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80–262 2013

FOURTH IN A HEARING SERIES ON 

SECURING THE FUTURE OF THE SOCIAL 

SECURITY DISABILITY INSURANCE PROGRAM 

HEARING 

BEFORE THE

SUBCOMMITTEE ON SOCIAL SECURITY 

OF THE

COMMITTEE ON WAYS AND MEANS 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

JUNE 27, 2012

Serial No. 112–SS18 

Printed for the use of the Committee on Ways and Means 

( 


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COMMITTEE ON WAYS AND MEANS 

DAVE CAMP, Michigan, Chairman 

WALLY HERGER, California 

SAM JOHNSON, Texas 

KEVIN BRADY, Texas 

PAUL RYAN, Wisconsin 

DEVIN NUNES, California 

PATRICK J. TIBERI, Ohio 

GEOFF DAVIS, Kentucky 

DAVID G. REICHERT, Washington 

CHARLES W. BOUSTANY, JR., Louisiana 

PETER J. ROSKAM, Illinois 

JIM GERLACH, Pennsylvania 

TOM PRICE, Georgia 

VERN BUCHANAN, Florida 

ADRIAN SMITH, Nebraska 

AARON SCHOCK, Illinois 

LYNN JENKINS, Kansas 

ERIK PAULSEN, Minnesota 

KENNY MARCHANT, Texas 

RICK BERG, North Dakota 

DIANE BLACK, Tennessee 

TOM REED, New York 

SANDER M. LEVIN, Michigan 

CHARLES B. RANGEL, New York 

FORTNEY PETE STARK, California 

JIM MCDERMOTT, Washington 

JOHN LEWIS, Georgia 

RICHARD E. NEAL, Massachusetts 

XAVIER BECERRA, California 

LLOYD DOGGETT, Texas 

MIKE THOMPSON, California 

JOHN B. LARSON, Connecticut 

EARL BLUMENAUER, Oregon 

RON KIND, Wisconsin 

BILL PASCRELL, JR., New Jersey 

SHELLEY BERKLEY, Nevada 

JOSEPH CROWLEY, New York 

JENNIFER SAFAVIAN, Staff Director and General Counsel 

JANICE MAYS, Minority Chief Counsel 

SUBCOMMITTEE ON ON SOCIAL SECURITY 

SAM JOHNSON, Texas, Chairman 

KEVIN BRADY, Texas 

PATRICK J. TIBERI, Ohio 

AARON SCHOCK, Illinois 

RICK BERG, North Dakota 

ADRIAN SMITH, Nebraska 

KENNY MARCHANT, Texas 

XAVIER BECERRA, California 

LLOYD DOGGETT, Texas 

SHELLEY BERKLEY, Nevada 

FORTNEY PETE STARK, California 


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C O N T E N T S 

Page 

Advisory of June 27, 2012, announcing the hearing ............................................. 2 

WITNESSES 

Panel 1: 

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

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

Panel 2: 

Ethel Zelenske, Director of Government Affairs, National Organization of 

Social Security Claimants’ Representatives, on behalf of the Consortium 

for Citizens with Disabilities Social Security Task Force, Testimony ............. 38 

The Hon. D. Randall Frye, President, Association of Administrative Law 

Judges, Testimony ................................................................................................ 50 

Jeffrey Lubbers, Professor, American University Washington College of Law, 

Testimony ............................................................................................................. 63 

Richard J. Pierce, Jr., Professor, The George Washington University Law 

School, Testimony ................................................................................................ 87 

SUBMISSIONS FOR THE RECORD 

David McCaskey ...................................................................................................... 141 

Disability Law Center, Inc. ..................................................................................... 143 

Federal Administrative Law Judges Conference .................................................. 145 

Federal Bar Association .......................................................................................... 147 

Max Rae .................................................................................................................... 157

National Organization of Social Security Claimants’ Representatives ............... 159 

Scott Daniels ............................................................................................................ 163 

MATERIAL SUBMITTED FOR THE RECORD 

Questions for the Record: 

The Honorable Michael J. Astrue 1 ....................................................................... 165 

The Honorable Michael J. Astrue 2 ....................................................................... 173 

Ethel Zelenske 1 ...................................................................................................... 182 

Ethel Zelenske 2 ...................................................................................................... 199 

The Honorable D. Randall Frye ............................................................................. 202 

Richard J. Pierce, Jr. ............................................................................................... 219 


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FOURTH IN A HEARING SERIES ON 

SECURING THE FUTURE OF THE SOCIAL 

SECURITY DISABILITY INSURANCE PROGRAM 

WEDNESDAY, JUNE 27, 2012 

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

The subcommittee met, pursuant to call, at 2:00 p.m., in Room 

B–318, Rayburn House Office Building, the Honorable Sam Johnson [Chairman of the Subcommittee] presiding. 

[The advisory of the hearing follows:] 


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HEARING ADVISORY 

Chairman Johnson Announces the Fourth in a 

Hearing Series on Securing the Future of the 

Social Security Disability Insurance Program 

Wednesday, June 27, 2012 

U.S. Congressman Sam Johnson (R–TX), Chairman of the House Committee on 

Ways and Means Subcommittee on Social Security today announced the fourth hearing in the series entitled, ‘‘Securing the Future of the Disability Insurance Program.’’ This hearing will focus on the disability appeals process. The hearing will 

take place on Wednesday, June 27, 2012, in room B–318 Rayburn House Office Building, beginning at 2:00 p.m. 

In view of the limited time available to hear witnesses, oral testimony at this 

hearing will be from invited witnesses only. However, any individual or organization 

not scheduled for an oral appearance may submit a written statement for consideration by the Subcommittee and for inclusion in the printed record of the hearing. 

BACKGROUND: 

Applications for disability benefits have reached historic levels resulting from 

more women in the workforce, the recession and slow recovery, and baby boomers 

reaching their disability-prone years. The 2012 Annual Report of the Board of Trustees projects that the Disability Insurance (DI) program will be unable to pay full 

benefits beginning in 2016. 

In fiscal year (FY) 2011, the examiners at the State Disability Determination 

Services (DDS) made an initial determination on almost 3.3 million disability 

claims. According to the Social Security Administration’s (SSA) longitudinal data, 79 

percent of all disability benefit awards are made at the DDS. 

Claims that are not approved by the DDS, whether at the initial or reconsideration level, can be appealed to the hearing level, where the claimant has the opportunity for a face-to-face hearing before an Administrative Law Judge (ALJ). In FY 

2011, 662,765 hearing requests were completed with 58 percent of requests awarded, 29 percent denied, and 13 percent dismissed. The average waiting time for an 

ALJ decision is 354 days. Today, 77 percent of ALJs are meeting the agency’s annual productivity expectation of 500–700 cases. Currently, individual ALJ award 

rates vary from 1 to 99 percent. 

Individuals whose claims are denied by an ALJ may appeal to the SSA’s Appeals 

Council (AC), which is the final step in the administrative process. In addition, the 

AC may on its own motion review an ALJ decision. In FY 2011, the AC made 

103,681 decisions, awarding benefits in 2 percent of its cases, denying benefits in 

74 percent, and remanding 21 percent back to the ALJ level. Individuals who are 

denied at the AC may pursue an appeal through the federal district court, the federal court of appeals, and the U.S. Supreme Court. In FY 2011, the federal courts 

decided 13,271 cases, awarding benefits in 3 percent of cases, denying benefits in 

42 percent, and remanding back to the SSA 46 percent of cases. Of those remanded 

cases, 67 percent were subsequently allowed by an ALJ. 

Further, over years the federal circuit courts have issued decisions that conflict 

with the SSA’s interpretation of the Social Security Act (Act). In response, the SSA 

may appeal the decision or implement the circuit court’s decision through an acquiescence ruling. While such rulings allow cases to be treated similarly within the circuit, the result is that claimants are treated differently in different circuits. There 

are currently 42 acquiescence rulings in effect. 

Under the Act, the ALJ decides on behalf of the Commissioner whether benefits 

are due, and is required to apply the SSA’s regulations and policies; under the Administrative Procedure Act (APA), the ALJ is an independent decision-maker whose 


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work product cannot be questioned. This tension between the Act and the APA 

makes program oversight and quality review of outcomes difficult for the agency to 

assess and manage. 

In announcing the hearing, Social Security Subcommittee Chairman Sam Johnson 

(R–TX) said, ‘‘Those sidelined from working because of a disability must be 

able to count on a fair and timely hearing by a Social Security judge. Americans need to know that the same rules apply to everyone. This hearing 

will tell us whether the appeals process we have today works and if not, 

what changes ought to be made.’’ 

FOCUS OF THE HEARING: 

The hearing will focus on the Social Security appeals process including its history, 

legal requirements, and the degree to which the current process provides fair, accurate, and consistent outcomes while balancing the needs of claimants and taxpayers. 

DETAILS FOR SUBMISSION OF WRITTEN COMMENTS: 

Please Note: Any person(s) and/or organization(s) wishing to submit 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 submit, 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 or WordPerfect document, in compliance with the formatting requirements listed below, by the close 

of business on Wednesday, July 11, 2012. Finally, please note that due to the 

change in House mail policy, the U.S. Capitol Police will refuse sealed-package deliveries to all House Office Buildings. For questions, or if you encounter technical 

problems, please call (202) 225–1721 or (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 supplementary 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 or supplementary item 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. 

1. All submissions and supplementary materials must be provided in Word or WordPerfect 

format and MUST NOT exceed a total of 10 pages, including attachments. Witnesses and submitters are advised that the Committee relies on electronic submissions for printing the official 

hearing record. 

2. Copies of whole documents submitted as exhibit material will not be accepted for printing. 

Instead, exhibit material should be referenced and quoted or paraphrased. All exhibit material 

not meeting these specifications will be maintained in the Committee files for review and use 

by the Committee. 

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

behalf the witness appears. A supplemental sheet must accompany each submission listing the 

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

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 TTD/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 on the World 

Wide Web at http://www.waysandmeans.house.gov/. 


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Chairman JOHNSON. Welcome to the committee. Good afternoon. It is our fourth hearing on Securing the Future of the Social 

Security Disability Insurance Program. Today we will focus on how 

Social Security disability claims are appealed and whether the 

process works as well as claimants and taxpayers have a right to 

expect. 

In earlier hearings, we have highlighted the explosive growth of 

the program. At a time when the number of workers paying into 

the system has increased nearly 70 percent between 1970 and 

2011, the number of people receiving disability benefits has increased by over 300 percent, from 2.6 million people to 10.4 million. 

By 2021, the number of beneficiaries will exceed 12 million. By 

then, total benefits paid will reach $196 billion. That is a 52 percent increase over the $129 billion paid in benefits over the last 

year. 

Besides the overall workforce, more women in the workforce, 

aging of the baby boomers into their disability-prone years, and relaxed eligibility requirements have all contributed to this growth. 

The continued growth is putting a real strain on Social Security 

disability. As we heard from the Public Trustees at our hearing last 

week, without Congressional action the Disability Insurance Trust 

Fund will only be able to pay 79 percent of benefits beginning 

2016, just 4 years away. The path we are on is unsustainable. 

Further, disability applications have spiked even higher than expected due to recession and the snail’s pace recovery, reaching an 

unprecedented 3.3 million last year. Resulting appeals have further 

increased pressure on an appeals process that is struggling to keep 

up. 

