appeal; in calendar year 2013, 

approximately 51 percent of clain1s denied at the initial level were appealed. A reconsideration involves a 

thorough review by a different examiner of all evidence from the initial determination and any new 

evidence provided at the reconsideration level. Nationwide. we expect to complete approximately 

581,000 disability reconsiderations in FY 201 7. In recent years, the DOSs have allowed approximately 

6 
16 


33616A.008

ll percent of disability claims at tbe reconsideration level; in FY 1016, almost 77,000 individuals were 

allowed a t the reconsideration step. 

We are exploring potential proposals that could enhance the reconsideration level. Since I 999, ten States 

have participated in a pilot project that does not have a reconsideration level.6 In those States, an appeal 

of an initial detem1ination goes directly to a hearing before an administrative Jaw judge. The President's 

FY 2018 Budget request includes a proposal to reinstate reconsideration in those I 0 States, which we also 

expect to alleviate the bearings backlog. This will bring these States back into conformity with the 

practices used in the rest of the country. The Presidem's FY 20 18 Budget also proposes. through a 

possible demonstra tion, an enhanced disability detem1ination screening process; the intent of such 

demonstration would be to evaluate ways to possibly increase adjudicative consistency at each level of 

appeal and also to reduce the future hearing backlog. 

Hearing and Appeals Council (A C) Review Levels 

A cla imant who is dissatisfied with our reconsideration detennination may seek a hearing, which is held 

by an administrative law judge (AIJ). In FY 20 17, we estimate we will receive approximately 632,000 

requests for an AU hearing. However, in total, more than I million people are waiting for a decision on 

their bearing request, and the average wait time for a bearing decision in FY 2017 is currently around 600 

days. Below is a description of the hearings process, but later in my testimony I outline our plan to 

reduce the number of pending hearings and the average wait time for a hearing decision. 

The ALJ reviews a disability case de novo, including evaluating evidence that was not available to prior 

adjudicators. Generally, an ALJ will hold a bearing, a t which the claimant may elect to appear in-person 

or consent to appear via video. Currently, approximately 30 percent of claimants opt to appear via video. 

The claimant may appoint a representative who may submit evidence and arguments on the claimant's 

behalf.' The ALJ may call vocational and medical experts to offer opinion evidence, and the claimant or 

the claimant's represemative may question these witnesses. Once the record is complete, the ALI 

considers all of the evidence in the record and makes a decision. 

A clain1ant may appeal an ALJ decision to the AC. The AC will grant review under certain 

circumstances specified in our regulations. After graming review, the AC may uphold part of the ALI's 

decision, reverse all or part of the ALJ's decision. issue its own dec ision, remand the case to an ALJ. or 

dismiss the original hearing request. Finally. a claimant who completes our administrative review process 

and is dissatisfied with our final decision may seek judicial review of that fmal decision in Federal district 

court. 

Curremly. we have more than 1.600 ALJs on duty. We hire ALJs through a process established by the 

Office of Personnel Management, which administers the ALI examination through which agencies make 

competitive service appointments of ALJs. 

We have taken a number of steps to improve the efficiency and timeliness of our hearings process. For 

example, in December 2016, we published final ntles that create nationally tmiform 

6 The following 10 States are currently without the reconsideration level of appeal: Alaska, Alabama, Colorado. 

Massachusetts, Michigan, Missouri, New Hampshire. New York, Pennsylvania and 2 California DDS offices. 

' A claimant may appoint a representative prior to the hearing level as well. 

7 
17 


33616A.009

he~ring and Appeals Council procedures. Under the rules. we provide claimants with a 75-day advance 

notice of the hearing, which provides claimants more time to obtain updated medical and other records 

before the date of the hearing. We coupled that 75-day advance notice with a requirement that generally 

requires claimants to submit written evidence at least five business days before a hearing. The changes 

we made in these rules, coupled with rules changes we made in 2015 that require claimants to inform us 

about or submit all evidence known to the claimant that relates to his or her disability claim, make our 

hearings process more efficient and effective. We expect that they will reduce the number of hearings 

that we need to reschedule or postpone. 

The quality of our decisions is a paramount concem for us. It is our obligation to provide every person 

who comes before our agency - regardless of where they live - a timely, legally sowtd. policy-compliant 

decision. We took aggressive steps to instinne a more balanced quality review in the hearings and 

appeals process. 

For example, we created better tools to provide individual feedback for our adjudicators. One such 

feedback tool is "How Ml Doing?" This resource not only gives ALJs information about their AC 

remands, including the reasons for remand, but also information on their perfonnance in relation to other 

ALJs in their office, their region, and the nation. We have developed training modules related to the most 

collllllOn reasons for remand that are linked to the "How Ml Doing?" tool. ALJs are able to receive 

immediate training at their desks that is targeted to the specific reasons for the remand. 

We also established several enhanced quality review initiatives. For example, we perform posteffectuation focused reviews of sampled ALJ decisions that look at specific issues. Subjects of a focused 

review may be hearing offices, ALJs, representatives. doctors, and other participants in the hearing 

process. Because these reviews occur after the 60-day period a claimant has to appeal the ALJ decision, 

they do not result in a change to the decision. These reviews, though, help us identify the most errorprone provisions of law and regulation, which allows us to design and implement our ALJ tntining 

efforts. 

We believe these steps have made an impact. The number of ALJs with extremely high and low 

allowance rates has dropped. While we do not set target allowance rates for our ALJs and always 

emphasize that an ALJ's allowance rate is not a proxy measurement of his or her policy compliance, we 

nonetheless believe that this phenomenon is a likely indicator of better, more standardized decisionmaking in our bearings process. 

Most of our employees who receive feedback through tools like "How MI Doing?" welcome the 

opportunity to improve their skills. The vast majority of our ALJ corps is c.onscientious and thorough. 

That said. there have been some recent cases in which we hired an AU, and it later became clear the 

individual would be unsuccessful at the job. The President's FY 2018 Budget request includes mention 

of a proposal that would amend the Administrative Procedure Act to create a probationary period for 

newly hired ALJs. We are working with our colleagues at OPM to fonnulate the details of this proposal, 

and how it would impact our ALJ workforce. 

Hrorings Workload and CARES Service Delivety 

Today. more than !million people are waiting for a decision on their hearing request, and the average 

wait time for a hearing decision in FY 2017 is currently around 600 days. To reduce the backlog, in 

January 2016 we developed our Plan for Compassionate and REsponsive Service (CARES), which 

outlines business process, decisional capacity, and information technology (IT) improvements that we 

expect will reduce the average wait time for a hearing decision and allow us to achieve a reasonable 

8 
18 


33616A.010

number of pending cases. Our CARES plan is a Oexible. living document. which we recently updated in 

August 2017to incorporate additional initiatives to address the backlog more aggressively. We 

appreciate the anomaly nmding of$90 million that Congress provided to aid us in reducing the backlog. I 

believe our initiatives with this funding will help us toward our goal of having a reasonable mm1ber of 

hearings pending. Due in part to additional ALJs, along with recent declines in hearings receipts, we are 

seeing initial signs of progress. as the total nwuber of hearings pending has decreased in the last seven 

months. However, we recognize that reducing the hearings backlog will be a long-tenu challenge for the 

agency and that we will need to continue to refme and improve our eiTorts. 

A complete copy of the CARES Plan is attached as Appendix A. However, I would briefly like to discuss 

our plans for the $90 million anomaly funding. as well as some of our initiatives. We dedicated $70 

million oftbe $90 m.illion in anomaly nmding to increasing our decisional capacity, which we are doing 

by hiring more ALJs and support staiT while providing currem staff with extra overtime hours to process 

critical workloads. Dedicating S70 million of the anomaly funding to additional hiring will also allow us 

to rededicate staiTto many of our most promising initiatives that are designed to make our business 

process more efficient. We plan to spend the remaining $20 million on additional key IT projects that 

regular nmding alone did not support. 

Our updated CARES plan rests on three elements: I) business process efficiencies: 2) increased 

decisional capacity; and 3) IT innovation and investments. 

Business Process Efficiencies 

We continue to look for opportunities to make the hearings and appeals process more efficient while 

ensuring decisional quality. We are also looking at ways to streamline our processes, eliminate 

duplication of efforts. and efficiently utilize our limited resources to provide better and faster service to 

the public. Our revised CARES plan includes 14 initiatives to improve business process efliciencies. 

Two of these initiatives are: 

Pre-Hearing Conferences. We conduct pre-bearing conferences as a way to conmnmicate with 

clainlants to ensure they are prepared for their bearing. For this initiative. we focused on 

conducting pre-bearing conferences with unrepresented clainlants beginning in FY 20 15. 

Through this initiative. we aimed to reduce bearing postponements for 1mrepresented clainlants 

National-Based First-In First-Out (FIFO) initiative. This initiative involves sharing resources 

across the country and matching up resource availability to prioritize cases that have been waiting 

the longest. Through this initiative, we will pool available resources to help balance workloads 

and accommodate staffing shortages across offices. 

Increased Decisional CapacitY 

We continue to advance our eiTorts to increase our decisional capacity through hiring strategies, while at 

the same time maxinlizing current staffing levels in order to address our wait times and backlog. In 

addition to ensuring the appropriate number of adjudicators. we are augmenting the size of our decision 

writing corps and other support staff to address and prevent bottlenecks in pre-bearing case preparation 

duties and decision writing. In addition, we are looking at ways to streamline the decision writing 

process, as well as strategies to increase productivity. We currently have eight initiatives to increase 

decisional capacity. Two of these initiatives are: 

9 
19 


33616A.011

ALl ffiring. We have hired almost500 new ALJs since FY 2015 and now have more than 1.600 

ALJs on duty. To reduce the backlog significantly, we will need to increase our decisional 

capacity even further. We hired 31 ALJs this year and we are planning to hire additional ALJs 

later this year. We currently project a need for an additional 300 ALJs by the end of FY 20 19 to 

meet our backlog reduction goals. 

FY 20 I 7 Support Stoff Hiring. We need to hire support staff employees to ensure that we can 

both prepare cases for hearing and draft ALJ decisions in a thorough and timely manner. We are 

currently in the process of hiring over 600 support staff for our hearings operation. including legal 

assistants and decision writers, so we can adequately support our ALJs and resmne several 

CARES initiatives that we have paused. We plan to hire about370dccision writers in FY 2017. 

to address delays in decision writing. Once our FY 20 I 7 decision writers become fully 

productive, we expect them to begin to produce 80,000 decisions annually. We will also increase 

our decision-writing capacity by having b.eadquarters, regional. management, and quality review 

staff with decision writing experience assist temporarily with the writing backlog. We expect to 

increase decisions writien, leading to overall increase in dispositions using an all bands on deck 

approach by temporarily redeploying other staff, such as management and quality review staff. to 

assist in decision writing. 

information Technology Innovations and Investments 

We designed our technology investments to provide faster, streamlined. and more efficient IT tools for 

our employees, external stakeholders, and the public. Specifically, we designed our IT improvements to 

help to remove inefficiencies in our case processing systelJIS, drive policy-compliance and consistency 

across offices, and provide self-service options that allow us to provide customer choice and redirect staff 

away (rom manual workloads. We will measure the success of any IT investment we make in the 

bearings and appeals process by the extent to which that investment helps to reduce the wait time for the 

public and eliminate the number of backlogged cases. We have five initiatives under this categoty. Two 

of them are: 

Duplicate Identifying Software. This is a CARES initiative, and will be supported by special 

anomaly funding. We will develop and pilot software that uses artificial intelligence technologies 

to automatically scan case files, identify duplicate medical evidence, currently a time-consuming 

manual task. We are piloting this software in three sites, Mobile, Alabama: Reno, Nevada: and 

Albany. New York. Assuming the pilot is successful, we would expect broader implementation 

to increase efficiency and decrease average wait times. 

Expand Video Hearings Capacity. In FY 2016, we began replacing or upgrading old video 

bearing equipment and implemented a schedule to replace or upgrade equipment annually. ln FY 

2017, we made improvements and acquisitions for video hearing equipment, increasing our 

capacity to hold video bearings by adding over 200 additional units. We arc also working with 

other agencies to use available hearing room space in their sites. We are implementing marketing 

efforts to promote Representative Video Project use, in which claimants can attend video hearings 

in their representatives' offices using special equipment. 

In addition to the initiatives listed above and in our CARES plan. we are also exploring potential 

regulatory and other changes that would enhance our ability to manage the hearings process and deliver 

more timely hearings. For instance, we are exploring how we can expand the number of bearings we 

conduct by video, which we can offer more quickly to claimants. 

!0 
20 


33616A.012

Program lmegrity 

We have a number of program integrity and other initiatives to help ensure we are paying benetits to the 

right individuals. These activities include our continuing disability reviews and our Cooperative 

Disability Investigations (CDI) program. We periodically conduct continuing disability reviews (CDRs) 

to ensure we continue to pay benefits only to those who remain qualified to receive them. We estimate 

that the CDRs conducted in next fiscal year will yield net Federal program savings over the next ten years 

of roughly $8 on average per $1 budgeted for dedicated program imegrity funding, including OASDI, 

SSI, Medicare, and Medicaid effects. 

Our Cooperative Disability Investigations (CD I) program is a key anti-fraud initiative that prevents 

benefit payments from being made in cases involving fraud. CDI units consist of personnel from SSA, 

OIG, State DOSs, and state/local law enforcemem, who review initial disability claims and postcmitlemcnt activities when our front-Line employees suspect possible fraud. CD! units obtain evidence of 

material fact to resolve questions of fraud. 

Quality, Anti-Fraud, and Data Analytics 

Our goal is to deliver more timely service to claimants using updated disability rules, while we remain 

committed to improving the quality of our decisions. I will provide a brief overview of our historical 

quality efforts, including recem efforts to improve the use of data analytics, as well as a recent 

organizational change that we believe will streamline and rapidly improve our oversight of the disability 

decision-making process. 

Historically. we have established processes that provide information on. and work to improve, the quality 

of our decisions, and these efforts occur at all of our adjudication levels. For example, as explained 

earlier. we perform a review of at least SO percent of all DDS initial and reconsideration allowances for 

DI claimants before payment is made. Conducted by our Office of Quality Review (OQR), these 

preeffectuation reviews allow us to correct errors we find before we issue a final decision, and to provide 

instructional feedback to our DDS adjudicators. Additionally, OQR uses a number of other types of 

quality reviews that monitor the accuracy of DDS decisions. We have a number of quality efforts relating 

to hearings decisions as well. For instance, a division within our Appeals Council conducts 

preeffectuation reviews on a random sample of ALJ allowances. Additionally, we perform 

posteffecn.ation. focused reviews looking at specific issues that help inform our training needs and 

potential policy changes. 

More recently, we have begun incorporating the use of data analytics into our quality and antifraud 

efforts. For instance. one initiative under our revised CARES plan is expanding the use of a natural 

language quality assurance tool (called "Insight") to scan draft ALI decisions for language that could 

result in error. We expect to see improvements in quality by ensuring legally sufficient draft decisions 

that will decrease the number of remanded decisions to the bearing level. Additionally, we are 

incorporating data analytics and employing technology to root out disability fraud. Earlier this year, we 

testified at a bearing before this Subconm1ittee that we are in the initial stages of implementing the AntiFraud Enterprise Solution (AFES), which relies on software, data, and technology to more accurately 

identify and take action on more difficult-to-identify high-risk transactions across our programs and 

processes. including in our disability program. Notably, in disability cases, we anticipate that AFES will 

help the agency identify fraudulent transactions before payments are made. 

While we have achieved success through these quality and other efforts, these efforts are led in offices 

that are spread across our agency. Consequently, Acting Conm1issioner Nancy Berryhill announced a 

ll 
21 

f 


33616A.013

recent organizational change at SSA that will enhance our continued etrorts to modernize the disability 

programs. Effective October I, we will have a new Deputy Commissioner-level organization - the Office 

of Analytics, Review, and Oversight. This organization will combine all agency offices that, among other 

things, are dedicated to institutionalizing and fostering data analysis in all of our disability programs, and 

improving coordination on the oversight of the disability adjudication system. For the first time, the 

offices that conduct quality reviews and other oversight of our DDS and hearings process, including OQR 

and the AC, will be contained within one Deputy Commissioner-level organization. 

Conclusion 

Our disability programs serve the American public by providing a vital safety net for those who are some 

of the most vulnerable members of society. We are firmly committed to the development of sound 

management practices like the ones we have discussed today. Moving fonvard, we will continue to be 

mission-focused and mission-driven as we serve the millions of beneficiaries and applicants with 

disabilities who need our help. We look fonvard to continuing to work with you and your subcommittee. 

12 
22 

Chairman JOHNSON. Thank you, ma’am. Ms. Larin, you are 

recognized. 

STATEMENT OF KATHRYN LARIN, DIRECTOR OF EDUCATION, 

WORKFORCE, AND INCOME SECURITY ISSUES, GOVERNMENT ACCOUNTABILITY OFFICE 

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

Members of the Committee, I am pleased to be here today to discuss GAO’s report on the Social Security Administration’s Compassionate Allowance initiative. This initiative, known as CAL, expedites the processing of disability claims for those with certain conditions, a process that could otherwise take months. While CAL 

has been effective in fast-tracking eligibility determinations for 

some applicants, questions have been raised about how the initiative has been implemented. Specifically, my remarks today will 

focus on three issues: how SSA identifies conditions for inclusion 

on the CAL list; how claims are designated for expedited processing 

under CAL; and how SSA ensures the accuracy and consistency of 

CAL decisions. 

First, on identifying conditions for inclusion on the CAL list. We 

found that SSA lacks a formal and systematic approach for identifying CAL conditions. Since the CAL initiative began in 2008, the 

number of conditions included has grown from 50 to 228. Some conditions were added to the original list following a series of public 

hearings. But since 2011, SSA has relied primarily on advocates for 

certain diseases and disorders to bring conditions to its attention. 

However, SSA has not provided guidance on its web page on how 

to make suggestions. It has not consistently communicated with 

those who suggested additions about the status of their recommendations. And has not conducted outreach efforts to help ensure 

that all advocates are aware of the initiative. 

Relatedly, SSA does not have clear or consistent criteria that it 

uses to determine whether to designate a condition as CAL. As a 

result, SSA may be overlooking conditions that may be appropriate 

for inclusion. 

Turning now to how claims are designated as CAL. We found 

that SSA’s procedures do not ensure that all claims are accurately 

identified for CAL processing. SSA relies primarily on selection 

software that uses a word search of the impairment description to 

determine whether the claim refers to a CAL condition. But when 

the text provided by claimants is ambiguous, incomplete, or inaccurate, the software won’t catch the condition as a CAL condition. 

For example, we found that the software accurately flagged 

stage 4 lung cancer as advanced staged lung cancer, a CAL condition, but it did not flag a claim where the claimant described their 

condition as lung cancer terminal. Disability examiners have the 

opportunity to ensure that claims are correctly designated as CAL, 

even when the software makes errors, by manually changing a flag. 

But we found that staff vary in when or whether they add or remove CAL status from disability claims. 

SSA does not have clear guidance on when to change CAL designations. And we found that some examiners didn’t understand 

the importance of making such changes. For example, we found 

23 

that in 2016, over half of all disability offices did not manually add 

more than a single CAL designation to a claim. 

Finally, on the accuracy and consistency of CAL decisions. We 

found that SSA uses detailed condition descriptions known as impairment summaries as a key tool to ensure accurate claims decisions. However, these summaries are not regularly updated. We 

found that a third of CAL impairment summaries are more than 

5 years old. Even though medical experts we consulted suggested 

that given advances in medical research, summaries should be updated every 1 to 3 years. 

In addition, while SSA collects data on things like denial rates 

for specific conditions and claims processing times, they don’t leverage this data to inform improvements in the accuracy and consistency of CAL claims decisions. 

In conclusion, CAL is viewed positively by SSA and many stakeholders, and appears to be effectively expediting the processing of 

disability claims with this designation. However, weaknesses in 

CAL have led to unintended consequences. Absent improvements in 

how they identify CAL conditions, designate CAL claims, and ensure the accuracy and consistency of CAL decisions, SSA is missing 

an opportunity to make needed improvements to this important initiative. 

This concludes my prepared statement. I am happy to answer 

any questions you may have. 

[The prepared statement of Ms. Larin follows:] 

24 


33616A.014

For Release on Delivery 

Expected at 10 a.m. ET 

Wednesday, September 6, 

2017 

GA0-17-795T 

United States Government Accountability Office 

Testimony 

Before the Subcommittee on Social 

Security, Committee on Ways and 

Means, House of Representatives 

SSA'S COMPASSIONATE 

ALLOWANCE INITIATIVE 

Actions Needed to 

Improve the Accuracy and 

Consistency of Expedited 

Processing of Disability 

Claims 

Statement of Kathryn Larin, Director, Education, 

Workforce, and Income Security Issues 
25 


33616A.015

Chairman Johnson, Ranking Member Larson, and Members of the 

Subcommittee: 

I am pleased to be here today to discuss the Social Security 

Administration's (SSA) Compassionate Allowance initiative (CAL). SSA 

oversees two key federal programs for individuals with disabilitiesDisability Insurance (DI) and Supplemental Security Income (SSI). 1 In 

December 2016, these programs provided about $15.7 billion in disability 

benefits to nearly 17.4 million individuals. In order to be eligible for these 

programs on the basis of a disability, applicants must be determined to 

have a qualifying disability through a complex, multi-step process. As we 

have noted in our prior work, SSA has historically faoed challenges with 

prooessing applications for benefits in a timely manner, resulting in 

significant backlogs and long waits for applicants to team whether they 

qualify to obtain disability benefits. 

2 

In light of these challenges, SSA in October 2008 implemented CAL, 

which fast-tracks through the disability determination process those 

applicants who are likely to be approved because they have oertain 

medical conditions, such as specific canoers, Amyotrophic Lateral 

101 is an insurance program that provides benefits to eligible individuals who have 

qualifying di$3blllties or who are bllnd and who have worked for a minimum amount of 

time in employment oovered by Social Security, as well as their family members. SSI 

provides benefits to eligible individuals W'ho are aged. btlnd, or have disabilities and have 

limited income and resources. 

2For our prior work, see GAO, High Risk Series: Progress on Many Hi'gh-Risk Areas. 

Whilo Substanffal Effotts Noodod on Othors, GA0-17-317 (Washington, D.C.: Feb. 15, 

2017); Sociot Security AdministTation: Long-Term Strategy Needed to Address Key 

Managoment Challenges, GA0-13-459 (Washington, D.C.: May 29, 2013); Social Security 

Disability: Management of Disability Claims Workload Will Require Comprehensive 

Planning, GA0-10-667T (Washington, D.C.: Apr. 27, 2010); Social Security Disability: 

Additional Perforrm~nce Measures and Better Cost Estimates Covfd Help Improve SSA 's 

Efforts to Eliminate its Hearings Backlog, GA0-09-398 (Washington, D.C.: Sepl9, 2009); 

and Social Security Disability: Better Planning, Management. and Evaluation Could Help 

Address Backlogs, GA0-08-40 (Washington, D.C.: De<:. 7, 2007). 

Page 1 QA0·17·79ST 
26 


33616A.016

Sclerosis (ALS), or early-onset Alzheimer's disease. 3 Since 2008, SSA 

has expanded its list of CAL conditions from 50 to 225, resulting in 

increasing numbers of individuals qualifying for disability benefits through 

CAL. From the initiative's inception through the end of fiscal year 2016, 

SSA had approved more than 500,000 applications, or claims, for 

disability benefits through CAL. However, a few years after CAL began, 

concerns were raised that SSA had not identified all cases that qualified 

for CAL processing and processed some cases through CAL that did not 

quality.• More recently, concerns have been raised that SSA does not 

have a transparent process for identifying conditions for inclusion on the 

CAL list and its descriptions of certain CAL conditions may be medically 

out of date. 

To apply for disability benefits through either of SSA's disability programs, 

individuals submit a claim, which includes the claimant's description of his 

or her impairment (or impairments), among other relevant information. 

SSA assesses the claimant's non-medical eligibility for benefits and 

sends the claim to a state disability determination services (DDS) office 

for a review of the claimant's medical eligibility and initial determination of 

disability. 5 Although SSA is responsible for the programs, the law 

generally calls for initial determinations of disability to be made by state 

agencies. 

6 DDS examiners assess the applicant's medical condition 

against SSA's Listings of Impairments (medical listings), which contain 

medical conditions thai have been determined by the agency to be severe 

3CAL is one of several expedited processing initiatives SSA has implemented, consistent 

with SSA's focus on the timely processing of disability applications, or claims. For 

example, W'hereas CAL applies to claims of certain medical conditions, SSA's Terminal 

Illness initiative focuses on claims invotvi:ng a tenninal illness, which SSA defines as •a 

medical condition lhat is untreatable and expected to resutt in death." See SSA Program 

OperatiO<>s Manual System (POMS) 01 23020.045. In additi0<1, SSA's Quick Disability 

Determination initiative efectronicatly identifies disability cases in which there is a high 

probability that the claimant is disabled, evidence of the claimant's allegation(s) is 

expected to be read~y avaflabte, and the case can be processed in an expedited manner 

by the disability detennination service:$ office. 

4

SSA, Office of the lnsl)e(:tor General. Compassionat6 Allowance Initiative (A·01·10.. 

21080). August 2010. 

5

Non·medical eligibility requirements may include age, employment history, and 

performance: of substantial gainful activity. 

'see 42 U.S.C. §421(aK1). The WOflt performed at COS offices is federally financed and 

carried out under SSA disability program regulations, policies, and guidelines. 

Page 2 GA0 · 17·79ST 
27 


33616A.017

enough to qualify an applicant for disability benefits. 7 Based on this 

assessment, a DDS examiner decides whether to medically allow or deny 

a claim for 01 or SSI benefits. 8 

CAL claims may be processed more quickly than other claims, in part 

because they are given priority status. When a claimant submits a claim 

for disability benefits, ~ is flagged as CAL if the claimant's description of 

his or her impairment includes certain key words or phrases indicating the 

claimant has a CAL condition. These claims are given priority in disabil~ 

examiners' and medical consultants' queues of incoming claims, and SSA 

guidance directs DDS offices to n~ ate development of CAL claims within 

one work day of receipt. Examiners may only require a minimal amount of 

medical evidence, for example, a biopsy report, to confinn the claimant's 

diagnosis of a CAL condition. 

My testimony today summarizes findings from our August 2017 report on 

CAL that is being released today. 9 This statement addresses the extent to 

which SSA has procedures for (1) identifying conditions for the CAL list; 

(2) identifying claims for CAL processing; and (3) ensuring the accuracy 

and consistency of CAL decisions. To address these objectives, we 

reviewed relevant federal laws, regulations, and guidance; analyzed SSA 

data on disability decisions for CAL claims from fiscal years 2009 through 

2016 and on CAL claims flagged by staff for manual addition or removal 

of the CAL designation in fiscal year 2016; reviewed a nongeneralizable 

sample of 74 claim files with fiscal year 2016 initial determinations; and 

interviewed medical experts, representatives from patient advocacy 

groups, and SSA officials in headquarters and six ODS offices selected 

for geographic dispersion and varied CAL caseloads. Our work was 

7However, an individual may still qualify as disabled even if his or her medical condition is 

not included in 1M medical listings. If 1M indMdual's impairment does not meet 0< equal 

the severity of at least one of those in the listings, DOS officiaJs 'Hill assess the individual's 

physical and mental residual functional capacity. For adult disabilrty dairns. examiners followafive.step sequential evaluation process. See 20C.F.R. §§ 404.1520(a)(4), 

416.920(a)(4). Under that process, ff the examiner finds that the inpairment does not 

meet"' equal a listing, the examiner assesses 1M claimanrs residual functional capacity 

and determines whether the claimant can pe<fO<m his or her past relevant WO<I< or other 

jobs that exist in significant number$ in 1M national economy. 

a A DDS examiner may consult vMh a medical professional, psychological professional, "' 

both as part or this assessment. 

9GAD, SSA 's Compassionate Allowance tni~ativa: tmprovam&nts N&&d8d to Make 

Expadited Procossing of Oi$i>bility Claims Mote consistent and Acet~rate. GA0-17 -1125 

(Washington, D.C.: Aug. 11. 2017). 

GA0-17-7t5T 
28 


33616A.018

SSA Lacks a Formal 

and Systematic 

Approach for 

Identifying CAL 

Conditions 

performed in accordance with generally accepted government auditing 

standards. More details on our scope and methodology can be found in 

the issued report. 

In brief, although CAL appears to be effectively expediting benefit 

processing for disability claims receiving this designation, we found 

several weaknesses in SSA's procedures for Identifying conditions for the 

CAL list and daims for CAL processing. We also found weakness In the 

agency's procedures for ensuring the accuracy and consistency of CAL 

decisions. My statement will highlight eight recommendations that SSA 

can implement to make the ex.pedlted processing of disability daims 

through CAL more consistent and accurate. 

SSA has in recent years relied on advocates for individuals with certain 

diseases and disorders to bring potential CAL conditions to rts attention. 

However. SSA has not Clearly communicated this or provided guidance 

on how to make suggestions through its CAL webpage, Which 

communicates information to the public. Without more explicit 

instructions, we noted that advocates may not present information that is 

retevant for SSA's decision-making or that most strongly makes the case 

for these conditions to be included on the CAL list. One representative 

from an advocacy organization, for example, described meeting with 

agency offiCials and being surprised by SSA's focus on cancer gradesan indicator of how quickly cancer Is ltkety to grow and spread-as she 

was not accustomed to discussing the condebon she represents in these 

terms. Federal internal control standards state that agencies should use 

quality information to achieve their objectives. 10 We conCluded that 

absent dear guidance to advocates on how to make suggestions through 

its CAL webpage, SSA is missing an opportunity to gather quality 

information to inform its selection of CAL conditions. 

In addition, we found that relying on advocates to brlng conditions to 

SSA's attention also introduces potential bias toward certain conditions 

and the possibility of missing others. Some conditions that are potentially 

deserving of CAL consideration may not have advocacy organizations 

affiliated with them, and some advocates may be unaware of CAL. As a 

result, some conditions may have a better chance of being considered 

'

0GAO. Standard$ fOf lntemal Control In the Fe<J.f81 Go,..mmenl, GA0-14-704G (Wasllington. O.C.: Sepl2014). 

GA0.11·71ST 
29 


33616A.019

than other, equally deserving ones that are not proposed, and individuals 

with those conditions may have to wait longer to receive approval for 

disability benefits. Federal internal control standards state that agencies 

should collect complete and unbiased information and consider the 

reliability of their information sources. 11 According to some external 

researchers who wor1< with SSA, an approach leveraging SSA's 

administrative data may help address the bias that is introduced by only 

using advocates. SSA has contracted with the National Institutes of 

Health and the National Academies of Sciences, Engineering, and 

Medicine for research using SSA administrative data, which has led to the 

identification of potential CAL conditions. However, we noted that to date, 

the research SSA has contracted has not been sufficiently targeted to 

generate more than a small number of additions to the CAL list. 12 In our 

August 2017 report, we recommended that SSA develop a formal and 

systematic approach to gathering information to identify potential 

conditions for the CAL list, including sharing information through SSA's 

website on how to propose conditions for the list and using research that 

is directly applicable to identifying CAL conditions. SSA agreed with this 

recommendation and has begun to make revisions to its website. 

We also found that SSA has also not consistently communicated with 

advocates who have suggested conditions to add to the CAl list about 

the status of their recommendations, leading to uncertainty for some. SSA 

officials told us that they provide a written or oral response to advocacy 

organizations that have suggested a condition for inclusion on the CAL 

list to inform them whether the condition is approved. However, some of 

the advocates we spoke to had not received such a response from SSA 

and found it challenging to connect with SSA officials to obtain 

information about the status of their suggestions. For example, one 

representative from an advocacy organization told us that she was unable 

to reach SSA officials to obtain any information on the status of her 

suggestion despite repeated attempts. In the absence of a response from 

SSA, she had resubmitted her condition and supporting documents to 

SSA every six months for three years since her initial submission in 2014. 

Federal internal control standards state that agencies should 

communicate quality information externally so that external parties can 

11GA0·14-704G. 

12SSA administrative data include information on disability claims. such as the number of 

allowances and denials for claims with oertain conditions that were allowed or denied for 

benefits. 

PageS GA0·17· 79ST 
30 


33616A.020

help the agency achieve its objectives. 13 We concluded that without twoway communication between SSA and advocates, advocates are unclear 

on the status of their proposed CAL conditions and SSA may be missing 

an opportunity to improve the quality of the information it obtains from 

advocates. In our August 2017 report, we recommended that SSA 

develop formal procedures for consistently notifying those who propose 

conditions for the CAL list of the status of their proposals. SSA agreed 

with this recommendation. 

Our review also found that SSA has not developed or communicated 

clear, consistent criteria for deciding which potential conditions will be 

included on the CAL list. Officials told us that they have informally 

considered criteria such as allowance rates-the percentage of claimants 

asserting a certain condition who are approved for benefits-when 

identifying potential CAL conditions. However, we reviewed 31 

assessments of potential CAL conditions prepared by SSA medical 

consultants and found that they did not cite consistent criteria. There was 

no standard format used for these reports, and SSA does not have a 

template, checklist, or guidance-other than the medical listings- that its 

staff consult when preparing them. Further, SSA officials have cited 

different reasons for not designating conditions as CAL in 

communications with those who proposed conditions, which led to 

confusion regarding CAL condition criteria for staff from some advocacy 

organizations we interviewed. Federal internal control standards state that 

agencies should define objectives in specific and measurable terms so 

that they are understood at all levels of the agency and performance 

toward achieving these objectives can be assessed. To help achieve 

these objectives, the standards state that agencies should also 

communicate key information to their internal and external stakeholders. 

We concluded that absent clear criteria for designating CAL conditions, 

advocates and other stakeholders may be confused as to why some 

conditions are not included on the CAL list and SSA may miss conditions 

that could qualify for CAL. In our August 2017 report, we recommended 

that SSA develop and communicate internally and externally criteria for 

selecting conditions for the CAL list. SSA agreed with this 

recommendation. 

13GA0-14-704G. 

PageS QA0·17·79ST 
31 


33616A.021

SSA's Procedures Do 

Not Ensure All Claims 

are Accurately 

Identified for 

Expedited CAL 

Processing 

To identify disability claims for expedited CAL processing, SSA primarily 

relies on software that searches for key words in claims. However, 

because text provided by claimants may be ambiguous, incomplete, 

inaccurate, or misspelled, the software is hindered in its ability to flag all 

claimants with CAL conditions and may also flag claimants for CAL 

processing that should not be flagged." For example, officials we 

interviewed at 5 of the 6 selected DOS offices said that they have seen 

claims inaccurately flagged for CAL when the claim text included words 

like "family history of (CAL condition)" though the CAL condition was not 

asserted by the claimant. In addition, in our claim file review, we found a 

claimant asserting a leiomyosarcoma, a soft tissue cancerous tumor that 

may be found in organs including the liver, lungs, and uterus, who 

misspelled the term as 1eiomysarcoma• on the dosabolity claim, which 

resulted in the software not flaggong the cia om as CAL. although liver and 

lung cancers are CAL conditions ·~ 

SSA officials told us that they have not established a feedback loop to 

capture observations from ODS officials on weaknesses n the software. 

However, DDS offiCials we spoke With have observed weaknesses in the 

software that, if shared, could assist SSA on improving its accuracy in 

identifying CAL claims. For example, an olfocial at one ODS office noted 

that the software appears to identify CAL condrtions usong words from the 

claim text oU1 of order or without regard to specrlic phrases. Specifocally, 

the official staled that some claims with •pancreatilis· or •pancreatic pain• 

have been incorrectly flagged for the CAL condotion •pancreatic cancer." 

According to federal internal control standards, quality information about 

the agency's operational processes should flow up the reporting lines 

from personnel to management to help management achieve the 

agency's objectives. 16 We concluded that absent a mechanism to gather 

feedback from DOS offices nationwide, the agency may be missing an 

opportunity to obtain important information that could help improve the 

14Aecotding to SSA officials, the software contains 1 master word dictionary developed by 

their contractor and looks at ·catch all'" terms In ce11aln f.elds. lnclud•ng acronyms, 

alternative names, possessives, singulars end plurals, context mappings. word forms. and 

phrases to detect possibte CAL conditions. 

15

tn this case, officials manually added the CAL nag to this claim ()(ICe it was at the ODS 

office. 

16

Management should also monitor performance measures an<f indicators, and design 

program and data controls that suppon the integrity of these performance measures an<l 

indicators. GA0-14-704G. 

Page7 OAC>-17·79ST 
32 


33616A.022

software. In our August 2017 report, we recommended that SSA take 

steps to obtain information that can help refine the selection software for 

CAL claims, for example by using management data, research, or DDS 

office feedback. SSA agreed with this recommendation. 

We also found that DDS offices play an important role in helping to 

ensure that claims are accurately flagged for CAL by manually correcting 

flagging errors made by the software, but SSA's guidance on how to 

make such corrections does not address when they should occur. For 

example, instructions on the mechanical process for removing the flag 

based on the DDS examiner's review of the medical evidence in the 

claimant's file does not indicate how quickly this should be done after 

CAL status is clarified. Based on our discussions with officials in the 6 

selected DOS offices, we found that some examiners did not understand 

the importance of making timely changes to a CAL flag designation to 

ensure faster claim processing and accurate tracking of CAL claims. For 

example, examiners at one ODS office said that they do not always add 

or remove a CAL flag when they determine a claim is erroneously 

designated because it adds another step to claim processing and the step 

seems unnecessary. Ensuring claims are correctly flagged for or not 

flagged for CAL is important because the CAL flag reduces ODS 

processing lime by about 10 weeks on average compared to the 

processing time for all claims, according to SSA data.

11 According to 

federal internal control standards, agencies should record transactions in 

an accurate and timely fashion, and communicate quality information 

throughout the agency. We concluded that without clear guidance on 

when to make manual changes, DDS examiners may continue to lake 

actions that are not timely and may hinder expedited processing and 

accurate tracking of CAL claims. In our August 2017 report, we 

recommended that SSA clarify written policies and procedures regarding 

when manual addition and removal of CAL flags should occur on 

individual claims. SSA agreed with this recommendation. 

In addition, our analysis of SSA's data shows that ODS offices varied in 

their use of manual actions to add the CAL flag to claims that were not 

17Further. new medical evidence of a CAL condition can be discovered during OOS 

pro~s~lng of a cfalm, which would require the manual addition of a CAL ftag. Processing 

times refer to claims decided at the initial determination level. According to SSA officiaJs, 

due to data limitations. they are unable to provide processing times for CAL daims 

separate from non·CAL claims; as such. the average processing time for all claims 

includes CAL claims. 

Page8 GA0·17· 79ST 
33 


33616A.023

initially flagged for CAL by the software. Specifically, we found that over 

half of DDS offices nationwide that processed disability claims in fiscal 

year 2016 had one or zero claims with a manually added CAL designation 

in that year. 18 In comparison, 5 DDS offices together accounted for over 

50 percent of all claims with a manual addition. Such variance could 

result in some claimants who assert a CAL condition not receiving 

expedited processing because their claims were not flagged for CAL by 

the selection software or ODS examiners. 19 We found that because SSA 

had not undertaken a study of its manual action procedures on such 

claims, it was unclear why this variance existed among DDS offices. 

Federal internal control standards state that agencies should establish 

and operate monitoring activities to monitor operations and evaluate 

results.l<> In our August 2017 report, we recommended that SSA assess 

the reasons why the uses of manual actions vary across ODS offices. 

SSA agreed with this recommendation. 