Americans are also paying more for Social Security to administer 

its programs. Costs are up 68 percent compared to 10 years ago, 

and last year administering disability programs cost nearly $7 billion, two-thirds of Social Security’s operating budget of $11.4 billion. 

Turning to the appeals process, those whose initial claims for 

benefits have been denied have the right to appeal through four 

levels of appeal: Reconsideration by the State agency, hearing by 

an Administrative Law Judge, review by the Appeals Council, and 

Federal court review. An open record allows claimants to add new 

evidence to the file through every step of the appeals process. Even 

though about 79 percent of all awards are made at the State Disability Determination Services, according to Social Security, last 

year about 860,000 claimants filed appeals to appear before an Administrative Law Judge. 

Americans are rightly paying attention to the hearing process. 

Even though claimants are waiting close to a year on average for 

a decision, almost 12 percent of ALJs decide 200 or fewer cases per 

year. This is in spite of the fact that Social Security has asked 

these judges to do 500 to 700 cases annually. Also, the decisions 

of so-called outlier judges who deny or allow most of the cases they 

hear can’t be questioned. 

The claimants’ representatives are part of a billion dollar-plus a 

year industry encouraging appeals and making a living by collecting their fees from benefits awarded their clients. Further, 

when cases are appealed to Federal courts, the courts have taken 


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it upon themselves to reinterpret what the Social Security Act requires, resulting in varying policies applied in different parts of the 

country in what is supposed to be a national program. 

Now, I know some of my colleagues believe that all of these problems can be solved if we will just give Social Security more money. 

In fact, over the last 6 years, funds have been poured into the hearing level for ALJ hiring, staff hiring, new offices, and technology 

fixes. And while service has improved, it seems success is always 

just a little further down the road and depends on even more resources. 

Yet, in these tough fiscal times, Social Security has done well. Its 

operating budget increased this year compared to last year despite 

a 1.5 percent decrease in the discretionary spending cap. In fact, 

while Social Security is subject to the same long-term domestic 

spending limit enacted in the Budget Control Act, that same bill 

authorized an additional $11 billion over the budget caps for Social 

Security to increase continuing eligibility reviews in its disability 

programs. There were 95 Democrats, including the minority leader 

and the ranking member of the full committee, who supported the 

bill. 

Understanding why the appeals process works the way it does is 

just as important as making sure that those who deserve benefits 

receive them. So let us ask the hard questions to determine if we 

can fundamentally do better. Why do over 20 percent of the claimants who are ultimately awarded benefits have to wait at least a 

year for a decision? How can benefits be awarded to those who 

qualify as soon in the process as possible, and why does Social Security channel so many of its resources to the most expensive step 

in the appeals process, even when the cost to process a case before 

an ALJ is more than twice what it costs a State agency to make 

the same decision? 

Why aren’t claimants’ attorneys doing a better job of submitting 

all of the evidence earlier? Should representatives be able to encourage a client who has waited months for a hearing to wait even 

longer so they will get a judge who is more likely to award them 

benefits? And why do some judges hold hearings for 10 minutes 

and others for 2 hours? And some of them don’t even hold them. 

Today, we have a number of outstanding witnesses before us, including the Commissioner who has done more to engage the attention of Congress on a wide array of needed improvements to the appeals process than any other Commissioner in decades. So, let us 

take a good look at all sides of this process and find out what we 

can do better for everyone. I want to thank you again for being 

here. 

And I now recognize the ranking member, Mr. Becerra, for his 

opening remarks. 

Mr. BECERRA. Mr. Chairman, thank you very much, and 

thanks for calling this fourth hearing in our series focusing on Social Security’s Disability Insurance Program. Before we delve into 

the details of Social Security’s appeal process, I want to first take 

a step back and look at the big picture. 

Social Security is vital to millions of severely disabled American 

workers and their families. The benefits are modest, averaging just 

over $13,000 a year or about $35 a day for a typical disabled workVerDate Mar 15 2010 22:51 May 07, 2013 Jkt 80262 PO 00000 Frm 000009 Fmt 06633 Sfmt 06602 I:\WAYS\OUT\80262.XXX GPO1 PsN: 80262

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er. These benefits, however, are a lifeline for the more than half 

of the disability insurance recipients, the DI recipients, who would 

live in poverty without Social Security. 

DI recipients are only a small fraction of the most vulnerable 

Americans with disabilities and serious illness. The eligibility criteria to qualify for Social Security disability are tough. Social Security’s appeals process helps ensure that all workers who are eligible 

and who have earned DI receive it. 

The disability application process begins with the State Disability Determination Service, or DDS, which makes a decision on 

the application. The DDS is an important part of the disability determination process, but alone, it is not always sufficient to ensure 

that individuals get the disability benefits that they have earned. 

The decision about whether an individual is disabled enough to 

qualify for benefits can be a difficult one. 

In addition, there can be complicating factors in individual cases. 

For example, some people with disabilities do not have access to 

medical care and therefore they do not have the medical records 

needed to prove their case. Recognizing these realities and challenges, Congress and the Social Security Administration created an 

appeals process to help ensure that everyone who meets the eligibility requirements gets the benefits that they have earned. 

The current appeals process has a number of strengths, and of 

course there is always room for improvement. It is designed to be 

fair and accessible. It is non-adversarial so judges can focus on fact 

finding and applying the law. It is impartial because independent 

judges take a fresh look at the case, and their decisions are not 

based on meeting certain allowances or denial rates, and it is face 

to face, and that may be the first time that a person who is claiming disability may see an evaluator face to face and actually be able 

to talk to that particular evaluator. 

We are going to hear a number of ideas today about how to improve the appeals process. I will be evaluating those different ideas 

using a very simple standard. Will it ensure that Americans who 

are eligible for benefits are able to get them or will it create procedural hurdles or other obstacles that would deny access to benefits 

that they have otherwise earned? 

Budget decisions by Congress also affect whether Social Security 

is fair to hardworking Americans and their families. We have seen 

how the Social Security Administration can reduce waiting times 

when Congress provides adequate funding for SSA to process 

claims quickly and accurately. In 2008, waiting times for appeals 

hearings were at an all-time high of 535 days of waiting. In fiscal 

year 2009 and 2010, Congress, then under Democratic control, provided SSA with a total of $2.2 billion worth of new resources to reduce backlogs, and waiting times dropped to 340 days. Still a lot, 

but compared to 535 days, far better. 

This current Congress has cut the Social Security Administration’s budget in 2011 and 2012. With less funding and fewer employees, it is inevitable that hardworking Americans will have to 

wait longer to receive the benefits that they have earned. We are 

already starting to see the negative effects of these budget cuts. 

Waiting times for initial benefit decisions are on the rise and are 

likely to go from 111 days to over 130 days by the end of this year. 


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Waiting times for appeals hearings have crept up from the 340 

days in October of 2011 to the current wait time of 350 days. So 

once again, we are heading in the wrong direction when it comes 

to Americans getting the benefits they have earned. 

SSA is now facing an even bigger cut under what is called sequestration, the automatic cuts scheduled by the Budget Control 

Act passed last year. Although Social Security benefits are protected, under sequestration if Congress doesn’t act soon, SSA’s operating budget will be cut by more than $1 billion on January 2 

even though 100 percent of the costs of administering Social Security is paid for by workers through their Social Security taxes that 

they pay and put into the trust fund. A billion dollar cut to SSA 

would translate into 40 days where SSA offices would be closed 

over the course of a year. No one should be surprised if these harsh 

cuts to SSA’s budget damage Social Security’s well-earned reputation and undercut SSA’s ability to continue to capably serve Americans as it has for over 77 years. 

Mr. Chairman, the most immediate threat to the Social Security 

disability appeals process is the budget cuts that would prevent appeals from being heard at all. I hope we can work together to make 

sure Americans get the Social Security benefits that they have 

earned and deserved, and I today look forward to our witnesses’ 

comments on how the appeals process itself can be improved. 

And with that, I yield back. 

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

is welcome to submit a statement for the record. And before we 

move to our testimony, I want to remind our witnesses to please 

limit your oral statement to 5 minutes. However, without objection, 

all the written testimony will be made part of the hearing record. 

We have two panels today. The first one is a single witness, 

Commissioner of Social Security, Michael J. Astrue. Welcome, Commissioner. You may proceed. 

STATEMENT OF THE HONORABLE MICHAEL J. ASTRUE, 

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION 

Mr. ASTRUE. Thank you, Mr. Chairman. 

Mr. Chairman, Ranking Member Becerra, Members of the Subcommittee. During my first week as Commissioner in February of 

2007, I testified before this subcommittee about the hearings backlog. To put it mildly, you were extremely upset about the delays 

your constituents faced while waiting for a disability decision. The 

backlogs had steadily risen throughout the decade, and the plan I 

inherited to fix those backlogs was draining resources and making 

the problem worse. 

At that time, over 63,000 people had been waiting over 1,000 

days for their hearing, some of them were waiting as long as 1,400 

days. We were failing the public. 

Rather than devise yet another signature initiative that would 

not stand the test of time, we went back to the basics. We developed an operational plan that focused on the nitty-gritty work of 

truly managing the unprecedented hearings workload. We made 

hundreds of incremental changes, using video more widely, improving information technology, simplifying regulations, standardizing 

business processes, and establishing ALJ productivity expectations 


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to name just a few. We also committed the resources our employees 

needed to get this work done and done right. 

This plan has worked. Average processing time which stood at 

532 days in August of 2008 steadily declined for more than 3 years, 

reaching its lowest point of 340 days in October 2011. 

In 2007, filing rates had been stable for some time. So looking 

at the number of pending cases was a reasonable, if imperfect, 

method to measure progress. As the recession hit and the number 

of requests for a hearing dramatically increased, we steadily improved our performance when measured by average processing 

time, the best metric for tracking progress, particularly in times 

when filings were changing rapidly. 

Like a line in a store, the customer’s experience depends not on 

how many other people are waiting, but on how quickly we help 

them. In August 2008, people waited an average of 532 days. 

Today, that is about 350 days. 

Average processing times also became more uniform around the 

country. The most dramatic improvements have occurred in the 

most backlogged offices. Average processing time in Atlanta North 

dropped from 900 days to 351 days. Oak Park, Michigan, improved 

from 764 days to 254 days. Columbus, Ohio, went from 881 days 

to 351 days. Currently, no office in the country has an average 

processing time greater than 475 days. Fifteen offices have hit our 

ultimate goal of 270 days or less, and many others are getting 

close. 

These numbers are even more impressive because we have given 

priority to the oldest cases which are generally the most complex 

and time consuming. Five years ago, we defined an aged case as 

one waiting over 1,000 days for a decision. Through the steady 

work of our employees, we now define an aged case as one taking 

over 725 days to complete. Next fiscal year, our management goal 

is to raise the bar on ourselves again by focusing on completing all 

cases over 675 days. This emphasis on eliminating aged cases increases average processing times. So we also look ahead to see how 

long people in the queue have been waiting for a hearing. Today, 

that number is just 208 days, and we are hopeful that figure will 

drop again next year. By contrast, the average wait was 324 days 

at the beginning of fiscal year 2007. 

Despite our employees’ hard work, the progress in addressing our 

hearings backlog is happening more slowly than the public deserves. If we are not adequately funded and we cannot timely hire 

enough qualified ALJs and support staff, our progress will erode. 