1

Brhis includes 64 of 103 ODS offices. For the purposes of this analysis. we focused on 

ODS offioes in the 50 states and District of Columbia that had claims processed during 

fiscal year 2016. 

19

Aithough some DDS officials told us that they are able to informally expedite claims 

without apptying a CAL ftag, claims ftagged as CAL have re-ceived quicker processing, as previously noted-2 weeks versus 12 weeks. 

lOGA0 -1 4-704G. 

Page9 GA0·17·79ST 
34 


33616A.024

SSA Takes Some 

Steps to Ensure 

Accurate and 

Consistent CAL 

Decisions But Does 

Not Regularly Update 

Condition 

Descriptions or 

Leverage Data 

In our August 2017 report, we found that SSA has taken some steps to 

ensure the accuracy and consistency of decisions on CAL claims, 

including developing detailed descriptions of CAL conditions, known as 

impairment summaries, but has not regularly updated the summaries. 

These summaries suggest specific medical evidence for the DDS 

examiner to obtain to verify the claimant's asserted CAL condition and 

help examiners make decisions about whether to allow or deny a claim. 

However, we found that because SSA has not regularly updated the 

impairment summaries, nearly one-third are 5 or more years old. Several 

advocates (4 of 6) and medical experts (2 of 3) we interviewed suggested 

that the impairment summaries should be updated every 1 to 3 years 

because medical research and advan~ments may have implications for 

disability determinations. 

21 In addition, federal internal control standards 

state that as changes in the agency's environment occur, management 

should make n~ssary changes to the informatoon requirements to 

address the modified risks. 22 We concluded that given the pace of 

medical research for ~in CAL conditions, in the absen~ of a 

systematic and regular mechanism to update CAL Impairment 

summaries, SSA potentially fa~s the nsk ot mak1ng inaccurate and 

inconsistent disability determinations based on outdated information. In 

our August 2017 report, we recommended that SSA develop a schedule 

and a plan for updates to the CAL impairment summaries to ensure that 

information is medically up to date SSA agreed with this 

recommendation. 

We also found that SSA does not leverage data 1t collects to identify 

potential challenges to accurate and consistent decision-making on CAL 

claims. SSA and DDS officials review some data to monitor CAL claims 

processing, such as the total number of CAL claims and claims flagged 

for CAL by the selection software, but these efforts do not address the 

accuracy and consistency of decisions on CAL claims. In contrast, our 

analysis of SSA's data on outcomes for claims with asserted CAL 

conditions suggested that a review of data on allowa ~ and denial rates 

21

Representatives from two advocacy organizations we spoke wfth stated lhat a review every 10 yeal'$ or the summa lies fO< their specifiC diseases. which Include genetic 

disorders and a hereditary brain disease, would be sufficient. Further, on.e medteal expert 

stated that a review every 5 years woukl be adequate for 1 pecif~e human 

immunodeficiency virus dementia diSOfder for wtlleh medical advan~ments are unlik~ lo 

occur. 

22GA0-1 4-704G. 

Page 10 OAC>-17·79ST 
35 


33616A.025

for these claims may help identify conditions that are challenging to 

accurately and consistently adjudicate. For example, while the vast 

majority of claims asserting CAL conditions are allowed- about 92 

percent were approved in fiscal year 2016-data we reviewed showed 

that there was a lower percentage of claims allowed for certain asserted 

CAL conditions. Specifically, SSA denied more than 30 percent of claims 

asserting 37 CAL conditions, and 17 of these conditions had denial rates 

that were greater than 50 percent. 23 Advocates we spoke to who 

represent some of these conditions explained why challenges 

adjudicating these claims may exist. For example, officials from one of 

these advocacy groups told us that the CAL condition they represent is 

frequently confused with a much more common and non-life threatening 

condition that is less likely to be allowed. According to federal internal 

control standards, management should obtain relevant data based on 

identified information requirements, process these data into quality 

information that can be used to make informed decisions, and evaluate 

the agency's performance in achieving key objectives and addressing 

risks. 2< We concluded that without regular analyses of available data, 

SSA is missing an opportunity to ensure the accuracy and consistency of 

CAL decision-making. In our August 2017 report, we recommended that 

SSA develop a plan to regularly review and use available data to assess 

the accuracy and consistency of CAL decision-making. SSA agreed with 

this recommendation. 

Chairman Johnson, Ranking Member Larson, and Members of the 

Subcommittee, this concludes my prepared statement. I would be 

pleased to respond to any questions you may have at this time. 

23CAL olaims may be denied for various reasons, for example, if the claimant does nol 

meet the applicable non.medical program requirements. if the-re is insufficient medical 

evidence in the tile to adjudicate the claim. or If the Impairment the claimant alleges does 

not reflect the claimant's actual diagnosis. 

2<GA0-14-704G. 

Page 11 GA0·17·79ST 
36 


33616A.026

GAO Contact and 

Staff 

Acknowledgments 

(1022ft] 

For questions about this statement, please contact Kathryn A. Larin at 

(202) 512-7215 or larink@gao.gov. Contact points for our Offices of 

Congressional Relations and Public Affairs may be found on the last page 

of this statement. Individuals making key contributions to this testimony 

include Rachel Frisk, Assistant Director: Kristen Jones, Analyst-inCharge; and Michelle Loutoo Wilson. 

Page 12 OA0-17-79:ST 
37 


33616A.027

This is a work of the U.S. government and is not subject to copyright protection in the 

United States. The published product may be reprodu~d and distributed in its entirety 

without further permission from GAO. However, because this work may contain 

copyrighted images or other material, permission from the copyright holder may be 

nece"Ssary if you wish to reproduce this material separately. 
38 

f 


33616A.028

GAO's Mission 

Obtaining Copies of 

GAO Reports and 

Testimony 

Order by Phone 

Connect with GAO 

To Report Fraud, 

Waste, and Abuse in 

Federal Programs 

Congressional 

Relations 

Public Affairs 

Strategic Planning and 

External Liaison 

The Government Accountability Office. the audit, evaluation. and Investigative 

arm of Congress, exists to support Congress In meeting Its constitutional 

responsibilities and to help Improve the performance and accountability of the 

federal government for the American people. GAO examines the use of public 

funds: evaluates federal programs and policies: and provides analyses. 

recommendations. and other assistance to help Congress make informed 

oversight, policy, and fundinQ decisions. GAO's commitment to good government 

Is reflected in its core values of accountability, Integrity. and reliability. 

The fastest and easiest way to obtain copies of GAO documents at no cost is 

through GAO's website (http:/lwww.gao gov). Each weekday afternoon, GAO 

posts on its webs~e newly released reports, testimony, and correspondence. To 

have GAO e-mal you a liSt of newly posted products, go to hllp11www.gao.gov 

and select E-ma~ Updates." 

The price of each GAO publication renects GAO's ectual cost of production and 

dislribullon and depends on the number of pages on the publication and whether 

the pubieation is printed in color or black and wMe. Pnang and ordering 

information is posted on GAO's website. httpllwww.gao.govtordenng.htm. 

Place orders byeal ng (202) 512-6000.toll free (866) 801-7on. or 

TOO (202) 512-2537. 

Orders may be paid for uSlng American Express. Discover Card, MasterCard, 

Visa. ehedt, or money order. C.ll for addooonal onformabon. 

C<lnnect ~GAO on Face book, F~ckr, Lonkedln. TWitter. and YouTube. 

Subscribe to our RSS Feeds or E·maW Updates Listen to our Podeasts. 

VIS~ GAO on the web at www.gao gov and read The Watehblog. 

C<lntact: 

Websije; http:ftwww.gao.gov/fraudnellfraudnet htm 

E-mail: fraudnet@gao.gov 

Automated answering system: (800) 424·5454 or (202) 512-7470 

Katherine Siggerud. Managing Director, slggerudk@gao.gov, (202) 512-4400. 

U.S. Government Accountability Offoea. 441 G Street NW, Room 7125, 

Washington, DC 20548 

Chuck Young, Managing Director, youngc1@gao.gov. (202) 512-4800 

u.s. Government Accountability Office, 441 G Street NW. Room 7149 

Washington, DC 20548 

James-Christian BloekWood. Managing Director. spel@gao.gov, (202) 512-4707 

U.S. Government Accountability Office. 441 G Street NW, Room 7814, 

Washington. DC 20548 

... 

t.l Please Print on Recyded Paper. 
39 

Chairman JOHNSON. Thank you very much. Ms. McLaren, welcome. Thank you for being here. You may proceed. 

STATEMENT OF ELIZABETH MCLAREN, BUREAU CHIEF, 

IOWA DISABILITY DETERMINATION SERVICES, ON BEHALF 

OF NATIONAL COUNCIL OF DISABILITY DETERMINATION 

DIRECTORS 

Ms. MCLAREN. Chairman Johnson, Ranking Member Larson, 

and Members of the Subcommittee, thank you for this opportunity 

to testify on behalf of members of the National Council of Disability 

Determination Directors, or NCDDD, and the State administrators 

of the Disability Determination Services, or DDS, across the Nation. 

Currently, we direct the work of over 16,000 employees, processing nearly 4.7 million disability cases a year. Today, I am here 

to provide you with the on-the-ground perspectives of the DDS 

community regarding the disability process. NCDDD recommends 

consistent policy application across the Nation. Therefore, we support the reinstatement of the reconsideration step, or the first appeal of the initial DDS denial to all States. 

Introduced in 1999 in 10 States, the prototype pilot removes the 

reconsideration appeal level in State DDS’s. In these 10 States, the 

first level of appeal is a hearing with an administrative law judge 

at the Office of Disability Adjudication and Review. The President’s 

2018 budget request includes a proposal to reinstate reconsideration in those 10 States. We believe the reinstatement would help 

alleviate the ODAR backlog. 

Initially, this change would give those State citizens the same opportunity to get benefits sooner at less cost. NCDDD has previously 

supported this recommendation during testimony to this Committee in 2012. Then and today, we make this recommendation 

with the caveat that sufficient funding and additional resources 

must be included for DDS operations, chiefly related to staffing, 

funding, and infrastructure. 

NCDDD is in favor of continuing refinement of the Compassionate Allowance, or CAL initiative, and the associated fast-track 

processes. In fiscal year 2016, the DDS has processed over 16,000 

CAL-only cases, and nearly 62,000 CAL- and QDD-designated 

cases. While these numbers represent a small percentage of the 

millions of initial claims the DDS’s will process in a year, NCDDD 

believes in the CAL process, and we believe it should continue to 

be supported, but with some improvement. 

DDS’s find that CAL is useful in identifying impairments and 

prioritizing cases that have a high potential for favorable determination. However, SSA’s software has room for improvement, as 

it sometimes misidentifies cases as CAL, and at other times, fails 

to identify a CAL condition. We suggest refinements to the software to correct this issue. 

We also propose that SSA continuously update both the condition 

list and the impairment summaries for CAL. NCDDD is concerned 

about eliminating the use of the disability examiner authority for 

QDD in CAL cases at the end of fiscal year 2018, as required by 

the bipartisan Budget Act of 2015. This authority currently allows 

a disability examiner to make fully favorable determinations in cerVerDate Sep 11 2014 11:18 Feb 11, 2019 Jkt 033616 PO 00000 Frm 00043 Fmt 6633 Sfmt 6602 I:\WAYS\OUT\33616.XXX 33616
40 

tain QDD or CAL cases without the approval of a medical consultant. 

The DDS’s give this authority to well-trained, seasoned adjudicators who can work independently without medical consultation. We 

believe the loss of this disability examiner authority will have detrimental impact on DDS operations and our service to those applicants who are most in need. 

NCDDD supports and recommends the development of a new occupational information system to replace the outdated Dictionary of 

Occupational Titles, or DOT, and its companion volumes. In a large 

percentage of cases, disability determinations require assessment of 

an applicant’s ability to perform their tasked work. 

The 1991 edition of the DOT is a tool provided to the DDS’s by 

SSA. This aged resource is a foundational piece of the disability determination process. We understand that SSA has been working 

with the Bureau of Labor Statistics on a solution, but the completion date is still years away. The lengthy timeline for this change 

is discouraging to the DDS community, as we now have to work 

through complex issues with outdated information and antiquated 

systems that are not aligned with the framework of determining 

disability. We advocate for haste in the development of a new tool. 

In conclusion, NCDDD advocates that we retain and/or implement tools and policies that enable the DDS’s to continue to provide compassionate service to the public with timely, cost effective, 

high-quality disability determinations. 

On behalf of the NCDDD, thank you again for an opportunity to 

testify. I would like to thank our SSA partners for their collaboration, and commend the DDS staff across the Nation for their exemplary work for the American public. I would be glad to answer any 

questions you have. 

[The prepared statement of Ms. McLaren follows:] 

41 


33616A.029

rESTIMONY 01' 

ELIZADETI I MCLAREI\. !'RESIDENT-ELECT 

NA rtONAL COUNC! L OF DIS A All !TV Dc'TF.R \1 INA T!O. Dl RECI ORS 

TOTW, 

SUBCOMMITTF.F. ON SOCIAL SECURJTY 

OF THE 

COMMtnEE ON W 1\ YS AND MEANS 

UNITED STATES I lOUSE OF RESPRESENTA TIVES 

September 6, 2017 

Chaim1an J ohnson, Ranking Member La rson and Members oft he ub~om mittcc: 

The National Council of Disability Oclerminnt1on Din:ctors (NCDDD) is honored to submitth1s wunc'' 

testimony to comment on issues regarding the eligibility determination proecss for 1hc Social Security Disabilit~ 

Program. My name is Elizabeth McLaren. I am the currentl'residem-Eiect ofNCDDD and the Direeto1· or the 

Iowa Disability Determination Services (DDS). 

NCDDD is a professional association composed of many oftbe Directors and managers oflhc DDS agencies 

loeated in each state. Collcclively, members ofNCODO are responsible for directing the activities of 

approximately 16,000 plus employ~s who proeess nearly 4.7 million claims per year for disability bcnclils 

under the Social Security Act. NCDDDs goals foeus on establishing. maintaining and improving foir. accumtc. 

timely and cust·ci'licicnt decisions to people applying for d1s:1bility benefits. The mission of NCI)I)J) is tu 

provide I he highest possible level of service 10 persons with disabilities. to promote the imcrcstnr th ~ stulc 

operated I)DSs and to represent DDS Directors. their management teams and stall'. 

The ODSs work in partnership with the Soeial Securily Administration (SSA) to provide public service to 

individuals applying for disability bcoefits and to help ensure the integrity of the disabilily progrnm The DOSs 

make complex medical dclcrminations for the Social Security disability programs pursuant to federal Ia" and 
42 


33616A.030

regulations. The majority of DDS staff members are state employees subject to their individual state pcr..onncl 

rules, governor initiatives and state mandates, with !he remainder of staff under state contract to provide 

services to the ODS. The DOSs adjudicate various disability claims including those for initial claims. 

reconsiderations, continuing disability reviews (CDRs) and disability hearings. 

The Di•ability Determination Process 

The DOSs provide high quality service at the front end of the process and l'or many applicants the front end is 

!he entire process. For example, in 2016, DDS determinations at the initial and r<:consideration steps accounted 

for 76. 7"/o of all allowance decisions made !hat year (Title II, Title XVI and concurrent claims), while only 

23.3% were made the Administrative Law Judge and Appeals Council steps. DDS allowance accuracy as 

measured by Social Security's review is very high at over 98.7"/o for all of the programs. In FY 2016, DDS 

processing time was 85.6 days for initial claims and 77.1 days for reconsideration claims. 

"Quick Disability Determination'' and ''Cornpussicmutc Allowance" (QDD/Ci\L) claims are a small. but 

imponant subsct,about 2.3% of the initiul workloud. Average DDS processing time f'or these claims is 18.5 

days currently. Social Security's predictive modeling sollware identities QDD claims by scoring each initial 

claim on factors related to probable. quickly processed allownnces and nags those with the highest scores for 

expedited processing. In addition, Social Security's softwn~ identifies specific medical terms, l ey words or 

phrases that indicate a CAL condition and nags these cases for expedited processing. 

DDS claim processing time overall is quite fast considering that processing them involves obtaining henlthcarc 

records, sending claimants as needed to consuhmive examinmions, analyzing a large volume of medical. 

functional and vocational evidence, evaluating individuals' symptoms. addressing different medic11l opinions 

and determining individuals' remaining function and ability to perform work in the national economy 

Determinations require applying complex law. regulations and policy in each claim and making corn.-ct dcniuls 

as well as allowances. Outcome measures show thlt the DOSs have historically gi,cn the Amcric,on pubhc 

prompt, accurate and cost etl'ectivc service. During fiscal year 2016.the DDSs provided 2.688,977 inotial 
43 


33616A.031

disability decisions in this manner. The DOSs also provide stewardship oversight by determining continumg 

medical eligtbility and by holding disability hearings for the appeals of those whose benefits are ceased. 

The Cballtngu ofstaff and resources: 

As always, NCOOO members and their DOSs strive to balance the demands of our varied budgeted workloads 

(initial, reconsideration, continuing disability reviews and disability hearings) with strained resources. The 

DOSs have historically provided the American public with timely. high quality service even during the hard 

times when resources are not available. Nationally, I he DDSs lost 1,623 employees during the last fiscal yc:tr. 

Of that number, 1,238 were adjudicators, which equates ton lost capacity of over 736.610 claim dctcm1inaLions 

last )'Cat. 

We provide this information to illustrate the very real impacts that lack of hiring resources creates in the DDS. 

Few hires have been available to the DOSs this year and for those that were- most of them have been for critical 

hires in the DDS where other staff cannot perform the work of the depaning employee. Many DOSs arc 

handling the challenges of increased workloads and constant attrition by shifting resources (such as truining, 

mcntorina, quality assurance, professional medical relntions, consultative examination oversight, supervision 

and management) to claim processing. However, the DOSs cannot sustain these resource shills for the lung 

term without scriou.~ degradation of public service and program integrity, 

NCOOD perspectives on disabili(J• process issue-s for this Subcommitlet: 

Rcinst:otement of the .-.:consideration step to all statts 

NCDDD recommends consistent policy application across the nation. Therefore, we ask that Congrc•s consider 

reinstating the reconsideration step in the ten Prototype states. The cost in doing so would be an investment 

paid for in part by having fewer appeals for OOAR to process. For example, in FY 2016, over 79,799 claimants 

were allowed at the reconsideration step, an invaluable service to these claimants. Reinstating the 

rcconsidcrntion step in the Prototype states would give citit.ens in those states the same opportunity to get 
44 


33616A.032

benefits sooner at less cost to the system. while Hllowing the udrninistrntive law judges to focus on the cln1ms 

that truly need their level oflegal knowledge and e•pcnisc. 

NCDDD previously recommended teinstating the reconsideration step during testimony to this committee m 

2012. '11ten nod today, we make this teeommendation with the caveat that sutlicicnt timdmg and additional 

resources must be included. Significant advanced planning. spccilically related to the hiring of staff und 

medical consultants is also necessary for the DOSs to be successful in achieving this goal, as the DOSs are not 

able to effectuate such a change on short notice. 

To ill ustrote this point, when the Bipartisan Budget Asrecmcnt mandated the elimination of single decision 

maker (SDM), the SSA brought the DOSs in for a face-to-face meeting in Baltimore to generate a plan to ensure 

the agency would meet the n:quircments of the Act and eliminate SDM on time. For the reinstatement nf 

reconsideration to the ten Prototype states. NCDDD would recommend this same kind of facc·tO·fnce m•-cting 

for collaborative development of a plan and n reasonable timc·pcriod to reinstate rcconsidcnuions. 

Pan of this plan must include advanced hiring authority for adjudicators. During fiscal year 201 7, the DDSs 

have faced roughly 15% adjudicator attrition. With limited hires available this year, the DOSs have udjudieator 

vacancies that remain unfilled. As I am sure this committee is aware, DDS adjudicators arc not quickly 

replaceable employees in the disability process. It takes time and resources to hire the right employees for the 

job and then a minimum of several years involving continuous training and mentoring before those employees 

have the knowledge and expertise to handle all claim types independently at full production levels. 

In addition to the adjudicator hires, the ten Prototype stntes will also n•-ed to hire ndditionalmcdicul ~on~uhants 

to assist with the reconsideration claims. As with adjudicator hiring and training. sufficient time will he 

required in order for the DOSs to hire, train and ensure the pi'Ogrmnmatic accuracy of the medicHI consuhants' 

assessments Additional training will also be required for the existing DDS adjudicative swrr and medical 

consultants, many of whom may not have worked a rcconsidcrotion claim before. Another factor to consider is 

the additional oflicc space and equipment necessary to support these new hires. All of these concerns nrc •cry 
45 


33616A.033

real for the DOSs, specifically the ten Prototype Stutes. and ones that we would hope to mitigate prior to the 

reinstatement of reconsiderations. 

Continue the use of CAL conditions for claim processing 

In FY 2016. the DOSs processed 16.636 CAl. only claims and 61.712 claims "'ith QOD and CAl .. While thc'c 

numbers represent a small percentage of the volume of initial claims the DOSs wtll process in a year. 1\('1)1)1) 

believes that people with the most severe disabilities are well served by the Compassionate Allowance rroccss 

therefore, it should continue to be supported, but with some improvements. 

NCDDD recommends SSA pursue further refinement of the automated nag process. Social Security's M>ftware 

scans for specific phrases or "-Ords that claimants list as lheir medical conditions on their application for 

disability benefits, and those phrases or words generates the CAL nag or indicator on the claim. Currently the 

software sometimes misses a CAL condition due to the way claimants may spell their allegati ons or incorrectly 

use a medical term. Claims may come to the DOS marked as CAL incorrectly. As 11 benefit to the disability 

process, the resulting nags or indicators propagate claims to the top of on udjudicutors work list. and thts is 

especially helpful as it dirt:cts adjudic:uors to give those claims priority attention. When the DDS discovers the 

claim does not meet the criteria for a CAL condition. they then take the steps necessary to remove the O:tl\. 

While DDS adjudicators do have policy guidance explaining how to udd or remove n CAL indicator this is an 

additional step in the process. defeating the purpose of CAL as a claim processing "expedient". 

Given the fact that in some DOSs. there may be claim backlogs or high adjudicator workloads, the nag or 

indicator will also push these claims to the top of the list for assignment to an adjudicator. The ODS may also 

use expedited requests lor medical evidence from medical providers to receive relevant medical evidence to 

decide the claim. All of these factors help provide these claimants with faster service. 

NCDDD recommends that SSA update the impairment summaries on a continuous basis to ensure the ODS~ arc 

using the most relevant. up to date infom1ation possible. These imp;1irrncnt summ.tncs provide DDS 

udjudicators with the relevant information they need to know when making the mcdicul decision on CAl. 
46 


33616A.034

claims. TI1is is a helpful tool for adjudicators who may not be fami liar with the often uncommon. complex 

medical conditions these claims present. The summaries provide further benefit as they can save the 

adjudicator time researching the impairments elsewhere 

Support for the updating of medical listings nod regulations 

NCDDD is supportive of the recent changes in the mental, neurological, immunc/IIIV and rcspimtory medical 

listings. llowevcr, the DOSs laced challenges from the impact of so many listings changes happening relatively 

close together in time. Rewrites and updates to policy instruction. updating training nullcrials and chunllcs 111 

SSA and DDS legacy systems all must occur when the mcdtcal listings change. NCDDD rccognit.cs the need to 

keep the disability process mirroring change in current ml-dical cure and treatment options- howc>cr. "c \\Ould 

recommend that SSA use o more ~amlined and phased in opproach for medical listings chant~-es an the future. 

NCDDD also supports the March 2017 medical evidence regulation changes regarding acceptable medical 

sources. TI1e odd it ions of advanced practice registered nurses (APRNs). licensed physician assistants and 

audiologists to the list of acceptable medical sources arc incredibl y helpful to the disability adjudication 

process. These changes will save considernble time and money previously spent on sending claimants to 

consultative examinations to corroborate the evidence "'c may have received from their non-acceptable medical 

treating source This is helpful to the progrnm and to those claimams who reside in primarily rural areas. where 

extensive trove) to and from the examination "ould othcmt~c be necessary. 

The impact ofSOM eUmioation on the ODS! 

Due to the requirements of the Bipartisan Budget Agreement, the SSA is required to eliminate the usc of single 

decision maker (SDM) authority in the nineteen DOSs th!ll wct-c previously using this authority. Several states 

have nlrcudy made this change, and the remaining states at-e on track to complete their eliminmion ofSDM on 

time. TI1c nineteen DOSs have used this "tool'' for more thun I 5 years. therefore this change was one that 

required planning :md advanced hiring to handle the additional steps in their adjudication process. 
47 


33616A.035

The biggest component to successfully eliminming SDM was the hiring of additional medical consul1ant> in 

advance to handle the increase in claims review. Some of the SDM states faced serious challenges in hiring 

these additional consultants due 10 the limited number of resources available in their states. The SSA cn,ur<-d 

funding was available to the states as they were in the recruitment process for additional mcdicul consul1um~ 

and this has proven to be incredibly helpful. 

NCDDO members have reported other varying impacts on the program from SDM climinmion. They include 

delays in processing time due to the hiring and training of new medical consultants, increased cos ~ from those 

additional medical consultants and the needs of additional workspace and equipment for them, negative impacts 

on morale and retention of adjudicators losing the SDM authority, as well as a decrease in job grades and salary. 

DO s need to n!tain disability oxamincr (DE) authorif) for QOO :tnd CAL claims 

Based on the language and direction of the Bipartisan Budget i\ct of2015. SSA -.ill be climinatinJlthc use of 

the disability examiner (DE) authority for QDD and CAL claims at the end of FY 18. Currently. DDS 

adjudiCIIIOrs have the authority 10 decide fast tracked claims independently. The DDSs typically give this 

authority 10 those adjudicators who are seasoned, well trained and can work independently without medical 

consultation on many claims. As needed, adjudicators may TC<Iuest consultation from the DDS medical 

consultants. but in most cases. it is not required. NCDDD believes that independent disability adjudicator 

determinations have maintained high accuracy standards with a streamlined business process and cost-effective 

use of medical consultant time and expertise. 

NCDDD believes that this loss of DE authori ty will huvc multiple detrimental impacts on the DDS operation. 

Since it will require significantly more medic• I consult11n1 time und resources. longer DDS processing time and 

budget increases nrc to be expected. In FFY 2016. the DDSs processed roughly 58.763 QDD and Ci\1. claims 

using the DIO authority. Taking those 58,763 claims times the average costs of the medical consultation review 

costs of$55.00 per medical review, you can quickly sec the cost increases to the program. 
48 


33616A.036

Processing time delays are an important factor to consider due to the impact they have on the lives of the 

claimants we serve. Removing tools that c!Uible the DOSs to provide timely, cost effective. high quality 

determonattons docs not serve the public in the best wny possible. In addition, negative impacts to the disability 

adjudicator's morale, job classification and pay scales "ill affect ODS staffing capacity and quulity ncm~s the 

country. We urge this subcommittee to consider n change to this requirement of the Bipartisan lludget i\ct. 

The Ulldating ol' the Oiction:ory of Occupational Titles (UOT) 

NCDDD supports and recommends the development of u new Occupational Information System to replace the 

outdated Dictionary of Occupational Titles (DOT) and the Selected Characteristics of Occupations (SCO). 

Vocational documentation and analysis for the disability program are challenging for DDS adjudicators 

lnerefore, the updating of the old DOT and SCO to reflect current information about occupations in the 

national economy would be incredibly helpful for the DOSs. We understand that SSA has been "orking "ith 

the Bureau of Labor Statistics (BLS) but the completion of this update is still years away. BLS must do a great 

deal of data ~;n th ring and analysis and SSi\ must deve lop n modem electronic tool to support the vocuuonnl 

assessments required lor disability detenninntion. The long timclinc lor this change is discouraging to the f)f)S 

adjudicators who spend much valuable time working through vocational issues on claims supported only by 

outdated information end antiquated systems not aligned with the legal fmmcwork for determining disability. 

ContluJion 

The DOSs have a long record of partnership and collaboration working "ith SSA to provide timely. high 

quality service to the public. Policy changes and technology tools can further improve program efficiency and 

consistency of public service. As stated in this testimony, NCDDD supports the reinstatement ofthc 

reconsideration process in all states, the conti nued usc of CAL conditions for claim processing. the updating of 

the medicalli>tings and regulations, the conti nued usc of the disability examiner authority lor ()Df) and t'i\1. 

claims, and the updating of the DOT. lne DOSs need these tool> to cfTcctivcly and eflicicntly scn·c th~ nceds 

of the American public. now and in the futu~. 
49 

f 


33616A.037

We would also like to take this opponunity to acknowledge the suppon former Acting Commissioner Carolyn 

Colvin provided to the ODS community during her tenure. She was a rollaborative panner, who listened to our 

perspectives and responded to the resource needs of the DOSs to suppon our mission of serving the American 

public. We also l'.ish to acknowledge current Acting Commission Nancy Berryhill for her pannership and 

collaboration with the DOSs as we continue to strive to meet our public service mission. 

Mr. Chairman, on behalf ofNCDDD, I thank you nguin ior this opportunity to provide testimony on the 

eligibility determination processes within Socinl Security's disability program. We will be happy to provide 

any additional information you need and ans"'cr any questions you may have. 
50 

Chairman JOHNSON. Thank you. Ms. Zahm, welcome. Thanks 

for being here. You may proceed. 

STATEMENT OF MARILYN ZAHM, PRESIDENT, 

ASSOCIATION OF ADMINISTRATIVE LAW JUDGES 

Judge ZAHM. Thank you. Chairman Johnson, Ranking Member 

Larson and Members of the Subcommittee, thank you for this opportunity to address you who have the stewardship of this program 

in your hands. I am Marilyn Zahm, a United States Administrative 

Law Judge for 23 years and elected President of the Association of 

Administrative Law Judges. 

The AALJ represents 1400 Federal administrative law judges located in 166 hearing offices across the country. I am speaking 

today on behalf of my judicial colleagues. 

SSA judges have been doing triage work in hearing rooms across 

the country without adequate time, resources, or staff. We urge 

Congress to draft legislation to revitalize the adjudicatory system. 

Each of you has heard stories from your constituents, just as we 

judges hear stories in our courtrooms, of the hardship that waiting 

2 years for a hearing and decision takes on those who appear before us. 

However, there are some practical solutions to the problems that 

we face in the adjudicatory system. I will focus on four issues and 

our solutions: adopt an AALJ’s recommended efficient adjudication 

procedures; protect and preserve the independent judiciary; provide 

judges with adequate support staff; and provide judges sufficient 

time to perform their work. I will briefly discuss each of these. 

Since 2011, the agency has imposed an estimated 1,000 changes 

to its policies and procedures manual, most of which are unnecessary, and simply add to the time it takes to hear and decide cases. 

We have proposed a number of solutions to make the adjudicatory 

process more efficient and more effective. Streamlined fully favorable templates, which, if implemented, could save half a million 

work hours per year. An expedited dismissal process that has the 

potential to conserve 400,000 hours annually. Rules of procedure 

for those who appear before us: properly drafted regulations; elimination of the 10 regional offices for ODAR; and redeployment of 

their 400 staff to the hearings operation. 

The American people are entitled to an impartial decisionmaker. 

The agency, however, continues to push an initiative that would 

disable all statutory protections to ensure that Federal agencies 

cannot improperly influence their adjudicators. It seeks to use inhouse attorneys over whom it exercises control, instead of independent judges to hear and decide cases. 

This is not a new initiative. The agency proposed this last year, 

but under pressure from Congress, backed away from the proposal. 

Nevertheless, the agency has again announced this plan. There 

should be a chart appearing on your TV screens, which highlights 

the differences between ALJs and the agencies attorney examiners. 

As you can see, ALJs have decisional independence; in-house attorneys do not. They are controlled by the agency. If you control the 

people who make the decisions, you can control their decisions. 

The agency’s probationary period proposal for newly hired ALJs 

with its argument for a judicial performance plan is also a wellVerDate Sep 11 2014 11:18 Feb 11, 2019 Jkt 033616 PO 00000 Frm 00054 Fmt 6633 Sfmt 6602 I:\WAYS\OUT\33616.XXX 33616
51 

worn attempt to eliminate statutory protections for the American 

people. This idea should be unequivocally rejected. We Americans 

deserve an independent judiciary. 

Judges are hamstrung without adequate support staff. Hiring 

freezes and attrition have eroded our clerical and attorney writing 

staffs. In many hearing offices, agency management has stripped 

judges of their assigned clerical support. In order to be efficient, 

judges need to work with the same staff. Each judge needs to have 

one clerical staff member and two attorneys assigned to us to work 

directly with us. 

Each disability case involves a person who is likely to desperately need income. Each claim paid has an approximate value 

of $300,000. Judges need to carefully and thoroughly evaluate each 

case, and we need sufficient time to do this job. The agency’s quota, 

demanding judges dispose of 500 to 700 cases annually, was created by dividing the number of pending cases by the number of 

judges several years ago. This means that judges have an average 

of 2.5 hours to fully adjudicate a case. That means reviewing the 

entire file of hundreds of medical documents, sometimes thousands; 

holding a hearing at which the claimant and expert witnesses are 

questioned; drafting instructions for a decision and editing that decision; 21⁄2 hours. 

Judges who take the time to follow the rules, regulations, and 

policies—— 

Chairman JOHNSON. Can you finish pretty quickly because 

your time is up. 

Judge ZAHM. Oh, I am sorry. Thank you for your attention. 

[The prepared statement of Judge Zahm follows:] 

52 


33616A.038

MLJ ASSOCIATION OF 

ADMINISTRATIVE 

_ LAW JUDGES _,> 

~~ 

STATEMENT OF 

JUDGE MARILYN ZAHM 

PRESIDENT 

ASSOCIATION OF ADMINISTRATIVE LAW JUDGES 

BEFORE THE 

HOUSE WAYS AND MEANS COMMITTEE 

SOCIAL SECURITY SUBCOMMITTEE 

UNITED STATES HOUSE OF REPRESENTATIVES 

SEPTEMBER 6, 2017 

Chainuan Johnson, Ranking Member Larson, and Members of the Subcommillee: 

Thank you for this opportunity to appear before you to discuss the Social Security 

Administration's disability process. 

I am Marilyn Zalun, an Administrative Law Judge assigned to the Buffalo, New York bearing 

office since 1994. I also serve as president of the Assoc iation of Adminisrrative Law Judges 

(AAU), a group of I ,400 Administrative Law Judges (ALJs, Judges) employed by the Social 

Security Administration across the country. The views I express today are those of the 

Association. I do not speak for the Agency. 

The Social Security Administration (SSA) has an unprecedented number of cases pending at the 

hearings level. There are over 1. 1 million people waiting for a hearing and decision. No one is 

more aware of the seriousness of this problem than the ALJs. Every day in our courtrooms, we 

see the toll that waiting up to two years for a hearing and a decision takes on those who appear 

before us. 

I thank Congress for allocating an additional S90 million to SSA in this year's budget. SSA 

leadership is using some of these resources under the CARES II plan for much needed 

technology improvements and hiring in the hearings operation. 

However, the CARES II plan will not appreciably reduce the backlog of cases anytime in the 

foreseeable future. With the exception of the additional hiring, not one of these initiatives -

either singly or in combination - focuses on the real reasons why we have a backlog crisis. 
53 


33616A.039

There are structural problems with the adjudicatory proc.ess that must be addressed if the 

disability program is to be efficient and effective. My goal today is to address these problems 

and offer constructive solutions that will improve service and reduce the backlog. 

The culmre of the organization must change if the system is to work well. Tite tension between 

the ALJ Corps and the Agency, while longstanding, has been exacerbated by the backlog crisis, 

as the Agency frantically tries to reduce the pending cases by improperly coercing Judges into 

issuing more decisions. The Agency's actions are counterproductive; management should be 

cooperating with its Judges rather than threatening and browbeating them. 

The Agency's quota, demanding Judges adjudicate 500 to 700 cases armually, is not based on 

auy study, not based on any rational analysis of the amoulll of work involved, and not based on 

anything other than the desire to have more decisions issued; it was created years ago by dividing 

the number of pending cases by the number of Judges. Please remember that each case involves 

a living, breathing person who is likely desperate after waiting up to two years for a hearing. 

And, it is important to understand that each claim paid has an approximate value of $300,000 in 

government resources. Judges need to carefully and thoroughly evaluate each case before us. 

A basic element of any adjudicatory system is that Judges have sufficient time and resources to 

do their jobs. Right now, SSA allots Judges an average of only 2.5 hours to adjudicate a case. 

This includes reviewing hundreds (sometimes thousands) of pages of medical documents, 

holding a full and fair hearing at which the claimant and expert witnesses testify, and issuing a 

decision which thoroughly addresses multiple complex medical and legal issues. l doubt there is 

anybody in this room who could read 1,000 pages of dense medical records, hold a hearing, write 

instructions, and edit the draft decision in 2.5 hours. I know I can't. Still, SSA insists ALJs 

adjudicate 500· 700 cases per year. 

Congress is rightfully conc.emcd about ac.curatc decisions being issued, and your inquiry must 

start with realistic dispositional goals for the ALJ Corps. AALJ commissioned a work analysis 

study (www.aalj.org) conducted by industrial experts that revealed that, if a Judge follows all of 

the Agency's policy dictates, it would take over seven hours to adjudicate an average case. The 

difference between the 7 hours to adjudicate a case and the 2.5 hours SSA allocates is serious. 

TI1is disparity has generated significant teosion between the AALJ and SSA management. 

Judges who take the time to follow all oft he rules, regulations, and policies are often bullied and 

harassed by SSA with threats of discipline and loss of benefits for not adjudicating more cases. 

As we all have learned from the Wells Fargo banking scandal, unrealistic quotas lead to bad 

results. The pushing of Judges to issue more decisions without ade-quately eva luating the claims 

created the environment that allowed the illegal actions in the Huntington, West Virginia hearing 

office to flourish. 

SSA's adjudication procedures are upside down. ALJs have an average of2.5 hours to fully 

adjudicate a case if they are to issue 500dispositions annually, while SSA decision writers are 

alloned a minimum of 3 hours and up to more than to 14 hours per case, depending on 

complexity, to produce a draft decision. Titose in the Division of Quality who conduct reviews of 

2 
54 


33616A.040

AU decisions spend muhiple hours on their tasks. Attbe federal coun level, the magistrate's law 

clerk can spend at least 8 hours reviewing an appeal from a single ALJ decision. 

Why do those who evaluate our work have appreciably more time to spend assessing it than we 

have to complete it? 

Simply ordering Judges to increase the number of hearings they schedule to 50 a month -as the 

Agency boasts it has done- does absolutely nothing to improve the system. Rather, it increases 

the chance that the decision issued will be neither well supponed nor accurate, especially since 

the amount of medical evidence for each case bas increased dramatically even as our support 

staff bas shnmk and the Agency bas placed more policy and procedural demands on the Judges. 

Furthem10re, this dictate is insuhing and ignores the fact that Judges are the hardest working 

group of SSA employees. In fact, at the insistence of our Judges, the AALJ negotiated the right 

to remain in the office after hours from 6:00pm until 10:00 pm, without pay, to continue 

working. 

So, what can Congress and SSA do? SSA must allow Judges sufficient time to adjudicate cases 

and must act to remove roadblocks that impede efficient adjudication. The Agency has burdened 

Judges with unnecessary policies and procedures and has hindered the smooth functioning of the 

system by poor management practices and poorly drafted regulations. These actions, together 

with the massive increase in the size of case files, the emphasis on quality - which the AALJ 

agrees with but notes that good work rakes longer- and the reduction in staff assistance arc what 

has driven down the number of decisions Judges can issue. 