We have already had to make decisions that have slowed progress 

such as canceling our plans to open eight new hearing offices in 

Alabama, California, Indiana, Michigan, Minnesota, Montana, New 

York, and Texas. 

Amid huge economic and budgetary unpredictability, we have 

stayed focused on eliminating the causes of your moral outrage in 

2007. Now we need Congress to enact the President’s budget request so that we can meet our commitments to the American public. 

Thank you, and I will be happy to answer any questions you may 

have. 

[The prepared statement of Mr. Astrue follows:] 


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HEARING BEFORE 

THE COMMITTEE ON WAYS AND MEANS 

SUBCOMMITTEE ON SOCIAL SECURITY 

UNITED STATES HOUSE OF REPRESENTATIVES 

JUNE 27, 2012 

STATEMENT 

OF 

MICHAEL J. ASTRUE 

COMMISSIONER 

SOCIAL SECURITY ADMINISTRATION 
10 


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Chainnan Johnson, Ranking Member Becerra, and Members oflhe Subcommittee: 

Thank you for this opportunity to discuss our appeals process, which is one of the largest 

administrative adjudicative systems in the world. W'c are committed to continuing to improve 

this process rorour disability claimants. Today. I will provide an overYiew of the appeals 

process, update you on our efforts to eliminate the hearings backlog, and discuss the President's 

fiscal year (FY) 2013 funding request. 

General Administrative Review Process 

The Supreme COliit has accurately described our administrative process as "unusually 

protective" of the claimant. l Illdeed~ we strive to ensure that \ve make the correct decision as 

early in the process as possible, so that a person who tmly needs disability benefits receives them 

in a timely manner. In most cases, we decide claims for benefits using an administrative review 

process that consists of i'lUr levels: (I) initial detel1nination: (2) reconsideration detennination: 

(3) hearing: and (4) appeals.' At each level, the decision-maker bases his or her decisions on 

provisions in the Social Security IIct (the Act) and regulations. 

In most States, a team consisting of a State disability examiner and a State agency medica! or 

psychological consultant makes an initial determination at the first level. The Act requires this 

initial determination.3 A claimant who is dissatisfied with the initial determination may request 

reconsideration, which is performed by another State agency team. 

A claimant who is dissatisfied with the reconsidered determination may request a hearing" The 

Act requires us to give a claimant "reasonable notice and opportunity for a hearing with respect 

to such decision.'" Under our regulations, an administrative law judge (AU) conducts a de nuvo 

hearing unless the claimant waives the right to appear in person, or the ALl can issue a fully 

favorable decision without a hearing: in these cases, the AU issues a decision based solely on 

the written record." If the claimant is dissatisfied with the AU's decision, he or she may request 

Appeals Council (AC) review7 The Act docs not rcyuire administrative review of an ALl's 

decision. [1' the Ae issues a decision, it becomes our linal decision. [1' the AC decides not to 

review the ALrs decision, the ALI's decision becomes our final decision. A claimant may 

request judicial rCV1C\V of our linal decision in Federal district COllfC8 

! Redler v. Da)', 467 U.S. 104 (1984). 

1 ~O C.f .R. ~§ 404.900, 416.1400. My testimony focuses on disability determinations, but the n~'Yie\V process 

gl:!1erally applies to any apPl:alablc io;su(" under the Social Security programs. 

, Sections 205(b) and 1631(c)(I)(A) of the Act, 42 U.S.c. §§ 405(b). 1383(c)( 1 )(A). 

4 For disability daims, I 0 State~ participate in a "prototype" test under 20 C.F.R. §§ 404.906, 416.1406. In these 

States, we eliminated the reconsideration step of the administrative rcvic\\ process. Claimants who arc dissatisfied 

with the- initial determinations on their disability cases may request a hearing before an AL.L The 10 States 

participating in 1he prototype tcst are Alabama. Alaska, Calit'omia (Los Angeles North and West Branches). 

Colorado, Louisiana, Michigan. Missouri, Nc\v Hampshire, N~,"Y York, and Pcnnsy\Yania. 

, Sections 205(b)(I ). 1631 (c)(1 )(A) of the Act. 42 U.S.c. §§ 405(b)(1). 1383( c)(1 )tAl. A cbimant has 60 days after 

the date he or she recei\es notice orthe detennination to request a hearing before an AU. 

"20 C.F.R. §§ 404.929. 416.1429. 

, 20 C.F.R. §§ 404()67-404.968. 416.1467-416.1468. 

s Sections 205(g). 1631 (e)(3) ofihe Act. 42 U.S.c. §§ 405(g), J 383(c)(3). 

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The Administrative Appeals Process 

Our administrative appeals process consists of three levels: reconsideration, hearing, and appea!. 

My testimony will t(lCllS primarily on the hearings and appeals process; however. I will first 

brielly describe the reconsideration level of review. 

Reconsideration 

The reconsideration stage is the first level of appeal in our disability claims process. A tcam 

consisting of a State agency disabililY examiner and a medical or psychological consultant, 

neither of whom were involved in making the initial determination, revie\vs the claimant's case. Ii 

If necessary, the team \vill request additional evidence or a new consultative examination. 

The reconsideration determination is a thorough and independent examination of al1 evidence on 

record. The team is not bound by the determination made at the initialleve!. 

Irthe claimant is dissatisfied with the reconsidered determination. the claimant has 60 days after 

the date he or she receives notice orille determination to request a hearing berure an AU, unless 

we extend the deadline for good cause. A claimant may request an extension of time to tile an 

appeal at every level of agency rcviev\' and may requ~st an extension of time to file a civil action 

in F edeml cOllrt. 

Hearings and Appeals Process 

We have over 70 years of experience in administering the hearings and appeals process. Since 

the passage of the Social Securit)' Amendments of 1939 (1939 Amendments), the Act has 

required us to hold hearings to determine the rights of individuals to old-age and survivors' 

insurance beneiits. 

To hold the hearings required by the 1939 Amendments, we established the OtTice of the 

Appeals Council (OAC) in 1940. The OAC consisted of 12 "referees" and a Central Ollice 

staff. ill The referees, who heard cases and issued decisions, were located in each of the then-12 

regional olliccs across thc country. I I The Central Ollicc consisted of a thrce-member AC and a 

consulting referee (whose role eventually developed into the Ollice of General Counsel). The 

Chairman of the AC also served as the head of the OAC. To promote unifonnity and ensure 

correct decisions, the AC rcvic\ved all referees' decisions. The 1939 Amendments allo\ved 

claimants to appeal our tinal decisions to Federal court. 

~ A di"ability beneficiary who is appealing an initial-kvc-l dctcnnination that hi~ or her impairment has medically 

ceased may request a disability hearing before a disability hearing officer at the reconsideration level. 

Ii) Tn August 1959, we changed the title of referee to "hearing eAaminer." In 1972, the Civil Service Commission 

changed this title to "Administrative Law Judge." 

11 We have increased our adjudicatory capacity to address ri"ing workloads. By 1957, \ve had 75 referees. In 1973, 

our ALJ corps exce~ded 500 judge~ fix the iirst time. Currently, there are 1,472judges in our ALJ corps. 

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A tier establishing the OAC, we changed the name of that component several times. Since 2006. 

we have called it the Omee of Disability Adjudication and Review (ODAR). ODAR manages 

the hearings and AC levels of the administrative review process. 

Over the years, the numbers of A Us and hearing omees rapidly grew as the Social Security 

program grew. Recently, \ve added staff to help us meet grO\ving demand and allow LIS to focus 

our resources on those parts of the country that need our services most. In addition, \ve have 

expanded the use of video hearings, opened five national hearing centers, and realigned the 

service areas of some of our offices. However, the essential attrihutes of the hearings and 

appeals process have remained essentially the same since 1940. When it established the hearings 

and appeals process in 1940, the Social Security Board sought to balance the need for accuracy 

and fairness to the claimant \-\iith the need to handle a large volUlne of claims in an expeditious 

manner." Those twin goals still motivate us. As the Supreme Court has observed, the Social 

Security hearings system "must be fair ... and it must work."u 

Hearing Level 

When a hearing omce receives a request lor a hearing l!-om a claimant. the hearing ollice stall' 

prepares a case ftlc, assigns the case to an AU and schedules a hearing. The AU decides the 

case de novo, meaning that he or she is not bound by the dctenninations made at (he initial and 

reconsideration levels. The ALI reviews any new medical and other evidence that was not 

availahle to prior adjudicators. The ALJ will also consider a claimant's testimony and the 

testimony of medical and vocational experts called for the hearing. If a review of all of the 

evidence suggests that we can issue a decision that is fully favorable to the claimant without 

holding a hearing, an ALlor attorney adjudicator may issue an on-the-record, fully favorable 

decision. 14 If an on-the-record decision is not possible. an ALI holds a hearing. 

As J have testified bel,)re this subcommittee previously, the Administrative Procedure Act (APA) 

contains provisions that ensure qualified decisional independence for our ALis and places certain 

limits on the performance management orour ALls. For example, by lavl AL.Js are exempt from 

performcmce appraisals and cannot receive awards based on performance. 15 We support 

Congress' intent to ensure the integrity of the hearings process." A key component of the 

17 Basic Prol'isiolls .1doptcd by thu Social SeclIri(v Boardjor the }feuring and RC1'iew ofOld-l1ge and Survivors 

Clllims, at 4-5 (January 1940). 

Rie//(/J'dwn v. Perales. 4021J.S. 389. 399 (1971). 

\,1 l.)nder the Attorney Adjudicator program, our most npcricl1ccd attorneys spend a portion ofthcir tim\) making 

on-the-r~cord, disability decisions in cast!~ where enough e'v idence exists to i~sue a fully favorable decision without 

"'>'ailing for a hearing. 20 C.P.R. ** 404.9..t2, 416.1442. 

I.' :) U.S.C. *4301. Although the APA prevents us Crom rating the pcrfomwncc oCour AUs, it does not preclude us 

from setting expectations for them. As the Court of Appeals for the Second Circuit has observed, ''''The setting of 

reasonable production goal;" a;, opposed 10 fixed quolas, is not in ilsdfa violation of the APA .... lIJn view of the 

significant backlog of eases, it ,,,as not unreasonable to expect AUs to pcrfoml at minimally acccptabk lcvds of 

efficiency. Simple faimess to claimants awaiting benefits required no less:' Nash 1'. Bowen, 869 F.2d 675. 680-681 

(2d. eir.), eerl. denied, 493 U.S. 812 (1990). We currently set ,m expedalion of 500 to 700 dispositions every year. 

nr 42 to 5}: dispositions a month. 

II, To ensure the integrity ofthc hearings procc"s. \\"c assign cases to ALJs in rotation. This proccdurc promotes 

bimess and n:dllCcs manipUlation of judicial a~signment. 

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integrity of our hearings process is that ALls act as indepcndent adjudicators ..... who fairly apply 

the standards in the Act and our regulations. We respect the qualified decisional independence 

that is integral to the ALI's role as an independent adjudicator. Indeed, the Slipreme COU11 has 

recognized that Congress modeled the AP A on our hearings process. 