Modem corporate management seeks the advice of those who perform the actual work to solve 

problems, as they know best how to do the job. Unfortunately, the culture at SSA is top down, 

management-knows-best. SSA managers should listen to the Judges who pcrfonn the work that 

fotms the core mission of the disability process. Hopefully, the new managememteam coming 

into SSA will bting a differem ani tude and will look to the AALJ as a panner in solving the 

backlog. 

Let me outline a few changes that will help reduce the backlog while maintaining quality 

decisions. A normal adjudicatory system is organized to provide supponto the Judge, as it is the 

Judge who is the point of production. Judges are most efficient when they work consistently 

with the same staff. In many bearing offices, management has stripped Judges of their assigned 

clerical suppon, causing them tO have to spend time and energy following up on case-handling 

directives and searching for a staff member to provide needed assistance with such matters as 

equipment malfunctions, missing documents, phone numbers of cxpens who will be testifying at 

the hearing, etc. - in short, non-judicial work. Moreover, management has reduced the number 

of attomeys and decision writers assigned to the local hearing offices and placed this support in 

centralized locations. As a result, Judges do not know who is drafting their decisions, have linle 

to no contact with writers, and at times must spend hours editing decisions. I note also that 

accountability decreases in direct proportion to the distance of the support staff from the Judges. 

I see that the updated CARES n plan provides for a "virtual hallway" with writers in centralized 

writing units- con:urmnication between the writers and the local offices will be conducted via 

3 
55 


33616A.041

Skype, email, instam messaging, or other electronic teclmology. Centralized writing units are 

not the best way to deliver service, but we acknowledge that, since they already exist, they 

should be made to work as efficienlly and effectively as possible. The virtual hallway will be 

successful only if the writers are assigned to the Judges and have the ability to communicate 

directly with them. The AAU has made similar suggestions over the past few years- however, 

while the Agency promises to implement the idea, nothing has been done to improve the process. 

Because of hiring freezes and attrition, SSA lacks sufficient clerical and writing staff. With 

adequate staff providing necessary clerical and writing support, Judges can focus on their core 

function of bearing and dc.ciding cases. The Agency should be hiring clerical employees and 

anomeys to assist Judges until we are adequately staffed. 

AAU has made numerous recommendations to the Agency to make the hearings operation more 

efficient. The Agency has taken some steps recently toward accepting one of our suggestions, 

the streamlined fully favorable template idea, which transfonns the current, lengthy decision into 

a concise and legally sufficiem shorter document by including only necessary infonnation. For 

instance, there is no need to discuss all impainnents, only the ones that are the basis for the 

disability. If management fully adopts our reconunendations, we will be able to save half a 

million work-hours annually to spend working on the backlog. 

There are many other suggestions that we have advanced that also can save time and money if 

implemented. 

Another AAU proposal is an expedited dismissal procedure. About 17% of Social Security 

disability cases are dismissed because the individual- usually unrepresemed ·has abandoned the 

case, having rentmed to work, lost interest, or moved and left no forwarding address. In many 

urban bearing offices, the dismissal rate is significamly higher. If, despite our best efforts and 

good imemions, we cannot find the claimam, then we cannot hold a hearing and adjudicate the 

case. Any work put imo these cases - obtaining evidence, organizing the file, reading ~te file -

is a waste of time and scarce resources. If these cases were to be resolved earlier in the process, 

before significant resources were expended on them, we could save almost 400,000 work hours 

annually. If the regulations and policies were changed so as to allow us to dismiss abandoned 

cases without scheduling a hearing, there is potential for even more savings. 

SSA holds approximately 700,000 bearings a year · a staggering number · yet has no rules of 

procedure for those who practice in from of us. A lack of rules of practice impedes the smooth 

operation of the adjudicatory process. The submission of evidence in a timely fashion to penn it 

the Judge and expcn witnesses proper time 10 review the evidence and the closure of the record 

are two critical measures that arc missing. Reccmly, SSA issued a regulation sening forth a rule 

for the submission of evidence five days prior to the hearing. This rule was based on a very 

lengthy and successful demonstration project in New England. The five-day rule, while bener 

than the prior situation in the rest of the country (which allowed hundreds of pages of documents 

to be submitted at the hearing and post-hearing), is poorly drafted. The intent of the rule can be 

undennined, as it also indicates that it is sufficient if, five days before the hearing, the Judge is 

merely notified about what evidence is outstanding and the attempts made 10 obtain it. This 

" infonn option" totally defeats the purpose of the 5-day rule, which is to ensure a fully 

4 
56 


33616A.042

developed record prior to the bearing. A Judge is most efficiem when be or she bas all of the 

documems and can review !hem prior to the day of the hearing so that the decision can be made 

at the conclusion of the hearing, while the evidence is fresh in the Judge 's mind. So, instead of 

taking what worked in practice in New England, SSA changed the ru le and greatly reduced its 

impact. 

In addition, rules need to be enacted to prevent the submission of duplicative documents or 

exhibits that are not organized in chronological order. Sometimes as much as 20% percent of the 

medical evidence consists of duplicate documents. Because medical evidence in a case may 

consist of thousands of pages, duplicates bulk up the record and lengthen the Judge 's 

review. These rules will assist the claimants and the adjudicatory process by facilitating !he 

Judge's review of the record and saving Judge and staff time. 

Judges receive policy updates on a daily basis that set out changes that must be read, absorbed 

and applied - an impossible task. Many of these changes wind up as part of the Agency's 

Hearings, Appeals, and Litigation Law Manual (HALLEX) that Judges are required to follow. 

Since 20 II, the Agency has imposed more and more policies and procedural requirements for 

case adjudication- we estimate 1 ,000 changes to HALLEX during this period - most of which 

are unnecessary and simply add to the time that it takes to hear and decide cases. For example, 

HALLEX I-2-5-13B requires the staff, once infonned about medical evidence, to ask the 

c laimant to obtain it, wait a mandatory 30 days before asking the c laimant why it is not 

submitted, and then ask the ALJ if the staff should send for the documents. Since unrepresented 

c laimants rarely obtain medical evidence, and when they do, it is often incomplete, the s1aff 

a lmosl invariably bas 10 ob1ain it. This HALLEX requiremem, and many olhers, creales exira 

work and delay. 

AALJ bas prcscmed the Agency with a significam number of specific changes to HALLEX 10 

Slreamlinc procedures, with liulc result HALLEX needs 10 be !horoughly reviewed and ils 

dic1a1es simplified so !ba1 1he adjudica1ory process bec.omes efficient Moreover, Agency 

personnel crafting lhese changes could be better utilized lo assisl in !he hearings operalion. 

This brings me lo case record size. Tite size of our files has increased 55% from FY 20 II 10 FY 

2016. While !he Agency is developing software to idenlify duplicate evidence, which they expect 

will shrink the fi les by abom 17%, and even if !his inilialive is as successful as predic1ed, this 

modest reduction in documents-in the face of 1he ever increasing file size - will no1 do much 10 

reduce !he backlog. Any real impac1 on !be backlog will come from more s1aff and better 

policies. 

As for more Slaff, lccbnology facili1a1es dircc1 disseminalion of infonnalion wilhout the need for 

bureaucralic middlemen. Eliminaling !he len Regional Offices - most of which are loca!ed in 

expensive real estale - could deploy aboul 400 employees to !he hearings operation 10 perform 

the real work of the Agency. Many of the funclions performed by the Regional Offices are 

duplicalive of !hose performed in the cemral office. Tite central office can more efficiently 

manage the hearing offices directly, ralher than lhrough !he regions. Similarly, flattening the 

managemem SlntctUl'e in !he hearing offices would a llow for ove•· 400,000 addilional s1aff hours 

per year 10 be milized direc1ly in case adjudication. 

5 
57 


33616A.043

There are a number of other measures that can improve the disability process, including 

establishing an SSA Medical Expen Corps, initiating an early continuing disability review upon 

the recommendation of the Judge, using social media and the intemet, authorizing symptom 

validity testing, and reducing the occasions when closed cases can be re-litigated. 

ALJs are required to adjudicate cases based on complex medica l evidence without the timely 

benefit of medical ex pens. The Agency bas a lack of experts in many specialties, which causes 

delay in adjudicating cases. A corps of medical experts will provide Judges with unbiased expert 

opinions that will assist in issuing medically and legally supponed adjudications. 

Having reviewed all of the medical evidence, Judges are in a good position to know the earliest 

time for SSA to conduct a Continuing Disability Review (CDR). SSA should implement ALJ 

recommendations for timing CDRs to detem1ine medical improvement so that claimants can 

retum to the work force as soon as they are able. 

AALJ also recommends that SSA use social media and the internet to review an individual's 

activities prior to hearing (reports put in each file) so that Judges can question the claimant to 

better assess credibility. For example, in the New York City disabil.ity scandal, had the Agency 

reviewed Facebook postings, it would have discovered photos documenting claimants riding a 

motor scooter, fishing off t.he coast of Costa Rica, work.ing as a mania! ans instructor and 

holding a job as a helicopter pilot. A Judge should not be barred from asking questions about 

infonnation that is disseminated to a wide audience. 

Other federal agencies, including the Veterans Administration, use Symptoms Validity testspsychological testing and assessment - in evaluating symptoms. SSA should also authorize such 

tests when requested by the ALJ so that the Judge can have access to an independent cxpett's 

opinion on malingering and exaggeration. 

Regulatory changes to cut down on reopening closed cases andre-litigating periods of time for 

which the Agency has already made a determination should be implemented. It makes no sense 

and is un fair to make people wait in the queue for two years to have an initial hearing when 

others are penni ned to have a second, third or fourth bite of the apple. 

Finally, we must always keep in mind that workers have paid inro the Social Security system and 

should expect to have that system rreat them fairly when they have a need for its benefits. There 

are two recent developments that strike at the heart oft!Je American public's entitlement to a full 

and fair due process hearing before an independent adjudicator. 

first, the Agency plans to erode the right to an in-person bearing by restricting the ability of 

individuals to opt out of video bearings. While video hearings, under some circumstances, can 

be beneficial - such as providing timely service to those in remote areas - as a general nrle, inperson hearings are preferable and ought to be the norm. When the Agency eliminates the right 

to an in-person hearing, community based hearing offices will likely be phased out over time. 

Besides avoiding the inevitable technology problems, in-person hearings have the benefit of 

allowing the Judge the opponunity to view individuals up close and inter·act with them directly 

6 
58 


33616A.044

instead of on television. Furthennore, community hearing offices pennit familiarity wiU1 local 

treatment providers. For claimants who are already under a great deal of stress, dealing with a 

screen rather than a human being can interfere with their ability to interact effectively with the 

Judge when making their case. 

Second, the Agency continues to push an initiative that pennits non-ALJs to hear and decide 

cases, which is inconsistent with the Administrative Procedure Act (APA) and its own 

regulations and is not in the best interests of the American people. 

Last year, the Agency sought to hire 65 new Anomcy Examiners (with the internal 

organizational title of Administrative Appeals Judges), together with ahnost 300 support staff, to 

augment the current 70 Attorney Examil1ers in the Appeals Council. These new appeals council 

attorneys, according to SSA, would hold hearings and issue decisions on two subsets of cases: 

non-disability and remanded cases. Non-disability cases are a specialized group of cases 

involving issues such as overpayments, underpayments, workers' compensation offsets, 

paternity, fraudulent retirement, selection of representative payee, and matters of income and 

resources. There are approximately I 0,000 non-disability cases appealed to the hearings level 

annually, and about 30,000 remands pass through the Appeals Council each year. 

Under pressure from Congress the Agency backed away from tllis proposal. 

Recently, SSA has revived its interest in shifting bearings from Judges to Anorncy Examiners at 

the Appeals Council, as the Agency has announced its plan to solicit public conunent to "best 

utilize the Appeals Council to hold hearings to address the pending service crisis." 

Using Appeals Council Attomey Examiners violates the Agency's own regulatory policy that 

evidentiary hearings on appeals from adverse Agency dctcrn1inations arc to be presided over by 

ALJs appointed pursuant to the Administrative Procedure Act (APA). Administrative law expert 

Dean Harold Krent has provided us with a legal analysis that concludes that this plan is ultra 

vires (www.aal j.org). Not only does SSA 's agenda starkly depart from the law and regulations, 

it is poor public policy, as it strips the American people of their right to an independent APA 

adjudicator and also their right to an appeal before the Appeals Council. 

For decades, and currently, ALJs bave conducted evidentiary bearings on appeals made from 

adverse Agency determinations. SSA bas over I ,600 ALJs located in 166 bearing offices 

throughout tile country. ALJs are selected by federal agencies through tile Office of Personnel 

Management (OPM) after a rigorous hiring process, the requirements of which include years of 

trial experience, a full-day written examination, and a stn•ctured interview conducted by, among 

others, sitting ALJs and law professors. The applicants' qualifying experienc·C, together with the 

results of the test and interview, are scored and tbe names of the top candidates are sent to any 

Agency seeking to appoint an ALJ. 

ALJs are appointed pursuant to the APA, the law passed by Congress in 1946 to ensure that 

federal agencies could not improperly influence their adjudicators. In order to assure judicial 

independence, ALJs are forbidden by law from having ex-parte communications with certain 

Agency personnel. They cannot receive bonuses or undergo perfom1ance appraisals. 

7 
59 


33616A.045

Suspension and removal for good cause must be accomplished by filing charges at the Merit 

Systems Protection Board, where an independent Judge will preside over the hearing. All of 

these safeguards are imbedded in the law to protect the American people by ensuring that ALJs 

can exercise their judicial independence in applying the law. 

The chart below highlights the differences between ALJs and the Agency's Attorney Examiners. 

INDEPENDENCE OF ADMINISTRATIVE LAW JUDGE COMPARED TO AGENCY 

ATTORNEY EXAMINER 

ADMINISTRATIVE LAW JUDGE (ALJ) ATTORNEY EXAMINER/ 

ADMINISTRATIVE 

APPEALS JUDGE 

HIRING PROCESS OPM recommended: Agency determines 

Ril)O<OVS !Cie<>ning. lesling: ond Quotifteotk>ns: 

A minimum requirement of 7 yean trial experience No independent OPM review: 

. No required testing Of trial 

eXoerlence 

DISCIPLINE Discipline imposed onty fOf "good cause'" determined Subfecl to ogeocy discretion 

by MSPB after format administrative heoting 

HEARING AUTHORITY Statutory authority tOf fOf't'l"'ol heor-ing on the te<::OC'd No APA stotuiOJY authority 

under the Administrative Procedure Act PA~ 

AGENCY CONTACT Statute prohibits Ex Porte contocts No SIOIUt Of)' ptohibitlon on Ex.Porte 

contacts 

PERFORMANCE . Ineligible for Agency Bonus: . Agency owOtds bonus. reviews . Pay set by OPM and not lied to performance peffOfmonce and sets 

REVIEWS AND BONUS reviews; employee pay 

exempt h0«1 Civil serviCe Reform ACI perfOtmonce 

opproho1 requirements 

CLAIMANT'S . Appeal from on ALJ decbion to the Agency's . LOS$ or one ktvel or oppeol os 

APPEAL RIGHTS Appeals Councll is occomp6shed by o ~tlet. no oppeol to lhe Appeots 

The next ev~ of oppeol is to federal C()(JI'I . g~~~~"oeo1 is lo federol Cov~ 

What SSA is again aHempting to do is to divert a subset of cases from ALJs and have them beard 

by non-independent SSA employees. Instead of an ALJ presiding over tbe evidentiary hearing 

and issuing a decision, an appeals council attorney will be adjudicating the case. SSA argues 

that having appeals council attorneys hold regulatory evidentiary hearings is not a violation of 

the claimants' rights as, it contends, appeals council attorneys are equivalent to A Us. This is 

simply not true. 

These appeals council attorneys are directly selected by the Agency and promoted, demoted, and 

disciplined by their Agency supervisors. They receive bonuses and performance evaluations. In 

short, the Agency has direct control over these adjudicators who do not have statutorily-protected 

judicial independence. 

8 
60 


33616A.046

These appeals council anomeys, who have never held SSA hearings or issued decisions after 

hearings, will have to undergo training to perfomt this work. Since the officialleaming curve for 

a new AU is nine months, this training will take at least several months even if the individuals 

involved are familiar with the disability program. Moreover, they will all be located in 

Baltimore, Maryland and Falls Church, Virginia, and time and travel costs will be required 

because these appeals council attorneys will be obligated to travel across the country to hold 

hearings for any claimant who declines a video bearing. 

Last year, SSA asserted that it was too time consuming to hire more AUs through the OPM 

process and that this new program would be a temporary measure, to end in one year. It is not 

productive or c·ost effective, however, to spend the time and money to train non-ALJs to hold 

hearings and issue decisions if they are going to only be assigned to handle this work for one 

year - unless, of course, SSA intends to continue to transfer more types of cases from ALJs to 

appeals council attorneys. Furthennore, it does not appear that there is an AU hiring crisis any 

longer. If the appeals council attomeys do not have enough work to keep them busy, the Agency 

should deploy them to write decisions, as there is currently an all-time high backlog of 73,000 

decisions waiting to be written for Judges to review and issue. 

Furthennore, under the SSA's plan, claimants who appear before these appeals council 

adjudicators will lose their right to a level of appeal. Currently, if a claimant is unhappy with the 

decision of the ALJ, an appeal can be conuncnced by a simple letter that will trigger the process 

of a complete review of the evidence, the hearing recording, and the AU's decision by the 

Appeals Council. Decisions of the Appeals Council are then appealable to Federal Coun. A 

claimant having t.heir case heard and decided by an appeals council attomey will not thereafter 

be able to appeal to the Appeals Council, but must seek redress directly in Federal Court, a much 

more expensive and difficult course. Moreover, claimants with non-disability cases, particularly 

overpayments, are often unrepresented as they do not have sufficient resources to hire an 

attomey and therefore would be panicularly disadvantaged in filing an appeal. 

The regulations relied on by SSA to justify its plan to diven these cases do not provide sufficient 

legal support for the Agency's position. 

Title 20 Code of Federal Regulations, Part 404 §900 vests in all claimants: 

the right to a bearing before an administrative law Judge if dissatisfied with the 

detenuination of the state Agency, and 

the right to a review before the Appeals Council if dissatisfied with the decision of the 

administrative law Judge. 

Sections 929 and 930 affmn the right to a bearing before an ALJ. Section 970 also provides that 

claimants may seek review of aoy adverse ALJ decision before the Appeals Council. 

The Agency cites Part 404.956 for Title 2 cases, and the corresponding Title 16 regulation, 

416.1456, for its authority to remove the non-disability caseload from ALJs. However, those 

regulations, which state that the Appeals Council may assume responsibility for holding a 

hearing by requesting that the Administrative Law Judge send the bearing request to it, give the 

Appeals Council only a limited power to hear panicular cases. In fact, this is the manner in 

9 
61 

f 


33616A.047

which lhe Agency bas interpreted these regulations in the past, as only ind ividua l cases, such as 

those involving novel issues, have been escalated from the AU level to the Appeals Council 

leveL Titese regu lations have not been used to subsume whole categories of cases to be heard by 

the Appeals CounciL Any attempt to do so flies in the face of the longstanding regulatory 

scheme that clearly contemplates that individuals have the right to have ALJs hold their 

evidentiary hearings. Interpreting these regulations in the way SSA asserts would result in 

allowing SSA to replace ALJs with appeals counc il attorneys in any or all cases. 

The Agency a lso argues lhat Parts 404.983 and 416. 1483 authorize the Appeals Council to hold 

hearings on Federal Coun remands. However, those regulations, which state that the Appeals 

Council may make a decision on the case or remand it to a n ALJ to take action and issue a 

decision, including the holding of a hearing, make plain that the Appeals Council may act if it 

can make a decision without a further evidentiary hearing. SSA's initiative to remove the nondisability and remand hearings from ALJs and have the cases heard by appeals council attorneys 

is a dramatic change that is not contemplated or supported by the law or regulations. 

Wilh regard to remanded cases, the AALJ agrees that if the Appeals Council can make a 

determination on the record before tbem, it should do so; the existing regu lations are clear in this 

regard. If an evidentiary hearing is necessary, it is more cost effective and efficient for the case 

to be sent back to the ALJ in the local bearing office to hold the bearing and issue a decision. 

Again, no additional travel costs or time will be required and no additional training is necessary. 

And, the right to an appeal of the ALJ decision to the Appeals Council would be preserved. 

In conclusion, it is imp011ant for this Conmtittee to understa nd the implications of SSA's 

initiative to supplant Judges with appeals council attorneys. This program is a thinly veiled 

attempt to eliminate APA protections for the American p ublic in the name of reducing the 

backlog. Not only is this plan ill advised, it will barely impact the backlog of pending cases. 

More likely, it will result in a court challenge that will necessitate the re hearing of all of these 

cases by ALJs. 

The Socia l Security Disability Program is an essential part of the safety net for the American 

people. And, it is likely to be the only oppornmity they have to appear before a federal judicial 

official. We have a good system of providing fi.tll a nd fair in-person hearings to the public if it is 

properly managed. The Agency's difficulty with the backlog needs to be addressed with 

systemic changes that will result in an efficient adjudicatory process and good public service. 

Let us not erode this system by sanctioning poor management. 

Thank you for the opportu nity to address you, who have the stewardship of this vital program in 

your hands. 

10 
62 

Chairman JOHNSON. Thank you. Thank you. You know, it is 

hard to quiz a judge. Ms. Ekman, you are recognized. 

STATEMENT OF LISA EKMAN, DIRECTOR OF GOVERNMENT 

AFFAIRS, NATIONAL ORGANIZATION OF SOCIAL SECURITY 

CLAIMANTS’ REPRESENTATIVES, ON BEHALF OF THE SOCIAL SECURITY TASK FORCE CONSORTIUM FOR CITIZENS 

WITH DISABILITIES 

Ms. EKMAN. Good morning, Chairman Johnson, Ranking Member Larson, Members of the Subcommittee. Thank you for the opportunity to testify at this hearing. My name is Lisa Ekman, and 

I am the Director of Government Affairs for the National Organization of Social Security Claimants’ Representatives, or NOSSCR. 

I am testifying today on behalf of the co-chairs of the Social Security task force of the Consortium for Citizens with Disabilities, or 

CCD. The Social Security disability programs provide the modest 

but vital benefits to millions of people with disabilities so severe 

they are unable to perform substantial work, many of whom would 

live in abject poverty or be homeless without them. 

Unfortunately, it took an average of 628 days for people who received an eligibility determination from an ALJ during the month 

of July to get access to these vital benefits. That wait time, which 

is far too long, is due, in large part, to chronic underfunding of the 

Social Security Administration’s administrative budget since 2010. 

Prior to 2010, Congress invested resources in SSA, and SSA had 

been bringing the wait time down. SSA has shown what it can do 

when it is given adequate resources. 

Having to wait that long for a hearing can have devastating consequences for an individual and his or her family. Some people lose 

their homes, some declare bankruptcy and some even die. Here is 

one such story. Ms. S was a resident of McKinney, Texas, Mr. 

Chairman. She led a comfortable life, a middle-class life while 

working as a property manager and inspector. However, she developed a number of conditions, including chronic pain syndrome, 

fibromyalgia, cervical spondylosis, thoracic and lumbar spine pain, 

migraine headaches, intracranial hypotension, and fibromuscular 

dysplasia. This was followed by ever-increasing depression and 

anxiety, especially after she could no longer work. 

She tried every treatment doctors offered to reduce her pain and 

allow her to continue working, but by 2009, she just could not work 

anymore. She waited a long time for her hearing, which was finally 

scheduled in January of 2016, but she faced a terrible choice: miss 

an appointment for a test that might identify treatment to alleviate 

her pain that took months to schedule or postpone her hearing. 

The hearing was postponed and rescheduled for April 2016, but 

unfortunately, Ms. S committed suicide several weeks before her 

hearing. She was 45 years old. She received a posthumous fully favorable decision, and her 15-year-old son now receives survivor’s 

benefits. 

My written testimony contains many other stories from—collected from claimants’ representatives from all over the United 

States which highlight the hardship and debt pain inflicted on individuals with disabilities when they are forced to wait months, or 

63 

even years, for a hearing on their claim. And these heartbreaking 

stories are, unfortunately, becoming more commonplace. 

During fiscal year 2016, 8700 people died waiting for a hearing 

for an ALJ. That is nearly one every hour. The hearing backlog 

must be addressed. The Social Security task force respectfully recommends the following actions for Congress and SSA to consider: 

Congress should provide SSA with adequate funding to administer the Social Security Old Age Survivors and Disability programs. Only sustained, adequate funding, will allow SSA to reduce 

the time it takes to get a disability determination from an ALJ 

without negatively impacting customer service in its other core 

functions. 

The task force appreciates the backlog reduction efforts that SSA 

is making within the inadequate budget it receives. And the 

CARES Plan obtained some promising initiatives, but more should 

be done to assist the nearly 1.1 million people facing this daunting 

wait. 

SSA should work to ensure that a hearing is only held when necessary. And so first, SSA should do a better job of collecting full 

medical evidence at the initial application and reconsideration levels to ensure the decision is made on as complete and evidentiary 

record as possible. 

Second, SSA should resume a robust program of reviewing claims 

for on-the-record decisions, cases where recent evidence clearly 

shows eligibility without requiring a hearing. I understand that 

this is part of the CARES Plan, but the attorneys who would conduct these reviews are not doing them because they have been 

pulled into addressing another horrible backlog, and that is, the 

writing of decisions after a hearing is held. This is yet another example of the consequences of inadequate funding and trying to 

shift things around to make it work within the budget that they 

have. 

Third, Congress can assist to get the decision right the first time 

by facilitating reviews of more DDS denials, to ensure that these 

decisions are correct and prevent the need for an appeal. SSA 

should be permitted to use its dedicated program integrity funds to 

conduct these reviews, and they should increase the number of reviews. 

Finally, SSA should consider revising some recently or finalized 

regulations the task force believes will harm applicants who are 

otherwise eligible for benefits and leads to increased appeals, including the Federal court. 

One controversial rule regards the evaluation of medical evidence. The relationship between a person and their treating provider is unique, and opinions of treating providers deserve more 

weight than the opinion of someone who examines an individual 

once or reviews the claims file. The elimination of the treating physician rule is likely to lead to more appeals, more remands, and 

more delays as a result. 

Thank you again for the opportunity to testify today, and I am 

happy to answer any questions you might have. 

[The prepared statement of Ms. Ekman follows:] 

64 


33616A.048

CONSORTIUM FOR C IT IZENS 

W ITH DISABILITIES 

Hearing before tbe 

House Ways and Means Committee 

Subcommittee on Social Secut·ity 

Dete1·mining Eligibility fo1· Disability Benefits: 

CbaUenges Facing tbe Social Security Administration 

Septembe1· 6, 2017 

Contact: 

Lisa 0. Ekman 

Testimony of Lisa Ekman, Co-Chair 

Social SecUJ·it)• Task F ot·ce 

Conso•·tium for Citizens with Disabilities 

NOSSCR Govenunent Affairs Office 

1025 Connecticut Ave., NW Suite 709 

Washington, DC 20036 

Phone: (202) 457-7775 

Fax: (202) 457-7773 

Email: lisa.ekman@nosscr.org 

Oo Behalf ofTbe Co-Chairs of the Social Security Task Force 

Lisa Ekman 

Natioual Organization of Social Security Claimants' Representatives (NOSSCR) 

Kate Lang 

Justice in Aging 

Jeanne Morin 

Natioual Association of Disability Representatives 

Web Phillips 

National Committee to Preserve Social Security and Medicare 

T.J. Sutcliffe 

The Arc of the United States 

1825 K Street. IWV. Suite1200 • WO$hington, DC 20006 · PH 202-783-2229 · FAA 202-783-8250 • lnfo@<:-<:-d.org • www.c-<:-d.org 
65 


33616A.049

TESTIMONY OF LISA EI<l'vlAN ON BEHALF OF THE SOCIAL SECURITY TASK FORCE. 

CONSORTIUM FOR CITIZENS WITH DISABILITIES 

Cha inuan Jolu1son, Rauking Member Larson, and Membets oftlte Subcommittee, thank you for the oppomulity 

to provide testimony for this hearing entitled "Hearing on Detet1llining Eligibility for Disability Benefits: 

Challenges Facing the Social Security Administration." 

I am the Director of Govenuneut Affairs for the National Organization of Social Secmity Claimants' 

Representatives (NOSSCR). I am also a Co-Chair of the Consot1ium for Citizens witl1 Disabilities (CCD) Social 

Security Task Force. Today I am testifying on behalf oft be Social Security Task Force Co-Chairs. Testimony 

with a full listing of disability organizations supponing the testimony will be submitted after the hearing. CCD 

is the largest coalition of national organizations working together to advocate for federal public policy that 

ensures tile sclf-dctctminatiou, independence, empowcnnem, imcgration and inclusion of children and adults 

witl1 disabilities in all aspects of society. The CCD Socia l Security Task Force focuses ou disability policy 

issues in the Title lJ disability programs and tl1e Title XVI Supplemental Secmity btcome (SSI) program. 

The focus of th.is bearing is extremely imponant to people with disabilities. The Title 0 aud the SSI disability 

prog.nnns provide modest bur viral income support 10 individuals with significant disabilities and their families. 

More than I in 5 people with disabilities ofworkin~ age lives in poveny in the US, nearly twice the pove11y rate 

oftlteir non-disabled peers.' That rate would be significamly higher without the modest benefits that the Social 

Secmity disability programs provide. Unfommately, the chro•lic underfunding of tlte Social Secmity 

Administration's (SSA) administrative budget has undermined the ability of the agency to issue timely 

disability dcte11ninations and degraded customer service across the agency. 

The wait time to receive a determination from an Administrative Law Judge (ALJ) has reached an 

historic high of 628 days and tltis has devastating consequences for the claimants while they wait: some 

become homeless. some declare bankmptcy and some die. 

The past two decades demonstrate that when the Social Secwity Adminisu-ation (SSA) receives 

consisteruly adequate funding it can reduc.e both the nmuber of people waiting for a hearing and the time 

it takes to receive a detennination fi·om an AW. \Vhen SSA does not receive adequate funding. as it has 

nor since 2010. rhe backlog and wait times grow. No search for efficiencies, repriorirization of tasks or 

technological improvements can substitute for adequate resources. 

• SSA 'sCARES plan contains some promising initiatives but more could be done to reduce the hearing 

backlog and wait time for a disability decision. 

A number of SSA 's recent regulatory changes are likely to increase the backlog and hearing delay and 

therefore should be reve1·sed. 

The CCD Social Secmity Task Force is pleased that SSA is exanlinutg every pan of its disability detennination 

process to implement backlog reduction measures within tl1e inadequate budget it receives. However, the Task 

Force urges very careful consideration of increased use of technology in the hearing process or other initia1ives 

that might threaten the ability of claimants to receive filii consideration of their claims, undem1u1e due process 

proteclions. or are no I reflective of the ability of claimants (especially unrepresented claimants) to lutdersland or 

comply with obligations created by new mles in the search for efficiencies. For example, while video hearings 

can be a usen•l option for certain claimants, SSA should not weaken c laimants· abiEty to choose an in-person 

hearing when they believe it will be the most effective 111ethod of couununicating with the decision·maker in 

tl1eir cases. 
66 


33616A.050

I. The Ruman Toll of the Hearing Backlog 

The benefits provided by the Social Security disability programs are modest but vital to the Americans and their 

families who receive them. As of July 2017, SSDI benefits average only S 1, 171.80 per mouth ($14.041.60 

am1ually) and SSJ benefits average only $564.16 per month ($6,769.72 am1ually).2 These modest benefits can 

mean the difference between keeping a roof over ouc 's head and being homeless, being able to affotd to eat and 

being hungry, affording a co-pay for needed medication and skipping doses, and geuing needed medical 

treatment and lening conditions go untre-ated. The cu1Tent wait time to receive a detenniauuion on au appeal to 

au AlJ is au average of 628 days. Waiting years to get a decision on a disability claim often leads to devastating 

consequences both fot· those waiting and the it· families. People lose their homes, exhaust their savings, declare 

bankntptcy and die while waiting on a bearing and decision on their disability claim. In fact, more than 8000 

people died waiting for a hearing during Fiscal Year 2016.

3 That is nearly I person per hour. 

Here is a sampling of stories of the devastating consequences the bearing backlog has had on disability 

claimants that ceo has lea111ed about fi·om claimants' representatives: 

Alabama: GH fi led his claim while hospitalized in January 2016 for an infected heart valve. He had worked in 

constntetion but at age 56 he became homeless and was not receiving regular heahhcare. He was denied in May 

2016 and requested a bearing soon after (Alabama is a "prototype" state without reconsideration). Mr. H died in 

Aptil 20 17 of the same condition he originally alleged. He had severe sepsis throughout his body. requiring 

amputation ofbis rums and legs. Mr. H's condition while be awaited his bearing was also complicated by severe 

bums he endured when he lit trash on fire in an abandoned stntcture in an effort to cook food and wanu himself. 

Unfortunately, Mt·. H's claim bas died with him since it was an SSJ claim and he was never matTied. He spent 

the last year of his life waiting for a hearing that held the possibility of benefits and medical insurance that 

never came. 

California: KL bas a leaming disability and is unable to read. Despite this obstacle, he worked for nearly 25 

years at a grocery warehouse and there experienced a career·ending 011hopedlc industrial injury. While he was 

recovetiug, he experienced complications including rwo heart attacks and several seizmes. He became homeless 

while goi11g tl1rough the initial and reconsideration stages of the SSDI application process. As a result of being 

homeless. he lost custody of his teenage son. He became suicidal and was hospitalized on several occasions for 

this. Soon after requesting an AlJ hearing in September 2015, his representative filed a request for bearing ru1d 

requested that it be flagged as critical because of Mr. L's dire need and risk of suicide. The request was 

granted- it took eigbtmomhs for Mr. L to receive a favotable decision, ratl1er than the 19 montl1s average 

processing time at his local heat·ing office. 

Connecticut: JE was a stay at home motbet' and homemaker. She applied for SSJ when she began experiencing 

memory loss for which her doctors could not find a cause or a cure. Her application was de-11ied. and 

approximately seven montlrs before her heating, she was finally diagnosed with early onset Alzheimer's 

disease. By the time her bearing was held, she was unable to state her address or her correct date of birth. and 

she did not know where s he was during the heatintt. 

Connecticut: RS reached the rru1k of Captain in the U.S. Anuy and setved in Afghanistan. He bas worked with 

the FAA at his local airport to prevent dangerous items from entering planes. He also at1empted work for the 

Depat11nent of Defense handling orders at a shipping and receiving depamneut, and for the USDA processing 

grant applications for nu·al communities. However. be was no longer able to continue working as a result of his 

PTSD; be received an ''Individual Unemployability'' detenuination from the VA and his records repeatedly state 

that be is at high risk of suicide. Mr. S applied for SSDI in April 20 12. He was denied and requested a.tl AlJ 

hearing in May 2013. He received a denial almost two years later, in March 20 IS. He retained an attomey to 

3 
67 


33616A.051

help him appeal to Federal Coun and got a remand in December 20 16. He is slill waiting for a new hearing to 

be scheduled. 

Connedicut: LMV was a preschool teacher. In February 2015. she was in an explosion that destroyed her 

home and bumed half her body. In addition to the bums, the fire caused her to have PTSD and a severe facial 

pain disordet· called trigeminal neuralgia. She filed for SSDI in March 20 I 5 and sold her car to pay fot· expenses 

wllile she awaited a disability determination. Her church in Hanford and some of her relatives have helped her 

make ends meet. She was denied and requested a hearing in April 2016, which was held in June 20 17. II took an 

additional two and a half momhs for le fully favorable decision to be issued. Ms. V is cunemly awaiting the 

stan of her benefits. 

District of Columbi.a: NJ's conditions. which include injuries to his elbow and shoulder. HIV, and an,xiety, 

required him to severely reduce his working hours as a lighting designer. His SSDI application was denied at 

the initial and reconsideration stage, and he requested a hearing. in September 2014. Mr. J•s panic attacks 

increased over the next two years as he feared that his friend would stop paying for his housing and be would 

become homeless. When Mr. J and his lawyer anived for his scheduled bearing in September 2016, Mr. J cried 

and shook in the waiting room for several hours before it was determined that the AU was not coming to work 

that day. Mr. J and his lawyer waived all notice requirements and assured the bearing office sta ff that they 

would retm11 for a hearing at the first ava ilable opening. Still, Mr. J's depression deepened after this setback and 

his memal eal ~> team became wonicd he wotdd conunit suicide. The heat1ng was rescheduled for Novembet• 

2016 and Mr. J was quickly awarded benefits. He can now afford housing and has staned to pay off debts 

accumulated in the years he awaited a detennination on his claim. 

Florida: PC was diagnosed with a liver disease called Primruy Biliary Cholangitis in the late 1990s. By April 

2016, his health worsened to the point that he could no longer work. He applied for disability benefits the 

following month. Although he met a listing. he was denied at the initial level in August 2016 m>d at the 

reconsideration level in November 20 16. He was hospitalized in January 2017 for the implantation of a dialysis 

shunt into his neck (TIPS procedure). After many comp lications, he was added to the transplant list. His lawyer 

made a11 "On The Record" request in May 2017 and Mr. C received a ntlly favorable decision shortly thereafter. 

Unfortunately, Mr. C passed away in late August without having received a u·ansplaol. ln tbe past nine months. 

Mr. C's lawyer has had four o~1cr clients die while awaiting hearings. 

Hawaii: MR worked as a mason all his life, but had to stop due to heart disease. He applied for benefits on 

Febntary l, 2015 and filed a request for a hearing on April 26, 2016. At a hearing on August25, 2017, Mr. R's 

son testified that his father was stressed by not being able to support himself, and that his bean condition got 

progressively worse over time. Mr. R 's son was the one testif}ting because Mr. R died of a heart atlac.k in 

November 2016, eight momhs before his hearing. The ALJ issued a favorable decision from the bench. 

Illinois: EB worked as a tntck driver. When his dec lining health made that job impossible, he undenvent a 

career trru1sfonnation a11d became a cosmetology teacher. Then his health worsened further and he applied for 

SSI and SSDI. He was denied at the initial and reconsideration stag.es and lost b.is housing. Mr. B bounc.ed 

between sleeping in his car and his 6·iend's garage, when he wasn't hospitalized. Mr. B hired a lawyer to help 

him request a hearing in August 2016. who immediately requested that the claim be flagged as critical based on 

dire need. A supetvisor attbe Orland Park hearing office denied the critical case request, saying tbat living in a 

car did not qualify as dire need. At one point, Mt·. B needed a colostomy, which becrune infected because he 

lacked nmuiog water and other necessities to care for himself. Evenntally, a more senior supen•isor a llowed the 

claim to be expedited and Mr. B 's hearing was held on May II. 20 17- approxintately nine months after be 

made the request. He was awat·ded disability benefits. 

4 
68 


33616A.052

Minnesota: CH worked with the clients of a center for aduhs with disabilities and also drove the bus that 

transponed them to and from the center. She had a traumatic brain injury and applied for SSDI in April2011. 

While she was waiting for her bearin!'-, she was dia!'-Jiosed with tenninal cancer. She was unrepresented at the 

time of her heruing in November 2013 and did not an end it because she was hospitalized for cancer u·eatmenl. 