In contrast to Federal court proceedings, our ALJ hearings are non-adversarial. Formal rules of 

evidence do not apply, and the agency is not represented." At the hearing, the AU takes 

testimony under oath or affirmation. The claimant may elect to appear in-person at the hearing 

or consent to appear via video. The claimant may appoint a representative (either an att0111cy or 

non-attorney) who may submit evidence and arguments on the claimant's behalt~ make 

statements about facts and law, and call witnesses to testify. The AU may call vocational and 

medical experts to offer opinion evidence, and the claimant or the claimant's representative may 

question these witnesses. 

It~ following the hearing. the AU believes (hat additional evidence is necessary, the ALl may 

leave the record open and conduct additional post-hearing development; for example, the AU 

may order a consultative exam. Once the record is complete, the AU considers all oflhe 

evidence in the record and makes a decision. The AU decides the case based on a 

preponderance of the evidence in the administrative record. A claimant who is dissatisfied with 

the ALI's decision generally has 60 days aller he or she receives the decision (0 ask the AC to 

review· the decision. 

Appeals COllncil 

Upon receiving a request for review, the AC evaluates the ALl's decision, all of the evidence of 

record, including any new and material evidence that relates to the period on or before the date of 

the ALl's decision, and any arguments the claimant or his or her representative suhmits. The AC 

may grant revie\v of the ALl's decision, or it may deny or dismiss a claimant's request for 

review. The AC will grant review in a case if there appears to be an abuse of discretion by the 

Along tht!se lines, Vn! no\\' withhold thl:! name of the ALl assigned to a hearing. We han; experienced some 

opposition (0 this practice. In Lw'ero \'. AstrIle, No. 12-cv-274-JB-LFG (D. N.M.). plaintiffs sought mandamus and 

injuncti\,c rdiefthat would ha\c barred us from withholding the names of the ALIs assigned to the plaintiHs' cases. 

On May 4, 2012, the plaintiff') voluntarily withdre\\' their motion for a preliminary injunction. The district court 

entered a [lnaljudgment dismissing, without prejudice, all ofplaintifCs' claims againl,{ us on May 18, 

In its report accompanying the FY 2013 Labor-HHS appropriation bill, the Senate Appropriations Committee 

expressed its concern that our pnwticl:! could have unintended consequences. The committee directed the agency to 

submit a report by November J, ~O 12 on this is:'.ue, Ho\\'\.!\er, the committe\.! also noted that attempts by claimant 

representatives to manipulate the hearing process to find favorable judges challenge the integrity of our proces<;, and 

supported our goal of reducing this manipulation. 

17 During the 1980s. \',e tried to pilot an agency representative posilion at selecl hearing ortlces. Hm\-ewr, a United 

States District Court held that the pilot \ iolated the Act, intmdcd on AU independence, \vas contrary to 

congressional intent that the process he "fundamentally fair," and failed the constitutional requirements of due 

process. Sal1ing v. Bowen, 641 F. 5upp. 1046 (W.D. Va. 1986). We subsequently dis(.:ontinued the pilot due to the 

testing interruptions caused by the .)ailing injunction and general fi.:;cal constraints. 

Congress originally supported the project; however, we experienced significant congressional opposition once the 

pilo! bc>gan. For example, members of Congress introduced legislation to prohibit the adversarial involvement or any government repr.:sentativc in Social Security hearings, and 12 M{.'tnbcrs ofC(mgrc:'.s joined an ol1licm brief in 

the Salling case opposing the project. 

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ALI; therc is an error of law; the actions, lin dings, or conclusions of the ALl are not supported 

by substantial evidence: or if there is a broad policy or procedural issue that may affect the 

general public interest. 

If the AC grants a request for review, it may uphold part of the AU's decision, reverse all or pm1 

of the AL.Ps decision, issue its OW11 decision, remand the case to an ALl, or dismiss the original 

hearing request. When it reviews a case, the AC considers all the evidence in the AU hearing 

record (as well as any new and material evidence), and when it issues its own decision, it bases 

the decision on a preponderance of the evidence. 

If the claimant completes our administrative revit!w process and is dissatisfied with our final 

decision, he or she may seek review of that tinal decision by filing a complaint in Federal district 

COUlt, However, if the AC dismisses a claimant's request for review, he or she cannot appeal 

that dismissal. 

We also rely on the AC to improve the quality of our hearing decisions. In September 20 I 0, we 

established the Division of Quality (DQ) withinlhe AC, in order to expand our quality assurance 

role and to help maintain appropriate stewardship of the Trust Fund. Currently, DQ reviews a 

statistically valid sample ohm-appealed favorable AU hearing decisions before those decisions 

are effectuated (i.e., linalized). In FY 2011, DQ reviewed 3,692 partially and lhlly favorable 

decisions issued by AUs and attorney adjudicators, and took action on about 22 percent, or 812, 

of those cases. H: 

DQ also conducts focused reviews on specific hearing offices, AL.ls, representatives, doctors, 

etc.!9 ODAR identifles potential subjects for focused revle\\,s from a variety of sources. 

including data collected through our systems, t1ndings hom pre-et1ectuation reviews, and 

internal and external referrals received from various sources regarding potential non-compliance 

with our regulations and policies. One \-\Iay we use these reviews is to identify common errors in 

AU decisions. The results of these reviews show common errors to be failure to adequately 

develop the record, lack of supporting rationale, and improper evaluation of opinion evidence. 

Furthermore, we use the comprehensive data and analysis provided by DQ to provide feedback 

to other components on policy guidance and litigation issues. 

F edera! Level 

lfthe AC makes a decision. it is our finnl decision. If(he AC denies the claimant's request for 

review of the AU's decision, the AU's decision becomes our linal decision. A claimant who 

wishes to appeal an AC decision or an AC dcnial of a request for revicvv has 60 days after receipt 

of notice of the AC's action to tile a complaint in Federal District Court. 

Tn contrast to the AU hearing, Federal courts employ an "dversarial process. [n District Court, 

an attorney usually represents the claimant and attorneys from the United States Attorney's 

office or our OHice of the General Counsel represent the Govemment. When we file our answer 

!~ In those instances, the AC either remanded the ea'>c to tht.: hearing office for further development or issued a 

decision that modified the hearing decision. 

!~ Since these focused rcvj~\y::. a;; post-etlectualion revic\\s, they do not change case outcomes. 

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to that complaint, we also fik "ith the court a ccrtilied copy o1'the administrative record 

developed during our adjudication of the claim [or benetits, 

The Federal District Court considers two broad inquiries when reviewing one of our decisions: 

whether we cOITectly followed the Act and our regulations, and whether our decision is 

supported by suhstantial evidence of record. On the first inquiry - whether we have applied the 

correct law - the cOllrt typically will consider issues slIch as whether the AU applied the correct 

legal standard for evaluating the issues in the claim, such as the credibility of the claimant's 

testimony or the treating physician's opinion, and \vhether we followed the corred procedures. 

On the second inquiry, the court will consider whether the factual evidence developed during the 

administrative proceedings supports our decision. The CDU11 does not review our findings of Iact 

de nom, but rather, considers whether those findings are supPOIted by substantial evidence. The 

Act prescribes the "substantial evidence" standard, which provides that. on judicia! revic\v of our 

decisions, our lindings "as to any fact, if supported by substantial evidence, shall be conciusive." 

The Supreme ('omt has delined substantial evidence as "such relevant evidence as a reasonable 

mind might accept as adequate to support a conciusion.,,2{J The reviewing court will consider 

evidence that supports the ALl's lindings as well as evidence that detracts lrom the AU's 

decision. However, if the court finds there is conflicting evidence that could allow reasonable 

minds to differ as to the claimant's disability, and the AU's lindings are reasonable 

interpretations of the evidence, the court must atlinn the AU's findings oftact. 

If, after reviewing the record as a whole, the court concludes that substantial evidence supports 

the AU's findings of fact and the AU applied the correct legal standards, the comt will atliml 

our final decision. If the court finds either that \ve failed to nJ1l0\V the correct legal standards or 

that our findings of fact are not supported by substantial evidence, the coult typically remands 

the case to us for further administrative proceedings, or in rare instances, reverses OUf final 

decision and linds the claimant eligible for benetits. 

History of Hearing Workloads and Initiatives 

We have made great strides in reducing the hearings backlog in recent years, To provide some 

context, [ will sketch thc history of our hearing workload and our prior attempts to manage its 

increases. 

Hearing Workloads 

When \VC established the hearings process in 1940, 've designed it to handle a larger number of 

cases, relative to other hearing processes." However, hearings originally constituted a small 

workload compared to today's numbers. In FY 2007, we received nearly 580,000 hearing 

requests; last fiscal year, we received over 859,000 hearing requests, which was a record number. 

Board/or the Hearing and Rl.:'l'iel4' o/OlJ-4ge and Survl\'ors 

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Legislative activity is one of the catalysts for this growth. Over timc, Congress expandcd the 

scope and reach of the Act. and these legislative changes resulted in increasing dockets. For 

example, the Social Securitv Amendments of 1954 crcatcd the first operational Social Security 

disability ~.;ogram; it instituted the disability Ireeze for workers,who mct the law's delinition o~ 

dlSabliIty.-- Due to thIs legIslatIon, hearIng requests 111ereased trom approxImately 3,800 In 19)5 

to 8,000 in 1956. After the implementation of the Social Security Amendments 0/,1972, which 

created the Supplemental Security Income (SSI) program, and the Black Lung Benefits Ael of 

1972, hearing requests 1110re than doubled trom FY 1973 to 1975." 

As our workloads drove pending levels and processing times lip, the courts took notice. In the 

1970s, several Federal District COUlts entered judgments in statewide class actions requiring us 

to hear cases in their States \vithin specific timeframes. 

Previous Initiatives 

Over the years, we tried to find ways to meet the demand for hearings, For example, in 1975 we 

started our first decision-writing program, Under this program, stall' attorneys wrote the AU 

decisions based on instructions they received lr0111 the judges'" By lessening the decisionwriting burdcn for our ALls, we enabled them to issue more decisions. While this change look 

hold, other welI-intcntioned initiatives have lalIen short. 

Disobili(v Proces's Reengineering 

In 1993, the agency established a task force to reengineer the disahility claims process. The task 

force devised a plan "to dramatically il'!1prove the disability claim process," and the agency 

released this plan in September 1994." As a part of this redesign, the plan contemplated two 

changes to the hearings and appeals level. First, the plan created a new position, the adjudication 

oHicer (AO). The AO would explain the hearings process to the claimant, conduct personal 

conferences, prepare claims, and schedule hearings, Moreover, the AO could alI ow the claim at 

any point prior to the hearing if sufTicicnt evidence supported a lllVorable decision. The plan 

would also alIow claimants unsatisfied with their hearing decisions to appeal them directly to 

Federal district court, rather than requesting AC review. 

The plan included 83 initiatives. Interested parties criticized the scope and complexity of these 

initiatives. For example, in Septcmber 1996 the Government Accountability omcc testified 

before this subcommittee that the number of complex initiatives wOllld likely delay the plan's 

22 We compute reliremQot benefiLs based on eamings; therefore, a disabled \'Iorker v.ith u period ofJisabi1ily could 

haw experienced reduced or 110 retirement bcncJ'its due to his or her lost carnings. The 1954 al'flcndments 

established the disability freeze, under \vhich we could exclude a disabled worker's periods of disability when 

calculating his or her retirement benefit~. 