She subsequently hired a lawyer who asked the ALJ to reschedule the hearing. The ALJ instead dismissed the 

case and did not respond to a request to reopen it, so Ms. H appealed to the Appeals Council. She died in 

Jamtaty 2014. In November 20 14, the Appeals Council remanded tlte case for a hearing and Ms. H's widower 

attended a hearing in June 2015 to testify about his late wife. By tltat time, he was also suffering from Stage 4 

cancer aud died before the fully favorable decision was issued. Their three orphaned children, who ranged in 

age fi·om 14 to 22 when their mother's case was finally resolved, t'cceived Ms. H's retroactive benefits. 

North Carolina: JT applied fot' disability benefits in December 2015 because of congestive heat1 failme. He 

was denied at the lnitial and reconsideration levels during the summer of2016. and requested an AW heating 

on August I I, 20 I 6. He died of congestive heart failure exactly one year later. never having a heating 

scheduled. 

Ohio: RW lives in Wooster. He requested a hearing in Aptil 2016. A few months later, he became estranged 

from family and lost the housing they were providing. His lawyer requested Ius bearing be expedited based on 

dire need in October 2016 and despite repeated follow-ups. the request was not considered until March 2017. At 

that time. Mr. W was staying with his sister for a few weeks, so the dit·e need request was denied. Since then, 

Mr. W continues to stntggle to find a place to sleep each night. Mr. W has made ittquiries to his Senator and 

frequently calls and visits his lawyer in hopes that the case can move forward. It is scheduled for a bearing in 

October 2017, 18 months after the t'equcst was filed. 

Pennsylvania: HW had worked as a Certified Nurse Assistant, but needed to apply for disability benefits after 

having a heart auack in May 2013. Her oll1er impainnems include Type 2 diabetes, clu·onic sciatica. au·ial 

fibrillation, and obsessive compulsive disorder. She requested an AU hearing in March 20 14 and had a hearing 

in March 20 17. She received the notice of award in August 2017 - 1250 days after she requested a hearing- and 

is now eagerly waiting to receive benefits. She says " I am grateful for a fully favornble decision in my case, and 

I am gratefitl for a sttppon network that enabled me to stay in my own home duriug that time, despite being 

unable to meet all mo11gage payments in a timely manner. However, ( cannot help but think how most people in 

my category miglu not be able to endm·e tlus seemingly ituerminable wait, at a time when they most need the 

benefit." 

South Carolina: SB is 58 years old. He requested a hearing in December 2016 and one has not yet been 

scheduled. He has severe scbizophretua. bipolar disorder. and PTSD. He bas been repeatedly hospitalized 

volwttatily and invohmtarily in South Carolina and Nevada over the past five years because of these conditions. 

Without any income, it is difficult for him to get to tlte low-income clinic tltat treats him. 

Texas: PS was a resident of McKinney. Until2009, she led a comfonable upper middle-class life while 

woti<ing as a propetty mana get' and inspector. However, she developed chronic pain syndrome, fibromyalgia. 

cervical spondylosis, thoracic and hunbar spine pain, migraine headaches. intracranial hypotension, and 

fibrotnuscular dysplasia, followed by ever-increasing depression and anxiety, especially after she could no 

longer work. She tried every treatment doctors offered while caring for her sou. She waited a Ion!'- time for a 

hearing, but when lt was scheduled in January 2016 she needed to postpone it because it was the same date as a 

medical test she had waited mouths to undergo. She hoped that the test would lead to treatment that would 

finally ease her pain, and that the beating could be held quickly. The bearing was rescheduled for Aptil 2016. 

but Ms. S com.mined suicide several weeks before it was held. She was 45 years old. She received a 

posllmmous fully favorable decision_ Her IS year old son now receives survivor's benefits. 

5 
69 


33616A.053

Texas: HW lived in the town ofPhatT. He worked in oonslmction and also harvested crops. He developed 

spinal problems. diabetes, and hypertension and applied for disability benefits in 2015. He requested a hearing 

in August 20 16 and died from complications ofh.is impainneuts in July 2017. At the time o f Mr. W's death. his 

case had not yet been assigned to an AU or scheduled for a hearing. 

Texas: LB was from San Antonio. She was a substitute teacher and school librarian until congestive heal1 

failute, diabetes, and several white blood cell conditions (neutropenia, thrombocytopenia, myelodysplastic 

syndrome) made work impossible. She applied for disability benefits in 2015, requested a hearing in October 

2016, and died from complications of her impainuems in Febmary 2017. At the time of her death, her hearing 

was still three months away. 

Texas: IR lived in the town of Gonzalez. He drove oil and gas tanker tntcks. After developing congestive hea11 

fa ilute, at1lu'itis ut his legs, and diseases of the kidneys attd liver·, he applied for disability benefits in 2015 and 

requested a he81itlg Ul March 2016. His auomey requested the hearing be expedited as a TERI (tenninal) case 

butt he request was still under review when Mr. R died in August 2016. 

Utah: FP came to the Uttited States as a refugee after tlte war in Bosnia, got a job as a product assembler in a 

factory, and became an American citizen. Many years later. after suffering an injury uwolvu1g a conveyor belt 

at his workplace, he applied for SSDJ. Mr. P was diagnosed with cancer while be was awaiting an AU hearing. 

He was able to attend the heating. but be died during the long wait for a decision to be written. The AlJ denied 

Mr. P disability benefits, and a surviving family member is now appealutg. 

II. SSA Needs Adequate Resources to Administer the Social Sectnity Programs 

Administration of the Social Secmity disability programs is resource intensive. The processing and 

determination of initial claims and the adjudication of disability appeals require a significant amotutt of staff 

time to collect relevant infom1ation and fully develop the evidence required to make the correct determination. 

Unfo111mately, SSA 's Limitation on Administrative Expense (LAE) funding has not kept up with the agency's 

increasing workload. Altl10ugh applications for SSJ and Title II disability benefits have declined each year since 

2010. there have been substantial increases in retirement, survivors, and Med_icare C-laims. and the lota1number 

of people receiving Social Security benefits has risen. Chro11ic underfimding at a tin~e of increased workloads 

bas undennu1ed SSA 's ability to process disability applications and appeals in a timely mam1er. 

Although processing times for initial disability applicatiotlS and for completing reconsiderations of initial 

denials have remained relatively stable, tlte backlog in disability appeals at the hearing level has reached and 

stayed at historically high levels. ;\s of tl1e end of July 2017, clailnants had to wait an average of 628 days from 

the time a bearing request was fi led to receive a determination from rut AU. TI1ere are just m1der 1.1 million 

people who have filed an appeal and face these daunting waits. 

One cause of the heat'ings backlog is the chronic inadequacy of SSA 's administrative ftutduig. Between FY 

2000 and FY 2007, the total fimding shonfilll exceeded S4 billion at1d the1'e was a conctu,·ent attd dramatic t'ise 

in tl1e backlog. The backlog improved between FY 2008 and FY 20 10 when Congress provided SSA with 

adequate administrative funding. In FY 2008, Congress appropriated $148 million over the President's budget 

request, and in FY 2009 Congress provided SSA with $700 million more than the previous year. Tbe American 

Recovery and Reinvestment Act of2009 (ARRA) provided SSA with an additional $500 million to process the 

increasing number of retiremeut and disability applications. replace its aged National Computer Center, and hire 

thousands of uew employees. iucludu1g additional ALJs and hearing level suppot1 staff. These improvements 

undoubtedly assisted SSA iu reducu1g the hearing level backlog. The FY 2010 appropriation of$11.45 billion 

for SSA 's LAE, a 10 percelll increase over the FY 2009 appropriation, continued to provide SSA with the 

6 
70 


33616A.054

resources i1 needed 10 meel ils setvice delivery needs. Unfor1\ma1ely, that 11·end did no1 cominue and 1he 

inadequale funding sinc.e then has undone !he progress SSA made helween 2008 and 20 II. 

Although SSA bas t'eceived a significam a moun! of additional funding fo•· specified program integrity activities, 

core ftmding for SSA (LAE) has effec1ively been cui by abou1 10% since 2010 when laking inOa1ion imo 

accoum4 This was during a time when 1he munhe•· of beneficiaries in all of 1he Socia l Security programs SSA 

adminislers (Old Age, Survivors, a.nd Oisabili1y Insurance and Snpplemenlal Security Income) has increased by 

abou1 13%.5 In addition, !he fimding of the Federal govenunenl through Continuing Resolutions led SSA to 

institute long hiring freezes (resulting in significant decreases in the overall number of staff due to alllition) and 

do away witb ove11ime causing backlogs to grow in many workloads across the agency. The resulting 

deterioration in the ability of Social Security to se1ve Au•e•icans in all of its co•·e fimctions is disappoiming and 

Americans deserve better. For example. the average wait tin1e on SSA 's national 800 number is 18 minutes and 

nearly half of callers hang up before their call is answered. In addition, thirteen percent of calle1'S t'eccivc a busy 

signal, due to the 450 fewer agents a1 the telesen•ice centers to handle dte 37 lllillion calls d1ey receive each 

year.

6 Nearly half of visitors to a field office mus1 wait at least lhree weeks for an appoimmemand visitors 

widtout an appointmem wait more than an hour for service because field offices have los! I ,400 field staff. 1 

More than 3.6 million actions were pending at the SSA Program Setvice Cemers in January, more than double 

the nonnal pending workload at these components3. Tit is backlog leads to delays in the timely adjusunenl of 

benefits and the processing of claims once approved. Ctitical infonnation teclmology maintenance and 

modemization is on bold due 10 a lack of resources as well. 

Additional funding is required for SSA 's LAE to reduce and eliminate the backlog in processing disability 

claims and to provide essential sen•ices to the. public. CCD appreciates !he $90 million in anomaly fimding 

Congress pi'Ovided to SSA to address the backlog but a one-time inCI'ease in fimding cam101 make up for years 

of tmderfimding. The cull'ent simation is dire and without increased adequate, ongoing appropriations to nmd 

SSA, the situation will continue to deteriora1e. We s1rongly urge Congress to provide SSA with sufficient 

administrative fiu1ding so dtat there are enough persomtel in SSA field offices and the stage agencies to 

adequately process, develop, and determine disability cla ims in a timely mamter and so SSA to hire sufficient 

ALJs and s upport s1affto reduce the hea1ing backlog and the wait time for disability hearing decisions. 

Additional funding is needed to ensm·e that SSA is able to provide all of its critical services to retirees, survivors 

and people with disabilities and tbeir families. Reprioritiziug activities is no! an answer - when the fimding pie 

is too small. a bigger piece ofrhat pie going to one activiry means a smaller slice goes lo o ther ac.tivities and 

SSA 's service to all Americaus suffers. 

ill. SSA 'sCARES Piau: More Must Be Done to Reduce Wait Times 

The CCD Social Secmity Task Force appreciates the efforts dtat SSA is making to reduce the number of people 

waiting for a hearing and the amotuu of time it takes 10 receive a decision on an appeal of a disabili1y denial. 

The Task Force is awat'C that testing and implementing promising new initiatives and hi1ing and training new 

ALJs and supporl staff takes lime. Many of !he promising initiatives contained in the CARES p lan are in !he 

very early stages and wait times are increasing as we wait co see che impact che-se iniciatives will have on the 

backlog. AI the same time, despite d1e $90 million in anomaly fimding SSA received for FY 2017-18. many 

componenls ofSSA 's updated CARES plan have been suspended (for example, pre-hearing conferences, prehearing ununaries~ and the National Adjudicaiion Team) with no indicated date for resuming. those activities. 

Others are only al the pilot stage (e.g. shared scheduling setvices) and will not have a substantial impact on the 

backlog or processing time in the immediate or near·tenn. Because personnel have been reassigned away from 

the National Adjudication Team to assist with the extensive decision wtiling backlog, initiatives such as the 

Senior Attomey Program (where senior attomeys reviewed cases for the possible on-the-record decisions) dtat 

have proven successful a! reducing dte hearing backlog in the past are effectively not being utilized as part of 
71 


33616A.055

1his effort The CCO Social Secmily Task Force recouuneuds the following ac1ions be 1aken 10 assist with 

decreasing the backlog. 

a . Getting the l)ecision Right at the Initial L·evel 

II is the posi1ion ofthe CCO Social Sectuity Task Force that ensuring thai a disabili1y claim file is as comple1e 

as possible before lite ini1ial decision is tnade is in the bes1 i111eres1 of disabili1y claimants, SSA, and 1he 

Ame•·icau public. 

Betler Case Development By Disability Determi.nation Services (DDS): SSA regulations specify 1hat 1he 

agency has the responsibility to "develop your complele medical hislory for alleast 1be 12 momhs preceding 1be 

month in which you file your application unless there is a reason to believe that development of an earlier 

period is necessary or unless you say 1ha1 your disabili1y be~auless than 12 months before you filed your 

application. We will make every reasonable effort to help you get medical repo11s from your own medical 

sources when you give us pennission lo request dtc reports." 9 The rcgula1ions specify thai SSA will make 1wo 

anemp1s 10 ob1ain medical records and will proceed 10 make a decision withoul lite records if 1101 received after 

1hose reques1s. Claiman1s represenlalives rou1inely report thai i1 lakes multiple requests over weeks (and 

sometimes mon1hs) 10 ob1ain many medical records and 1hose reques1s mus1 be "higher touch" (with many calls 

or visits to medical facilities) than sin1ply sending a written request. Ln fact, some representatives bave hired 

staff whose entire job is dedicated to obtaining. medical records for their clients. The two w1inen requests 

required by cunent regulations are insufficient in many cases and cannot be considered "every reasonable 

effort" given 1he reality of how difficuh i1 is 10 oblainmed.ical records. lni1ial decisions on disability claims are 

often made willtoul comple1e medical records as a resuh. Ahhough 1he CCO Social Secmity Task Force 

appreciates the desire for timely issuance of ini1ial determina~ions, it is conceming lhat doing so may come at 

lbe expense of oblaiuing complele medical records. This can lead 10 a de11ial that must be appea led 10 get a 

decision on a complete ··ecord, contributing to 1he heating backlog and requiring the claimant 10 endure 1be 

extremely long wail for a hearing. The Task Force encomages SSA 10 implement an ini1iative 10 ensure more 

complete. developmenl of medical records at ll1e iniliallevel. 

Infor mation About Representation: Representalives play an imponant role in obtaining medical and other 

infonna1ion 10 supp011 llteir clients' disabilily claims and helping SSA 10 s1reamline 1he disability de1ennina1ion 

process. They •·oulinely explain lite process and procedures to 1heir clients wilh more specificity 1han SSA can. 

They obtain evidence from medical som·ces. other treating professionals, school systems. previous employers, 

and others who can shed light on the claimant's entillement to disability benefits. Given the impor1ance of 

representalion, the Social Sectuity Acl requires SSA 10 provide infonnation on oplions for seeking legal 

representation. whenever the agency issues a notice of aoy "adverse detennination.u This statutorily required 

infomtalion is typically provided only once 1he claimanl has reques1ed a hearing before an AU. SSA should 

provide claimants with more infonnaliou on op1ions for representation before and during lhe initial applicalion 

process. 

Expedited Screening Tools: The CCO Social Security Task Force suppo11s lite continued use and expansion of 

existing 1ools for expedi1ing disability de1enninations. SSA already has in place several successful melltods of 

expediting disability deiCJ1ninalions for claimants whose conditions are so sevc,·e tba11bey clead y meet ll1c 

Social Securi1y disability Slandard. These iuclude Quick Oisabili1y Oelenninations (QDOs), Compassionate 

Allowances (CAL), and tenninal illness ("TERI") cases. CAL allows SSA 10 quickly iden1ify claimams with 

ex1remely seve,·e, ofien1enninal condi1ions such as ceJtain advanced cancers and life-threatening neurological 

disorders, 1ha1 can be adjudicaled quickly based on diagnosis willtoul having 10 complele addi1ional analysis of 

1he impact of1he condilion onlhe abili1y 10 work. QOOs use a computer-based predic1 ive model1o idenlify 

cases where a medical eligibility is highly likely and medical evidence is readily available, enabling 1be slate 

8 
72 


33616A.056

DDS to expedite case processing. Initiatives such as QDD and CAL allow SSA to review cases more 

efficiently. while expediting approval for claimants with some of the most severe conditions and illnesses. 

These initiatives provide people with disabilities facing devastating ilhtesses the security of knowing that they 

and their fami lies have income to rely on and removing one worry people face during a ve•'Y challenging and 

scary rime. 

These screening initiative.s appear to be identifying disability claims that clearly s hould receive awards and that 

involve conditions with a high chance of mortality, as they were intended 10 do. Tite SSA Office of lnspecror 

General issued an informational report regarding the implementariou of rhese initiatives last year. 10 The repo11 

indicated that of the approximately 82,000 people whose c.ases were identified for CAL or QDD in Fiscal Years 

2008 and 2009, over 96% were evenrually awarded benefits. The vast majority, 76,000, were approved without 

having to appeal. and of those. one in four died within three months of application, more than seven in ten had 

died by June 2015. and another 20% were srill receiving disability benefits. 

The CCD Social Seclllity Task force supports cominuation of these initiatives with two critical improvements: 

I. SSA should adopt clear criteria for what constitutes a CAL condition. SSA should develop and 

implemelll clear, fomtal, and transparent criretia and ptocedtu·es to add. continue, and remove CAL 

condir-ions. 

2. The Task Force also supports improvement of the comptuer program used to screen cases for potencial 

proc.essing as a CAL claim to ensure all elig.ible claims are processed under expedited procedures and 

non-eligible claims are excluded. 

To improve the dcvelopmenr of cases at the initial level, tlte CCD Social Secllliry Task Force additionally 

recommends SSA: 

Provide more assistance to claimants at the application level regarding necessat'Y atld impot1ant evidence 

so that all impairments a.nd sources of infonuatiou are identified, including non-physician and other 

professiona l soutces. This is especially importam for claimams with mental impaitments and lintited 

English proficiency. 

• Ensure that questionnaires and fonns are understandable to claimants and as 6·ee of jargon as possible. 

as well as apptopt·iarcly tailored to specific t)'PCS of impaimtents and ptobative of infom1ation that 

addresses the disability standard as implemented by SSA. This "language" banier can lead to 

incomplete applications missing key details needed for full development of the claim. 

Provide beuer explanations to medical providers. SSA and DDS fonns and quest ioru1aires should 

provide bener explanations to all providers, ln parlicular to physician and non· physician treating 

somces, about rhe disabiliry standard and should ask questions that are probative of evidence and 

infonnation relevant to the standard. Unclear, hard to tmderstand fonns can resnlt in incomplete 

responses as well as delays in obtaining. medical evidence. 

Improve the quality of consultative examinations (CEs). Steps should be raken to imptove the quality of 

tlte CE process. There are many reports of inappropriate refeiTllls (e.g., to providers with the wrong 

specialty given the claimant's conditiou(s)), shon perfunctory examinations, atld faillll'e to provide an 

imetpt'eter fo•· people with limired or no English proficiency during the exam. Io addition. tlte•·e should 

be more effot1 to have the lreating physician conduct the consultative examination, as authorized by 

SSA's regulations. 

Increase reimburseme111 rates for pt·ovidets. To improve provider response to requests for records, 

appropriate reimbursement rates for medical records aud repo11s oee<iro be established. Appropriate 

rates should also be paid for CEs and for medical expet1S who tes1 ify al hearings, to ensure availability 

of qualified medica l professionals. Approptiate reimbursemem rates would also increase the frequency 

9 
73 


33616A.057

with which n·ealing physicians agree 10 conduct CEs a! SSA 's requesl. enabling adjudicators lo obtain 

addilional medical evidenc-e from a trealing source already familiar wilh 1he claimanl's condition(s) ru1d 

medical history. 

b . Additional Screening of Denials Earlier in !be Process 

The ceo Social Security Task Forc-e bas IWO addilional reconunendalions to reduce I be number of claims 

apJ>ealing. to the hearing level or reduce the number of appeals for which hearings are required. 

Increased Targclcd Denial Reviews: One way thai Congress could help SSA eliminate its backlogs is by 

expanding the allowable uses of program inlegrity fimding. SSA 's Office of lbe Inspector Genet'lll I isis "reduce 

disability backlogs and improve decisional quality" among !heir 1op managemenl issues for Fiscal Year 2017. 11 

A disability benefits program witl1 true ullegrity is one !hat allows claimru11s to obtain prompt and accura1e 

detenninations. 

If Congress u1clnded Targeted Denial Reviews (TORs) iu allowable ptogram iulegrity aclivities, the agency 

could increase program integrity while reducing the hearings level backlog. TORs allow SSA's Office of 

Qnali1y Review (OQR) 10 examine unf.worable decisions of disability claims issued by slale agencies. Fewer 

thru1 3 percenl of s1a1e agency denials receive TORs; I he munber perf on ned varies each year based on resources 

available 10 the agency. In comparison. Sections 221 (c) and 1633 (e) of the Social Sec111ity Acl require SSA 10 

reviewal least half of1he favorable decisions issued by stale agencies. In Fiscal Year 2016.7.7 percenl of TORs 

resulted in a reve1·sal of an unfavorable decision ru1d 1he issuance of a favorable decision. Tbm reflects nearly 

3,400 u1dividuals with disabilities who were spared lhe need 10 wait additional montl1s and years to receive 

CJ'ilical benefits. Su1ce 1he progran1 was fully iJnplemen1ed u1 Fiscal Year 2012, more tl1ru1 17,000 cases have 

been kepi out of the hearings-level backlog because ofTDR. Allowing SSA 10 use progrrun imegtily fimding 10 

perfonn TORs would increase the efficiency and accuracy of the disabili1y programs. 

Res ume Issuing On-The-Record Decisions: It is sometimes the case that a fhlly favorable decision can be 

issued on a claim without needing a hearing. There are a number of reasons why an on the record decision is 

appropriate. For example, a claimant or represenlative miglu have been able to obtain addi1 ional evidence no1 

available allhe time of1he DDS decision. Making such an individua l wail until a hearing slol is available is 

cmel and holding a hearing on such a claim is inefficienl for S$A_ On I he record decisions have been helph1l in 

reducing the hearing backlog u1 the past. As recenlly as Fiscal Year 2010. senior allomeys issued more than 

54.000 oo-tbe record decisious, last year j usl over 1.000 were issued. 12 As ofd1eeud of July 2017, senior 

anomeys have issued only 686 on t11e record decisions tl1is fiscal year. 

The former Senior Anorney Ptogram allowed senior staff anomeys in hearing offices to issue fitlly favorable on 

the record decisions in cases thai could be decided will1om a hearu1g. Although the Task Force is awa.·e that 

concems have been ra ised regarding issues with the policy compliance of some on the record deci ~ the 

Task Force is not aware of any publicly available study or data regarding these concems. II is imponam 10 

remember thai a non·poJicy compliant decision is not necessarily an lllcOJTec.l decision. SSA bas never indicated 

lhat any on the record decisions issued by senior atlonteys were incoJTect (i.e. thai 1hey awarded benefils 10 

someone not eligible) and 10 our knowledge has never used 1he avenues i1 possesses lo review or reverse 

decisions tl1ey believe to be iuconect. If there l!ave been on I he record decisions in the pasl that did no I comply 

witl1 policy, SSA should provide the training ru1d oversight necessary to ensure program imegrity wiliun tl1ese 

inilia1ives (as they do with AUs who issue non-policy compliant decisions) rather 1hru1 abru1doning a successfi1l 

initiative. 

10 
74 


33616A.058

c. Recent Regulatory Changes Will Worsen the Backlog 

In its revised CARES plan, SSA touts some recem •·egulatory changes as assisting with backlog reduction. The 

CCD Social Security Task Force believes some of these regulatoty changes have acmally had the opposite 

effect and are contributing to the backlog. The Task Force encourages SSA to oonsider rescinding these 

regulatoty changes or offering benet· guidance and clarity on bow to implement them, both because of the 

detrimental effects on c laimants and the contribution ofrhese regulations to increasing the hearing backlog. 

i. Evaluation of Medical Evidence Rule (elimination of treating physician rule} 

SSA issued a final m le revisiJtg the n.tles regarding the way medical evidence will be evaluated and weighed 

when making a detennination of disability that took effect March 27. 2017.1J The revised mles eliminated the 

special weight given to the evidence provided by a cia imam's medical treating source. Although the delivery of 

healthcare may have cltanged over the years, the relationship between a person and their treating provider 

remains unique and the opinions of tre-ating providers deserve more weight than the opinion of someone who 

either examines an individual once or only reviews the claitns file. The evidence from a treating source is 

generally more persuasive because treating providers treat. Providing effective treatment to a person typically 

requires a much greater depth of knowledge and infom1ation chan chat relied on by professionals merely 

perfomung an evaluative ti.mction. A provider would not prescribe medication, recommend tests. give advice, 

refer to a specialist, perfonn surge•y , or provide other treatments m1less they found the patient's reports and 

their own obsei'•ations and conclusions persuasive enough to require these actions. By putting tl1e evidence of a 

treating source on the same level of impot1auce with someone who may never have examined the individual, 

this mle hm·t·s claimants by devaluing the evidence received from treating smu·ces with longitudinal knowledge 

of the claimant. This mlc change, which is likely to be challenged in coun, will uot lead to more accurate 

decisions or decrease processing time. Rather, the elimination of the treating physician mle is like ly to lead to 

more appea ls, ntore remands. and more delays. 

Similarly, we believe the pa11s of this fmal ntle that allow SSA to disregard disability detenni.nations of the 

Veterans Administration and otl1er third parties and limits the explanation decisionmakers mus1 provide when 

weighing evidence from different sources will also lead to more appeals and remru1ds. TI1e CCD Social Secmity 

Task Force raised these concems in comments on the proposed n tle but the final n tle did not ti.tlly address the 

issues l'aised. 14 

ii. Program Uniformity or "S·day Rule" 

SSA issued a final,·egulation requiring the submission of or informing the agency abotu all evidence at least 5 

business days in advance of a bearing, subject to some good-cause excep1ions. 1! The CCD Social Security Task 

Force opposed this change for several reasons. SSA indicates in the preamble to the final mle that "a complete 

evidentiary record is necessary for us to make an illfonned and accm'8te disability dete11ninatiou or decision." 16 

The Task Force agrees and believes chat creating an arbitrary deadline for the submission of evidence will hurt 

claimau1s, especially tuuepresented claimaurs. who don't tlllderslaud their obligations under this mle or have 

evidence inappi'Opiiately excluded in tl1e name of efficiency. h1 addition, it is the Task Force's position that it is 

inconsistent wich some provisions of the both the Soc.ial Security Act and other SSA regulations. as outlined in 

the Task Force's comments in response to the proposed mle. 

17 Finally, the Task Force is concemed that the 

exclusion of evidence under Ibis mle is leading to more appeals to both the Appeals Council ru1d Federal Coun 

making the backlog worse. 18 Altbouglt compliance with the ntle was ouly required as of May I. 2017. claimants 

representatives are already reporting significrutt issues wid• implementation ofdte ntle ru1d have appealed 

severa.l AU denials as a result of the inappropriate exclusion of imponruu evidence. t• The CCD Social Security 

Task Force subnutted extensive counnents iJJ response to the proposed ntle.

20 

11 
75 


33616A.059

iii. "All Evidence Rule" 

SSA •·evised its ndes in 2015 to require claimants and theu· repl'esematives to submit or infonn SSA about all 

evidence •·elated to the iltdividual's disability. The CCD Socia l Security Task Force submitted extensive 

comments in response to the proposed rule which outline the Task Fol'ce's full concents. 21 Uufornutately, many 

of these concems have come to pass. 

One perhaps unintended consequence of ~tis mle has been the Cl'eation of extremely large files which can 

require extensive amounts of time for SSA ALJs and suppo11 staff to review. In addition, SSA has not issued 

clear guidance to claimants, representatives. and AUs on what constitules a duplicate record that does not 

require submission. The pl'eamble to the fmal rule indicates that claunants have " the duty to submit all evidence 

that !'elates to yom· disability claun l'cceived from any source in its entirety," (emphasis added). Different ALJs 

define a duplicate in diffe•·ent ways and no guidance has been pl'ovided l'egarding what constitutes a duplicate to 

clarify wha1 is expected of representatives and claimants so files do not include unnecessary infonnation. If 

such guidance were provided, an expensive and potentially problematic software program SSA is calling "DeDoop" ctuTently being developed •niglu not be necessary. We are concemed thai DeDoop will remove records 

thai should remain in the claimant's file, such as lab rest results thai may look similar from page to page bur 

could comnin minor but c1itical differences. Given that SSA 's new ntles on the valuation of medical evidence 

includes a provider's familiarity with the complele file as one detennining factor determining the weight 

evidence from that provider is given, retuoviog records 6·om one provider that appe-ar in anolher provider•s 

records could reduce the weight given to that provider's opinions. We are also concemed about whether 

claimants and representatives will have access to the documents chat are "DeDooped" and whether they will be 

part of 1he admi11istrative record furnished iu federal com1 cases. Advocates have made multiple requests for a 

demonstration of DeDoop and an oppommity to share these concems, but SSA staff have rejected them. 

Conclusion: 

The number of people wailing for a hearing before an AU and the long waiting time is unacceptable. Claimants 

often expelieuce incredible hardship during the delay in getting their claim decided - bomelessuess. bank:mptcy. 

~tnd sometimes death. SSA needs additional resources to be able to serve all its customers in a tintely and 

accmate mrumer. The Task Force also mges SSA to take additional sleps to ensure that eligible claims are 

awarded as early in the process as possible by ilnproving the development of evidence earlier in the process and 

ensuring that c laims thai do not requu·e a heari11g to establish eligibility for benefits are processed without a 

bearing. 

Thrutk you again for the opportunity tO ICStify. CCD looks fonvard tO continuing tO WOI'k with the 

Subcommittee to protect this vital program for people wi1h disabilities. 

12 
76 

f 


33616A.060

Endnotes 

1 Rehabilirarioo Resea«h and Trainio,g Center on Oisabili1y Statistics aod OcolOga·aphics. 2016 Disability Statistics Atumal Repon. p. 

8. https:l/disabilitycompendiwn.orgtsites/defaultlfiles/user-uploads/2016 AwmalRepon.JXlf 2 Social Security Administration. Month Statistical Snapshot July 2017, hnps://www.ssa.gov/policy/docs/quickfactslstal_snapsholl l Email correspondence with Social Security Adminisuation Office ofExtemal Affairs. September 23. 2016 

" Kathleen Romig. Center on Budger and Policy Priorities. "Cuts Weakening Social Secwity Administt'ation Services 

Policymakers Can Address Througll2017. 2018". updated March 15.2017/2018 Fwtding. bttps://w""·cbpp.orglresearch/socialsecwity/cms-weakening-social-sec-urity-administration-services s BoJUJie Kind. Associate Couuniss'iooer. Office of Budget. Social Security Advisory Board Budget Update. January 23. 2017. on file 

with author ° Kathleen Romig. bttps://W\\"\'.cbpp.orglresearchfsocial-secwity/cuts-\veakening-social-security.administtation-services 1 Kathleen Romig, bttps://www.chpp.orglresearchfsoe-ial-security/cuts-\\o'eakenlllg-sodal-securiry.adm.inistration-services • Bomtie Kind. Associate Coomtissiouer. Office of Budget. Social Security Advisory Board Budget Update. Jauuary 23. 2017. on file 

with author 

' 20 CFR §404.1512(d) 10 Office of the Inspector GeneraL Social Security Administration. Status ofCompassioume Allowance and Quick Disability Deterutiuation Expedited Cases. March 16.2016. bttp:/loig.ssa.govlsittsldcfuultlfileslauditlfull/pdl1 A.O 1-16-

5005Lpdf 

11 hnps l/oig.ssa gov/aud ts and~lnvestigations/top ssa managemen -issues 

12 ,\ccording to Social Sectuity Administration data. there were 109.428 on the record decisions in FY20JO. 55.261 issued by AUs 

and 54.186 issuoo by senior attorneys. Ou obe r<cord decisions coustituted 15% of all bearing level disposioious thao year. In fis<:al ~r 

2016 (through 812.3/ 16) only 20.113 total on the record decisions were issued, 19.226 by AUs and 1.187 issued by senior attonltys. 

cott.stinuing ouly 3% of dispositions. Sotu-ec: Email COITespoodco« with Social Security Admiu.isuarion Office of Disability 

Adjudication and Review. August 28.2017: ou file with author 

"82 CFR 5844, hnps:l/www.gpo.gov/fdsyslpkg/FR-20 17-01-181pdJI2017-00455.pdf 14 Social Seeurily Task force. Consortium for Citizens with Disabilities. Couuneuts on the Notice of Proposed Rulemaking on 

Revisions to Rules Regarding ohe Evaluation of Medical Evidence. Sl Fed. Reg. 62559. Novembel' S. 2016. hnp:llc< -

d.orglfichiersfCCD-SSTF-Treating-Pbysician-Conunems..pdf 1s hnos·//www.federalregister.gov/doctunents/20 16/1 2116/2016-30 103/ensuring-proo.ram-wlifotmity-aa-ahe-hearing-and-aposals= 

coJmcil-levels.of-the-adminjstratjve-review 16 81 FR 45079 11 Social Security Task Foree. COJ.\SOJtium for Citizens with Disabilities. Commcms oo Notice of Proposed Rulemakiug on Eos'lu'ing 

PI'Ogram Unifonnity at the Hearing and Appeals Council Levels of the Administrative Review Process. S I Fed. Reg. 45079. August 

26.2016, p 2-4 1mp·//c.-c::-d r:ffichic($/CCP SSIF-f..Jt!auin£ Pro£r~m Unifooniry-co mmem final.pdf. 

It Social Security Task Force. Consortium for Citizens with Disabilities. Conune111s on Notice of Proposed Rulemaking on EnslU'ing 

Program Unifonnity at the Heating aod Appeals Council Level_s oflbe Admioistnnive Review Process. S I Fed. Re-g. 45079. August 

26.2016. p 4. http:llc-c-d.orgtficltiers/CCD-SSTF-Ensuring-Prowun-Uniforutity-comruents-final.pdf. 19 See. for ex;unp1e. Howe v Colvin. 147 F.Supp.3d 5 (D.R.l. 2015). a case from Region I. where the federal court found that he AU 

abused her discretion in refusing to accept evidence submitted less !ban five days before t11e hearing. and remanded the case for 

consideration of this evidence years after the he-aring was originally held 20 hnp:llc·c-d.orglficbiersiCCD-SSTF-Ensuriug-Program-Unifonuity-conunents-fuml.odf 21 Social Security Task Force, Consortium for Citize-ns wilb Disabilities. Conunents regarding Docket No. SSA-2012-0068. Submission of Evidence in Disability Claims. April 2 L 2014. http://c-c-d.org/ficbiersiCCD _ CoDlDlents_ evidence_NPRM4-21-

2014FINALpdf 

13 
77 

Chairman JOHNSON. I thank all of you. As is customary, for 

each round of questions, I will limit my time to 5 minutes, and ask 

my colleagues to also limit their questioning time to 5 minutes as 

well. 

Ms. Disman, as I said in my opening remarks, waiting almost 2 

years to get a hearing decision is too long. Today, you have shown 

us Social Security’s plan to get people hearings on time. But under 

that plan, people still aren’t going to get a timely decision until at 

least 2022. Why is this plan taking so long? 

Ms. DISMAN. Thank you. 

Chairman JOHNSON. Turn your mic on. 

Ms. DISMAN. Thank you, Mr. Chairman. Let me first say, in 

being with the Social Security Administration for over 50 years, 

and starting as an interviewer of disability applications, I share the 

concern, as do my colleagues, with the long wait for hearings as 

well as other issues that have been identified by the witnesses 

here. To listen and read the stories that were presented about people being deceased before a hearing took place is unacceptable to 

all of us. 

However, we have to put everything on the table when we look 

at the hearings process. We have to look at all aspects of it. It is 

not just the hiring of human resources, it is being strategic; otherwise, you will have what happened before. We had an aggressive 

plan before. We reduced the hearings backlog. What happened was, 

baby boomers came of age, and they became disability-prone; the 

recession hit; the increased receipts of applicants were upon us. 

And, basically, we had not updated our business processes, or had 

the IT technology to really modernize where we are going. 

So why does the plan take so long? We have to look at all aspects 

of it, in addition to making sure that we have sufficient staffing. 

I am pleased to say that this year, we are hiring 130 ALJs in addition to the 200-and-some-odd that we hired last year. We are also 

hiring over 600 support staff. Unfortunately, we hired more ALJs 

and didn’t have the comparable support staff, because the agency 

had a self-imposed freeze. So we were able to hire one aspect, but 

it makes sense if you are hiring more judges, you need the decision 

writers, and you need the support staff to work with them. 

So our commitment is to bring over 600 on before the end of the 

year, and that is with the help of the anomaly money. So it does 

take a long time to deal with systemic problems, but I want to assure you, for the Acting Commissioner and myself, all options are 

on the table. We are looking at all recommendations. As a matter 

of fact, Judge Zahm and I have met a couple of times, and I have 

actually looked at the 45 recommendations that she has made. One 

of them, which is a short form or template for the fully favorable, 

is something that the agency is looking at right now to move forward and to get agreement on a direction. 

So, we ask you to work with us. Your Committee has come up 

with great ideas, and we appreciate your support for Social Security all these years. 

Chairman JOHNSON. You have been working with us, and we 

have been working with you for the whole time I have been in the 

Congress, and I haven’t seen much improvement. It wasn’t that 

long ago that Social Security was facing a different disability backVerDate Sep 11 2014 11:18 Feb 11, 2019 Jkt 033616 PO 00000 Frm 00081 Fmt 6633 Sfmt 6602 I:\WAYS\OUT\33616.XXX 33616
78 

log, and telling our Subcommittee how that backlog was going to 

be tackled. Yet, less than 10 years later, here we are again with 

another disability backlog, and I don’t know that your new plan is 

going to stop that cycle. 

How can you assure us that in 10 years, we are not still talking 

about another disability backlog? 

Ms. DISMAN. Well, my hope, Mr. Chairman, is that being strategic and looking at all aspects of the backlog will enable us to 

minimize the cycle. Now, we can’t help what happens externally, 

whether there is another recession and more filings, or whether 

you have the issue—for example, there was a period of time where 

we couldn’t hire administrative law judges because of the Office of 

Personnel Management, and thankfully, Congress helped us correct 

that situation. 

But if we don’t have a plan that is strategic and deals with the 

core of our problems, just giving us the budget won’t stem the cycle 

that you have just referenced. For example, when I looked at the 

actuary projections of receipts for disability, they are going down 

now. Well, that is good news for us because that allows us to work 

on the backlog. By the way, the cases are averaging over 600 days, 

because we are working on the most aged cases now, and that 

means the processing time goes up. 

But having said that, and working on the cycle that we are 

doing, we need to make sure we have fixes that prevent or minimize these swings in the workloads. And that is where we are all 

working very hard together. 

Chairman JOHNSON. Thank you, ma’am. Mr. Larson, you are 

recognized. 

Mr. LARSON. Well, I share the Chairman’s concern, and 600 

days is just flat out unacceptable. And we are the United States 

of America, these are our fellow citizens, this is a program that 

they have paid for. So I have heard a lot of discussion today, so 

what I am going to ask everybody is, you know—we cite the figure 

that there has been a 13 percent increase of baby boomers coming 

through the thing, but a 10 percent decrease. 

If you have a 10 percent increase, could you turn this around? 

And what would that timeframe then be? 

Ms. DISMAN. I would have to look at the particular statistics. 

Mr. LARSON. Okay. That is not an answer. 

Ms. DISMAN. But I want to give you an answer: Let me just say, 

for every $100 million that is given in our budget—first of all, we 

want the President’s budget because the President’s budget commits a plan for us to balance the workload. But for every extra 

$100 million, I will give you two examples: We can do another 

100,000 of disability applications, or another 50,000 of hearing decisions. So I will take your question back—— 

Mr. LARSON. Why does that take so long, Ms. Larin? You have 

said there is a number of recommendations that don’t seem to be 

followed. What would you say in this case? Would the additional 

money help or not help? 

Ms. LARIN. I think where GAO’s work—what GAO’s work 

speaks to is, is SSA using the resources that they currently have 

as efficiently and effectively as they can? 

Mr. LARSON. Are they? 

79 

Ms. LARIN. We found several instances where we don’t believe 

that they are. Where they could be more effective and more efficient. 

Mr. LARSON. So in a case where they are not, what is—what 

can the government then do? What does GAO then recommend? 

Ms. LARIN. Well, we have several recommendations on how they 

can better use the information that they have, the administrative 

data that they are collecting, to inform how they can make quicker 

decisions, more accurate decisions, and more consistent decisions. 

Mr. LARSON. Will that result in a savings of money and time 

and effort? 

Ms. LARIN. Well, it certainly would save in the time and effort 

if they were more efficient and more effective in making their decision. 

Mr. LARSON. Ms. McLaren, what would you say about additional resources, you very definitely indicated that in your remarks? 

Ms. MCLAREN. Certainly. You know, the DDSs are always in 

need of more resources as well. You know, the work we do in the 

DDSs is similar to what they face in the ALJ courts. The disability 

examiners are stretched thin because we have a hiring issue as 

well there. If we had more adequate resources to take the time that 

is necessary to perform the reviews, there might be an impact. And 

we also, back to the statements that—— 

Mr. LARSON. That is a very troubling thing. We say, and my 

colleagues over here will say, look, more money isn’t the answer. 

We just say to you, look, we recognize that you are down, if we give 

you more money and—you can’t give us an answer. And so it is 

very disturbing to people that want to help and see the citizens get 

help. We hear Ms. Ekman talking about—putting a real face on 

this, and then we go round and round and round without the ability seemingly to help. Judge, you—— 

Judge ZAHM. Give me a clerk and two attorneys. Give my judges 

a clerk and two attorneys and we can go to town. We will be able 

to turn out a lot more decisions. And—— 

Mr. LARSON. What does that mean, ‘‘a lot more decisions’’? We 

have a 600, you know, this backlog. What does that exactly mean? 

Judge ZAHM. I would say that judges, if given proper staffing, 

could probably add another 50 to 100 hearings per judge, and we 

have 1600 judges, per year, if you gave us staffing, and if you 

change the procedures that are roadblocks. 

Mr. LARSON. If we change the procedures, what is the number? 

Do you reduce it or do we just add more judges, more staff, 

more—— 

Judge ZAHM. No, no, no. We definitely can reduce the backlog. 

Mr. LARSON. To what? 

Judge ZAHM. Give me a minute and let me figure it out. 

Mr. LARSON. Ms. Ekman, explain again what people are actually going through and how incompetent, in the face of that, we all 

seem. 

Ms. EKMAN. Thank you, Mr. Larson. People are losing their 

homes, they are dying, and they are becoming bankrupt while they 

wait for a decision. I think, Mr. Larson, when you chronically 

underfund an agency, you can’t expect a small increase in funding 

80 

in the short term to fix those problems. You need adequate funding 

sustained over a long period in order for SSA to get itself out of 

the hole that Congress has dug for them by giving them inadequate 

resources. 

You can’t fix your problems by shifting money from one place to 

another without expecting all of the service that SSA provides to 

America to suffer. And, unfortunately, it is going to take a number 

of years even if you were to give significantly increased funding for 

SSA to be able to dig itself out of the hole they have been put in 

by inadequate funding over the last 7 years. 

Mr. LARSON. Well, it sounds like they could also make some 

changes that are being recommended by the GAO as well. I would 

be interested in finding out why it is that GAO can’t get together 

with your group and come up with a comprehensive solution to 

this, that Congress can get its hands around, instead of these endless tastes-great/less-filling debates that we seem to have and nothing gets done. 

Chairman JOHNSON. I appreciate your questions. I appreciate 

your questions, and I totally agree with what the Ranking Member 

said. I hope you all are listening to his questions. And some of the 

answers that we are getting are, you know, nebulous, fruitless, 

something. Mr. Rice, you are recognized. 

Mr. RICE. Thank you, Mr. Chairman. I am looking at this chart 

of disability by wait times. It starts in 1986 and goes to 2016, 30 

years, and the trend doesn’t look very favorable. It is apparent that 

it is not a new problem. This is something that has been evolving 

over 30 years. But I also see that there are peaks and then there 

are valleys. And what I want to know is, what is the trend? Is this 

getting better or is it worse? Ms. Disman. 

Ms. DISMAN. The trend is getting better. Over the last 7 

months, we have reduced the pending. We are working on the aged 

cases. We have a number of initiatives that we started, but unfortunately, because of the decision writing backlog we had to stop. 

But with the hiring that we are going to do, there is some incredibly promising initiatives. We have to deal with—— 

Mr. RICE. Okay. Thank you. I want to ask, what is the trend, 

in your opinion, Ms. Larin? 

Ms. LARIN. Federal disability programs have been on GAO’s 

high risk list for many, many years. And—— 

Mr. RICE. Is the trend favorable today or not? 

Ms. LARIN. We have not—— 

Mr. RICE. Is it going to get worse or get better? 

Ms. LARIN. Well, we haven’t seen much of an improvement. 

Mr. RICE. Okay. Ms. McLaren. 

Ms. MCLAREN. Initial disability applications are down, so are 

the appeals at the reconsideration level. So from a DDS perspective, we would see decreasing numbers in the front—— 

Mr. RICE. So you think the trend is good and we are going to 

start to see decreasing numbers? 

Ms. MCLAREN. Some of those issues I couldn’t speak to, those 

are SSA’s issues. 

Mr. RICE. Thank you. Ms. Zahm—Judge Zahm. 

Judge ZAHM. The trend is down because applications are down. 

Mr. RICE. So you see it getting better, Ms. Ekman? 

81 

Ms. EKMAN. Thank you, Congressman. We have not seen an improvement yet. I think—and the—— 

Mr. RICE. What would be your opinion? Do you see one on the 

horizon or not? 

Ms. EKMAN. We see promising initiatives. It is going to take 

some time for them to—— 

Mr. RICE. Thank you. I want to know about the trend in claims. 

I know we had a huge upswing in claims as people talk about the 

baby boomers aging and the recession, which force people to look 

for alternative sources of income. You say that the claims are down 

600,000 in the last year. Is that right? 

Ms. DISMAN. What we were talking about—I can give you a figure of what they are down. The actuary shows they are down by 

about 100,000 from the prior year and 100,000 before that. 

Mr. RICE. What are the total numbers of claims per year? Someone said 4 million. Is that right? 

Ms. DISMAN. Well, the total number of claims per year that we 

are dealing with, I need to get back to you on that figure. 

Mr. RICE. Roughly. Judge Zahm, do you know the total number 

of claims per year? 

Judge ZAHM. No. 

Mr. RICE. Okay. Do you know, Ms. McLaren? 

Ms. MCLAREN. Yes, it is 4.7 million, but that includes all initial 

recon and CDR claims—— 

Mr. RICE. So we have a 100,000 drop out of 4 million? 

Ms. MCLAREN. Right. 

Mr. RICE. All right. What percentage of claims—you know, the 

whole reason we have to have hearings is to make sure people are 

eligible. Right? If we knew—if they came into the office and said, 

I am disabled, and we could just believe that they met all the 

qualifications, we wouldn’t have to have the hearings, right? What 

percentage of hearing applicants, Judge Zahm, are approved versus 

rejected? Do you know that? 

Judge ZAHM. At the hearings level it is approximately 45 percent of applicants are approved. 

Mr. RICE. And ultimately, on appeals and on through, do you 

know the answer to that? 

Judge ZAHM. No, probably not a whole heck of a lot different. 

Mr. RICE. Ms. Ekman. 

Ms. EKMAN. Overall, after all levels of appeal, it is about 4 in 

10 that get approved. Initial claims, there is about 1 in 3 that are 

approved. So 2 out of 3 are denied at the initial level. 

Mr. RICE. Wait a minute. She said 45 percent and you are saying 1 in 3. 

Ms. EKMAN. Well, at the initial level. And it is 45 percent at 

the hearings level. And so once you go through all the levels of appeal, you have to remember, too, a lot of people drop out, so the 

number of initial claims, only a percentage of those go forward to 

request hearings. 

Mr. RICE. The CAL program—I will go to you, Ms. Disman. I 

know it is expedited, so how much quicker is it than the regular 

program? How many more—what is the difference in wait times? 

Ms. DISMAN. It is substantial. If you take a look at the CAL 

conditions. 

82 

Mr. RICE. Is it 200 days? 

Ms. DISMAN. The average is about 39 days for a CAL condition. 

Mr. RICE. Wow. 

Ms. DISMAN. As opposed to the average processing time for initial applications which is somewhere between 110 to 114 days. 

Mr. RICE. Wow. What percentage of people get approved in the 

CAL program? 

Ms. DISMAN. Around 3 percent. 

Mr. RICE. Three? So 97 percent are in the other? 

Ms. DISMAN. Right. That is correct. 

Mr. RICE. Okay. And then, finally, is there any mechanism even 

quicker than CAL? I mean, when you—when they meet with somebody, and there is no question they are clearly disabled, is there 

anybody that just gets an instantaneous approval? 

Ms. DISMAN. Well, there is not instantaneous, but there are two 

other processes. One is TERI cases, where an individual has a disability which is likely to end in death and very seriously indicated 

as a TERI. The other is quick disability decisions. These were all 

implemented in the beginning of the rise of disability pendings over 

the years. So if it is not a CAL, it can be picked up as a quick decision case, it can be picked up as a TERI. They all work with each 

other. 

Mr. RICE. Thank you, ma’am. 

Chairman JOHNSON. Thank you for your questions. 

Mr. Pascrell, you are recognized. 

Mr. PASCRELL. Mr. Chairman, thank you. And I am interested 

in all the questions from all of our comrades here. Excellent. Maybe 

we should do this with Social Security, same approach, questions 

and answers. 

I have a question for you, Ms. Disman, and thank you for all 

your service. I mean that sincerely. 

We know that many initial SSDI applications are denied. Ms. 

Disman, let me ask you this, can you explain to me why that is? 

And is there anything we can do to try to reduce the inappropriate 

denials? 

Ms. DISMAN. Well, thank you, first of all. And I just want to 

reminisce about you and I appearing together in New Jersey on 

radio when I was regional—— 

Mr. PASCRELL. We have the worst record in New Jersey. Did 

you know that? 

Ms. DISMAN. I won’t even talk about that. Those were my years 

as Regional Commissioner. 

Mr. PASCRELL. I don’t mean any inference to you. But I am 

saying New Jersey is way behind everybody else, it looks like, even 

though no State really stands out as getting a gold star. But go 

ahead, I am interrupting you. 

Ms. DISMAN. But in any event, if you look at the initial disability application—I used to head the quality function of Social Security where we actually looked at these initial disability applications. They are, if you look at their accuracy, their net accuracy is 

at 97 percent. Their decisional accuracy is at about 95 percent. 

What happens between the time of the initial denial? Time passes. 

The condition worsens. There is also new medical evidence that is 

introduced that wasn’t introduced at the beginning. 

83 

So where the DDSs on average have about a 35 percent allowance rate, you will see as it goes through its various stages, for example at the reconsideration stage when new evidence is submitted 

and the condition may change a little, another 12 percent get approved. And then you had, as Judge Zahm mentioned, you know, 

at the hearing level about 45 percent. 

So it doesn’t mean that the DDS’s initial decision was incorrect, 

because they do look at 50 percent of the allowances, and there is 

a sample of denials as well, to see what is the quality of the decision. 

Mr. PASCRELL. Now, let’s compare that to other agencies in 

other departments when we see problems of responding to our taxpayers and constituents and our family. I have seen the tendency 

in some of those other departments and agencies that remain 

nameless right now, if they are cutting my budget so I cannot 

spend X amount of dollars on page 38 of the budget you refer to— 

I didn’t refer to it, you referred to it—there is a $64 billion cut in 

Social Security disability funds over the next 10 years. 

Now, if I am the bureaucrat and the administrator, call us whatever you wish, making decisions about, well, if I have less benefit 

money to provide, I need to find a way to get rid of a lot of these 

applicants, because there may be less applicants this year, but 

there is a steady pace of increasing if you look back at it over the 

next—the last 15 years. And by the way, if we continue with the 

last 6 months, we will have the same amount as last year. I will 

tell you the numbers, and you know the numbers better than I do. 

So I am saying, is there anything like that happening within the 

disability network of denying early on, let them appeal down the 

road? 

Ms. DISMAN. I would say absolutely—— 

Mr. PASCRELL. Is that familiar to you, Ms. Disman? 

Ms. DISMAN. I would say absolutely not. I will tell you that our 

employees—and I do want to talk about what is in the budget, but 

absolutely not. 

Mr. PASCRELL. Yeah. 

Ms. DISMAN. Our employees believe in the mission. That is to 

get the right decision to the right person on time. I was trained 

that way when I came in over 50 years ago. 

Mr. PASCRELL. So we have less money over the next 10 years, 

according to the President’s budget, which you talked about. We 

will find a way, if those people are eligible, to get them the assistance that they need? 

Ms. DISMAN. Absolutely. 

Mr. PASCRELL. Okay. Let me continue, please. 

So there are no easy fixes. We know that. Making a proper SSDI 

eligibility determination is extremely complex. I feel like I am 

starting to sound like a broken record, though, lately, because I 

keep coming back to the same point that virtually all of the Social 

Security Subcommittee hearings we have had since I joined the 

Subcommittee, but many of the problems that this Subcommittee 

has been examining with the Social Security Administration are 

firmly rooted, I will contend, in the lack of resources the agency 

has been given. 

84 

Look, we don’t want anybody to get Social Security disability 

that doesn’t deserve it. You have changed the rules. And some of 

them I think are excellent so that we don’t have to face that issue 

later on. So we are going to find a way to find the rules to have 

less people who are eligible because you have less funds to provide. 

I mean, the numbers are the numbers. I didn’t make them up. And 

I don’t think you made them up, Ms. Disman. I know your background. 

So you can defend it all you want, but we are trying to get to 

some kind of agreement here so that we can move forward. And not 

everything is in, you know, stark white and black. We know that. 

And there is no easy answers. None. This is complex stuff. But I 

am looking at the history. I am looking at what is going to happen 

by the end of this year. And I don’t see any improvement whatsoever, to go back to the gentleman’s question before. 

So, you know, no wonder why some of us are a little puzzled. I 

mean, I am always a little puzzled, but this is something that we 

need to take a much more serious look at, and I thank the Chairman for putting us together today. 

Chairman JOHNSON. Thank you, sir. The gentleman’s time has 

expired. 

Mr. Renacci, you are recognized. 

Mr. RENACCI. Thank you, Mr. Chairman. And I also want to 

thank Ranking Member Larson for both of you putting this together, and I want to thank the witnesses. And this won’t be a pileon, although it does seem like it is. 

And I am going to go back to what my friend Mr. Larson said, 

because it is always easy to talk about money. And he said over 

here we are going to talk about money, and you are right because 

I was in business. And in my 30 years in business, when we were 

having troubles, people would walk up and say, well, we just need 

more money. And it is always easy to say, yup, we just need more 

money, and just give me more money, and if you keep giving me 

more money—the problem is here we don’t have any more money. 

In Washington, every day we are borrowing from China. We have 

enough issues already, and we just don’t have the money, so we 

have to be more efficient. And that is what we used to do in the 

business world. That is what families are asked to do. We have to 

become more efficient. 

So I want to talk about efficiency more than money. And we have 

to figure out how do we become more efficient, because there is just 

no more money. We can talk about it all day, but the American 

people are tired of talking about money when we have a $20 trillion deficit, and it continues to grow. 

So I want to talk about one example, because the trend line— 

I do like my friend’s example of the trend. The trend is not good. 

I put the black line as the trend line. We can go up and down and 

up and down, but the trend is continually going up, so that is an 

issue. 

What is troubling is that a constituent of mine—and I will just 

use one example. We have a constituent, John, from Parma, Ohio, 

who applied for disability in February of 2015, and who my office 

is still working on to get him a final decision. For John, this has 

really been a frustrating process for him and his family. This is 

85 

simply unacceptable. Unfortunately, I have many other constituents who are facing the same circumstances. That is February of 

2015. 

So what we did was we went out and we started to talk to some 

of the judges in our area to try to figure out what was going on. 

And our Social Security—when we talked to our judges, and my 

staff talked to them in northeast Ohio, they have told us that the 

rules—and I want to go back. Social Security recently finalized regulations that generally require all evidence to be submitted to the 

ALJ no later than 5 days before a hearing. The judges are stating, 

they told us that the rule fails to fully address the issue of ensuring that they as judges have all the information they need prior to 

the hearing. 

So that is important in a timeline. That is important in a decision. And I think it is important that we look at at least that. So, 

basically, the rule is not working. 

But I want to ask Judge Zahm, what are your thoughts on that? 

The judges are saying they need the information. 

Judge ZAHM. Yes. The judges who spoke with you and your staff 

are 100 percent correct. This is the situation. Judges are most efficient when we have evidence submitted to us before the hearing so 

that the judge and the medical experts can review that evidence 

and be prepared for the questioning of the claimant at the hearing 

and for the questioning of the experts. Then when the testimony 

is over, we can make a decision right away right there. It is fast. 

It is efficient. 

But what has happened is that the agency had a 10-year pilot 

program in New England that required evidence to be submitted 

5 days in advance. By all accounts it worked well, so the agency 

decided to extend it nationwide. So far so good. 

Then the rule was drafted, and the rule didn’t require just the 

submission of evidence, it also said, and if you don’t have the evidence you can just tell us what evidence is missing and your attempts to get it. So now, 5 days before the hearing I still don’t have 

the evidence. What is worse is they have told me what evidence I 

don’t have and it is too late to get it. So the intent of the rule was 

undermined by poorly being drafted. 

We need a rule that says 5 days before the hearing get your evidence in. People get 75 days’ notice before the hearing, so they 

have plenty of time. And if they can’t get it, because sometimes 

providers are recalcitrant, let me know. I will subpoena it. I need 

the evidence the day of the hearing so I can be efficient. 

Mr. RENACCI. I appreciate that. And again, that doesn’t take 

more money, that just takes more efficiency. 

Judge ZAHM. Exactly. 

Mr. RENACCI. Ms. Disman, do you want to—— 

Ms. DISMAN. Yes. And certainly, we—the national uniformity 

rule was intended to do as you articulated. It was taking 73 days 

on average for the scheduling of a hearing, so this was giving 75 

days for the reps to present the evidence. Unfortunately, we have 

had a few reps informing us before 5 days. These sources are medical. 

So what we are in the midst of doing now is using a clarifying 

ruling to deal with those situations. We will also have our new OfVerDate Sep 11 2014 11:18 Feb 11, 2019 Jkt 033616 PO 00000 Frm 00089 Fmt 6633 Sfmt 6602 I:\WAYS\OUT\33616.XXX 33616
86 

fice of Quality and Review and Oversight do a study of these cases. 

The rule went into effect the beginning of May. We wanted to do 

some data analysis to see where it is. At the same time, the ruling 

that we will have will lay out factors of what does it mean when 

you are coming in front of us, what do you need to provide? 

The one thing we don’t want to do is prevent due process on behalf of our claimants. We want to make sure they are afforded the 

best while we are more efficient in what we do. 

Mr. RENACCI. Well, I thank you. And I know I have run out of 

time, but again, this isn’t more money, this is just a procedure and 

time and getting things done and getting things to the judges. 

I yield back. 

Chairman JOHNSON. Mr. Kelly, you are recognized. 

Mr. KELLY. Thank you, Chairman. Thank you all for being here. 

As we listen to this, and again, it does come down, as Mr. 

Renacci was talking about, to the amount of money we have to 

work with and then the size of the Social Security Administration. 

So when we talk about not having enough people, and hearing you 

talk, Judge, what I don’t understand is how did we figure out that 

we needed to hire more judges but didn’t figure out that they needed to have support staff? How do those decisions come about? 

Now, as a person who has always been in the private sector, it 

is hard for me to understand that money is the answer to this. As 

Mr. Renacci just said, it is efficiency that really drives us most of 

the time because we just don’t have, in the private sector, large 

sums of money to work with. So I was really—I was puzzled. So 

we said, yeah, we need more judges, but nobody thinks that they 

need more support staff. That is almost incomprehensible, but that 

is the issue that you talked about. 

Judge ZAHM. Yes. And to the extent that you give me no support staff, I cannot be efficient. 

Mr. KELLY. Okay. And so I have to tell you what we face as 

Members of Congress in our offices. We have people coming to us 

with this problem. It is a very difficult system to navigate. Let me 

just read something to you, because we are talking about efficiency 

and effectiveness, and we are talking about making sure that we 

don’t have unapplied time, because that is what drives everybody’s 

model off the charts. 

In looking over disability insurance statistics for my congressional district in western Pennsylvania, I noticed that the average 

processing time is much higher than the national average. In our 

Pittsburgh office, my understanding is the average processing time 

is 698 days. The national average is 599 days. Both are lengthy, 

but it takes almost 2 years for a claim to be processed with almost 

8,200 cases pending in Pittsburgh alone. This is an incredible 

mountain we have to climb. That is thousands of western Pennsylvanians with their lives on hold for almost 2 years while their 

claim is being processed. Now, a constituent brought this up to me. 

Meanwhile, I just read a report by the Social Security Commissioner’s Office that last year, 2016, the agency spent over $16 million on union representational activities. In fact, 16 employees 

spent 100 percent of their time solely on union activities. In addition to these 16 employees, almost another 1,500 used official time 

87 

on a part-time basis for a total of 255,000 official hours spent on 

union activities. 

I have an extremely hard time explaining to my constituents 

that call our office seeking help with their disability claims that 

taxpayer dollars are being spent to the tune of $16 million on 

union activities while they are waiting for a decision from a Federal agency. 

Of course, this is not just an issue at the Social Security Administration. In 2014, government employees spent nearly 31⁄2 million 

hours conducting union business, costing taxpayers, hardworking 

American taxpayers, $162.5 million. That is not my number, that 

is OPM. 

So when we are saying we don’t have enough people and they 

don’t have enough time, how do we find 255,000 hours to spend on 

union activity when we have people waiting to hear their claim 

being processed? Now, I know people say, well, you don’t want to 

go down that road. I do want to go down that road because do you 

know who picks up the tab on this? Hardworking American taxpayers. They are asking us, how can you look the other way when 

this is going on, when we have people waiting over 2 years for a 

claim to be processed? This is not your problem. This is the problem with government. 

Now, Ms. Disman, what is the average time it takes a Federal 

employee to process a disability claim nationally, just a ballpark 

average? 

Ms. DISMAN. Well, I was going to give you an example of a decision writer. 

Mr. KELLY. Just give me a ballpark, how much time does it 

take? 

Ms. DISMAN. So one decision writer can write in a year 220 decisions. 

Mr. KELLY. They can write 220 decisions. Okay. 

Ms. DISMAN. So if you multiply that by the work years that you 

are talking about, you will have a sense of what can be done in 

writing decisions. 

Mr. KELLY. Okay. Let me ask you then, if these 16 employees 

that spend 100 percent of their time dedicated to union activities 

could instead have been working on processing disability claims, do 

you think that would have helped reduce the backlog? 

Ms. DISMAN. That would have contributed to more decisions 

being written. 

Mr. KELLY. Okay. And if the 255,000 official hours spent on 

union activities funded by American taxpayers, by the way, were 

spent on processing disability claims, do you think this would further help reduce the backlog? 

Ms. DISMAN. Well, I think you have to look at the whole program. 

Mr. KELLY. No, I just want an answer. Would it reduce the 

backlog? I don’t want to hear about things in totality, because that 

is how we always get lost in this government. We get so lost in the 

fact that we forget that every single penny came out of the pocket 

of a hardworking American taxpayer. 

I know how Social Security works because I am from the private 

sector, and I know it is all based on wage taxes. But when I look 

88 

at this and I keep hearing all we need is more money, all we need 

is more people, and then I say to these people, ‘‘Well, what is everybody doing now?’’ I don’t know, Judge, how you could look at more 

judges coming onboard but nobody being hired to the support staff. 

Maybe asking some of those other folks that spent 255,000 hours, 

do you want to really help out with claims and backlogs? Maybe 

that would be the answer. 

Now, I get spun up about this because we keep chasing a rabbit 

we can’t catch. And we keep talking about we need more money, 

we need more people, and I keep seeing the backlog keeps rising. 

And all we say to those people back home is just stay tuned, we 

are going to get to you eventually. 

So I know my time is up. Mr. Chairman, I thank you. I yield 

back. 

Chairman JOHNSON. Thank you. Thank you for your questioning. 

And, Ms. Sa ́nchez, you are recognized. 

Ms. SA ́ NCHEZ. Thank you, Mr. Chairman. 

You know, time and time we hold hearings criticizing the Social 

Security Administration for backlogs, technology issues, or fraud, 

and as Members of Congress we never end up doing anything 

about it. And there tends to be one common thing among all the 

concerns that we keep raising, and I think the line of questioning that just went down is sort of a red herring, but it all boils 

down basically to lack of funding. And I know people don’t want 

to spend funding, but the Social Security Administration has been 

flat funded since 2011. Okay? In 6 years, you cannot buy the same 

amount of paper that you could 6 years earlier with the same 

amount of money. There is this thing called inflation that contributes to the cost of doing business. 

In addition, we have an aging baby boomer population and an increased demand on limited resources. And I am just going to take 

a guess, and you all can correct me if I am wrong, but I am guessing that probably disability claims have been on the rise over the 

course of the 30-year history. I doubt that the number of claims 

has stayed flat. 

So we can’t expect Social Security, or any other Federal Government agency for that matter, to do more with less and less. As the 

increase in demand goes up, you need an increase in resources to 

deal with the issue. And there is no substitute for resources. No 

amount of congressional hearings and waving our arms and 

screaming into a microphone is going to make up for the fact that 

you guys are not receiving the funding that you should receive, 

that it is not keeping pace with the demand. 

So here we are again one more time talking about the disability 

backlog, reprimanding Social Security, but not considering actual 

ways to fix it. And there is no doubt the backlog is unacceptable. 

Six hundred days is too long for people in need to wait for a decision. And as Ms. McLaren testified, the longer people wait, the 

greater the hardships that they face. 

So it is imperative that Social Security has the number of ALJs 

it needs, the attorneys and support staff to process those reviews 

in a timely manner. Social Security is meant to be there when 

beneficiaries need it the most. 

89 

Now, I happen to have worked for a Federal district court judge, 

and I know what a lack of resources can mean for getting through 

case work. You know, we all want the Social Security Administration magically to be able to process these claims in a very quick 

turnaround, but heaven forbid, we don’t want you guys to make a 

mistake. We want the decisions to be correct ones. Well, correct decisions mean that you need all of the information, and it takes time 

to get that information sometimes from the recipients themselves, 

from the petitioners themselves. 

You know, we all want everything to work perfectly, and we live 

in an imperfect world. And certainly, if we don’t allocate the resources needed, we are not going to see any trend reversal. 

So I want to go to Ms. Zahm, because you were kind of interrupted by Mr. Larson. You were trying to do a back of the envelope 

calculation about how many cases could be taken out of that backlog if you had just one ALJ hired, one law clerk, and an attorney 

to help them. Can you give me a back of the envelope calculation? 

Judge ZAHM. Yes. But let me just correct: one clerical employee, 

two attorneys. 

Ms. SA ́ NCHEZ. My apologies. 

Judge ZAHM. Because then if somebody implements it, and I 

don’t get the other attorney—— 

Ms. SA ́ NCHEZ. Roughly how many cases? 

Judge ZAHM. I think between 150- and 200,000 extra decisions 

a year. Now, we already put out 700,000 decisions a year. That will 

make a dent in the backlog. 

Ms. SA ́ NCHEZ. Yeah. Nobody talks about what you are getting 

right, you know? 

Judge ZAHM. Yes. 

Ms. SA ́ NCHEZ. Everybody wants to focus on everything that is 

falling apart. Well, I happen to be a believer in government. I believe that government can do things competently, if they are given 

the right people for the right job and the right resources. 

Ms. Disman, how big of an impact has level funding had on Social Security Administration’s ability to process claims? 

Ms. DISMAN. Well, I think if you look at what we have 

achieved, Social Security has managed to identify priorities and to 

establish the processing of claims for our constituents, and also has 

used technology to enhance services and to provide different ways 

of providing the same service. 

Ms. SA ́ NCHEZ. But the question was how has level funding impacted the ability to write more decisions in a year? Has it positively impacted that or has it negatively impacted that? 

Ms. DISMAN. Well, I think we can certainly say that with more 

funds we can do more. 

Ms. SA ́ NCHEZ. Excellent. And how much funding would SSA 

need to bring the wait time down to the goal of 270 days, do you 

have an idea? 

Ms. DISMAN. Well, I would actually like to come back with that 

for the record, because it makes a number of assumptions. I think 

you heard from our DDS community about the reintroduction of 

the reconsideration process. If we introduce that process, it means 

less cases will go to the administrative law judge. So let me send 

that back to you with a number of assumptions behind it. 

90 

Ms. SA ́ NCHEZ. I appreciate that. And do you think that with demand growing, you can keep level funding SSA and expect that 

somehow we are going to reverse the trend of this backlog? 

Ms. DISMAN. I think that we have enough in the President’s 

budget to be able to start the downward trend. It is taking longer 

than—— 

Ms. SA ́ NCHEZ. But could you get it to the recommended 270 

days if you stay at a flat level funded? And that is not to say that 

there is no cuts, because we have even heard about cuts potentially. 

Ms. DISMAN. Well, if the President’s budget and the budget that 

we are going to be submitting to Congress for 2019 all assume that 

we will continue to get a specific funding level to allow us to reduce 

the backlog. 

Ms. SA ́ NCHEZ. But would you get the—— 

Chairman JOHNSON. The time of the lady has expired. 

Ms. SA ́ NCHEZ. Excuse me, but my last colleague was granted 

additional time, and I have one last question I would like to submit 

for the record and allow the witnesses to respond to in writing, not 

verbally. 

Chairman JOHNSON. Sure. 

Ms. SA ́ NCHEZ. My question is, with level funding, you said that 

you can start the downward trend in the backlog. How many years 

would it take you to catch up the backlog and get it down to the 

recommended 270 days? And I will allow you to submit that answer in writing. 

And I thank the Chairman, and I yield back. 

Chairman JOHNSON. Thank you. 

Mr. Smith, you are recognized. 

Mr. SMITH. Thank you, Mr. Chairman. Thank you for having 

this hearing. 

Ms. Disman, could you tell me how many administrative law 

judges there were in 2011? 

Ms. DISMAN. If my memory serves me correct, and I will change 

that for the record if it was wrong, there were about 1,100. 

Mr. SMITH. Okay. And currently there is how many? 

Ms. DISMAN. Over 1,600. 

Mr. SMITH. So the lowest backlog we had was in 2011 in recent 

history. And it showed that it was like 350, around there somewhere, and now we are at 600. In fact, in Missouri, we are at 672, 

which is worse than the national average. Why have we almost 

doubled when we have almost doubled how many administrative 

law judges we have, according to those numbers? 

Ms. DISMAN. Well, I think if you look at the issues, it is the 

composition of staff that we were able to hire over the years. It is 

the length of time it takes to hire staff. It takes time to train staff 

and have them be proficient. And the backlog was the increase in 

receipts that came in at the initial disability level and made its 

way through the ALJ level. 

So this didn’t happen overnight. If you look at a curve you will 

see each year it being incremental, and then we had problems over 

the years on actually hiring judges. 

Mr. SMITH. I am just really confused. If in 2011 we had 11- or 

1,200 people, whatever that is, administrative law judges, and 

91 

today we have 1,600, that is a sizeable increase. And I mean, does 

it take 5 years to train people so that they can go through the 

cases, or I just don’t—I can’t get—I can’t comprehend that. 

Ms. DISMAN. We had a period of time where we couldn’t hire 

administrative judges, so if you look at it, about 245 were hired 

last year with another 130 this year. And we lose about 100 ALJs 

a year. 

Mr. SMITH. So you hired about 350 new ones in the last year 

and a half. Okay. That is helpful. That is the kind of stuff you need 

to tell me. 

Mrs. Zahm, in your testimony, you made the comment that there 

has been more than 1,000 new regulations. What were those regulations implemented from? Was it legislation or just that the Social 

Security Administration decided to come up with something different? 

Judge ZAHM. It was the latter. The agency made changes to the 

Hearings and Appeals Manual that we use to adjudicate cases. Approximately 1,000 since 2011. They have complicated and made 

more time consuming our jobs, but also in that same period of time, 

since 2011, the size of our files have increased 55 percent, and that 

doesn’t even count the increase from fiscal year 2017. So we have 

files increasing, numbers of applications going up since 2011 

and—— 

Mr. SMITH. How much? What percent have they gone up since 

2011? Do you have that number? 

Judge ZAHM. That Ms. Disman would know. 

Mr. SMITH. Okay. I will get to her again. 

You said that out of those thousand rules, there is several that 

are not necessary. Could you give me a couple examples of not necessary rules that are costing the judiciary time? 

Judge ZAHM. Yes. Okay. For instance, when a claimant tells us 

that they have new medical evidence, they send in documents saying Dr. Jones, Dr. Smith, whatever, I have been to the hospital, the 

clerk has to contact the claimant and say you need to get these documents. They have to wait 30 days. The documents won’t come in. 

If it is an unrepresented claimant, they are not coming in. They 

have to recontact the claimant and say why aren’t they submitted 

and then hear a story. They then have to go and say to the judge, 

what do you want us to do? And, of course, the judge will always 

say, I want you to get those documents. 

With unrepresented people, why are we doing this? They are not 

going to get the documents. If they get them, they won’t be complete. The clerk should simply, once they are notified that there is 

another medical provider, send for the documents. That would be 

less time consuming than this dance between us, the claimant, the 

judge, whatever. It takes time, it takes staff time, and at the end 

of the day, we are going to ask for those documents anyway, so 

why don’t we just do it to begin with? 

Mr. SMITH. Okay. Good point. You said that last year 750,000 

claims were processed? 

Judge ZAHM. About 700,000 claims, I believe, where dispositions 

were issued at the—that might be 690, whatever. About 700,000. 

Mr. SMITH. And I just wanted to clarify Mrs. Sanchez’ question 

and Mr. Larson’s, I think. You said that by one new administrative 

92 

law judge and the appropriate personnel for their office would create a reduction in backlog by what amount a year? 

Judge ZAHM. I estimate between 150- and 200,000 extra dispositions if you gave us staff. 

Mr. SMITH. For each one administrative law judge or—— 

Judge ZAHM. No. Overall based upon—we already put out about 

700,000. I think we could do an extra 150- to 200,000 if I had a 

clerk and two attorneys. 

Mr. SMITH. With how many lawyers hired, though? 

Judge ZAHM. I don’t know exactly how many the agency has. 

Mr. SMITH. Okay. All right. 

Judge ZAHM. I don’t know how many more. 

Ms. SA ́ NCHEZ. If the gentleman would yield. 

It sounds like you are saying not with additional judges but just 

getting the staffing for the current judges that exist. 

Judge ZAHM. Right. Exactly. 

Mr. SMITH. Oh, under the current administrative law judges to 

make sure that they are fully staffed? 

Judge ZAHM. Exactly. 

Mr. SMITH. Okay. Thank you. 

Chairman JOHNSON. The time of the gentleman has expired. 

I ask for unanimous consent to insert in the report Mr. Kelly’s 

reference to the record. Without objection, so ordered. 

[The submission of The Honorable Sam Johnson follows:] 

93 


33616A.061

The Honorable Tom Cole 

.._ t-'~> ;EC(~ 

.f#~ 1111111 . ..$ ... 1\Tl'" 

SOCIAL SECURITY 

The Commissioner 

December 30, 2016 

Chainnan, Subcommittee on Labor, Health and 

Human Services, Education, and Related Agencies 

Committee on Appropriations 

J louse of Representatives 

Washington, DC 20515 

Dear Mr. Chairman: 

I am writing to provide you with our agency's fiscal year (FY) 2016 report on official time and 

expenses for union representational activities. This annual report complies with the 

requirements in the House Committee on Appropriations' Conference Committee Report 105-

205. 

ln FY 2016, the union representational activities total agency costs were Sl6.0 million. As 

required by our annual appropriations acts, the general fund of the United Stat~ Treasury wiU 

reimburse the Social Security trust funds, with interest, for the portion of expenses attributable 

to the trust funds. 

I hope you fmd the enclosed report informative. If there are any questions about this report, 

your staff may contact Michelle King, Deputy Commissioner for Budget, Finance, Quality, and 

Management, at (410) 965-7748. 

Enclosure 

jjncerc ~ ~ /) 

Dcbt~0 U) . ~·~ 

Carolyn W. Colvin 

Acting Commissioner 

SOCIAL SECURITY ADMINISTRATION BALTiMORE MO 21235-0001 
94 

f 


33616A.062

Enclosure - The Honorable Tom Cole 

Social Security Administration Report Conce rning Expenditures for Union Activities 

The Conference Comminee Report accompanying the Departments of Labor, Health and 

Human Services, Education, and Related Agencies' fiscal year (FY) 1998 appropriations . 

(Report 105-205) addressed the subject of support of union activities. The Comminec 

requested that all departments and agencies report annually on expenditures for union 

representational activities. Our FY 2016 information is included in the table below: 

Official Time for Union Representation Activities Fiscal 

Year 

2016 

Hours of officiultime spent on union activities 255,481 

Employees who used official time on a part-time basis 1,463 

Employees who spent 100 percent of their time on union activities 16 

Dollars in 

~1illions 

Dollar Vulut: of Official Time (e.g., salury and benefits) $13.7 

Travel and Per Diem SO.? 

Office Space, Telephones, and Supplies $1.4 

Interest $0.1 

Arbitration Expenses $0.1 

Total J\xpenses $16.0 

The Fcdcrdl Service Labor-Management Relations Statute and Social Security Adlinistration's 

labor contracts with the American Federation of Government Employees, the ::-.lat.ional 

Federation of Federal Employees, the National Treasury Employees' Union, and the 

international Federation of Professional and Technical Engineers obligate the agency to pay for 

certain costs. These costs include salaries, travel and per diem expenses, office space, 

telephone, and arbitration costs for union representational activities conducted on official time. 

Union representatives cannot use official time for certain internal union business (such as 

soliciting membership, C·onducting elections, or dues collection). Consistent with language in 

appropriations HCts, the general fund of the Department of the Treasury will reimburse the 

Social Security trust funds, with interest, for the portion of these expenses attributable to the 

trust funds. 
95 

Chairman JOHNSON. As we have heard today, Social Security 

has a lot of work to do, and people are waiting too long to get a 

hearing, and that is simply unacceptable. The good news is that Social Security has a plan, but the bad news is it is going to take, 

according to them, until 2022 to get it done. Social Security needs 

to get their wait times under control and the American people deserve no less. 

I want to thank our witnesses for your testimony and thank you 

for your patience out there. Thank you also to our Members for 

being here. 

Mr. LARSON. Could I have just—— 

Chairman JOHNSON. Mr. Larson, you are recognized for a comment. 

Mr. LARSON. Yes. I just also wanted to thank the panelists and 

the Chairman here. I would like to have Ms. Ekman—because you 

didn’t get the opportunity to follow up on a number of the things 

that you heard from the only person here who is carrying the perspective of the individuals who are impacted by these excessive 

wait times. I think there is the desire from everybody here to get 

after this issue. And, Mr. Chairman, I thank you because we unearthed a lot of things. 