~3 For a hricfpcriod in the 1970$, the SSl hearing examiners hired to handle SSI cases could hear only SSI cases; the 

ALJs hired to handle Black Lung cases could hear only Black Lung cases; and the ALJs hired to hear disability 

insurance (DT) cases could hear only DI cases. The lack of an integrated AU <.:orps denil:'d fle>.ibilily that could 

have helpcd vvith the increasing \\'orkload~ morc dlicit:ntly. 

2~ Currently, both attorneys and non-attomcy specialists may wrik these d.:eisions. 25 59 Fed. Reg. 47887 (September 19, 1994). 

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completion, and that the agcncy should foclls its effolts on fewer initiativcs,26 Consequently, the 

agency never fully implemented this plan, 

Hearings Process ImprOl'Ctl1cnt (HPJ) 

In March 1999, the agency released a plan to improve the agency's management of the disability 

program, As a part of this plan, in June 1999 the agency implemented HPL TI,is initiative 

sought to improve hearing process efficiency by addressing the following problems: 1) the high 

number of hearing ollice stalfinvolved in preparing a case for a hearing; 2) the "stove pipe" 

nature of employees' job duties; and 3) inadequate management intomJation necessary to 

monitor and track each case through the process, HPJ sought to creatc a process that fully 

prepared the cases tor adjudication by tlrst determining the necessary actions early in the process 

and ensuring that case development or expedited review occurred, A few of the changes HPI 

made to hearing office organization, slich as creating the position of hearing office director, are 

still in place today, However, Congress would not fund HPI as originally conceived, and in its 

truncated form it failed to increase the efficiency of our hearing process to the extent envisioned. 

Disability Sen'ice Improvement (DSI) 

In August 2006, the agency began the roll out of DSL TI,is initiative sought to streamline the 

entire disability claims process and ensure that the agency made the right decision as early in the 

process as possible, At the hearing level, the record would close after an All decision, and the 

Decision Review Board would gradually replace the AC DSI also created a new position, the 

Federal Reviewing Omcial (FedRO), to review State agency determinations upon the reguest of 

the claimant; this level would replace the reconsideration level of review, The Quick Disability 

Determination initiative, which we use today, originated under DSL However, the 

administrative costs of other features of DSl, such as the FedRO, were more than expected, 

Moreover, the staffing requirements under DSJ had very little conncction to reducing the 

hearings backlog, 

Hearings Backlog Reduction Plan 

Despite these well-intentioned enorts, the disability hacklogs continued to rise, During my first 

week as Commissioner in Fehruary 2007, J testified bet(lfe this Subcommittee about the hearings 

backlog, To put it mildly, you were extremely upset about the hardships your constituents faced 

while \vaiting for a di~ability decision. The backlogs had steadily risen, and the plan T inherited 

to tlx those backlogs, DSI, was draining precious resources and making the problem worse, The 

numbers tell the story, At the time, over 63,000 people waited over 1,000 days for a hearing, and 

some people waited as long as 1,400 days, Wc were failing the pUblic, Rather than devise yet 

another signature initiative that would not stand the test of time, we went back to the basics, 

We developed an operational plan that focused on the gritty work oftruly managing the 

unprecedented hearings workload. We made dozens of incremental changes, including using 

video more \vide1y, improving IT, simpllfying regulations, standardizing business processes, and 

2(> Testimony belore the House \\fays and Me~ms Subcommittee on Social Security, SepLember 12, 1996. 

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establishing AU productivity expectations, to name just a few. [mportantly, with your support, 

we also committed the resources employees needed to get this work done. 

We have hired additional AUs for the onices with the heaviest workloads. We expanded the 

Senior Attorney Adjudicator program, which gives adjudicators the authority to issue tully 

favorable on-thc-rccord decisions in order to conserve ALl resources f{)f the more complex cases 

and cases that require a hearing. 

We opened live National Hearing Centers (NHCs) to further reduce hearings backlogs by 

increasing adjudicatory capacity and efficiency with a focus on a streamlined electronic business 

process. Transfer of workload from heavily backlogged hearing offices is possible with 

electronic Jiles, thus allowing the NHC to target assislance to these areas of the country. We 

implemented the Represemative Video Project (RVP) to allow representatives to conduct 

hearings from their O\\1n office space with agency-approved video conferencing equipment. 7.7 

In 20 I 0 and 20 II, we opened 24 new hearing offkes and satellite offices. While a lack of 

funding lorced us to cancel plans It)f additional olIices, those we did open are making a 

substantial (Uilerence in communities that were experiencing the longest ,"vaits for hearings. 

We increased usage orthe Findings Integrated Templates (FIT) that improves the legal 

sufficiency of hearing decisions. conserves resources, and reduces average processing time. We 

introduced a standard Electronic Hearing Office Process, also known as the Electronic Business 

Process, to promote consistency in case processing across all hearing onices. We also built the 

"'How MI Doing" tool that allows ALl, and support staff to view a graphical presentation of their 

up-to-date individual productivity as compared to others in their office, their region, and the 

Nation. 

We expanded automation tools to improve speed, elliciency. quality, and accountability. We 

initiated the Electronic Records Express project, which provides electronic options for 

submitting health and school records related to disability claims. This initiative saves critical 

administrative resources because our employees bum fewer CDs freeing them to do other work. 

[n addition, appointed representatives with e-Folder access have self-service access to hearing 

scheduling information and the current Case Processing and Management System (CPMS) claim 

status for their clients. reducing the need for them to contact our ol1ices. We have registered 

over 9,000 representatives for direct access to the electronic folder. We also implemented 

AUlOmated Noticing lhat allows CPMS to automatically produce appropriate notices based on 

stored data. We implemented centralized printing and mailing that provides high speed. high 

volume printing for all ODAR offices. We implemented Electronic Signature that allows ALls 

and Attorney Adjudicators to sign decisions electronically. 

We have Federal disability units that provide extra processing capacity throughout the country. 

[n recent years, these lmits have been assisting stressed State disability determination agencies. 

Atlerevaluating our limited resources, our success in holding down the initial disability claims 

2i Unfortunately, only a sma!1numbcr ofrcprescntativcs have participated in the RVP. Inereascd participation, 

\vhieh may be happening as the cost oftk equipment declines, \v0uld make our process much more efficient and 

allO\.\ us to save money on otlicc spac~. 

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pending level, and a further spike in hearings requests, \ve redirected these unib in February 

2012 to assist in screening hearings requests. Our Federal disability units can make fully 

favorable allowances, if appropriate, without the need for a hearing before an AU. 

We also listened to criticism from you and others. We have tried to make the right decision 

upfront as quickly as possible. For instance, we are successfully using our Compassionate 

Allowance and Quick Disability Determination initiatives to fast-track disability determinations 

at the initial claims level for over 150,000 disability claimants each year, while maintaining a 

very high accuracy rate. Currently about 6 percent of initial disability claims qualify fl)r our fasttrack processes, and we expect to increase that number as we add new condition to our 

Compassionate Allowance program. This helps keep these cases out of our appeals process 

altogether. 

This plan has worked. Average processing time, which stood at 532 days in August 2008, 

steadi Iy declined for more than three years, reaching its lowest point of 340 days in October 

2011. 

I want to talk about measuring the hearings backlog. [n 2007, Jiling rates had been stable for 

some time, so looking at the number of pending cases was a reasonable, if imperfect method to 

measure progress. 

As the recession hit and the number of requests for a hearing dramatically increased, we steadily 

improved our performance \vhen measured by average processing time, the hest metric for 

tracking progress, palticularly in times when filings are changing rapidly. When people request 

a hearing, they \\ant to know how long it \vill take to get a decision. Much like a line in a store, 

the customer's experience depends not on how many other people are waiting, but on hoy\' 

quickly we help them. Nobody wants to get bumped and jostled; nobody wants to stand in a line 

that does not move; and everyone becomes frustrated \vhen there arc not enough cashiers to 

handle the customers. With grocely stores, we can choose where we get our groceries and 

decide if\ve are willing to accept a particular store's customer service, but Americans seeking 

Social Security benefits have only one place to go. With your help, we arc \\"orking to make 

their experience fair, accurate, and timdy. 

The most important metric for claimants is how long they \.-vill have 10 wait for H hearing 

decision~ consequently, our primary goal is now average processing time, \vhich is the average 

number of days it takes to get a hearing decision (from the date of the hearing request). [n 

August 2008, people waited an average of 532 days. Today they are waiting only 350 days. 

Average processing times also became more uniform across the country. The 1110st dramatic 

improvements have occurred in the most backlogged offices. To provide concrete examples, 

average processing time in Atlanta North dropped from 900 days to 351 days in May 2012. Oak 

Park, Michigan improved from 764 days to 254 days. Columbus, Ohio went from 881 days to 

351 days. Currently, no office has an average processing time greater than 475 days. Fifteen 

ofliees have hit our goal of 270 days or Jess, and many others are getting close. While our goal 

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is to reach an average processing lime 01'270 days by the end ofncxl Jiseal year, thai number 

depends on our ability to timely hire judges and supp011 stafr. 

These numbers are even morc impressive because \ve have given priority to the oldest cases, 

which are generally the most complex and time-consuming, Five years ago, we defined an aged 

case as one waiting over 1,000 days for a decision. At that time, 63,000 people \vaited over 

1,000 days for a hearing, and some people wailed as long as 1,400 days, which is a moral 

outrage, Since 2007, we have decided over 600,000 of the oldest cases, Each year we lower the 

threshold for aged cases to ensure that we continue to eliminate the oldest cases tirst. \Ve ended 

FY 2011 with virtually no cases over 775 days old, Through the steady efforts of our employees, 

we now define an aged case as one that is 725 days or older, and we have already completed over 

90 percent of them. Next year, OUf management goal is to raise the bar on ourselves again by 

focusing on completing all cases over 675 days old, 

This emphasis on eliminating aged cases increases average processing times, so \ve also look 

ahead to sec how long people in the queue have been waiting for a hearing, At the beginning of 

FY 2007, the number was 324 days, That number today is just 208 days, a 36 percent decrease, 

and we are hopeful that figure will drop again next year. Also, at the beginning ofFY 2007, 

nearly 40 percent of pending hearing requests were older than one year. We reduced this figure 

to 14 percent at the end of May 2011, 

To reducc the hearings backlog, we set an expectation that our AUs should decide between 500 

and 700 cases annually," When we established that productivity expectation in late 2007, only 

47 percent of the ALIs were achieving it. By the end of May 2012,72 percent met the 

expectation, and we expect that percentage to continue to rise throughout this fiscal year. I thank 

them for their hard work. 

This improvement in productivity has helped us make progress despite the significant increase in 

requests for hearings, In FY 201 I, we received over 859,000 hearing requests, which is about a 

19 percent increase Irom what we received in FY 20 I 0, 

Our ALIs are not meeting our productivity goals by "paying down the backlog," as has 

sometimes been alleged. Instead, over this time period, outcomes across ALJs have become 

more standardized, reOecling an emphasis on quality decision making, There are now 

significantly fewer judges who allow more than 85 percent of their cases than there were in FY 

2007 (see the chart at the end of my testimony). 

We have created nc\v tools to focus on quaEty. Each quarter we train our adjudicators on the 

most complex, en'or-prone provisions oflaw and regulation, We provide feedback on decisional 

quality, giving adjudicators access to their remand data, We also make available specific 

training to address individualized training needs. 

Moreover, since we are handling more hearings, the number of new Federal court cases filed 

challenging our denials has gone up, In FY 2007, dissatisfied claimants filed 11,951 new cases, 

That number rose to 14,236 in FY 2011, and we project that there will be about 19, I 00 new 

2~ Tn addition, we limit the limil the number of c(Jses assigned per year to an ALL 

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21 


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cases tilcd in FY 2013. Although the actual numbcr of civil actions incrcased, the ratio ofcivil 

actions med versus our denials has declined. Our success in the courts has also improved. In FY 

2011, courts affirmed our dccisions in 51 pcrcent of the cases decided, up from 49 percent in FY 

2007, and court reversals have decreascd Irom 5 percent to under 3 percent of cases over this 

time. 

President's FY 2013 Budget Request 

I am concerned Ulal despite our employees' hard work. we will begin to move drastically 

backwards on most of our key service goals. In tiscal years 201 I and 2012, the difference 

between the President's Budget and our appropriation was grt!ater than in any other year of the 

previous two decades. Also~ last year Congress rescinded $275 million ii'om our IT carryover 

funding, which will damage our effolts to maintain our productivity increases through IT 

innovation. 

We are starting to see the conscquenccs of these dccisions. Not letting you know the 

consequences of Congress' decision would be a disservice to you, the American people, and the 

agency. Despite our employees' hard work, the progress in addressing our hearings backlog is 

happening more slowly than the public deserves. [t has slowed in the last year, and we lost our 

margin for error when, for budgetary reasons, we cancelled our plans to open eight new hearing 

offices in Alabama, California, Indiana, Michigan, Minnesota. Montana, New York, and Texas.29 

We are doing what we can to compensate. We are hiring additional AUs, albeit fewer than we 

had planned, and using our reemployed annuitant authority to bring back experienced judges 

\vho have recently retired. We are maintaining a high Sllpport staII .. to-ALJ ratio to ensure cases 

are ready to hear, and we are allowing the hearing offices to work overtime to try to keep up with 

the surge in hearings. 

We need your support and we need a timely and adequate supply of well-qualified judicial 

candidates from the Office of Personnel Management (OPM). If we are not appropriately funded 

and we cannot timely hire enough qualitled AUs and support stalf, our progress will erode. We 

also need Oill" projections for the number of initial claims and hearing requests to be on target if 

we are to achicve ollr goal of an avcrage proccssing time 01'270 days by the end or next year. 

1 urge Congress to support the President's request because we have proven that we deliver when 

\ve are properly resourced. Through the hard work of OUf employees and technological 

advancements~ \ve have increased employee productivity by an average of about four percent in 

each of the last five years, a remarkable achievement that very few organizations-public or 

private-can match. 

Conclusion 

Congress made eliminating the hearings backlog our top priority. If you told me in 2007 that \ve 

would have to contend with budget cuts for two straight years and the most severe economic 

downturn since the Great Depression, 1 would have said that it would be impossible to eliminate 

29 We have also closed mOSl of our remote hearing sites. 

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the backlog. The laet that we arc still in a position to realize this goal is a testament to our 

employees' dedication and skill. Amid huge economic and budgetary unpredictability, we have 

stayed focused on eliminating the causes of your moral outrage in 2007. Now we need Congress 

to enact the President's Budget request so thal we can meet our imporlant commitments to lhe 

American people. 

Page 13 
23 

f 

Chairman JOHNSON. Thank you, sir. Appreciate your testimony. And since this may be your last meeting with us, we thank 

you for your service to Social Security and to the government. 

Mr. ASTRUE. Thank you very much. I have been actually waxing a little sentimental. I realized it has been 27 years since I first 

testified before the Ways and Means Committee, and it is a real 

privilege to work with an institution that touches the American 

public in so many ways from taxes to health care to Social Security 

to trade. 

Chairman JOHNSON. Thank 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 to 5 minutes as well. 

Options that would allow Social Security to better manage the 

hearing process, Commissioner, protections are included in the Administrative Procedures Act to ensure that Administrative Law 

Judges are able to make decisions without agency interference. In 

our next panel, Judge Frye testifies that using an APA official protects a claimant’s constitutional right to due process, but Professor 

Lubbers from our next panel says the Supreme Court has not 

agreed with this rationale in the case of hearing for benefits. Also, 

Professor Lubbers testifies that ALJs are not required by Social Security law. 

You have said that ALJ decisional independence places limits on 

your ability to manage the performance of judges even when some 

judges process far fewer or far more cases than peers or award or 

deny far more or fewer cases than their peers. And you have also 

discussed your challenges with the Office of Personnel Management providing you with qualified ALJ candidates, including the 

fact that they don’t do background checks, even for lifetime appointments. 

And you have also told us that disciplinary action against an 

ALJ takes up to 2 years to process while the judge can stay home 

with full pay and benefits. Given all of this, why do we need ALJs 

at all to do the work? 

Mr. ASTRUE. I was trying to figure out what the question was 

going to be. 


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24 

I think the question has been asked several times before, and I 

know we got Professor Lubbers’ testimony right before the hearing 

so I did take a quick look at the statute. The general authorizing 

language for conducting hearings doesn’t specify administrative law 

judges. That didn’t stop me from trying to look at the statute, and 

I think there is some—we will get back to you on the record, but 

it looks to me, and I will be interested in what my friend, Mr. Lubbers, and what Judge Frye have to say, it does look to me in other 

places in the statute that Congress has assumed that the ALJs are 

now part of the process, and I think we will have to go back and 

give you a formal opinion for the record on that. But I am looking 

specifically at 42 USC 423(h) as one example where Congress 

seems to assume that they are in fact embedded in the process at 

this time. 

[The information follows: Transcript Insert 1] 

f 


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25 

Chairman JOHNSON. Yeah. I don’t think it is mandatory at all 

under congressional edict. Professor Pierce on our next panel recommends eliminating the role of ALJs as decision makers or at 

least amending the law to make it clear that Social Security has 

the power to evaluate the performance of judges and take needed 

action. And in my opinion, you don’t have that. 

What are the pros and cons of changing the law to make clear 

that Social Security has the power to hire their own judges and 

evaluate their performance? 

Mr. ASTRUE. Well, I certainly think that when this committee 

was regularly reviewing the performance of the Office of Personnel 

Management regarding the ALJ process, that was very constructive 

from my point of view. We saw real progress that we had not seen 

in the previous decade. Since the last time that we testified together, I think that it has not—that change has disappeared. And 

so I do think—Commissioners have been testifying since 1977 before this committee about difficulties with OPM on the administrative law judge process. I think that you need to look at this with 

some intensity and say has that agency consistently and timely 

provided quality judges, not only for us, but for all Federal agencies. 

And I think that the definition of qualified that they use is totally inappropriate because in order to be a judge, there is a high 

level of professional accomplishment and a high level of moral 

character that should be required. And when we say well qualified, 

we are using a different standard from what the Office of Personnel Management has been using, and I think the fact that we 

have made so much progress in the last 5 years comes from using 

that higher standard. 

Something that I think you should be pleased about, Mr. Johnson, because I know it has been one of your concerns, is the number of outliers has been reduced dramatically in the last 5 years. 

If you look, you have used the 85 percent standard. We have gone 

from almost 20 percent to about 5 percent that are allowing more 

than 85 percent of those cases, and that is largely the influence of 

hiring right. A judge who is arrogant, who behaves badly, is also 

not going to apply the statute that you have enacted faithfully. 

So I think the emphasis on quality in the judges is important, 

and I have to say, over decades I don’t think the standard of the 

Office of Personnel Management has been high enough. 

Chairman JOHNSON. Well, I think they have no requirements 

for judges, and we need to get some in. I am going to ask one more 

question. 

Last December, the Wall Street Journal published an article entitled ‘‘Two lawyers strike gold in U.S. disability system.’’ The article is about a law firm, Binder & Binder, which collected $88 million in fees, all paid from claimants’ past-due benefits. In their testimony, Professors Pierce and Lubbers of our next panel refer to 

the incentive representatives may have had to drag out cases since 

the fees are a percentage of the client’s past-due benefits. 

Is it true that the longer it takes to get a decision, the higher 

the representatives’ fee will be? 

Mr. ASTRUE. Yes, it is, Mr. Chairman. 

Chairman JOHNSON. And you don’t agree with that, do you? 


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Mr. ASTRUE. Well, I think it has been a concern for many years. 

In I think it was 1987 when this subcommittee took up the attorney fee matter, I was part of the team on the other side that raised 

some concerns about the economic incentives of the current system. 

So it is clearly a risk. 

I think most of the attorneys and representatives most of the 

time are very honorable about not abusing the system, but the incentive is there, and I think we do see a significant minority of representatives abusing the system from time to time, both in this and 

manipulation of assignment of judges. 

Chairman JOHNSON. Part of the problem is they are appointed 

for life. You can’t get rid of them. 

Mr. Becerra, you are recognized for 5 minutes. 

Mr. BECERRA. Mr. Chairman, thank you, and Commissioner, 

thank you for being here and also thank you for your years of service to the people of this country. 

Let me make sure, I want to be clear on something. The FICA 

tax, which everyone pays when they get their paycheck every week 

or month, they see a deduction for FICA, that is the money that 

goes into Social Security and Medicare, the FICA tax that we see, 

the contribution that workers make and have been making for 77 

years to the Social Security Trust Fund and the Social Security 

system. 

That FICA tax money, which is used to cover Social Security, 

covers benefits and also your operating expenses. 

Mr. ASTRUE. Yes. It is a specific appropriation. We can’t just 

tap that money. It is a specific appropriation that is then drawn 

from the trust fund, yes. 

Mr. BECERRA. So Congress sends you money, it is appropriated 

money, and ultimately Congress gets reimbursed by the trust fund 

for the money it has given to you to operate. 

Mr. ASTRUE. I am not sure I fully follow the question, Mr. 

Becerra. 

Mr. BECERRA. So the money for you to pay your employees and 

to cover all of your overhead, your lights, your computers, you don’t 

get extracted directly from the trust fund. The trust fund has the 

money. You get an appropriated amount, then Congress makes 

sure that the trust fund covers what the appropriation was? 

Mr. ASTRUE. Yes, I think that is essentially right. 

Mr. BECERRA. So essentially workers, when they make that tax 

contribution, the FICA tax contribution, they are paying for the 

cost not just of the benefits for today’s Americans who are retired 

and getting a pension benefit through Social Security or who are 

disabled and getting a benefit, those workers through their FICA 

taxes are also paying for the cost of administering all of the Social 

Security program? 

Mr. ASTRUE. Yes, that is right. 

Mr. BECERRA. Yet, we are finding that Congress, and I think 

you said something in your testimony, that Congress so far this 

year is—you are going to be getting a lower amount than you requested in your budget. I think you said something in your testimony. I was struck by it. Something over the past 2 years, the gap 

between what the Social Security Administration needs to serve 

the American public and the resources actually appropriated by 


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Congress was the biggest, the gap was the biggest it had been in 

20 years. So as I say, it has been more than $2 billion short of 

what it needed to process all claims promptly, reduce wait times 

for disability cases, answer its phones and perform all of the other 

work it does to serve the American public. 