What would you recommend, Ms. Ekman, that we do to take a 

number of the positive and constructive things that we have heard 

and turn it into a plan of action? 

Ms. EKMAN. Thank you, Ranking Member Larson. I think everyone sitting at this table would agree that the earlier we can get 

a complete evidentiary record in the application process, the better 

and quicker decisions we can make. We would recommend that 

SSA maybe take a little bit longer at the initial decision to more 

fully develop the record. Many claimants are unrepresented, and as 

Judge Zahm said, unrepresented claimants can often not be very 

helpful because they are in dire medical straits often when they are 

going through their initial application in assisting in that process. 

Doing more reviews of denials, which less than 3 percent of denials 

are currently reviewed, to ensure that the decision is correct could 

assist in that. 

I think one thing that does not help is creating arbitrary deadlines prior to a hearing for the submission of evidence. We all agree 

we want the evidence in, and if there are a few bad actors who are 

not getting the evidence in, Social Security has a lot of tools at 

their disposal to take care of those particular representatives. What 

we should not be doing is passing rules that arbitrarily exclude evidence based on a timeline that hits the claimant over the head instead of addressing any bad actions by representatives. 

So I think what we need to do is figure out how to get the evidence in early in the process and have SSA assist claimants to do 

that so that we can avoid having to go through further stages of 

appeal. 

Mr. LARSON. I want to thank you again. I want to thank all the 

witnesses and the Chairman. 

I would just make one final comment about what we were discussing earlier, but we don’t believe on either side that money in 

and of itself is the solution, but we cannot overlook the fact that 

we have had a large increase of baby boomers coming through this 

96 

process at this time either. So it is very helpful to find out how we 

can combine both what we like to think is technology’s assistance 

but also then, with some of the very commonsense recommendations that the judge has made and with some of the recommendations of GAO, that perhaps we are well on our way to do a combination of both, and finding where it is where actual money in the 

system could best benefit and whether it is additional clerks or it 

is the streamlining of information, lesser regulations, or actually 

getting to some of these commonsense recommendations that we 

could actually make progress instead of just having hearings. 

But, again, Mr. Chairman, thank you. This is a tremendous hearing. 

Chairman JOHNSON. Thank you all for being here, and thank 

you for your testimony. Thanks also to our Members that are here. 

With that, the Subcommittee stands adjourned. 

[Whereupon, at 11:38 a.m., the Subcommittee was adjourned.] 

[Questions for the Record follow:] 

97 


33616A.063

GAO u.s. GOVERNMENT ACCOUNTABILITY OFFICE 

441 G St. N.W. 

Washington, DC 20548 

October 4, 2017 

The Honorable Sam Johnson 

Chairman 

Subcommittee on Social Security 

Committee on Ways and Means House of Representatives 

Dear Mr. Chairman 

Thank you for the opportunity to testify at the September 6, 2017 Social Security Subcommittee 

hearing entitled "Determining Eligibility for Disability Benefits: Challenges Facing the Social 

Security Administration." My responses to your questions for the record are enclosed. If you or 

your staff have any questions, please contact me at (202) 512-7215 or Jarink@gao.gov. 

Sincerely yours, 

Kathryn A. Larin 

Director 

Education, Workforce, and Income Security Issues 

Enclosure 

cc: Amy Shuart 

Shaun Freiman 

Matt Russell 

Page 1 
98 


33616A.064

Questions for the Record from the September 6, 2017 Social Security Subcommittee 

Hearing Entitled " Determining Eligibility for Disability Benefits: 

Challenges Facing the Social Security Administration" 

1. Since 2003, the Government Accountability Office (GAO) has designated the 

Social Security disability programs as being high-risk. Why hasn't this changed 

and what does the Social Security Administration (SSA) need to do to get off the 

list? 

As we reported in our 2017 High Risk List update, SSA's disability programs continue to face 

significant challenges in addressing the needs of Americans with disabilities.1 In particular, SSA 

has grappled with large workloads and struggled to make timely decisions on who is eligible for 

cash benefits, especially when individuals appeal their decisions. SSA has also struggled to 

make timely updates to the criteria used to determine whether individuals qualify for benefits. At 

the same time, as we noted in our 2017 High Risk List update, SSA has made continual 

progress in the areas we've identified. 

Over the years, we have made multiple recommendations related to SSA's management of its 

disability claims workloads and updates to its disability benefit eligibility criteria, and while SSA 

has made some progress in these areas, more remains to be done. Concerning SSA's 

management of disability claims workloads, we recommended that the agency develop a longterm strategic plan for addressing its management challenges, which SSA has done. Further, 

SSA has taken steps to reduce the number of pending initial claims in each fiscal year since 

2010-from about 842,000 in fiscal year 2010 to 621 ,000 in fiscal year 2015. However, the 

timeliness of its appeals workload worsened during that time period. Specifically, the number of 

appeal hearings pending as of the end of 2016 was over 1.1 million, and the average time 

needed to complete appeals increased from 353 days in fiscal year 2012 to 545 days in fiscal 

year 2016. SSA's goal is to eventually reduce this time to 270 days, as articulated in its appeals 

reform plan. In 2017, we reported that SSA should continue to move forward in operationalizing 

its long-term strategic plan, as well as implement and monitor the success of its plans for 

addressing the growing appeals workload and improving appeals decision timeliness. 

With regard to the criteria that SSA uses to determine eligibility for disability benefits, we 

previously reported that these criteria had not been fully updated to reflect medical and 

technological advances and labor market changes, and we made multiple recommendations for 

improvements. Since then, SSA has acted on our recommendations and made progress in this 

area. For example, SSA has made significant progress in recent years updating its listings of 

Impairments, which contain medical conditions that have been determined by the agency to be 

severe enough to qualify an applicant for disability benefits. In addition, to gather updated 

information on technological advances relevant to disability determinations, SSA tasked the 

National Academies of Sciences, Engineering, and Medicine with studying the issue of how 

assistive technologies and workplace accommodations can affect disability determinations. 

Although the study was scheduled to be completed in 2017, it is unclear how SSA will consider 

incorporating its results into its decision-making process. As we noted in our 2017 high risk 

report, until the study is complete and SSA determines a course of action, we will not consider 

removing the area of updating SSA's disability decision-making criteria from the High-Risk list. 

'GAO, High-Risk Series: Progress on Many High-Risk Areas, While Substantial Efforts Needed on Others, GA0-17-

317 (Washington, DC: Feb. 15, 2017). 

Page2 
99 

f 


33616A.065

2. GAO found that the software the SSA uses to flag Compassionate Allowance 

initiative (CAL) claims can fail to flag a CAL condition if a claimant m isspells 

words or used ambiguous language. Did GAO find any ev idence that the 

software's limitations could also intentionally be exploited to incorrectly flag a 

claim as CAL? 

In our August 2017 report on CAL, we reported some claimants may purposely include certain 

words or phrases in their claims with the intent of having the software flag the claim as CAL, 

though that may not always be the appropriate designation.

2 Officials at 4 of 6 disability 

determination services (DDS) offices we spoke with said that they had processed claims in 

which they believe representatives or claimants coached by representatives added "please 

consider this case as CAL," or certain key words, to the claim in an attempt to get the claim 

flagged as CAL.3 While some of the key terms may have been added appropriately, others may 

have been added with the intent of having the software flag a claim as CAL though the claimant 

was not asserting a CAL condition. For example, officials with one DDS office said that they had 

seen evidence that representatives had coached claimants to include key words, such as "liver" 

and "cancer" in their claims in the hopes of getting them flagged for CAL and allowed for 

benefits quickly, though the claimants may not have had "liver cancer," which is a CAL 

condition. 

SSA has a process for removing CAL flags for claims that are incorrectly identified as CAL, yet 

SSA's guidance does not clarify when removal of the CAL flag and other manual actions should 

take place during the process. We found that the point at which these changes occur during 

claim processing varies across DDS offices. Ensuring claims are correctly flagged for or not 

flagged for CAL is important because the CAL flag reduces DDS processing time by about 1 0 

weeks on average compared to the processing time for all claims, according to SSA data. In our 

August 2017 report, we recommended that SSA clarify written policies and procedures 

regarding when manual addition and removal of CAL flags should occur on individual claims. 

SSA agreed with this recommendation. 

(102259) 

2GAO, SSA's Compassionate Allowance Initiative: Improvements Needed to Make Expedited Processing of Disability 

Claims More Consistent and Accurate, GA0-17-625 (Washington, D.C.: Aug. 11 , 2017}. 

3

Ciaimants may choose to appoint a representative-who may be an attorney or non-attorney- to assist them 

through the disability Claim process and In their interactions with SSA. A representative may act on a ctaimanf s 

behalf in a number of ways, including helping the Claimant complete the disabil~y Claim. In our claim file review, we 

found one Claim with "please exped~e. is a CAL claim" in the allegation text, which was provided by a designated 

representative for the claimant and used key words to describe a co lon that was nagged correctly tor CAL by the 

selection software. GAO, Social Security Disability Benefits: Agency Could Improve Oversight of Representatives 

Providing Disability Advocacy Services, GA0-1 5-62 (Washington, D.C.: Dec. 3, 2014). 

Page3 
100 


33616A.066

ncddd 

NATIONAL COUNCIL OF DISABILITY DETERMINATION DffiECTORS 

October4, 2017 

Amy Shuart, Staff Director 

Subcommittee on Social Security 

Committee on Ways and Means 

U.S. House of Representatives 

2304 Rayburn House Office Building 

Washington, D.C. 20515 

Dear Ms. Shuart, 

President 

Ptee d~t Ele-ct 

Se<:tetary 

Treasurer 

Past President 

Sheri SOli 

North Dakota Disability Oe-t~ mna1 on SeMC:es 

1237 W. Divide Ave STE 4 

Bismarck, NO 58501 

LlzMel~ en 

Staci Cain 

Sally Fitzer 

Eril< Williamson 

Thank you again for providing the opportunity for NCDDD to present testimony at the 

Committee on Ways and Means, Subcommittee on Social Security hearing relative to the 

determining eligibility for disability benefits. The following are our responses to your questions: 

1. In your testimony, you expressed the National Council of Disability Determination 

Directors' (NCDDD) support of reinstating reconsideration nationwide. Why does 

NCDDD support this policy? 

As we mentioned in our written testimony, NCDDD believes in providing the best possible 

customer service to the public as well as the consistent application of policy across the nation. 

Therefore, we believe Congress should both support and fully fund the reinstatement of the 

reconsideration step for the ten Prototype states. 

The ten states began using the Prototype process on October 1, 1999. Since that time, the 

backlog of claims waiting for a hearing at the ODAR level has climbed, preventing these 

vulnerable citizens from receiving a timely decision. Given that the DOSs process 

reconsideration claims at a faster rate than ODAR can hold hearings and issue decisions, 

NCDDD believes the reinstatement of recons would allow claimants to receive their decision 

sooner. We support providing the opportunity for a reconsideration at the DDS level in all 

states, providing the answers the public so desperately need. 

NCDDD believes in the consistent application of policy across the country. Reinstating 

reconsiderations in these ten states would then give 2!!.states' citizens the same opportunity to 

get benefits sooner. It is nonsensical to the DOSs that we have different processes for the 

appeals process, depending on where you live in the country. Eighteen years after the 

Prototype process began, we believe SSA should be using one universal process for claimantseither all states have recons, or none do. As we stated earlier, we believe the DOSs can 

provide these decisions quicker and at less cost than ODAR can, which will allow the 

administrative law judges time to focus on a smaller subset of cases that truly needs their 

attention. 
101 


33616A.067

Further, as we stated in our testimony, NCDDD would recommend SSA hold a face-to-face 

meeting for the ten Prototype states to allow for the collaborative development of a plan to 

reinstate reconsiderations. Part of this plan must include staff resources and funding. The 

DOSs will face the challenges of hiring staff and medical consultants, training them before 

reconsideration claims arrive at the DOSs, as well as developing a business processes for 

reconsideration claims. Addressing the needs of space and equipment in DDS offices will also 

be necessary. Simply stated, without ample time to plan and sufficient resources, the DOSs are 

unable to effect a change such as this successfully. 

2. What challenges do the DDS employees encounter when using outdated tools such as 

the Dictionary of Occupational Titles or the Medical and Vocational Guidelines? 

NCDDD advocates for continued funding and faster development of a new Occupational 

Information System, to replace the DOT with one that meets the specific needs of Social 

Security disability determination, and that provides current information about occupations in the 

national economy. We also support the simplification and modernization of the medicalvocational assessment as much as possible. We believe these changes can assist the DOSs in 

the production of disability determinations that are accurate, consistent, prompt and cost 

effective. 

The Dictionary of Occupational Titles (DOT) is SSA's primary source of occupational 

information. Disability policy was developed around the DOT, yet there have not been 

significant updates to it in forty years. The use of this outdated information to process disability 

claims results in significant challenges. Disability adjudicators use the DOT to determine if 

applicants can do their past relevant work despite their impairments, and if necessary, 

determine the number and type of occupations than an applicant can perform despite their 

impairments. While the Social Security Administration contracted with the Bureau of Labor 

Statistics (BLS) in 2012 to produce occupational data for use as the main source of information 

about job demands in determining eligibility, the completion of the project is still years away -

projected for 2020. The DOT's suitability for disability adjudication purposes given its growing 

age is a source of significant concern. 

The following are challenges the DOSs face with use of the current DOT: 

Occupations are outdated and do not reflect the current state of the jobs that exist in the 

national economy. 

The electronic versions of the DOT that SSA supports are complex to use, difficult to 

navigate and not designed to support disability adjudication. The tools are simply a 

searchable database and do not assist with complex decision-making. 

Obtaining and evaluating a fifteen year work history is problematic, as claimants and 

even employers have difficulty remembering exactly how the work was done that long 

ago. 

Different ways of obtaining and evaluating this past work information may be one of the 

differences in decision making at the DDS and ODAR appeal steps, since DOSs do not 

have the same access as ODAR to vocational experts with knowledge of the current 

local and national economy. 

The DOT lacks job function data that matches the factors disability adjudicators must 

consider in comparing claimants remaining mental and physical residual functional 

capacity to their past relevant work. 

The Medical-Vocational Guidelines were introduced in 1979 and are often referred to as the 

"grid rules". In promulgating the rules, administrative notice was taken of the numbers of 

unskilled jobs that existed throughout the national economy at the various functional levels as 

supported by the DOT and companion volumes, along with "County Business Patterns", 

"Census Surveys" and occupational surveys. 

Page 2 of 3 
102 

f 


33616A.068

The following are the challenges with use of the current Medical-Vocational Guidelines: 

The rules do not take into account advances in technology and changes in workforce 

demographics since the current regulations adopted in 1978. 

Allowance rates based on medical and vocational factors has increased and this leads to 

increased adjudicative complexity and cost. 

Currently, substantial work that claimants have performed up to fifteen years ago is 

considered relevant when adjudicators determine whether claimants can do any of their 

past jobs. Given the rapid changes in technology, the relevance of work last performed 

more than ten years ago or the continued existence of the work in the national economy 

is very questionable. 

Modernization of these rules has not occurred in any systematic way, nor has the data used to 

support the current approach. Given that DDS adjudicators use the rules to conduct an analysis 

of a claimants' age, education, work experience and residual functional capacity to determine if 

they are disabled, modern tools are necessary to assist in their work to produce the best 

determination possible. 

Thank you for the opportunity to provide these answers for the record. We continue to offer our 

support for any efforts to improve the Disability Program for the public. 

Sincerely, 

Elizabeth Mclaren 

NCDDD President-Elect 

Page 3 of3 
103 


33616A.069

..... .IOIR)0'\1fX...S Of,W'IHU'C$.C<'411"01'1'M l'AflltCII:J.TUtlllOIIIO 

OooW)O.IIf.O«<IT Wo\.'il..mOH 

l'fff.llJ.~It.LINOC 

\llni~.A.OM». 

~N"l-\Nf...S(.I. 

~VHif.l(.-w&,fW<I$M 

Dl!ltfAI.tUhl Mit!IC$C~A 

.:r ... ..,~.h.Xo\.\ 

OIANI:Ol.ACIC.1lNftUI(i(ll 

TOMI'LEO, NlWYOit( 

.,..Erruv.~v~ 

_........,. .... l'ATIIIICK~rtMN$'1\.YMV. 

I(NfnNQ(}rii,$(1VTMQM111'A 

faOIIG(H0UlWO,JIQR1H~ 

.MSQHSMTI«.fo(IS&OIIII 

Jt:w.IIIM:f.,90UTW:CMOUh..r. 

o,I,OCI~f_IO:ftT,~A 

l/ltJCw,I(QIItliiU .. IItiWA 

CNII.DfOJI'IflO,I\()IIII()A 

MX!.......,..,MICMGAN 

Bea Disman 

(.t:ongrc.ss of the <Janitro mtrs 

'B.~. llousr of'Jil.qmscntotiots COMMITIEE ON WAYS ANO MEANS 

1 102 LOHGWOm'u Houst Of!t:rcr 8 UitOIHG 

(202) 22&-.3625 

Ulasllingron, ID!l: lOllHiiS 

http'Jiwavsendmeans,house.gov 

September 21 , 2017 

Acting Chief of Staff 

Social Security Administration 

640 I Security Boulevard 

Baltimore, MD 21235 

Dear Ms. Dismau: 

::.~!~~~l.R.W<tl'lt(IUI;UII(fl 

J()lo.""'tl'M$.GC~ 

U.O'ftl~ ,"'\XA$ 

......_ HCW$011.~(111lMllo'111 lA~.CO~Cncul 

UAIUA~OI'IfOO'f 

ICINUo(I

IIU.'A.'S(:R(U.~"'-

V.~ 

NtWJUU'f JOUI'ti~V.t~E'A''fOM: 

Of.HHY(OAVIS,~ 

~OA~/,.~UINA­

"""""MIGG''G.HtV#YQIII( 

llMilY'<lU..~ 

Sl.llAHCftet:>C: .• .,.~ Ott 

JFVOYo..t.C.O.ur~ 

Thank you for your testimony before the Commillee on Ways and Means at the September 

6, 20 I 7 Social Security Subcommittee hearing entitled "Determining Eligibility for 

Disability Benefits: Challenges Facing the Social Security Administration." In order to 

complete our hearing record, I would appreciate your responses to the following: 

I. The Social Security Administration's (SSA's) Compassionate and REsponsive 

Services plan 10 eliminate the backlog has 27 initiatives. Which of these initiatives 

does the SSA expect to have the greatest impact on reducing lhe backlog? How 

will !he SSA be able to tell which individual initiatives nrc working and which arc 

not? 

2. Currently, about 72,000 cases have been decided at the hearing level, bm claimants 

haven't received ~1 ese decisions because they still need to be written. How is ~1 e 

SSA addressing this decision writing backlog, and how is the SSA ensuring thai 

~1ese efforts do not create a backlog elsewhere? 

3. How will the voluntary standb)•list help reduce the backlog'/ What else is the SSA 

doing to reduce delays due to postponements or no-shows? 

4. Can the SSA implement the President's budget proposal to reinstate the 

reconsiderntion stage of appeal nationwide under its own authority, or does this 

require legislative action? 

5. What is the SSJ\ doing 10 improve the management of the Compassionate 

Allowance (CAL) initiative given the findings by the Government Accountability 

Office? 

6. On SeptemberS, 2017, the SSA announced three new CAL conditions. How did 

the SSA identify and evaluate ~1 ese cot1ditions? 
104 


33616A.070

7. The SSA is transilioning from using blanket purchase agreementS with individual 

vocational experts who provide evidence at disability hearings to a more 

centralized vendor system. How does the SSA ensure the quality of the vocational 

expertS it uses, and what quality measures will be used when the SSA transitions to 

a national vendor system? Does the SSA currently have enough quality vocational 

expertS? 

8. What infomtation is required 10 be submitted for a claimant 10 request a hearing in 

writing? What infom1ation is required to be submitted for a claimant to request a 

hearing electronically through the SSA's iAppeals process? Do these requirementS 

differ? If so, why? 

9. [n addition to answers for the questions above, please provide the following data 

updates: 

Please provide the cost per case at each level of determination for Fiscal Years 

(FY) 2014 - FY 2016. 

Please provide the post-effectuation quality review results for Administrative 

Law Judge (ALJ) decisions, specifically the number of decisions reviewed, 

number of decisions with disagreements, and disagreement percentage for AU 

allowances and denials, for FY 2012 - FY 2016. 

What were the AU allowance rates by office for FY 2015 - FY 2016? 

How many full-time equivalents were used for withholding and processing 

claimant representative fees in FY 2014 - FV 2016? 

Please provide a list of the top fee earning representative firms for FY 2014 -

FY 2016. 

I would appreciate your responses to these questions by Octobc.- 5, 2017. Please send 

your response to the attention of Amy Shuart, Staff Director, Subcommittee on Social 

Security, Committee on Ways and Means, U.S. Honse 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 Word fonuat to 

mm.russell@mail.house.gov. 

Thank you for taking the time to answer these questions for the record. If you have any 

questions conceming this request, you may reach Amy at (202) 225-9263. 

San1 Johnson 

Chairman 

Subcommittee on Social Securiry 
105 


33616A.071

Post-Hearing Questions for the Reco•·d 

Submitted to Bea Disman 

Acting Chief of Staff 

U.S. Social Security Administration 

From Chail·man Sam J ohnson 

" Determining Eligibility fo1· Disability Benefits: 

Challenges Facing the Social Security Administ.-ation" 

September 06, 2017 

United States House ofRep•·esentatives, Committee on Ways and Means, 

Subcommittee on Social Security 

1. The Social Secu1·ity Administration's (SSA's) Compassionate and REsponsive Se•·vices 

plan to eliminate the backlog bas 27 initiatives. Which of these initiatives does the SSA 

expect to have the greatest impact on reducing the backlog? How will the SSA be able 

to tell which individual initiatives ne w01·king and which are not? 

Our Compassionate and REsponsive Service (CARES) plan rests on three elements: business 

process efficiencies, increased decisional capacity, and IT innovations and investments. 

Based on these elements, we expect the following initiatives to have the greatest impact on 

reducing the backlog: 

I. Hiring of (Administrative L1w Judges (ALJ) and support staff 

2. PATH (Proactive Analysis and Triage for Hearings) 

3. Pre-Hearing Conference (PH C) Expansion 

4. Duplicate Identifying Software (DeDoop) 

5. Insight (Natural Language Processing quality tool) 

We have established targets and expectations for each initiative and are monitoring them 

against those expectations. We primarily measure progress by service metrics, such as our 

level of hearings pending and wait times. 

2. Cun·enlly, about 72,000 cases have been decided at the hearing level, but claimants 

haven't r eceived these decisions because they still need to be written. How is the SSA 

add•·essing this decision writing backlog, and how is the SSA ensuring that these efforts 

do not cr eate a backlog elsewhe•·e? 

With fiscal year (FY) 2017 funding, we expect to hire approxinJately 600 support staff; final 

numbers will be available in November or December after all hires report for duty. This 

includes decision writers and legal assistants who can do both pre-hearing and post-hearing 

work. We will balance our workloads during the hearing process to minimize the creation of 

backlogs. As of September 29, 2017, we bave hired approximately 300 new decision writers. 

The President's Budget calls for us to continue hiring decision writers in significant numbers 

in FY 2018. 
106 


33616A.072

Enclosure-The Honorable Sam Johnson 

In addition to staffing, we are considering the following initiatives: 

• focusing on accountability and ensuring our Cu!Tent corps of decision writers are 

meeting our performance expectations; 

• negotiating assistance for decision writing from agency employees outside of the Offtce 

of Hearings Operations; and 

• moving forward with tools that will ensure both quality and efficiency, such as an 

updated template for fi.llly favorable decisions and the Insight tool, which uses a nanrral 

language process to check the quality of decisions. 

3. How wUI the voluntary standby list help reduce the backlog? Wha t else is the SSA 

doing to reduce delays due to postponements o1· no-shows'? 

The voluntary standby list offers an option for claimants and representatives to expedite the 

scheduling of cases by filling unexpectedly vacant hearing timeslots. This ensures that we 

maximize the use of our hearing rooms. 

In addition to the voluntary standby list, we are reinstituting our pre-hearing conference 

program, which prepares unrepresented claimants for their hearings by explaining the 

hearings process. Additionally, we are reviewing our data on postponements and developing 

an action plan for both external communication and internal training. Our aim is to decrease 

no-shows through improved communication. For example, as we update our external 

websites and publications, we continue to include reminders about the importance of 

attending a scheduled hearing. 

4. Can the SSA in1plement the Pr·esident's budget proposal to r·einstate the 

reconsider ation stage of appeal nationwide under its own authority, or does this require 

legislative action? 

Legislative action is not required to reinstate the reconsideration step of the administrative 

review process nationwide. Our regulations give us authority to test certain modifications to 

the disability determination process. 20 C.F.R. §§ 404.906, 416.1406. Using this authority, 

under the "reconsideration elimination model," we modified the disability determination 

process by eliminating the reconsideration step of administrative review. 20 C.F.R. §§ 

404.906(b)(4), 416.1406(b)(4). 

We cu!Tently conduct the "reconsideration elimination model" in 10 states. Our case 

selections under the "reconsideration e limination model" will expire on December 28, 2018 

unless we extend them beyond that date, or terminate them earlier, by publishing a notice in 

the Federal Register. 81 Fed. Reg. 58544 (Aug. 25, 2016). Thus, we could reinstate the 

reconsideration step of the administrative review process nationwide by publishing a notice 

in the Federal Register or rescinding the relevant regulatory provisions. If we decided to 

reinstate reconsideration, we expect we would phase in that decision, given our workload and 

resource constraints. 

2 
107 


33616A.073

Enclosure-The Honorable Sam Johnson 

5. What is the SSA doing to improve the management of the Compassionate Allowance 

(CAL) initiative given the findings by the Government Accountability Office? 

Since we launched CAL in 2008, we have focused on expediting disability determinations for 

individuals with the most serious medical conditions. For example, we invested resources to 

develop an internal system to help us more readily establish CAL conditions on an ongoing 

basis. Since the GAO audit, we have undertaken the following activities to further improve 

the CAL initiative: 

• We have formed an agency-wide workgroup to address GAO's recommendations. 

• We have revised our website to more clearly inform stakeholders about how to suggest a 

new CAL condition, and to state that we will keep them infom1ed while we evaluate 

their suggestion. 

• We are creating a formal business process for all of our CAL activities, including when 

we will update the CAL impairment summaries, and guidance for all adjudicators. 

• We are seeking feedback from adjudicators on all aspects of the CAL process. 

• We are developing a quality review to assess CAL c<~se outcomes, which should help 

identify additional areas of inlprovement. 

• We are holding a National Disability Forum (NDF) in November to bear from the public 

about the CAL initiative. 

6. On September 5, 2017, the SSA announced three new CAL conditions. How did the 

SSA identify and evaluate these conditions? 

The newest CAL conditions of"Congenital Myotonic Dystrophy" and "CACH -Vanishing 

White Matter Disease - Child" were suggested by advocacy groups, while "Kleefstra 

Syndrome" was identified internally by an SSA employee. Our medical officers researched 

and reviewed each condition to determine if it met our defmition of disability. We also 

worked with our systems administrators to ensure that the CAL Services selection software 

could correctly identify these conditions. Both internal and external avenues for identifying 

potential CAL conditions continue to be effective in supporting CAL condition identification. 

7. The SSA is transitioning from using blanket pw·chase agr eements with individual 

vocational experts who provide evidence at disability hearings to a more centralized 

vendo•· system. How does the SSA ensure the quality of the vocational expe1·ts it uses, 

and what quality measures will be used when the SSA tunsitions to a national vendo•· 

system? Does the SSA cun·ently have enough quality vocational expe•·ts? 

We currently consider a combination of education, and type and longevity of work 

experience to determine if an applicant will succeed and provide quality service as a 

Vocational Expert (VE) tmder the Blanket Purchase Agreement (BPA). Areas of expertise 

include current knowledge of the following: working conditions and physical demands of 

various occupations; transferability of skills; knowledge of the existence and numbers of jobs 

at all exertion levels in the national economy: and involvement in or knowledge of placing 

adult, disabled workers into jobs. 

3 
108 


33616A.074

Enclosure-The Honorable Sam Johnson 

We rely on the ALJs use ofVE testimony when determining whether the VE provides quality 

service through testimony or interrogatories. If a VE is not providing quality service, the 

BPA provides that unresolved, repeated occurrenc.es of documented deficiencies may result 

our discontinuing the contractor's services. 

As we transition to a single provider contract, we are in the process of defming the necessary 

requirements for the VE. TI1ese requirements will incorporate expertise and experience, and 

define quality requirements for attracting the appropriate knowledge and number ofVE 

contractors to support the hearing process. 

We will continue to look to the ALJs for determining VE expertise, and will incorporate 

contract guidelines to address any issues that indicate non-compliance by the VE or the need 

for corrective action. 

We currently have enough quality vocational experts. When we occasionally encounter 

issues with local VE availability, we provide support from other areas until we can recmit 

additional BPAs, or if necessary, we award single provider contracts. We are developing a 

centralized pool ofVEs that will provide maximum flexibility for geographic locations where 

access to YEs is limited. 

8. Wha t informa tion is required to be submitted fot· a claimant to t·equest a hearing in 

wt·iting? What infot·mation is required to be submitted for a claimant to request a 

hearing electJ·onically through the SSA's iAppeals pt·ocess? Do these r equit·ements 

differ? If so, why? 

As stated in the regulations, at20 CFR 404.933,405.722, 416.1429, 416.1433, and 418.1350, 

a claimant may request a hearing by filing a written request within 60 days of receiving 

notice of the previous determination or de.cision. A claimant should include the following 

information in his or her request: 

I. the Jlanle and Social Security number of the wage earner; 

2. the reasons for disagreeing with the previous determination or decision; 

3. a statement of additional evidence to be submilled and the date it wiU be submined; and 

4. the name and address of any designated representative. 

We recommend thm form HA-501-U5, "Request for Hearing by Administrative Law Judge" 

be used as the written request as it collects the information on one form. We also request that 

the clain1ant submit a fotm SSA-3441, "Disability Report - Appeal" at the same tiole that he 

or she submits the written appeal request. The SSA-3441 collects updated infonnation 

concerning the claiolam's disability, medications, medical appointments, and procedures. If 

the claiolant does not complete an SSA-3441 at the time of the appeal request, we contact the 

claimant and attempt to complete the document before processing the hearing request. 

To file an appeal electronically, a c!ain1ant, appointed representative, or other third party 

completes and submits iufonuation on the electronic versions of the above forms, the i501 , 

and the i3441. The difference in these processes, one requesting and one requiring the 

4 
109 


33616A.075

Enclosure-The Honorable Sam Johnson 

infonnation on the Disability Report prior to submission of the appeal request, is the result of 

us establishing electronic efficiencies for collecting information needed to process appeals. 

9. In addition to answet·s fot· the questions above, plt.>ase provide the following data 

updates: 

• Please provide the cost per case at each level of determination fot· Fiscal Years (FY) 

2014 -FY 2016. 

FULLY LOADED UNIT COSTS FOR DISABILITY 

CLAIMS AND APPEALS AT SSA 

FY2014 FY 2015 FY 2016 

Initial Claims $ 1,081.00 $ I 192.00 s 1,187.00 

Reconsiderations $ 724.00 $ 771.00 s 837.00 

Hearings $ 3 346.00 $ 3 597.00 s 3 652.00 

Appeals Council Review $ 1,231.00 $ 1,244.00 s 1,219.00 

• Please pt·ovidc the post-effectuation quality review results for Administrative Law 

Judge (ALJ) decisions, specifically the numbet· of decisions reviewed, number of 

decisions with disagreements, and disagreement percentage for ALJ allowances 

and denials, fot· FY 2012 -FY 2016. 

We do uot collect this data, as it is not within the scope of our post-effecruation quality 

focused reviews. The purpose of these reviews is to assess policy compliance. We tailor 

each focused review to the ALJ and, as such, we do not compile data for the universe of 

a lithe decisions we review. 

• What were the ALJ allowance rates by office fo•· FY 2015 -FY 2016? 

Please see "Attachment A" for ALJ allowance rates from FY 2015 and FY 2016. 

• How many full-timt.> equivalents were used fo•· withholding and pt·ocessing claimant 

t·epresentative fees in FY 2014- FY 2016? 

The total work effort for processing the claimant representative fees is most accurately 

stated in workyears (WY). The system that collects and associates time/work effort to 

our agency's workloads is the Cost Analysis System (CAS). The CAS tracks all paid 

time/work effort in WY, which are a combination of full-time equivalents (FTE) and 

overtin1e. The CAS does not breakout FTEs fi·om overtime by workload. 

FULL-TIME EQUIVALENTS USED FOR 

WITHHOLDING AND PROCESSING CLAIMANT REPRESENTATIVE FEES 

FY2014 FY 2015 FY 2016 

Estimated Workyears 1,258.63 1,306.75 1,081.70 

Esttmated workyears mcludc all agency overhead. 

5 
110 


33616A.076

Enclosure- The Honorable Sam Johnson 

• Please p•·ovide a list of the top fee earning representative fin ns for FY 2014- FY 

2016. 

Please see "Auachment B" for a list of the top fee eaming representative finns for FY 

2014-2016. 

6 
111 


33616A.077

Attachment A 

ALJ Allowance Rates fo•· FY 2015 and FY 2016 

ALJ Only Allowance Rate by Office FY 2015 ALJ Only Allowance Rate by Office FY 2015 

OFFICE ALLOWANCE RATE OFFICE ALLOWANCE RATE 

AKRONOH 44% FTLAUOERDALE 41% 

ALBANY 56% GRAND RAPIDS 37% 

ALBU UER UE 56% GREENSBORO 60% 

ALEXANDRIA 41% GREENVILLE 47% 

ANCHORAGE 15% HARRJSBURG 36% 

ATLANTA 47% HARTFORD 37% 

DOWNTOWN HATTIESBURG 39% 

ATLANTA NORTH 49"/o HONOLULU 64% 

BALTIMORE 43% HOUSTON NORTH 37% 

BILLINGS 38% HOUSTON· 32% 

BIRMINGHAM 45% BISSONNET 

BOSTON 42% liUNTINGTON WV 34% 

BRONX 40% INDIANAPOUS ~'o 

BUFFALO 46% JACKSON 42% 

CHARLESTON SC 3')0/o JACKSONVILLE 32% 

CHARLESTON WV 46% JERSEY CITY 39% 

CiiARLOITE 47% JOHNSTOWN 46% 

CHARLOTTESVILLE 32% KANSAS CITY 37% 

CliA TTANOOGA 55% KINGSPORT 56% 

CHICAGO 45% KNOXVILLE 46% 

CINCINNATI 46% LANSING 46% 

CLEVELAJ\'D 34% LAS VEGAS 40% 

COLORADO 37% LAWRENCEMA 47% 

SPRINGS LEXINGTON 36% 

COLUMBIAMO 3')0/o LITTLEROCK 41% 

COLUMBIASC 52% LlVONIAMI 50% 

COLUMBUS 45% LONG BEACH 51% 

COVINGTON GA 46% LONG ISLAND 58% 

CREVE COEUR 56% LOS ANGELES 46% 

DALLAS 43% DOWNTOWN 

DOWNTOWN LOS ANGELES 42% 

DALLAS NORTH 43% WEST 

ODAR LOUISVILLE 45% 

DAYTON 38% MACON 41% 

DENVER 41% MADISON 50% 

DETROIT 50% MANCiiF..STER 38% 

DOVER 39"/o MCALESTER 35% 

ELKINS PARK 46% MEMPHIS 46% 

EUGENE 42% META!RlE 35% 

EVANSTON 55% MIAMl 42% 

EVANSVILLE 44% MIDDLESBORO 43% 

FARGO 47% MILWAUKEE 33% 

FAYETTEVILLE NC 46% MINNEAPOLIS 45% 

FLINT 52% MOBILE 51% 

FLORENCE 37% MONTGOMERY 43% 

FORTMYERSFL 47% MORENO VALLEY 45% 

FORTSMITII 47% CA 

FORT WAYNE 44% MORGANTOWN 35% 

FORT WORTH 41% MT PLEASANT Ml 45% 

FRANKLIN TN 51% NASliVILLE 46% 

FRESNO 35% NEWliAVEN 42% 
112 


33616A.078

Attachment A 

ALJ Allownncc R11tcs fot· FY 2015 and I' Y 2016 

ALJ Only Allowance Rat~ b,· Orfice FY 2015 ALJ Only Allowa nce Rate bv Orfice FY 2015 

OffiCE ALLOWANCE RAT£ orne£ ALLOWANCE RATE 

NEW ORLEANS soo. ROANOKE 46°o 

NEW YORK 45'• ROCHESTER 54'• 

NEW YORK 49-o SACRAMENTO 48°o 

VARJCK SALT LAKE CITY 52'• 

NEWARK Sl~'o SAN ANTONIO 34~0 

NHC 33'-'o SAN BERNARDINO 400/o 

ALBUQUERQUE SAN DIEGO 5 1% 

NHC BAL TIMOR£ 45% SAN FRANCISCO 47,0 

NHCCHICAGO 28%1 SANJOS.E 41 ~· 

NHCFALLS 35''- SANJUAN 67~. 

CHURCH SAN RAFAEL S9'o 

NBC STLOUIS 39-o SANTA BARBARA 41 '• 

NORFOLK 41'• SAVANNAH 43°o 

NORWALK 4SOo SEATTLE 30"o 

OAKBROOK 47"o SEVEN FIELDS 41"0 

OAKPARK 52% SHREVEPORT 4~~ 

OAKLAND 55'~ SOUTH JERSEY <m'o 

OKLAHOMA CITY 43% SPOKANE 54o/o 

OMAHA 55% SPRINGFIELD MA 42°0 

ORANGE 38"'o SPRINGFIELD MO 30"'o 

ORL<\NDPARK 40"o STLOUIS 42°0 

ORLANDO 47"o ST PETERSBURG FL 48°o 

PADUCAH 52'· STOCKTON 40"o 

PASADENA 4SOo SYRACUSE 45'• 

PEORIA 31'• TACOMA ~. 

PHILADELPHIA 4~0 TALLAHASSEE FL 48~'o 

PHILADELPHIA 34o/o TAMPA 49% 

EAST TOLEDOOH 4 1, .. 

PHOENJX ll()% TOPEKA KS 3 1% 

PHOENIX NORTH 32% TUCSON sm 

PmSBURGH 41,.. TULSA '16,. 

PONCE 50"· TUPELO 42°o 

PORTLAND ME s1•• VALPARAISO IN 44•. PORTLAND OR 3SOo WASHINGTON 42'· 

PROVIDENCE 37"o \VEST DES MOINES 41 '• 

OUEENS 50"o WHITE PLAJNS 3~. 

RALEIGH 4"'o WICHITA 35,., 

RENO 30"/o WILKES BARRE 39% 

RICHMOND 41% 

RIO GRANDE 37"/o 

VALLEYTX 
113 


33616A.079

Attachment A 

ALJ Allowance Rates fo•· FY 2015 and FY 2016 

ALJ Only Allowance Rate by Office 2016 ALJ Only Allowance Rate by Office 2016 

OFFICE ALLOWANCE RATE OFFICE ALLOWANCE RATE 

AKRONOH 45% FRESNO 35% 

ALBANY 54% FT LAUDERDALE 41% 

ALBU UER UE 51% GRAND RAPIDS 38% 

ALEXANDRlA 39% GREENSBORO 54% 

ANCHORAGE 21~~ GREENVILLE 46% 

ATLANTA 46% DOWNTOWN 

HARRISBURG 400~ 

HARTFORD 35% 

ATLANTA NORTH 50% ~lA TTIESBURG 30% 

BALTIMORE 44% HONOLULU 64% 

BILLINGS 37% HOUSTON NORTH 34% 

BIRMINGHAM 4S~'o 

BOSTON 45% 

HOUSTON- 30% BISSONNET 

BRONX 41% HUNTINGTON \W 35% 

BUFFALO 41% INDIANAPOLIS 51% 

CHARLESTON SC 39~'0 JACKSON 42% 

CHARLESTON WV 47% JACKSONVILLE 36% 

CHARLOTTE 46% JERSEY CITI' 40% 

CHARLOTTESVTLL 32% E 

JOHNSTOWN 45% 

KANSAS CJTI' 38% 

CHA'ITANOOGA 50% KINGSPORT 61% 

CHlCAGO 43% KNOXVILLE 47% 

CINCINNATI 45% LANSING 45% 

CLEVELAND 32% LAS VEGAS 40% 

COLORADO 36% SPRINGS 

LAWRENCEMA 44% 

LEXINGTON 38% 

COLUMBIAMO 40% LITTLEROCK 41% 

COLUMBIASC 52% LIVONIAMI 52% 

COLUMBUS 41% LONG BEACH 51% 

COVINGTON GA 47% LONG ISLAND 59% 

CREVE COEUR 47% 

DALLAS 43% DOWNTOWN 

DALLAS NORTH 46% ODAR 

LOS ANGELES 50% DOWNTOWN 

LOS ANGELES 38% \VEST 

LOUISVILLE 46% 

DAYTON 36% MACON 41% 

DENVER 41% MADISON 52% 

DETROIT 48% MANCHESTER 40% 

DOVER 38% MCALESTER 38% 

ELKINS PARK 48% MEMPHlS 45% 

EUGENE 41% METAlRIE 37% 

EVANSTON 53% M1AMl 49% 

EVANSVILLE 43% MIDDLESBORO 41% 

FARGO 48% MILWAUKEE 36% 

FA YE1TEVILLE NC 46% MINNEAPOLIS 46% 

FLINT 53% MOBILE 50% 

FLORENCE 41% MONTGOMERY 49% 

FORT MYERS FL 47% 

FORT SMITH 53% 

MORENO VALLEY 41% CA 

FORT WAYNE 44% MORGANTOWN 37% 

FORT WORTH 42% MT PLEASANT Ml 44% 

FRANKLIN TN 52% NASHVILLE 48% 
114 


33616A.080

Attachment A 

ALJ Allowance Rates fo•· FY 2015 and FY 2016 

ALJ Only Allowance Rate bv Office 2016 ALJ Oolv Allowance Rate by Office 2016 

OFFICE ALLOWANCE RATE OFFICE ALLOWANCE RATE 

NEW HAVEN 43% SAN FRANCISCO 48% 

NEW ORLEANS 47% SAN JOSE 44% 

NEW YORK 48% SANJUAN 72% 

NEW YORK 48~~ VARICK 

SAN RAFAEL 51% 

SANTA BARBARA 44% 

NEWARK 47% SAVANNAH 43% 

NHC 38'~ ALBUQUERQUE 

SEATTLE 33% 

SEVEN FIELDS 41% 

NHC 39% ALBUQUERQUE SO 

SHREVEPORT 44% 

SOUTH JERSEY 52% 

NHC BALTIMORE 46% SPOKANE 50% 

NHCCHJCAGO 25% SPRlNGFIELD MA 45% 

NHCFALLS 40% CHURCH 

SPRlNGFIELD MO 25% 

STLOUIS 38% NHCSTLOUIS 44,~ ST PETERSBURG FL 49% 

NORFOLK 45% STOCKTON 45% NORWALK 43% SYRACUSE 46% OAKBROOK 51% TACOMA 51% OAKPARK 54% TALLAHASSEE FL 44% 

OAKLAND 57% TAMPA 44% 

OKLAHOMA CITY 46% TOLEDOOH 38% 

OMAHA 50% TOPEKAKS 33% 

ORANGE 35% TUCSON 54% 

ORLAND PARK 43% TULSA 48% 

ORI..Al\'DO 49% TUPELO 45% 

PADUCAH 48% V ALPARAJSO IN 46% 

PASADENA 46% WASHINGTON 38% 

PEORIA 36% WEST DES MOINES 48% PHILADELPHIA 44% WHilE PLAINS 43% 

PHILADELPHIA 37% EAST WICHITA 38% 

WILKES BARRE 39% PHOENIX 37''o 

PHOENIX NORTH 43% 

PITTSBURGH 39% 

PONCE 55% 

PORTL.A.NDME 53% 

PORTLAND OR 38% 

PROVIDENCE 38% 

OUEENS 52% 

RALEIGH 46% 

RENO 45% 

RlCHMOND 41% 

RJOGRANDE 38% VALLEYTX 

ROANOKE 44% 

ROCHESTER 55% 

SACRAMENTO 48% 

SALT LAKE CllY 49% 

SAN ANTONIO 34% 

SAN BERNARDINO 39% 

SAN DIEGO 47% 
115 


33616A.081

Attachment B 

Top Fee Earning Representative Firms for FY 2014 - FY 2016 

FY2014 
116 


33616A.082

Attachment B 

Top Fee Earning Representative Firms for FY 2014 - FY 2016 

FY2015 

2 
117 

f 


33616A.083

AttachmentS 

Top Fee Eamiog Representative Firms for FY 2014 - FY 2016 

FY 2016 
118 

[Submissions for the Record follow:] 


33616A.084

MLJ ASSOCIATION OF 

ADMINISTRATIVE 

lAW JUDGES _;> 

~< 

The Honorable Sam Johnson 

October 1, 2017 

Chairman, Subcommittee on Social Security 

Attention: Amy Shuart, Subcommittee Staff Director 

Committee on Ways and Means 

u.s. House of Representatives 

2018 Rayburn House Office Building 

Washington, D.C. 20515 

Dear Chairman Johnson: 

Thank you for giving me the opportunity to test ify before the Social Security Subcommittee. 

You questioned whether Administrative law Judges would need to manage assigned decision 

writers. 

Administrative l aw Judges do not want to manage or supervise decision writers; we simply 

want to work with the same writers for a period of time- such as a year- in order to facilitate 

efficiency in the drafting and edit ing of our decisions. Managing and supervising writers takes 

time that is better spent adjudicating cases. In the past, when AUs have had clerical employees 

assigned to work with us for a year or so (before being rotated to another judge), AUs have not 

managed or supervised them. AUs managing decision writers has never been necessary nor is it 

desirable. 

Please let me know if you have any other questions or concerns. 

Very truly yours, 

Judge Marilyn Zahm 

President, AAU 
119 


33616A.085

SOCIAL SECURITY ADMINISTRATION 

Office of Hearings and Appeals 

Hon. E. Clay Shaw, Jr. 

Representative in Congress 

1441 Main Sl., Suite 450 

Springfield, MA 01103 

(413) 746-2770 

Chair - Subcommittee on Social Security of 

the Committee on Ways and Means 

September 30, 2003 

RE: Hearing on Management of the Social Sectrrity Administration 

Office of Hearings and Appeals 

Dear Rep. Shaw and Honorable Members of the Subcommittee: 

I am an Administrative Law Judge with the Social Security Administration (SSA], 

Office of Hearings and Appeals (OHA], and have served as such since October 1996. 

Since September 2000 I have had the additional responsibilities of a Hearings Office 

Chief. 

The job of a judge in these proceedings is very challenging. We are required to 

wear three hats: [I) to provide full and fair hearings; (2) to assist claimants with 

developing the record and presenting their cases -- even if represented; and (3) last, but 

definitely least, to act as tntstee for the Social Security Tntst and General Tax Funds. 

The last two duties require a judge to, in essence, "represent" opposing sides. 

I am elated at hearing that Congress will take a close look at the Social Security 

disability program management, and pray that the less than inspired changes implemented and in the works by its administrators, will be reviewed closely, but also broadly, so as 
120 


33616A.086

to encompass the larger goals of the disability program. I fear the administrators of the 

program have lost sight of the forest, having allowed it to be blocked by the minutia of 

the trees. I find it difficult to maintain faith in those the President has appointed to 

administer the Social Security Administration, particularly as pertains to due process 

disability hearings. They appear hell-bent on applying bureaucratic remedies to judicial 

problems, when the tme impediment to due process and expeditious case movement is 

the latter. While having short term, and all too often short sighted, immediate effect, the 

bureaucratic remedies avoid dealing with the true problems of the disability program, and 

amount to being penny-wise and pound-foolish. 

A big part of the complexity and time involved in disposing disability claims is the 

product of the Agency having succumbed to obfuscation in the definition of disability, as 

well as having ceded control of the process to the representative community. These 

representatives are generally paid on a contingent basis, with a success rate well in excess 

of 50%, not because reconsidered decisions are wrong, but due to factors addressed 

below. They are allowed a top fee of $5,300.00, and, more often than not, work in a fast 

food restaurant fashion - i.e., high volume, doing a sloppy job and simply depending on 

the above noted success percentage, to collect $10,000 to $15,000 each month, doing 

little more than holding enough claimants' hands in a high number of hearings, and 

soliciting a few documents, as will be further addressed below. 

An article, which appeared in tbe New York Times [Laid-of! Workers Swelling 

Cost of Disability Pay, September 2, 2002] deals in general tenns with a problem that 

could grow to the point of severely depleting the Social Security Tmst and the General 

Tax funds. This is not just the product of baby-boomers coming of age, and the past 

Commissioner's loosening of the standards for mental disability. The general attitude that 

has developed is one by which this tribunal is not viewed seriously, and misrepresentation within these proceedings is regarded as the proverbial "white lie." This was virtually 

admitted by one representative, who took offense when I pointed out the inconsistency in 

his client claiming to have been "ready, willing and able" to work for purposes of 

collecting Unemployment Insurance Benefits, while claiming the opposite for the same 

period of time for purposes of SSA disability. This representative actually argued that 

disingenuousness, if needed to collect benefits, should not be viewed unfavorably in 

assessing tbe claimant's credibility. 

The courts and the SSA Appeals Council have created and applied case law in a 

manner such as to have, effectively, shifted the burden of proof in contested disability 

cases to the Administration. This is primarily accomplished by having declared the 

opinions of treating physicians as controlling, unless the longitudinal record clearly 

overcomes those opinions [20 CFR §§404.1 527 (d)(2), 416.927(d)(2)]. In a tribunal, in 
121 


33616A.087

which around 75% of l'he claimants are represented, and the Agency not represented, this 

permits easy solicitation of favorable reports from treating physicians, who are already 

naturally in sympathy with their patients. There are no countervailing forces in play, nor 

any incentives for these treating physicians not to succumb to their patients' entreaties for 

a favorable report. These reports are not sworn under the pains and penalties of peljury, 

as is generally done in Workers' Compensation tribunals. The treating physician is never 

subjected to cross-examination, let alone prosecution for misrepresentation. When the 

end "goal" of transferring wealth is thrown into the mix, such as to salve any guilt the 

treating physicians may have about exaggerating their patients' limitations, the flood 

gates are wide open to abuse. Thus an Administrative Law Judge [AU) is boxed into a 

comer, and forced to grant benefits, even when knowing the individual is not truly 

disabled. A very typical 40-year-old spine, with a sympathetic treating physician, can 

easily result in qualification for benefits, despite a claimant being ful ly capable of some 

type of work. The United States Supreme Court is to be applauded for not permitting the 

expansion of this foolish notion beyond the realm of Social Security hearings, and it 

should be reversed here (see: Black & Decker Disabiliry Plan v. Nord, 538 US _ (2003), 

No. 02-469. Argued April 28, 2003 - Decided May 27, 2003). SSA should re-think the 

wisdom of this invitation to misrepresentation. 

Administrative Law Judges dedicated to a diligent search for the truth, who take 

seriously the third duty noted above [i.e., to act as trustee for the SSA and General Tax 

Funds), are put into the awkward position of having to act as a contestant rather than a 

neutral in order to be true to the so-called " third hat." The alternative is to simply pay 

cases inappropriately, the road all too many are bludgeoned into by the Administration's 

constant push for numbers. As noted above, the solicitation of these highly suspect 

treating physician opinions is often the only thing a representative does, but it is sufficient to, effectively if not fom1ally, transfer the burden of proof to the Commissioner. 

The abuses of the disability system via the mental impainnent route are even worse. 

Limitations imposed by amorphous diagnoses such as depressive disorders, anxiety, 

personality disorders and a plethora of other such impairments, leave the system literally 

at the mercy of a sympathetic treating professional, who is solicited by a representative to 

supply an opinion. 

As I once suggested in a letter to the Commissioner, the law and regulations are the 

engine, which drives this agency, and must be reviewed and revised to respond to the 

factors making disability almost a presumed fact by the mere act of applying, with the 

Commissioner, through an AU ill equipped to investigate matters, then having to prove 

its absence. The law must be refurbished to return the burden of proof to the claimant, 

and to hold those claimants with representatives to a higher standard of duty to produce 
122 


33616A.088

truly probative evidence. As I stated in that letter to the Commissioner, wbich went 

unacknowledged, the actions to which she spoke for most of her testimony, are akin to 

working on only the transmission of a car with a leaky head gasket and sludge throughout 

the engine, and expecting it to perfonn well, and go faster. The engine carmot be ignored. 

Honorable Committee Members, we are in a position much akin to that in the labor 

relations sphere decades ago. There Congress responded to the imbalance of power between employers and organized workers by passage of the Wagner Act in 1935, favoring 

only the rights of workers. By 1947 it was recognized that labor had come into its own, 

and that the balance of power had actually shifted in its direction. Thus, we saw passage 

of the Taft-Hartley Act, to even the playing field. Rest assured, claimants have come of 

age, and are very powerfuL It's time to level the playing field for those who fund the 

programs. 

As noted above, around 75% of the claimants in Social Security disability cases are 

represented, aml this in a tribunal with no opposition. To say that the taxpayers are at a 

distinct disadvantage puts it mildly. The regulations that are presently in place to control 

the practice of these representatives do not require them to submit evidence, which would 

tend to disprove disability. Thus, if a representative comes into possession of information disproving disability, there is no requirement to present it. How one-sided can a 

program be? 

We are charged to give the claintant every benefit of doubt. Superimpose the 

treating physician rules and the one-sided rules mentioned above upon tllis duty, and you 

can see how many people capable of working slip through the system. Social Security 

Disability is quick~y becoming the "wink amlnod" with which President Clinton 

signed welfare reform. 

A few ideas for changes run along the following lines: 

Tighten up the definition of disability, keying in on case law which has 

blurred that definition, and return the burden of proof to the claimant I would suggest a 

"blue ribbon" conmlittee of legal and medical experts, members of the disability and 

workers' compensation insurance industry, active and/or retired ALis, personal injury 

lawyers from both sides, and representatives who practice in this tribunal regularly. The 

charge should be to clarify the definition of disability, such as to more closely reflect that 

in the collective mind of those who work to fund these programs. Somehow a person 

with a typical 40-year old spine, who simply doesn't want to work for a lower wage than 

obtained in a previous vocation, as may be dictated by his condition, is not that which the 

average taxpayer envisages when picturing a disabled person. 
123 


33616A.089

Eliminate Childhood Disability benefits [see: Cos Is Soarfor Children 's 

Disabilily Program; How 26 Words Cost the Taxpayers Billions in New Entitlement Payments, 

Washington Post, Febmary 4, 1994]. Children are not generally sources of income in a 

household. The bottom line purpose of these benefits is to replace income that would, 

but for a disability, be coming into the household. There is simply no basis other than 

transfer of wealth for children's bene-fits. To make this change more politically palatable, 

I have suggested, through the Associate Commissioner, that we eliminate all cash 

payments, but provide Medicare coverage to all children below the poverty line, without 

regard to disability. This would eliminate that which has become a complicated and 

costly disability analysis, and clear up a plethora of frivolous cases engendered by the 

desire of parents to simply get another check in the mail. Since the vast majority of 

children found disabled are found so for teaming disabibties and attention deficit 

hyperactive disorder, the amount expended by this trade-off would go down, as most of 

the se1vices needed for these impairments are already provided gratis by the school 

districts. TIJ.is would represent a direct response to a specific need, rather than simply 

throwing more money into the household, \vith no logical nexus between it and the need. 

After five years living in those portions of United States of America in which 

English is the commonly used language, the inability to speak English should no longer be 

considered a vocational detriment in the disability assessment. 

In the true sense of the SSA being part of the Village rearing the nation's 

children, psychiatric reports by which a prin1ary caretaker of children is described as 

incapable of main-taining sufficient concentration, persistence and pace to perfonn even 

the simplest routine task, should be reported immediately to the local child protective 

service agency for investigation. 

20 CFR §§404.1527(d)(2) and 416.927(d)(2) should be rescinded 

In a more esoteric sense, changes in the hearing process should be along the following 

lines: 

The hearing process should be adversarial, similar to that in the Workers' 

Compensation system. Since there are no insurers to provide representation, a fonner 

President of the Hearing Office Chief Judges Association has suggested the Bankruptcy 

Court as a model, with an equivalent to the United States Trustee being assigned the role 

of representing the Commissioner's position. This office could be staffed by eliminating 

the present Appeals Council, allowing the AUs to truly act as trial level fact finders 

without being second-guessed, and using the personnel from the Appeals Council to 

represent the Commissioner. Another alternative, which would more sensibly follow the 
124 


33616A.090

President's mandate for use of private contractors than the present delegation of clerical 

tasks [which has not helped us move cases], would be to replace the State Disability 

Detem1ination Services [DOSs) with private insurers, and then have them provide 

investigative work and representation at the hearings. 

An adversarial hearing process would likely resolve another source of 

consternation, specifically, the inconsistency of hearing results from hearing office to 

hearing office, and from region to region. Specifically, judges who do not take the third 

hat seriously are now able to stay under the proverbial radar screen by simply fmding 

favorably, with the knowledge that only 7% of such decisions are ever reviewed, while a 

much higher percentage of unfavorable decisions are reviewed. Placing both favorab le 

and unfavorable decisions on the same footing would, I believe, infuse much more 

consistency in the decision making process. All decisions should stand the same 

probability of being reviewed. 

Once retained the claimant's representative should be primarily responsible 

for developing the record from the claimant's side, and the Commissioner's 

representative from that side. There should be strict mles for the timing of such 

development, and the availability of sanctions for poor perfonnance by those 

representatives. 

Strict rules of professional and judicial conduct should be implemented, along 

with mles for practice and procedure. It should be noted that such rules, as manifested in 

the Model Rules for both Professional and Judicial conduct, do have provisions for 

expeditious case movement, and would give the Administration a tool it presently lacks to 

encourage such. [e.g., see: Model Code of Judicial Conduct, Canon 3 (B) (8)). 

The method of payment of representatives should also be revamped. The 

contingent fee method encourages representatives to drag out the proceedings as long as 

possible, so as to grow the back payments from which their fee is paid and calculated. A 

better method would be to pay representatives of both winning and losing cases, but at an 

hourly rate in line with the Federal Assigned counsel program, used in the Federal Article 

III courts. Indeed, I would take that suggestion a step further, by having fee payment 

administrated out of that program, rather than duplicating such administration at the 

agency level. In addition to discouraging procrastination, this would lower the incentive 

to engage in misrepresentation. AUs should be allowed to assign counsel from a panel 

maintained by the Assigned Counsel program. 

Eliminate the third step in the sequential analysis, by which disability 

determina-tions are made. The statutory definition of disability ties an impairment directly 
125 


33616A.091

to the limita-tions it imposes upon the ability to work; it is n functional definition [see: 

Social Security Act §§216(i), 223, 1614(a)(3)(A)). The third step in the sequential analysis 

requires the judge to review the medical signs and symptoms, to see if they match a list of 

such signs and symptoms associated with specific maladies. The notion is that the presence 

of specific signs and symptoms will lead to a presumption that limitations precluding work 

exist. The problem is that medicine moves more quickly than law, and products 

ameliorating the limitations imposed by specific signs and symptoms are discovered daily. 

TI1e preswnptions simply do not hold up to medical progress. Fmthennore, some of the 

signs and symptoms leading to the presumption of disability do not truly do so. I had at 

least one incident of an individual meeting a listing, whose treating physician opined as 

capable of working. I've had more than one vocational expert advise that the mental 

retardation listing is overly broad, and qualifies individuals capable of placement. Suffice it 

to say, the Listings impose a complicated analysis, often requiring the testimony of medical 

expt:rls, ami often provide that, to whid1 I refer as a "black hole of obfuscation," into which 

representatives throw the truth. 

Some of these ideas are along the lines of those proposed by the Social Security 

Advisory Board in its January 200 I publication, Charling !he Fwure of Social Securi1y's 

Disabilily Programs: The Need for Fundamen!al Change. Indeed, one of my greatest 

disappointments is the new Co1mnissioner's tendency to engage in the diminution of due 

process, concentrating her efforts on the minutia of the ways in which files are handed off, 

despite her background with the Social Security Advisory Board. While honing down 

due process may give the illusion of streamlining the system, eventually it will have to be 

achieved, and having that take place at the level of Article Til courts will certainly be 

much more costly and cumbersome in the long run. Putting off real due process, until a 

matter reaches a comt of general jurisdiction and no specialized expertise, will be a 

disservice to the claimants and the taxpayers. Yet this seems the underlying theme to the 

constant bureaucratization of the Office of Hearings and Appeals. 

The concentration of effort on the movement of cases, coupled with ignoring the 

substantive changes that need to be made to prevent abuse of the program, leads to many, 

many inappropriately paid cases. These have been estimated at a cost of $200,000.00 to 

$250,000.00 each. With over 1,000 judges, each pushed to dispose of about 50 cases per 

month, and ill equipped to get to the truth, you can see where inappropriately paid cases 

could mount up pretty quickly. Paraphrasing, I think it was Sen. Everett Dirkson, $200K 

here and $250K there --pretty soon you're talking real money. The Administration 

seems to have lost sight of a notion once addressed by Woodrow Wilson, who said: 
126 


33616A.092

We need laymen who understand the 

necessity far law and the right uses of it tao 

well to be unduly impatient of its restraints. 

The present Associate Commissioner in charge of the Office of Hearings and 

Appeals has set a disposition goal for each judge to issue 2.72 decisions per day. When 

taking into account time off for annual leave, which is not considered in applying the 

above referenced "goal", that actually calculates to a judge spending a total of2 hours 

and 39 minutes on each case. This is to accomplish the following: 

Development review, to see what additional evidence may be needed; 

Thorough pre-hearing review of medical records, generally averaging the 

size of a phone book for a city of over 100,000 population [this usually takes me 

about 2.5 hours alone]; 

Conducting the hearing [generally about an hour]; 

Reviewing new submissions of evidence; 

Deliberating the decisions and drafting insttuctions for the decision writers; 

Editing the draft of the final decision. 

I tl1ink it a sad anomaly that that which Congress sought, in ftrst outlining the need 

for AIJs and what it hoped to achieve through them, has gotten lost in the flurry to 

bureaucratize this quasi-judicial body. Congress, and the Agency in its earlier stages, 

saw the value to seeking judges, whose experience was primarily attained in the day-today grind of arguing cases. The emphasis in tenns of qualification for the position was 

placed on the development of an innate sense for the truth, developed through practice 

experience. It was understood that any lawyer could become familiar with specific 

statutes and regulations, but only those with a keen sense of fact-finding, honed by trial 

experience, could be entrusted with the practical application of the "three bats", spoken to 

above. The appropriateness of that priority has recently been re-afftrmed in Meeker and 

James (OPM) v. Merit Systems Protection Board and Azde/1, decided February 20, 2003 

by the U.S. Court of Appeals for the Federal Circuit. Indeed, the failure of a previously 

implemented "Senior Attorney" program, in which less than judges were actually given 

decision-making authority, underlines the importance of the experience ofjudges in this 

process. Having served as a Quality Assurance Review judge during the ending of this 

program, I had the opportunity to have reviewed many such decisions, and, as a taxpayer, 

felt literally raped at the ease with which cases were paid. This was the product of more 

than one factor, but prinJarily two: (l) the administrations adoption of a "could pay" 
127 

f 


33616A.093

rather than "should pay" basis, meaning that, despite a claimant's actual ability, if you 

can get the right blocks on your ticket punched [primarily by way of a solicited 

accommodation from the treating physician, with all the problems therewith noted above]; 

and (2) the fact tl1at the Senior Attorneys making these decisions were only given 

production credit for cases paid. TI1e philosophical change in the frrst of these two 

factors haunts us to tllis day, and must be addressed in the statutory and regulatory study I 

suggested above. 

This was a mistake, which is rumored to now be reconsidered. I hope it isn't, but, 

if indeed, the Administration wants to cede decision making powers to senior attorneys 

again, the more sensible way would be to limit such to overpayment and Medicare cases. 

These are cases dealing with fulite amounts of money (disability payments often go on 

until the recipient dies), and, more importantly, are much less dependent on credibility 

detenninatiuns, which require the very experience and concomitant innate senst: spoken 

to above. This would allow judges to give disability cases the time, analyses and 

deliberation they deserve. 

The Administration's constant emphasis on pumping out more and more cases, 

undermines the goals sought to be achieved via having experienced fact-finders applying 

the time and analyses necessary to arrive at just decisions. Its emphasis on the assembly 

line while ignoring the end product, has and will continue to lead to far more havoc than 

would the reverse. Undennining judges' ability to properly hear and decide via unrealistic quantitative goals, leads to more and more inappropriately paid cases, which, in tum, 

attracts the filing of more and more specious claims, as the probability of willling 

increases with every short cut imposed upon judges. This vicious cycle makes 

achievement of the goal of expeditious case handling an impossible dream, while costing 

the taxpayers more and more in the way of inappropriately paid cases. 

Your anticipated kind consideration of the points herein is appreciated. 

Very tnlly yours, 

Is/Peter J. ?>1.artinefli 

Peter J. Martinelli 

U.S. Administrative Law Judge 

Hearing Office Chief 
128 


33616A.094

Statement 

Presented by 

The National Association of Disability Examiners 

Jennifer Pounds, President 

Presented to the 

Committee on Ways and Means 

Subcommittee on Social Security 

United States House of Representatives 

September 6, 2017 

Chairman Johnson, Ranking Member Larson and Members of the Subcommittee on Social 

Security, Committee on Ways and Means: The National Association of Disability Examiners 

(NADEl sincerely appreciates the opportunity to offer comment and insight regarding the Social 

Security Administration's management of the federal disability programs. The stated purpose 

of this hearing is, "Determining Eligibility for Disability Benefits: Challenges Facing the Social 

Security Administration." NADE believes the challenges facing the disability programs are 

numerous and we commend the Subcommittee for convening this hearing to explore them. 

Who WeAre 

NADE is a professional association whose purpose is to promote t he art and science of disability 

evaluation. The majority of our members work in the state Disability Determination Service 

{DDS) agencies where 15,000+ employees adjudicate claims for Social Security and/or 

Supplemental Security Income (SSI) disability benefits. Our members constitute the "front 

lines" of disability evaluation. Our membership also includes many SSA Central and Regional 

Office personnel, attorneys, physicians, non-attorney claimant representatives, and claimant 

advocates. The diversity of our membership, combined with our extensive program knowledge 

and "hands on" experience, enables NADE to offer a perspective on disability issues that is 

unique and which reflects a programmatic realism, which we believe, is a critical factor for 

Members of this Subcommittee to consider. 

NADE members are deeply concerned about the integrity and efficiency of the Social Security 

and the SSI disability programs. Simply stated, we believe those who are entitled to disability 

benefits under the law should receive them; those who are not, should not. Many of the 

hearings held by this and other Congressional Committees and Subcommittees have, in recent 

years, focused on the challenges facing the Social Security disability program. 
129 


33616A.095

Program Scope 

No other government agency has a greater impact on the quality of life in America as the Social 

Security Administration (SSA) and the American public will judge the ability of their government 

to meet their quality of life needs almost solely by the service provided by SSA. It is imperative 

that the services provided by SSA be of the highest quality. This includes the administration of 

the Social Security and SSI disability programs. SSA's mission, clearly stated, is: "To promote 

the economic security of the nation's people through compassionate and vigilant leadership 

in shaping and managing America's social security programs." 

During FY 2017, SSA will pay approximately $935 billion to nearly 61 million Social Security 

beneficiaries. SSA will pay an additional $54 billion in Federal benefits to about 8 million SSI 

(Supplemental Security Income) recipients. The total annual payout of these two programs is 

nearly $1 trillion! Every month in FY 2017, an average of 9 million workers and an additional 2 

million dependents received Social Security disability benefits from SSA. SSA also paid monthly 

SSI disability benefits to 6 million blind and disabled adults and more than 1 million blind and 

disabled children in FY 2017. The vast enormity of the disability programs administered by SSA, 

and their impact on the lives of Americans, cannot be understated. Actuaries forecast 1 in 4 

workers currently age 20 will become disabled prior to age 67. Among this group, 67% will 

have no private disability insurance and will depend on SSA as their only source of income. 

The DOS Role in the Federal-State Partnership 

Initial and reconsideration (first level appeal) claims for disability benefits are processed in the 

states by Disability Determination Services (DOSs). These are state agencies working In 

partnership with SSA to provide public service to individuals applying for disability benefits. The 

DOSs share a tremendous responsibility to help ensure the integrity of the disability program. 

Eligibility for disability benefits is difficult and determining eligibility for benefits is equally 

difficult. The DOSs make complex medical determinations for the Social Security disability 

programs pursuant to Federal laws and regulations. The vast majority of DOS personnel are 

state employees subject to their individual state rules and mandates, personnel practices and 

other issues specific to their respective states. The DOSs adjudicate disability claims at the 

initial, reconsideration, continuing disability review (CDR) and disability hearing levels. The 

adjudication of claims for disability benefits must adhere to SSA's stringent definition of 

disability• while following a 5-point Sequential Evaluation** approach that requires a 

determination to be made at each step before the adjudicator can proceed to the next step. 

Throughout the 60+year history of the Social Security Administration's Disability Insurance 

Program, the disability claims adjudication process has been a Federal-State venture. In the 

DOSs, an adjudicative team composed of a Disability Examiner (generic title) and/or a Medical 

Consultant and/or a Psychological Consultant in the DOSs make the initial medical-legalvocational determination. That initial or reconsideration determination must follow complex 

and frequently changing Federal rules and regulations and it is essential that those making the 

determinations possess unique and specific knowledge, skills, and abilities in order to fairly and 

timely administer the programs. 
130 


33616A.096

The Social Security definition of disability differs markedly from any other public or private 

industry definitions of disability. While other disability programs focus primarily, or even 

exclusively, on the degree of impairment, the Social Security and SSI adult disability programs 

are work and function oriented. The SSI child disability program is also function oriented. 

What this means is t hat an impairment is considered to be disabling only if it prevents an adult 

individual from working or a child from functioning in normal age-appropriate act ivities. The 

DDS adjudicative team is required, as a matter of routine, to deal with the interplay of abstract 

medical, legal, functional and vocational concepts. 

In FY 2017, DOSs adjudicated over 2.5 million initial claims and about 600,000 reconsideration 

claims. DOSs also processed about 800,000 continuing disability review (CDR) claims. The DDS 

allowance rate was 33% at the initial level and 12% at the reconsideration level. The allowance 

decisions made by the DOSs account for nearly 77% of all allowances made in FY 2016 and the 

DOSs were able to achieve this level of service while maintaining an initial accuracy rate of 95%, 

including an allowance accuracy rate of 98.7%! The average processing time for an initial claim 

in FY 2016 was 85.6 days while reconsideration claims were processed in 77.1 days. SSA's Quick 

Disability Determination (QDD) and Compassionate Allowance (CAL) claims had an average 

processing time of just 18.S days! The ability of the personnel within the DOSs to adjudicate 

these cases timely and accurately carries enormous consequences for SSA and the citizens who 

rely upon the Agency for assistance. Therefore, it is extremely critical the individuals tasked 

with this responsibility be highly trained and able to perform their job duties in a professional 

environment. The DDS adjudicators must be able to translate the medical concept of clinical 

severity into the legal concept of Social Security disability program severity and the resultant 

functional restrictions into vocational and/or age-appropriate assessments. In essence, the 

DDS adjudicators must appropriately and interchangeably, apply the "logic'' of a doctor, a 

lawyer and a rehabilitation counselor. 

The Need to Ensure Disability Policy Remains Current 

In order for DOSs to make accurate and timely initial and reconsideration determinations on 

disability claims, it is essential that disability policy established by SSA be current and up-todate. Until recently, SSA has struggled with this task. However, the Agency has made great 

strides since 2013 to correct this situation. In 2016-2017, SSA updated four of the medical 

listings and revised the manner in which disability adjudicators should evaluate treating source 

opinions. Between FY 2013 and FY 2017, SSA published final rules to update 11 of 15 body 

systems. These updates and revisions have been very significant. Consider the neurological 

listings were updated in the fall of 2016, followed by updates to the respiratory listings. These 

listings had their last comprehensive update in 1986 and 1993, respectively. The mental listings 

were updated in January, 2017, their first comprehensive update since 198S! SSA is expecting 

to release updated musculoskeletal listings in 2018. This will be the first comprehensive update 

for this listing since 1985. NADE is very appreciative of the effort SSA has made to update the 

medical listings, some for the first time in over 30 years. It is critical the listings should reflect 

current medical practices and SSA plans to ensure the listings remain current. 
131 


33616A.097

SSA has also prepared new policy for how adjudicators are to evaluate treating source opinions 

and added three (3) medical professionals to the list of "Acceptable Medical Sources." The 

updated policy and new additions to the list of acceptable medical sources should improve the 

service delivery of the DOS as well as the timeliness and accuracy of our determinations. 

One update that is urgently needed is a replacement for the Dictionary of Occupational Titles. 

This source of vocational information used in making disability determinations at all levels was 

last revised in 1991 and had its last major update in 1977! In previous testimony before this 

Subcommittee, NAOE stressed that the use of 40-year old information to process disability 

applications does not reflect well with regard to service delivery to claimants or taxpayers. We 

are pleased that SSA, in partnership with the Bureau of Labor Statistics (BLS) has made 

significant progress toward a O.O.T. replacement and the Occupational Information Systems 

(OIS) is expected to be implemented in 2020. 

Reduced Budgets and Insufficient Funding 

There are many challenges to ensuring that disability determinations are accurate and made in 

a timely manner. No challenge is more important to the DOSs than insufficient funding caused 

by reduced budgets. NAOE is aware that many problems cannot be solved by throwing more 

money at the problem but, in the case of timely and accurate decision-making in the disability 

program, the lack of sufficient funding by Congress on a consistent basis has created a crisis of 

service delivery in the DOSs and SSA. Since 2010, SSA's administrative budget has remained 

static, even while the cost of service delivery has gone up. SSA responded initially to reductions 

in its budget in those areas that did not directly impact case production. That "luxury" is long 

gone and recent budget reductions have resulted in hiring freezes that have created a crisis of 

confidence in the Agency's ability to serve the public. Hiring freezes have contributed to higher 

caseloads, increased processing time and diminished accuracy. The resulting less than 

professional work environment contributes to increased attrition. The investment in time and 

resources to train a disability adjudicator to become proficient at making disability decisions is 

significant and the DOSs can't afford to allow this commitment of resources to continue to walk 

out the door. This is a program challenge caused by budget constraints imposed by Congress. 

The attrition rate for DOS staff has been about 15% in recent years. What this means is that a 

DOS with 400 employees will lose 60 of them in any given year. Over the course of the past two 

years, that has meant a loss of 120 employees, nearly one-third of the DOS staff. New hiring 

has been minimal since t he DOSs operated during the past two years with only critical hires 

being approved. As the attrition continues, the work environment within the DOSs can become 

nearly toxic as remaining staff have to assume almost unimaginable workloads. This, of course, 

feeds the attrition rate. The DOSs lost 1,623 employees in FY 2017 including 1238 adjudicators. 

It takes two to four years for most disability adjudicator in the DOSs to become proficient at 

making accurate and timely disability determinations. The DOSs cannot afford to expend the 

funds to train these adjudicators only to watch them walk out the door when higher paying, 

less stressful jobs in the private sector beckon to them. 
132 


33616A.098

The DOSs have had to shift personnel and resources from such positions in the DDS as training, 

quality assurance, professional relations, and even supervision and management and direct all 

their resources to claim processing to ensure that claims continue to be processed timely and 

accurately. This shift of resources within the DOSs cannot be sustained on a continuing basis 

without severe risk. How long, for example, can the DOSs continue to postpone ongoing 

training for their staff in order to ensure current decision-making is timely before future 

decision-making is not timely and not accurate because new training was never properly 

provided? How long can the DOSs allow its quality assurance personnel, trainers and 

supervisors process cases while abandoning their specific jobs that are critical to the DDS's 

ability to provide timely and accurate decisions? NADE would like to point out, for example, 

that while SSA made significant progress during the past year in updating the medical listings, 

many DOSs were unable to ensure their staff received anything more than the basic training 

package because subsequent training was deemed to represent a too costly investment of time 

away from case processing. It is critical to SSA's mission that sufficient resources be provided 

on a consistent basis to ensure the disability program is adequately funded at a level that will 

maintain the public's confidence in the program and the Agency's ability to serve its mission. 

Reinstatement of Reconsideration 

While about 80,000 claimants were allowed in FY 2017 at the reconsideration appeal step, this 

option was not available in ten DOSs that were part of the original Prototype redesign in 1997. 

NADE has repeatedly presented the argument that disability decision-making should be the 

same across the nation. We suggest Congress should explore the possibility of bringing the 

reconsideration step back to those ODDs where it has been absent for twenty years. While this 

will require a significant expense in new hiring and training of personnel, the expectation will be 

a reduction in the number of claims appealed to administrative law judges, helping to ease the 

backlog of claims pending at that level of appeal while also improving the processing time of 

AU decisions. With fewer claims to adjudicate, AUs will be able to make their decisions faster. 

NADE also observes that the inadequate hiring caused by insufficient funding plagues not only 

the DOSs but all components in the disability program, including the AU level where new hiring 

of AUs has occurred in recent years but their support staff has not received new hires. SSA's 

Central Office and its many Field Offices have had to shift resources and reduce their hours of 

operation to absorb staff reductions caused by ongoing budget constraints. This level of service 

simply cannot continue for an Agency charged with service delivery to tens of millions of 

Americans every year, many of whom are our nation's most vulnerable citizens. 

The Impact of Eliminating Single Decision-Maker and Disability Examiner Authority 

The Bipartisan Budget Agreement of 201S required that SSA eliminate the use of the single 

decision-maker (SDM) in the nineteen DOSs that had this authority. SSA imposed a staggered 

process to abide by this requirement with the result that the last DOSs using SDM will lose this 

authority on September 30, 2017. The SDM has been in use since 1997 and its resultant 
133 


33616A.099

elimination has contributed to higher processing times in the DDSs as well as lower morale and, 

in some cases, decreases in job grades and salary. This is not welcome news to DDSs who strive 

to maintain their staff in the face of heavy private industry recruitment. Also, the elimination of 

SDM means DDSs must have an increase in resources to hire sufficient medical staff to review 

the claims previously processed by SDMs. 