So no matter how hard your employees at SSA work or how well 

you prioritize, eventually Americans are going to be paying the 

price for the shortchanging of your agency when it comes to the 

budgetary needs that you have. And so when you mentioned the 

wait times for these appeals hearings or the wait times to have 

your initial application processed, that is the consequence of not 

having the resources to get the work done. 

Mr. ASTRUE. Yes, and let me stress that I think we are different from most other Federal agencies in that because of demographics and because of the recession our workloads have gone up 

dramatically. You know, we are not like certain other agencies that 

can simply prioritize things differently. When people come and 

apply for benefits we have to process those claims, we have to process the appeals. We are taking in more than a million applications 

more each year between disability and retirement than what we 

had originally projected driven by the recession, and I think in fact 

if this recession had been less deep and less long, it would have 

made a huge impact on the hearings backlog. I think we would be 

at the 270 by now if the recession hadn’t been so deep and long. 

Mr. BECERRA. So the recession is making the problem deeper 

and more people are applying but you are getting less money to try 

to operate and provide those services. My understanding is that 

you have already had to close a case processing center and that you 

have had to cancel the opening of eight new hearing offices and a 

telephone service center that could have served quite a few of these 

folks who are applying for services and benefits. 

Let me ask one other question with regard to your ALJ policy, 

the policy for these judges, and thank you, by the way, for your 

commitment to review some of the policy changes that you are trying to move forward with, and in this case with regard to the disclosure of the names of these judges at the hearing level in advance 

of the hearing, we had a conversation about that. Can you real 

quickly, and my time is going to expire soon, just give me a sense 

of the status of your review and when do you expect to take steps 

to revise this policy in light of the concerns that have been raised 

about the perhaps over broad nature of the policy itself and how 

it might be detrimental to those applicants for disability benefits. 

Mr. ASTRUE. Right. We viewed the policy, I think, and have 

from the get-go really as a stopgap until we come up with a broader, more effective solution. I think this is an issue that caught us 

a little bit off guard. I don’t think until our management information got better we didn’t realize how much the system was being 

manipulated and in how many ways and at what cost to the integrity of the system. 

We have a team working on this. I have met with the team. We 

are meeting again the second week in July. I think on the initial 

reaction, we don’t think—the good news is we don’t think that we 

need to come to Congress for statutory changes. We think that we 

can address this with a pretty complicated mix of administrative 


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initiatives and regulatory initiatives. What the exact mix of those 

are and whether the administrative things that we could do more 

quickly make sense without some of the regulatory initiatives, we 

are not sure yet. So we have, to say we have a plan at the moment 

would be overstated. I think we have more of a plan to have a plan. 

But I think we will have a better sense late July, early August. But 

it would have to go through the rulemaking process on key parts 

of it. That will mean it will be a little slow. It is a particularly difficult time of the year to get things through the rulemaking process 

but we are working on it. We will do the best we can as fast as 

we can. 

Mr. BECERRA. Thank you. Thank you, Mr. Chairman. 

Chairman JOHNSON. Thank you. Mr. Marchant, you are recognized. 

Mr. MARCHANT. Thank you, Mr. Chairman. Welcome, Commissioner. Thank you for your visit last week. We had a good visit. 

Mr. ASTRUE. It was indeed. 

Mr. MARCHANT. I appreciate it. State Disability Determinations award roughly 79 percent of all awards at a cost of about a 

third of what it costs a judge to process a request for a hearing. 

Beyond compassionate allowances and quick determination 

screenings that you already have in place, what can be done, what 

more can be done to resolve the deserving claims at the State level? 

Mr. ASTRUE. I think that is a great question. I think—and very 

timely. We just issued a press release I believe on Monday on what 

I think is one of the most significant things will change the basic 

paradigm of how we do business. 

An enormous amount of our administrative budget is spent chasing down, collecting, and organizing stray, generally paper medical 

records. And we often don’t know for sure that we have them all. 

So it is not only a big cost, a big source of cost and delay but also 

of inaccurate decisions. When we move to a world where most 

Americans have a completely electronic medical record, it will enormously improve what we are doing. We have done some small pilots with a few of the providers and insurers who are already there. 

What we have started now with Kaiser Permanente is our first 

large-scale effort in this area, and I think this is going to be tremendously important, and it is going to take probably 3 to 5 years 

to work out the arrangements, and the private sector is moving 

slowly for a variety of reasons. But we are going to get there, and 

you will see 3 to 5 years from now a dramatic improvement I think 

in our costs, our speed, and our quality when we can essentially 

push a button and in most cases get a complete medical record 

electronically. 

Mr. MARCHANT. And during the entire process, the medical 

record stays open throughout the entire appeals process? 

Mr. ASTRUE. Yes, that is right. 

Mr. MARCHANT. So is there any merit to closing the records at 

some point so that somebody that is making the decision can actually make a decision without having to the next day take in new 

information and make another decision? Is there a fair process 

where you close the case? 


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Mr. ASTRUE. Well, we thought so, and in the New England region, we still have closure of the record before the ALJ 5 days before the hearing. 

To use the phrase from the testimony, to put it mildly, this subcommittee took umbrage when we tried to propose that notice and 

comment rulemaking and made it extremely difficult for the agency 

to pursue that. But we proposed that and had to withdraw that in 

2008, I believe. 

Mr. MARCHANT. Okay. And the last question I have for you, 

and I come from a State legislative background, and I believe that 

the local, State determinations are probably the most efficient ones. 

But with the rise of disability claims that we have seen in the last 

few years and with the State having an integral part of the qualification for unemployment benefits and the State also having an escalating Medicaid expense, have you noticed, or is there a trendline 

where States are trying to shift people from unemployment into 

disability and then from disability where they stay on disability, I 

think it is 2 years, and then they go from Medicaid to Medicare, 

and the State then basically can shift them from the Medicaid element where they are putting a match in over into the Medicare element? Do you see States that are developing a philosophy towards 

that? 

Mr. ASTRUE. Anecdotally, we think the answer to that question 

is yes to some extent. Maybe not so much unemployment as TANF. 

We actually brought in an academic expert a few years ago to help 

us try to track and document that. It has been very difficult to provide hard evidence of that. But we do think that there are States 

that for their own budget reasons are putting up barriers to State 

benefits and requiring an application to us for disability even 

though there is no reason to believe that the person is disabled. So 

we do see some of that. How big, how big a factor that is, I don’t 

think that we know. I think it is relatively small, but it is an abuse 

that exists and we wish that States would not do that. 

Mr. MARCHANT. Thank you, Mr. Chairman. 

Chairman JOHNSON. Thank you. Mr. Brady, you are recognized. 

Mr. BRADY. Thank you for the discussion, Representative 

Marchant, about the need to make these determinations as early 

as possible. But Commissioner, thank you for your service and 

leadership of the agency and wish you well. 

Mr. ASTRUE. Thank you. 

Mr. BRADY. Going forward. 

You have a great servant’s heart. So thanks for what you are 

doing. 

Mr. ASTRUE. Thank you. 

Mr. BRADY. Two questions. One dealing with fraud both at the 

front end and those applying for it at the back end. There are people who are capable of working but—and do but defraud us in the 

process of continuing disability reviews. What is the status of our 

efforts to fight fraud within disability and what more can we do 

again to capture the money we really need for people who are truly 

disabled? 

Mr. ASTRUE. Sure. So, I know that I and other Commissioners 

have been through this in the past. And I know that there have 


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been efforts to come up with a mechanism that would allow us to 

do this that hasn’t been successful yet. But the single most important thing is timely review of existing beneficiaries. We all know 

that there is an enormous payback to the taxpayer from timely continuing disability reviews. Those have dropped dramatically in the 

years before I got here. They have gone up dramatically. But remember, I don’t set them. I come and I plead and I beg here in 

Congress, and I have been somewhat successful so the number has 

gone up pretty significantly and substantially but it is not where 

it should be. And this past year we had to reverse, we were geared 

up, we thought, both committees in appropriations passed 582,000 

and then at the last minute the bill passed and the number was 

435. And we had to not only not hit a more appropriate level, we 

had to reallocate a lot of resources halfway through the fiscal year. 

Coming up with a mechanism so that the agency has the resources to do that work is, I think, tremendously important. I think 

some of the new technologies that we have put in place have very 

high returns as well. We have ways now of checking assets with 

banks. The early returns were 20 to 1 return. We don’t think we 

are going to see that on an ongoing basis. We don’t know yet what 

the return is, but the return on that is very high. We are trying 

to come up with a similar system for other types of assets, real estate assets, and things like that. 

Also, I put in a pitch for the Inspector General for budget reasons, the number of CDI units which are these joint SSA, IG, local 

law enforcement units which have been very successful, I think, on 

the whole. The number of those that we have are going down rather than up, and I think that is penny wise and pound foolish. 

Mr. BRADY. How about at the front end? One, thank you for 

that comment on timely reviews. How about on the front end and 

through the process, not just those who are hiding assets but those, 

and providers who are enabling those to try to defraud the system 

with medical disabilities. What percentage of applicants are we 

now identifying through the process on the front end? 

Mr. ASTRUE. Right. 

Mr. BRADY. You know, who are attempting to defraud the system? 

Mr. ASTRUE. It is relatively small, but the disability examiners 

are actually quite good about being alert on these things and they 

do do a significant number of referrals. Some of our administrative 

law judges have been very sharp about this, too. One of the more 

spectacular ones that we are working on now came because of a 

very alert ALJ. 

I would say if you were going to focus on one thing, I think that 

the treating physician rule historically, you know, relied on a different paradigm. You know, there was a time when we all had a 

Marcus Welby as a personal physician, and that is not true anymore. In fact, we are increasingly seeing physicians who are essentially extensions of the lawyers doing the representation, I mean 

often sometimes physically housed within those complexes. 

I don’t know that those kinds of physicians should be given the 

same deference that the court interpretations of your statute require us to do, and the courts are also all over the place in terms 

of treating physician. 


ccoleman on DSK8P6SHH1PROD with HEARING
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I know there is always a lot of skepticism about the agency’s 

view on this. So what I would say to you is get some good outside 

advice on that. At least reconcile the conflicting court interpretations so that we do this uniformly and fairly around the country. 

But I think it is also a fair question to ask, given how the world 

has changed, is the rule that struck people as appropriate 34 years 

ago still appropriate today. 

Mr. BRADY. Are there significant resources and are there insignificant punishments for either physicians who are complicit or 

complainants’ reps who are complicit? Do you think we have what 

is needed in place to prevent that type of fraud? 

Mr. ASTRUE. Probably not. I think we have tried to do more. I 

will be candid with you. I think that there is probably more we can 

do administratively. We are struggling with the resources, I think, 

but we are trying to do that. I think there probably are some places 

where we could use some more help from the Congress. So if I 

could get back to you on the answer for the record on that I think 

it would be a better response. 

[The information follows: Transcript Insert 2] 


ccoleman on DSK8P6SHH1PROD with HEARING
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f 

Mr. BRADY. Great. Thank you, Mr. Chairman. 


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INSERT PAGE 33 

There is an emerging trend in private disability practice in which attorneys hire 

doctors to work within their practices as in-house suppliers. These types of 

associations, sometimes called multi-disciplinary practices ("MDP") or 

Alternative Business Structures ("ABS"), are becoming more prevalent in the 

States where they are permitted as a way to provide clients "one-stop shopping." 