The BBA also required SSA to eliminate Disability Examiner Authority (DEA) for Compassionate 

Allowance (CAL) and Quick Disability Determination (QDD) claims. These claims are, perhaps, 

the easiest cases to process in the DDS and they are fast-tracked accordingly. DDSs generally 

allowed their most experienced disability adjudicators to act with Disability Examiner Authority, 

ensuring CAL and QDD claims were processed correctly and timely. Statistical data show these 

claims were adjudicated with a high level of decisional accuracy and timeliness. It should not 

be necessary for DOSs to have to now impose an additional hand-off and require these claims 

to be reviewed and signed by a Medical Consultant. NADE believes the loss of DEA will have 

multiple negative impacts on DDS operations and the timeliness these claims can be produced 

as well as t he cost of case production. Adding time delays to the processing of these claims for 

which timeliness can be considered essential is not in the best interest of the claimant or the 

disability program. We urge Congress to reconsider elimination of SDM and DEA and, at the 

very least, reinstitute DEA for CAL and QDD claims. 

The CDR Claims Process and Impact of MIRS 

When a claim is approved for disability benefits, a diary is established for that claim to be 

reviewed again after a certain period, usually three (3) to seven (7) years, to determine If the 

disabling condition continues. After the diary expires, the DDS conducts a Continuing Disability 

Review (CDR) during which the Medical Improvement Review Standard (MIRS) is applied to 

determine if the claimant's impairment has medically improved. MIRS was established in 1984 

after a mandate from Congress and requires that benefits continue unless the beneficiary's 

disabling condition has shown medical improvement and the medical improvement is related to 

the ability to work. In effect, MIRS turns the tables on the federal disability program. During 

the initial application process, the burden is on the claimant to prove they are disabled. At the 

CDR level, the necessity to apply MIRS shifts the burden to SSA and the DDS to prove there has 

been significant medical improvement related to the ability to work. The M IRS standard is very 

stringent and, as a result, few claims are actually ceased by the DDS and many of the initial 

cessation determinations proposed by DOSs are reversed on subsequent appeal. The majority 

of cessations processed by DDSs are the age 18 redeterminations, claims processed for adults 

who have recently attained the age of 18 and were allowed benefits as children. These claims 

are re-examined by the DDS using adult criteria to determine if disability continues. MIRS does 

not apply to age 18 redeterminations. Instead, the DDS makes a new initial determination 

whether the claimant has an impairment that continues to be disabling based on adult criteria. 

To process a CDR claim, the disability examiners are required to compare a beneficiary's current 

condition to the beneficiary's condition at the time of the most recent medical decision, 

whether that is the initial allowance decision or the most recent CDR continuance decision. 
134 


33616A.100

Because of MIRS it is not unusual to find a CDR claim where the disability examiner would not 

currently find the beneficiary disabled, but must continue benefits because significant medical 

improvement cannot be shown. 

COl and Other Anti-Fraud Initiatives 

Every instance of fraud within the disability program has a negative impact on America's trust in 

the ability of SSA and its components to deliver on its promise to administer these programs in 

a manner that reduces the potential for fraud or similar fault. NADE is pleased SSA has moved 

forward to expand the continuing disability investigation units (CDIUs) in the DOSs. COl and 

other anti-fraud initiatives are beneficial to the disability trust fund and to the public's 

perception that disability payments should be reserved for those who are truly disabled. We 

support SSA's ongoing efforts to ensure all DOSs have access to a COl unit by 2020. 

NADE would like to point out to the Members of t his Subcommittee that SSA's Inspector 

General has previously commented on numerous occasions that SSA's best defense against 

fraud is the well-trained disability examiner. NADE would add the caveat that the well-trained 

disability examiner must also have a manageable caseload. We also wish to stress to the 

Subcommittee that the Inspector General has previously pointed out the majority of fraud in 

the disability program, to date, has been detected by the front line disability examiner in the 

DDS. Therefore, it is critical that adequate funds be consistently appropriated to ensure DOSs 

have sufficient staff and resources to not only produce disability decisions that are timely and 

accurate but that their caseloads be manageable and they have received sufficient training to 

perform their jobs so that t hey can continue to detect those instances when some individuals 

attempt to defraud the program. 

Increased Efforts for Consistency Between DOSs and AUs 

NADE applauds SSA's recent efforts to bring consistency between the DDS and AU 

determinations. There has been improvement in documentation of rationales at the DDS level 

with the eCAT tool and the soon to be implemented Disability Case Processing System (DCPS) is 

expected to improve on this process. SSA has begun providing additional policy and medical 

training for AUs, resulting in a decrease in the overall allowance rates by AUs. When a claimant 

appeals a denial decision to the AU, they have the right to be represented at the hearing. 

NADE concurs with the right of representation, as this is a privilege granted under our country' s 

system of justice. However, that system of justice is also predicated on the concept that both 

parties to a dispute are represented at a hearing before an impartial third party. Such is not the 

case in AU hearings where only the claimant is represented. The DDS decision must stand on 

its own and can be interpreted by the AU in whatever manner they wish to do so. Frequently, 

the AU must attempt to defend the DDS decision while attempting to remain an impartial 

judge. Such an effort can create the appearance of bias and NADE wonders whether it would 

be beneficial to have the DDS determination represented at the AU level. 

SSA has also initiated Target Denial Reviews of DDS reconsideration decisions, using a predict ive 

model to assess certain reconsideration denial claims that could likely be reversed by an AU 
135 


33616A.101

and returning these claims to the DDS for a subsequent re-assessment and possible reversal to 

an allowance. In recent years, this process has resulted in thousands of claims being reversed 

to an allowance by the DDS, thereby reducing the pending backlog of cases at the AU level. 

Summary 

NADE believes SSA's ability to provide timely customer service is critical. No other agency in 

government has the potential to impact so many people and the vast majority of Americans will 

judge the government's ability to serve their needs based on how effective and how efficient 

SSA is able to meet their needs. SSA is America's "Window" to its government. It can ill afford 

to fail in its mission. SSA and its DDS partners must be provided with the resources necessary 

for the Agency to achieve its mission in a timely manner. The growing complexity of the Social 

Security and SSI Disability Programs, coupled with the need to produce a huge volume of work, 

justifies even more the need for adequate resources in order to provide the service the 

American public has come to expect and deserve from SSA. We refer the Members of the 

Subcommittee to review the complex job of the Disability Examiner as published by NADE in 

2004 at http://www.nade.org/nade-board-approves-disability-examiner-position-paper/. 

In FY 2008, this Subcommittee held a hearing to address the challenges facing the Social 

Security disability program. The Subcommittee's Chairman in 2008 offered the observation 

that " constant under-funding of the disability program by the Congress over the past two 

decades had contributed heavily to the current crisis." NADE notes that another decade has 

passed and we do not dispute such wisdom! The past two decades have shown that when SSA 

receives consistently adequate funding, it can increase the timeliness and accuracy of disability 

decisions at all levels and reduce the backlog of claims pending for hearings. When SSA does 

not receive adequate funding, the backlogs and wait times grow. The timeliness of decisionmaking and the accuracy of those decisions are negatively impacted. Chairman Johnson noted 

in his opening remarks the amount of time from filing an initial application to getting a hearing 

is over two years. The Chairman commented, "All of these people deserve an answer in a 

timely fashion." NADE agrees. This is a problem in which Congress shares responsibility and 

Congress has the power to help resolve the problem. Congress must recognize the cost of 

doing business and serving the public cannot be ignored and Congress must appropriate 

adequate funding on a consistent basis so SSA and the DOSs can fulfill their mission. 

Social Security can and must do better in fulfilling its promise to America. NADE stands ready, 

willing, and able to assist in fulfilling that promise. People with disabilities, already burdened by 

the challenges of their illness/injury, are often in desperate need of benefits to replace lost 

income. They deserve, and should receive, timely and accurate decisions through a fair and 

understandable process. The challenge to all of us- SSA, DDS and Congress- is to ensure the 

disability determination and appeals process fulfills its mission and this challenge must be met. 

We commend the Subcommittee for exercising its oversight authority and we look forward to 

working with the Subcommittee to achieve the goals we have outlined in this statement. 
136 


33616A.102

* Definition of disability for adults 

Under title II and title XVI, we consider a person disabled under Social Security rules if he or she 

has a medically determinable physical or mental impairment (or combination of impairments): 

that prevents him or her from doing any substantial gainful activity (SGA), and 

has lasted or is expected to last for a continuous period of at least 12 months, or is 

expected to result in death. 

NOTE: The definition of disability also applies to persons applying for child's insurance 

benefits based on disability before age 22 and for disability benefits payable after 

December 1990 as a widow(er) or surviving divorced spouse. 

Definition of disability for children under age 18 

Under title XVI, we consider a child under age 18 disabled under Social Security rules if: 

the child has a medically determinable physical or mental impairment (or combination 

of impairments) that: 

o causes marked and severe functional limitations; 

o has lasted or is expected to last for a continuous period of at least 12 months, or 

is expected to result in death; and 

the child is not doing any SGA. 

*"' The steps of adult sequential evaluation of disability 

1. Step one considers work activity -Is the claimant engaging in substantial gainful activity 

(SGA)? 

a. If yes, the claimant is not disabled. 

b. If no, the sequential evaluation continues. 

2. Step two considers whether the claimant has a severe impairment(s) -Does the claimant have 

a medically determinable impairment (MDI) (or combination of MDis) that is both severe 

and meets the duration requirement? 

a. If no, the claimant is not disabled; and 

b. If yes, sequential evaluation continues. 

3. Step three considers whether the claimant's impairment(s) meets or medically equals a listing 

-Does the claimant have an impairment(s) that meets a listing, or is medically equal to a 

listing in appendix 1, and meets the duration requirement? 

a. If yes, the claimant is disabled; and 

b. If no, the sequential evaluation continues. 

NOTE: Before the sequential evaluation continues, we determine the claimant's residual 

functional capacity (RFC). 
137 

f 


33616A.103

4. Step four considers whether the claimant's impairment(s) prevents performance of Past 

Relevant Work (PRW)- When comparing the RFC with the physical and mental demands of the 

claimant's PRW, we must consider two questions: 

a. Does the claimant retain the capacity to perform any PRW as he or she actually 

performed it? 

b. Does the claimant retain the capacity to perform any PRW as generally performed in the 

national economy? 

o If the answer to either question is yes, the claimant is not disabled. 

o If the answer to both questions is no, the sequential evaluation continues. 

NOTE: Consider the Special Medical Vocational Profiles after evaluating step four and 

before evaluating step five. If one of the special medical-vocational profiles applies, the 

claimant is disabled and the sequential evaluation ends. 

5. Step five considers whether a claimant can make the vocational adjustment needed to 

perform other work- Does the claimant have the ability to make an adjustment to any other 

work, considering the claimant's RFC, age, education, and work experience? 

a. If yes, the claimant is not disabled. 

b. If no, the claimant is disabled. 
138 


33616A.104

Hearing 

Before the 

House Committee on Ways and Means 

Subcommittee on Social Security 

Dete1·mining Eligibility fo1· Disability Benefits: 

ChaUenges Facing the Social Secul'ity Administration 

September 6, 2017 

Statement for the Record 

Submitted by 

Philip B. Litte•·al, President 

National Association of Disability Representatives 

Dil·ector, Disability Claims Expe•·ts, Inc. 

Contact: 

Jeanne L. Morin 

Public Policy Advisors 

2022 Columbia Rd., NW, Suite 608 

Washington, D.C. 20009 

(202) 297-3616 

jmorin.ppa@gmail.com 
139 


33616A.105

My name is Philip B. Litteral and I am President of the National Association of 

Disability Representatives. NADR is an organization of professional representatives 

who assist claimants in applying for disability income assistance from the Social 

Security Administration. Our members help individuals and their families navigate 

an often complex and lengthy process to demonstrate their eligibility for disability 

benefits. I am pleased to submit this statement for the record regarding the 

September 6, 2017 hearing entitled "Heal"ing on Determining Eligibility for 

Disability Benefits: Challenges Facing the Social Security Administration" on 

NADR's behalf. 

NADR is a member of the Consortium for Citizens with Disabilities Social Security 

Task Force and a signatory to the testimony presented on behalf of the Task Force 

by Lisa Ekman of the National Organization of Social Security Claimants' 

Representatives. That testimony addressed the human toll that the hearings 

backlog is taking on claimants and their families. Here are some additional 

examples of the devastating consequences for claimants with severe disabilities 

who are forced to wait an average of 628 days for a determination before receiving 

the benefits to which they are entitled: 

In Ashland, Kentucky, a man filed for disability in early 2013 because of debilitating 

migraine headaches. After initial claim and reconsideration denials, he waited 17 

months for a hearing. During that time his home was foreclosed on. He moved in 

with his mother and filed for bankruptcy. At the hearing his representative asserted 

and provided evidence that his condition equaled a listing. Nonetheless, his claim 

was dismissed without comment and the decision upheld by the Appeals Council. A 

Federal District Court granted a remand for a new hearing. During this time his 

mother died and the claimant became homeless. He lived in homeless shelters and 

basements for ten months while awaiting a second hearing. After the second 

hearing was finally held, he waited another four months for the favorable decision -

which ultimately agreed with the claimant's original assertion that his condition 

equaled a listing. During the period from filing his initial claim in early 2013 to 

receiving his first disability payment in late 2016, he lost his home, his vehicles, all 

of his possessions and most of what remained of his health and vitality. 

In Atlanta, Georgia, a 57-year-old homeless man with multiple physical and mental 

impairments had his claim remanded for a second hearing. The ALJ denied it again, 

saying he could return to previous relevant work even though he could only do one 

part of a composite job. His representative appealed to the Appeals Council a 

second time, asking that the case be expedited due to dire need due to his eviction 

from his home. The case was so designated in March 2012, yet, the man died in 

january 2014 with the case still unreviewed at the Appeals Council. The storage 

unit he had been using that winter for shelter was flooded during a storm, ruining 

the few personal possessions he had as well as his place to sleep. A Good Samaritan 

took him out to dinner and paid for him to spend the night in a hotel room. During 

that night he passed away. An autopsy revealed that his heart gave out. Being 
140 


33616A.106

homeless wore him down physically with the constant stress of wondering where 

his next meal would come from and where he would sleep at night. 

In Siren, Wisconsin, a claimant suffered from severe epilepsy following a traumatic 

brain injury. He had no access to health insurance and could not afford to see a 

doctor or pay for his seizure medication. In the middle of the winter, one year and 

six months after he filed his application, he suffered a seizure and was found dead in 

his home. He had been unable to afford to adequately heat his home, causing his 

pipes to freeze. His claim ultimately was approved posthumously, with benefits 

paid to his son 

In Brainerd, Minnesota, one year and five months after filing his application for 

disability benefits a young man with severe mental health impairments committed 

suicide in the community behavioral health hospital where he was being held. His 

claim was approved posthumously. 

In order to assure that these tragic examples are not repeated, NADR urges 

Congress to provide adequate, sustained administrative funding in order to reduce 

the hearings backlog without compromising other workloads across the agency. In 

addition, by expanding the allowable uses of program integrity funding to include 

Targeted Denial Reviews, Congress could reduce the disability backlog and improve 

the decisional quality of disability determinations. 

Among the steps SSA can take administratively to reduce the backlog are ensul"ing 

more complete development of medical records at the initial level; providing more 

information to claimants on options for representation before and during the initial 

application process; continuing to use screening initiatives such as Quick Disability 

Determinations and Compassionate Allowances to identify disability claims for 

expedited review; providing better explanations to medical providers when 

requesting medical evidence; and increasing reimbursement rates for medical 

providers. SSA can further address the hearings backlog by resuming its Senior 

Attorney Program to allow senior staff attorneys in hearing offices to issue fully 

favorable on-the-record decisions without a hearing. 

Finally, NADR notes that recent regulatmy changes have contributed to the hearings 

backlog and urges SSA to consider rescinding or clarifying the Evaluation of Medical 

Evidence Rule that eliminated the special weight given to evidence provided by a 

claimant's medical treating source; the Program Uniformity Rule that requires the 

submission of or informing SSA about all evidence at least five business days before 

a hearing; and the All Evidence Rule that requires claimants to "submit all evidence 

that relates to your disability claim received from any source in its entirety." These 

rules have contributed to the hearings backlog, causing delays and forcing claimants 

to wait additional months and even years to obtain the benefits they have earned. 
141 

f 


33616A.107

Thank you for the opportunity to submit these comments fo r the record. NADR 

looks forward to continuing to work with the Social Security Subcommittee to 

improve the accuracy and integrity of the disability determination process. 
142 


33616A.108

Testimony of 

Anthony M. Reardon, National President 

National Treasury Employees Union 

to the 

House Committee on Ways and Means 

Subcommittee on Social Security 

"Determining Eligibility for Disability 

Benefits: Challenges Facing the Social 

Security Administration" 

September 19, 2017 
143 


33616A.109

USING SENIOR ATTORNEY ADVISORS AS ADJUDICATORS 

A Proven Method to Reduce the Hearing Backlog, Expedite Decisions, 

and Improve Public Set·vice. 

Chainnan Johnson, Ranking Member Larson and members of the Subcommittee, thank 

you for allowing NTEU to share its thoughts on methods to improve the Social Security 

Administration's disability process. NTEU represents 150,000 federal employees in 31 

agencies including 1,900 attorneys and paralegals in the Social Security Administration's 

Office of Disability Adjudication and Review (ODAR). I appreciate the opportunity to 

discuss these important issues. 

INTRODUCTION 

The Social Security Adminish·ation's Office of Disability Adjudication and Review 

(ODAR) bandies appeals of disability claims. ODAR strives to issue legally sufficient 

decisions and award benefits to disabled claimants "as early in the process as possible" .

1 

The decades-old disability hearings process, however, was not designed to process the 

unprecedented number of claims filed in the past ten years. The hearing process also was 

not designed to accommodate the increased participation of attorneys representing 

claimants. Adding to these challenges, the hearing process has been encumbered by 

insufficient resources, inadequate staffing, expanding case files, expansive changes in 

regulations, conflicting operational messages, and escalating internal tensions. 2 

These are some of the factors causing the most needy members of society to wait one to 

two years for a disability decision while they face life-altering medical and financial 

stressors. In September 2016, the Office oflnspector General (OIG) determined that 

almost half ( 45%) of pending disability claims languish in prehearing development. 3 Due 

to the huge number of pending claims, currently more than l.l million, and lack of 

sufficient staff, a claim can sit in a hearing office queue for 6-9 months before it reaches 

an employee for processing. By the end ofFY 2016, average case processing time rose to 

540 days while Administrative Law Judge (ALJ) productivity declined nationwide even 

as the Agency hired more ALJs.4 Today, despite a host of initiatives outlined in the 

Agency's Compassionate And REsponsive Service (CARES) plan, ODAR does not 

expect average wait times to improve substantially until 2020 5 

And yet, ODAR could begin to make a dent in the backlog immediately, reduce wait 

times, and bring relief to thousands of claimants simply by fully engaging its existing 

cadre of highly trained senior attorney advisors (SAAs). SAAs can screen, develop, and 

decide claims that do not require a hearing- and they can do it within a few months 

1 http://odar.ba.ssa.gov/aboul-odar/what-we-do/ 2 See S1a1emen1 of Judge Marilyn Zahm, President. Association of AdlllioisJrative Law Judges, Before tbe 

House Wa ys and Means Committee, Sept. 6, 2017. 3 Characteristics of Claimants in 1he SSA 's Pending Hearings Backlog, A-05- 16·50207, Sept. 2016. 

• OIG Sept. 2017 SAA Audit Report, A-1 2-18-50289. 5 SSA 20 17 Updated Compassionale And REsponsive Service (CARES) and Anomaly Plan, submitted 10 

The Hon. John Larson on Aug. 9, 2017. 

2 
144 


33616A.110

rather than a few years. SAAs can meet with unrepresented claimants to advise them 

about the hearing process. SAAs can also identify evidentiary needs and develop the 

record as well as meet with claimants' attorneys to resolve cases without a hearing or 

obtain stipulations to streamline cases that require hearings. Crucially, rhis cadre of 

skilled and experienced attorneys is prepared to acr immediately and requires no 

additional funding or hiring. 

REINSTATING SAA ADJUDICATORY AUTHORITY 

WILL INCREASE ODAR'S DECISIONAL CAPACITY 

SAAs have regulatory authority to fully adjudicate fully favorable decisions. Au SAA, 

" ins read of an administrative law judge," can conduct prehearing proceedings and issue 

fully favorable on-the-record (OTR) decisions, eliminating the need for a hearing.6 Even 

when SAAs detennine that claims callllot be decided without a hearing, they play a 

pivotal role by initiating case development as soon as the clain1 enters the hearing office 

queue, significantly reducing the 6-9 month wait time. Further, SAAs can request 

additional evidence. They can hold conferences with claimants' attorneys to resolve 

procedural and evidentiary issues. SAAs also can hold conferences with unrepresented 

claimants to explain hearing requirements and procedures. 

Unfortunately, SAAs are an underutilized resource at ODAR; most do not perform any of 

these roles in the hearing process. This was not always the case. In years past, when the 

Agency allowed full use of adjudicatory authority, SAAs contributed significantly to 

decreasing the number of pending claims and the extent of clain1ants' wait tin1es. 

• From 1995 to 2000, 475 SAAs adjudicated over 200,000 decisions with an 

average processing time (APT) of 100 days compared to 386 days for ALJ 

hearing decisions.7 

• In 2007, when the Agency reinstated the SAA adjudication program, it 

acknowledged SAA adjudications conserved ALJ resources for more complex 

cases that required bearings, reduced the backlog, and increased adjudication 

capacity.8 

• From 2007 to 20 12, SAAs adjudicated a significant number of decisions. For 

example, in FY 20 10 SAAs issued 54,000 decisions, 7% of all Agency 

dispositions. 9 

6 20 CFR § 404.942; § 416.943 (emphasis added). SAAs can exercise this authority if: new and material 

evidence is submitted; there is an indication that additional evidence is available; there is a change ill the 

law or regulations; or there is an en·or in the file or some other indication that a wholly favorable decision 

could be issued. The Regulation currently extends to Febmary 2018. 82 FR 34400. 7 Statement of Jim Hill, NTEU President, Hearing Before the Subcol1l.lllinee on Social SeclU1ty, March 16, 

2000, Serial 106-44. ODAR did not compile au officia l fmal study of this SAA program. OIG July 20ll 

SAA Audit Report, A-12-10-11018, Appendix H. 8 Chief Judge Bulletin 07-10. 9 OIG July 2011 SAA Audit Repo11, A- 12- 10-11018. 

3 
145 


33616A.111

SAA disposition numbers from 2008 to 2013 were striking:10 

Year SAA dispositions 

2008 24,575 

2009 36 366 

2010 54,186 

2011 53,253 

2012 37,422 

2013 18 627 

SAA decision processing time also improved claimant wait times. In FY 2010, SAA 

decisions took only 165 days to process compared with 462 days for all cases. 11 

The value of the SAA adjudicatory program bas been widely accepted. OIG 

acknowledged in its 2013 audit report that the "SAA program has contributed to both an 

increase in adjudicative capacity and improved average processing time." 12 Hearing 

office managers reported that office goals were met or exceeded due to SAA dispositions. 

One manager reported that SAAs issued between 50 and 135 cases per month, and 

another reported that SAAs handled 20% of the office productivity goal. 13 The OIG 

acknowledged that "SAAs' additional adjudicatOiy capacity is especially important when 

the Agency is struggling to reduce its pending hearings backlog. " 14 The OIG 

recommended that ODAR consider expanding the types of cases SAAs adjudicated and 

align SAA positions and promotions with predicted workloads. 15 

Nevertheless, in the face of surging hearing requests in 2014, ODAR elin1inated SAA 

adjudicatory authority and in1posed an arbitrary cap of7,500 SAA decisions. Currently, 

ODAR prohibits its 550 highly experienced SAAs from independently screening pending 

claims or adjudicating fully favorable OTR decisions. Instead, hearing office supervisors 

(many of whom are not attorneys) select and assign cases to SAAs to review. If the SAA 

determines the case can be paid without a hearing, the SAA must write a detailed case 

analysis for an AU to review. If the AU agrees, the SAA writes the decision for the AU 

to review and sign (although the SAA has worked the case, the ALJ gets credit for the 

disposition). SAAs are allowed two hours to review cases assigned for OTR review, 

regardless of the size of the file or number of issues involved. SAAs may not 

independently obtain medical or vocational expert opinions or otherwise develop the 

claim. If the claim cannot be paid, the SAA completes a summary of the medical 

evidence and sends the case back to the queue- where the case will languish for 6-9 

months before any development will be initiated. The case will not be scheduled for a 

hearing for another 2-3 months. By the time the hearing actually takes place, the claimant 

will have waited a year or more from the date he or she requested a hearing. 

10 OIG July 2011 SAA Audit Report, A-12-10-1 !018. 

11 Jd. 12 OIG June 20!3 SSA Audit Report, A-12-13-23002. 13 OIG July 201 1 SSA Audit Report, A-12-10-1 1018. 14 OIG June 2013 SSA Audit Rep011, A-12-13-23002 (emphasis added). 

" !d. 

4 
146 


33616A.112

The Agency's arbitrary refusal to allow SAAs to fully adjudicate favorable OTR 

decisions needlessly slows down the disabiJjty hearing process. From 2007 to 20 13, when 

SAAs had fuiJ adjudicatory authority, they produced a high number of quality OTR 

decisions and significantly reduced claimants' wait times. Since 2014, the Agency has 

restricted this talented and dedicated cadre of legal professionals from resolving cases 

early in the hearing process. The Agency could improve the disability determination 

process and expand decisional capacity- immediately and at almost no cost- by lhlly 

using SAAs' legal, analytical, and programmatic skills. 

SENIOR ATTORNEY ADVISORS ARE POISED 

TO IMPROVE ODAR'S PUBLIC SERVICE 

ODAR 's senior attorneys deal with the intricacies of the legal-medical aspects of the 

Social Security disability program every day. They are experienced disability 

practitioners, well-versed in the law and possess a wealth of adjudicatory experience. 

Most have worked on thousands of cases and routinely advise ALJs. They are dedicated 

professionals who take pride in their work and are committed to the Agency's public 

service mission, a logical and reliable adjunct to the ALJ corps. The public would be 

better served ifODAR leveraged the skiiJs of its SAAs to screen, develop, and adjudicate 

OTR decisions, conduct pre-hearing conferences, and work with claimants' 

representatives to simplify issues requiring a hearing. The public would be even better 

served ifODAR expanded the role ofSAAs to include deciding unfavorable decisions on 

the record as claims examiners. 

A. ODAR Should Restore SAA Full Adjudicatory Authority 

Currently, there are 550 SAAs at ODAR.16 With full adjudicatory authority, this cadre 

would significantly streamline and expedite the disability hearing process at no additional 

taxpayer expense. Consider: 

1. SAAs Increase Adjudication Capacity 

The Agency has hired approximately 200 ALJs in the past few years at great 

taxpayer cost. Most of these ALJs are new to the Agency and require significant 

training (at significant cost) and initially work a reduced workload while they 

learn the job. SA As, by comparison, are fully trained. Each SAA has at least three 

years' of experience at ODAR; most have substantially more. SAAs are a ready 

and rel.iable decision-making resource that can decrease the backlog and claim 

processing time without additional expensive hiring. They have regulatory 

authority to fully adjudicate certain cases without a hearing. They also would 

continue to write the more difficult ALJ decisions, thereby providing management 

16 Although ODAR has 750 positions allocated for SAAs, instead of promoting GS-12 attorney-advisors, 

ODAR has kept 200 oftbese positions llllfilled since 2009. As a consequence, skilled GS-12 attorneyadvisors have moved into non-legal managemelll positions, or left tbe Agency. 

5 
147 


33616A.113

with flexibility to direct either decision-making or decision-writing resources, as 

needed. 

2. SAAs Save ALJs Time 

Under cunent regulations, ALJs are the only ODAR employees who can hold 

hearings. Allowing SAAs to screen and adjudicate OTR decisions in cases that do 

not require hearings leaves more time for ALJs to prepare for hearings, hold 

hearings, and make decisions in cases that require hearings. ALJs are under 

pressure to dispose of500-700 cases per year. Allowing SAAs to fully adjudicate 

OTR decisions will conserve ALJ time and redirect staff resources to support ALJ 

dispositions and goals. 

3. SAAs Require Less Staff Resources 

Hearing office staff nmst conduct extensive development for ALJ cases. 

However, no such staffing is needed to process cases that a SAA adjudicates on 

the record, significantly reducing administrative costs. In OTR cases, the staff 

does not have to implement standing ALJ orders for case development, organize 

voluminous and often duplicative evidence, or schedule medical or vocational 

experts. And, because most hearing offices are significantly understaffed, 

preserving staff to support ALJ needs will produce greater efficiencies at the AU 

level. 

Senior attomey advisors are trained to quickly recognize serious disabilities and analyze 

sophisticated and voluminous medical evidence. They do not require a cadre of support 

staff. They easily can identify gaps in the record. They can move cases in two months 

instead of two years. 

To address the hearing backlog effectively and immediately, the Agency can and must: 

• Restore full adjudicatory authority to SAAs, including signatory authority. 

• Allow SAAs to independently screen cases, including cases assigned to ALJs. 

• Allow SAAs to fully develop cases, including obtaining medical and vocational 

opinions. 

• Promote more GS-12 attorney-advisors to GS-13 SAA positions. 

These are tried and proven processes in adjudicatory proceedings. Indeed, a similar 

federal agency, the HHS Office of Medicare Hearings and Appeals (OMHA), has 

implemented many of them. Like ODAR, OMHA faces a daunting number of current 

pending claims. OMHA, however, recognizes the value of using its experienced attorneys 

to expand the pool of available adjudicators. To increase efficiency and streamline the 

appeals process, OMHA allows its attorneys to independently decide and issue OTR 

decisions. 17 OMHA also allows attorneys to adjudicate claims on the record in which the 

11 82 FR 4974, Jannaty 17, 2017; 42 CFR § 423.2038. OMHA will also allow attomeys to issue certain 

dismissals and decide specific remands that ru·e not involved in the SSA disability claims process. 

6 
148 


33616A.114

claimant does not wish to appear at a hearing. 18 OMHA expressly recognizes that 

attorneys are as capable of processing these appeals as ALJs, but faster and at a lower 

cost.19 

Implementing the proposed measures at ODAR will optimize resources, increase 

adjudicatory capacity, increase dispositional productivity, and provide immediate and 

significant relief to claimants. These measures also wiJI create a career ladder, and 

provide increased incentives and advancement opportunities for productive and valuable 

employees. Inexplicably, ODAR is the only disability adjudication component that 

provides no career ladder after the initial GS-11 or 12 attorney advisor entry level 

position. The Office of Inspector General, the 0 ffice of General Counsel, and the 

Appeals Council all provide a career ladder to a GS-14. Rather than create a career ladder 

and incentivize legal and professional excellence in its ranks, ODAR has told its skilled 

GS-12 attorneys who seek promotional opportunities that they can either find a 

managerial position or leave the agency. The practice ofunderutilizing and 

disincentivizing skilled attorneys in whom ODAR has invested years of training serves 

no one, least of all the claimants who need their services. 

B. The Agency Must Allow Senior Attorneys and AUorney Advisors to Conduct PreHearing Conferences. 

In October 2016, ODAR began a pre-hearing conference pilot in some hearing oflices. A 

few days per month, SAAs met with unrepresented claimants a few weeks prior to their 

scheduled hearings. 2

° Following a uniform script, the SAAs told claimants about their 

right to an attorney and provided a list of attorneys and representatives. Because the 

SAAs had reviewed the cases prior to the conference, they were able to ask claimants 

specific questions about recent work activity and medical treatment. This enabled SAAs 

to resolve evidentiary gaps in the record and recommend specific additional development 

before the hearing. 

ODAR's data shows that pre-hearing conferences were productive and successful. 

Hearing postponements decreased. According to the Agency's 2017 Updated CARES 

and Anomaly Plan, claimants who attended prehearing conferences went on to complete 

their hearings without postponement 56 perc-ent of the time, compared to 28 percent for 

those who did not participate in a prehearing conference. 21 Beyond this, claimants were 

happy to talk to someone about their case. Most were unaware they had a right to 

representation. Some withdrew their claims. ALJs benefitted from the pre-hearing 

conferences because claimants came to hearings informed about the right to 

representation and other procedural matters. SAAs reported that conducting pre-hearing 

18 42 CFR § 423.2038. 19 82 FR 4974. 20 The conferences were recorded. 2 1 Postp01ling and rescheduling a heruing wastes a hearing slot, AU time and staff resources, and costs 

associated with reserving medica l experts, vocational experts, and hearing reporters (who are paid 

regardless of whether the claimant appears or the hearing is he ld). 

7 
149 


33616A.115

conferences improved morale because they knew they were making a difference and 

providing a service that claimants appreciated. 

Despite proven benefits to claimants, ODAR stafi, and hearing office workflow, ODAR 

discontinued pre-hearing conferences in January 2017 and redeployed SAAs to focus on 

what the Agency termed a decision writing "crisis." 22 ODAR plans to reinstate prehearing conferences, but on a limited basis and only with unrepresented claimants23 

Rather than restrict measures that yield proven results, ODAR should expand pre-hearing 

conferences to provide even greater efficiencies by allowing SAAs to meet with 

claimants' attorneys and representatives to obtain stipulations and discuss evidence. 

I. Stipulations. 

SAAs and claimants' attorneys and representatives can use pre-hearing 

conferences to reach written stipulations as to uncontested issues. For example, 

there often is little dispute as to the onset date of disability or whether the severity 

of a claimant's impairments meets or equals a listing. These and other stipulations 

to facts not in dispute would sin1plify the AU's case review, reduce the number 

of issues to be addressed at the hearing, and eliminate the need for decision 

writers to revisit the same issues again when they draft ALJ decisions. 

2. Evidence and On-The-Record Decisions 

A pre-hearing conference is the ideal venue for SAAs and claimants' 

representatives to discuss and procure updated medical evidence and address gaps 

in the record. A pre-hearing conference is also the ideal venue to examine whether 

a hearing is needed, whether the claim can be decided on the record, what 

evidence would make that possible, and any other matters that might facilitate the 

expeditious processing of the claim, whether at hearing or on the record. 

Again, OMHA has recognized the value of expanded pre-hearing conferences conducted 

by experienced attorneys. In OMHA's FY 2018 budget request, the Chief Administrative 

Law Judge said: 

OMHA will invest in the hiring [of! additional senior attorneys to support its 

administrative initiatives to address the pending workload. For example, the 

agency's settlement conference fac ilitation program for interested appellants 

having multiple claims pending at OMHA was established in June 20 14. OMHA 

has been encouraged by the results of the pilot program, which has resolved 

ll ODAR has acknowledged that misa ligned hiring practices (hiring judges without hiring support staff) is 

one reason for the burgeoning munber of cases waiting to be written. However, we are not aware of any 

advance steps taken to mitigate the predictable increase in cases to be written. At the same time, ODAR 

continued to press a quality initiative in which attorneys reviewed (rather than wrote) decisions aod sem 

them back to the writing queue for corrections to minor mistakes that had no material effect on the 

decisional outcome. The number of unwritten decisions climbed steadily each month, from about 34,000 at 

U1e beginning of the fiscal year to 73,000+ by September 2017. 21 SSA 2017 Updated Compassionate And REsponsive Service (CARES) Plan. 

8 
150 


33616A.116

10,383 appeals or the equivalent of one year of work for 10 AU teams (data as of 

February 28), and anticipates incorporating the program into its business model 

on a permanent basis.24 

To make good on the CARES commitment to benchmark with other agencies and learn 

about successful strategies, ODAR would do well to follow OMHA's example and 

expand its adjudicatory capacity by embracing its SAA cadre. ODAR 's SA As have the 

skills to conduct pre-hearing conferences and resolve claims that do not require expensive 

and time-consuming bearings, and the ability to narrow issues and streamline the hearing 

process for those claims that do. 

C. The Agency Should Create a Claims Magistrate Program 

SAAs can quickly recognize serious disabilities and analyze sophisticated and 

voluminous medical evidence. They do not require a cadre of support staff. They easily 

can identify gaps in the record. They can move cases in two months instead of two years. 

These skills easily support a new Claims Magistrate Program. Under this program, SAAs 

would screen the hearing office queue to identify cases that have fewer than 300 pages of 

medical evidence. Represented claimants would waive their right to a hearing but 

preserve the right to appeal. Representatives would submit a brief in support of the claim. 

The SAA claims magistrate would analyze the case and the entire record and issue a 

decision. This model is similar to the OMHA Settlement Conference program, in which 

clain1ants can waive a hearing and allow anorneys to adjudicate claims on the record 

without any ALJ involvement. 25 

Although a Claims Magistrate Program would require new regulatory authority, the 

Program would expand ODAR's adjudicatory capacity and streamline the hearing 

process by creating another adjudicatory avenue. Claimants who waive a hearing would 

get a faster decision without forfeiting their appeal rights. And, the Program would 

increase productivity, create a career ladder where currently there is none, and provide 

increased incentives and advancement opportunities for productive and valuable 

employees. 

CONCLUSION AND RECOMMENDATIONS 

Every claimant is entitled to a disability claim decision, but not every disability claim 

requires an expensive and time-consuming ALJ hearing. The current ODAR model, in 

which only ALJs can hold hearings and the Agency continually needs more ALJs, more 

support staff, and more funding, is not sustainable. Nor is the practice of introducing one 

24 The Office of Medicare Hearings and Appeals (OMHA's) Fiscal Year (FY) 2018 Congressional 

Justification (Budget Request) with attached Plan (emphasis added). 

25 OMHA Regulations 42 CFR § 405. 1038 and§ 423.2038 provide mechanisms for deciding cases without 

an oral bearing or AU involvement based on the written record under ce11ain circtmlSiances, including the 

claimant's waiver. OMHA takes the position t11at " . . . well-trained attorneys can review the record, identify 

lite issues, and make the necessary findings of fact and conclusions of law when the regulations do not 

require a hearing to issue a decision in the appealed matter." 42 FR 4982. 

9 
151 

Æ 


33616A.117

initiative after another only to halt them in order to redeploy resources to address one 

workload crisis after another (many of them predictable and months, if not years, in the 

making). The only business model realistically capable of providing mission-critical 

services on a sustained basis is a permanent expansion of adjudicato1y capacity- but 

without the costs associated with hiring and onboarding new AUs and more support 

staff. ODAR would do well to recognize, as OMHA has, that the Agency has built-in 

capacity if only it would allow its talented and experienced senior attorneys to use their 

legal skills and program knowledge to process claims early in the hearing office process. 

NTEU recommends: 

I. Senior Attorney Advisors should be al.lowed to fully exercise their regulatory 

authority to screen, develop, and issue fully favorable decisions where the 

medical evidence supports disability. 

2. Senior Attorney Advisors should be allowed to conduct comprehensive prehearing conferences with claimants and their attorneys with the goal of resolving 

cases as early as possible in the hearings process. Senior attorneys should be 

allowed to enter into wide-ranging stipulations with claimants' attorneys 

concerning procedural and evidentiary issues. 

3. The Agency should establish a Claims Magistrate Program to allow Senior 

Attorney Advisors to review and decide claims without a hearing. In developing 

such a program, the Agency would have wide latitude to decide the types of cases 

suitable for magistrate decisions and the contours of the program. 

4. Rather than hire more ALJs who require extensive training and additional support 

staff, the Agency should promote its trained and qualified GS-12 Attorney 

Advisors to fill all the available 200 Senior Attorney Advisor positions. 

NTEU believes these recommendations will significantly increase the Agency's 

adjudicatory capacity, and thereby reduce the disability backlog, reduce case processing 

times, increase operational efficiencies, avert workload crises, and markedly in1prove the 

level of service the American public needs and deserves. 

Thank you for the opportunity to provide our comments. 

10