However, in the disability programs, the close association of claimant 

representatives and doctors can foster the proliferation of questionable medical 

evidence. For example, in one case, a claimant's law firm had a practice of 

obtaining medical reports ti'om a small group of physicians; in many instances, the 

wording orthe reports was often identical to those submitted in previous cases. 

The court found that, while the ALJ may consider the boilerplate nature of a report 

as one factor in determining the appropriate weight to afford the report, the AU 

may not summarily reject a report solely because it contains some language 

repetitive OfpOliions ofa previously submitted report. Millerv. Commissioner of 

~.9~i~L~<;qlri.ty, 172 F.3d 303, 305-306 (3d Cir. 1999). 

Our regulations prohibit representatives ti-om knowingly making or presenting 

false or misleading oral or written statements, assertions or representations about a 

material fact or law. The regulations do not, however, specifically address some 

of the emerging issues related to MOPs or ABSs, and they do not prevent a 

representative fl'om repeatedly using the same doctor to provide medical opinions, 

as long as the representative docs not violate our rules on making false or 

misleading statements. We have the authority to regulate further in this area than 

we have, but the administrative costs of monitoring these MOPs and ABSs for 

questionable opinions would be extremely burdensome. 

The Act permits us to prescribe rules and regulations governing the recognition of 

agents or other persons, other than attorneys, who represent claimants before us. 

Howcver, an attomcy in good standing who is admitted to practice before the 

highest court of his State or residence or a Federal court "shall be entitled to 

represent claimants before" liS. If Congress authorized us to set rules for 

recognizing practicing attorneys in the same way that we can for non-attomey 

representatives, we could better regulate the use of MOPs, ABSs, or similar 

arrangements by attorneys, and thereby diminish the opportunity for the kind of 

questionable activity that these types of associations may foster. 

Congress may also tind it appropriate to study the general issue of whether and 

under what circumstances it may be appropriate to accord weight to a physician's 

opinion regarding the nature and extent of an individual's limitations. For 

example, in a related context, the Supreme Court has found that the Employee 

Retirement income Security Act ol1974 does not require plan administrators to 

INSERTP A<;£ 33(cont.} 

accord special deference to the opinions of treating physicians in administering 

disability plans under tbat statute. 131'!fKillldJ")e_cKesPiSill1ilityl'lajJxJ'!oJ:cl, 

538 U.S. 822 (2003). In light of the changes in health care practice in recent 

years, it would also be appropriate to review that issue in the context of Social 

Security disability programs. 
33 

Chairman JOHNSON. Thank you. Mr. Doggett. 

Mr. DOGGETT. Thank you, Mr. Chairman. And thank you, Commissioner. 

I have a follow-up on the same two concerns that Mr. Becerra 

raised. 

Mr. ASTRUE. Sure. 

Mr. DOGGETT. First with reference to your budget, the moneys 

that finance your budget are from taxes that have already been 

paid and are being paid. Those taxes are not going down. It is a 

question of whether we provide the resources to Social Security to 

effectively and efficiently provide the services that a worker who 

has the misfortune of disability would expect. And you mentioned 

some goals on appeals, for example. 

Is it correct that currently, that you do not have the resources 

to replace Social Security Administration employees who retire or 

depart to another job? 

Mr. ASTRUE. As a general matter, Mr. Doggett, yes, that is correct. We have got a hiring freeze in place with some very limited 

exceptions that relate to backlog reduction. 

In addition, we have, and I will give you the exact number for 

the record, probably slightly over a thousand temporary employees 

that basically we are waiting to see what happens with sequestration. We have gone up to the 1 percent statutory limit more or less 

on the retired annuitants. We have also, to the extent that we have 

made exceptions in the hiring over a lot of objections from some of 

my people, I have said the people that have been with us the longest, that is where our obligation is first. So to the extent that we 

have done hiring in the last 6 months it has been temporary so 

that if we have a deep cut under sequestration, we will let those 

people go and take less out of the people that have been working 

for us for 20, 30 years. So we have got a large group of people who 

are hanging in the balance waiting to see what happens with sequestration. 

[The information follows: Transcript Insert 3] 

f 

Mr. DOGGETT. And while your oral testimony referred to the 

significant progress you have made in reducing the backlog on the 

time that an appeal takes, those numbers are beginning to trend 

back up, aren’t they? In recent months they have gone up from the 

low that you talked about last October? 

Mr. ASTRUE. Slightly. And I think statistically I would call it 

approximately level. And there is some wobble. I am swearing in 

40 judges tomorrow and we have got some more coming. So I think 


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34 

that by the end of the year there is a good chance that we will be 

essentially level for most of the year. 

Mr. DOGGETT. Is it unlikely that you can meet your objective 

of 270 days unless your budget is fully funded? 

Mr. ASTRUE. Yes. So let me, let me be totally forthcoming. I 

think we were making extremely good progress on the 270. There 

were doubters. So Congress asked GAO to look at it and they gave 

us a 78 percent probability a couple of years ago of hitting it. I will 

be honest with you, it is very unlikely we are going to hit the 270 

on time now. And it is a combination of the recession, timely judges 

from OPM, and funding for staff. I am doing all I can on each of 

those three things, but those are the critical factors. 

Mr. DOGGETT. Let me turn to my second concern, and that is 

the question of the change that was made last December so that 

someone who is coming to bring an appeal can find out who the 

judge is. 

Mr. ASTRUE. Right. 

Mr. DOGGETT. And I have been a judge before coming to Congress and I have also been a litigator, and it was always important 

to me whether I was bringing a claim or defending a claim to know 

who I would be presenting that claim to. As it relates to in-person 

conferences, not video conferences, is there any good reason why 

the practice that Social Security has followed in the past of letting 

someone know before they walk in the hearing room who the judge 

is, why that ought not to be continued? 

Mr. ASTRUE. Yes. So I think in fact it embodies a fairly important principal of justice. And again, I think if we had realized the 

extent to which random assignment was being manipulated, we 

would have acted sooner, and that is because when you have as 

much manipulation as we are concerned that we have, the consequence of that is that the 15 percent of the claimants who are 

not represented are, by definition, getting the stingiest judges. And 

I don’t think, I mean, these tend to be the people who are the least 

sophisticated and tend to be the people who are the most impoverished. And I don’t know how you can say—— 

Mr. DOGGETT. If it is in fact random assignment, why can’t you 

announce who the judge is before you walk in the room? 

Mr. ASTRUE. But Mr. Doggett, it is not random assignment. 

What we have discovered is that claimants’ reps have found a number of ways to manipulate the system and that the principle of random assignment has been violated in any of a number of ways. 

This is why it is taking us so long to come up with a fix. It is not 

just the video hearings, it is not just, you know, the particular 

problem we had at Huntington. As we have dug into this, there are 

a variety of problems around the system that come from nonrandom, you know, the random assignment being violated. And 

what we are trying to do is get a handle on that as best we can 

with a permanent solution. But in the meantime, I don’t think it 

is fair or appropriate that the people who are, as a general matter, 

on the bottom end of the spectrum get the judges that are least 

likely to award them benefits. I just don’t—I mean, we are supposed to be representing these people, too. And that is what judges 

are supposed to do when they come into hearings. They are not 

supposed to be—— 


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Mr. DOGGETT. I hope you will supplement the record on specifically what—if there is random assignments, specifically what has 

occurred that you can’t resolve in some other way than denying an 

opportunity to find out who the judge is before you walk in the 

room and on video conferences specifically so long as there is agreement that if you agree to a video conference, you get the judge that 

is assigned in the video conference, what is wrong with that? 

Mr. ASTRUE. If you allow a friendly amendment to your request, 

what I would like to do is come up and brief staff because several 

of these issues that have come up which are not public have or potentially have a law enforcement dimension to them. So I would 

rather not lay that out in the record. And I also would rather not— 

to the extent that we are being defrauded or the system is being 

abused, I would rather not lay out publicly how it is done as a 

roadmap for others until we can do this. So what I would like to 

do, and hopefully we can do this on a friendly, bipartisan basis 

with the majority and minority staff, is come up and go through 

some of these other things that we have come across that have 

given us the basis for significant concern. 

Mr. DOGGETT. Thank you. 

Chairman JOHNSON. There is a little bit of manipulation 

among the law firms, too, that represent some of these people. 

They are in it for the money. 

Mr. BECERRA. I think that is more on the video. 

Mr. DOGGETT. And that is why because he really didn’t respond 

on the video part. If you agree to a video hearing and you get whatever judge is to be assigned at random from one of the national 

centers, why isn’t that sufficient protection on video? 

Mr. ASTRUE. Well, because under the current rules, you are allowed to manipulate and pick and choose. You can see who you get 

on the video and then you could decide to decline. 

Mr. DOGGETT. But if you are restricted and your only choice, 

and you change it and your only choice is to get the judge assigned 

on the video, why isn’t that sufficient? 

Mr. ASTRUE. Well, we are looking exactly at doing that, but I 

believe that my, at least interim advice from general counsel is 

that I need to do that through notice and comment rulemaking. 

The other thing, again without compromising what is happening, 

the other technique, and I am concerned also about this on some 

other levels from a claimant’s perspective, is that a number of reps 

who have gotten into the practice of simply withdrawing an appeal 

and then refiling. And that is another way in which random assignment has been manipulated in some part. And some of this is our 

fault. Some of this, you know, I don’t know that we have been entirely consistent even in applying our own rules. So it is a difficult 

problem. It is an important principle of justice to get this right. 

And we are trying to take the time to do this right. And in the interim I think what we are doing we acknowledge it is not perfect 

and we have not represented that we want to continue to do it indefinitely. I would be delighted to go back to telling people who the 

judge is. I don’t think it is the—I think the criticism is a little bit 

overwrought in that, you know, it is the same, VA, NLRB, I don’t 

believe you get notice of the judge. Most worker’s comp you don’t 

get notice. 


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I, too, was a trial attorney in my reckless youth. In the Massachusetts Superior Court, at least in 1985, when I tried my first 

case, you didn’t know who your trial judge was until you walked 

in and then it changed on a monthly basis. So you know you 

couldn’t really design a case for the predilections of a judge because 

a judge would change multiple times over the course of a trial. 

So again, I am not defending what we are doing. And I have 

been, I think, straightforward. I don’t want to continue. I would be 

perfectly happy to put the judge’s name back on. But I don’t want 

to do it until I fix things that are important for the integrity of the 

system. 

Mr. DOGGETT. Thank you. Thank you, Mr. Chairman. 

Chairman JOHNSON. That was a good answer. Thank you so 

much. And, you know, during your term you have worked with two 

different administrations and your dedication to doing the job to 

the best of your ability has never wavered in my view. The American people and we are grateful for your focus on the disability program. During these challenging times and along with your achievements, thanks for your service, your leadership. 

I have one final question. Based on your experience, what advice 

would you give your successor? 

Mr. ASTRUE. Buy a flak jacket. I think that the most important 

thing is to realize that you do take a lot of criticism in this job. 

And it is because Social Security is such an important institution 

to the public and the expectations are very high. We are in a world 

where it is going to be very hard to satisfy those expectations in 

the coming years. 

What I would urge my successor to do would be in part to urge 

all of you, you know there are several ways to try to do this better. 

You know, one is to spend more money on the status quo. The 

other is simplification, and we have tried to do what we can from 

a regulatory point of view. This committee I don’t think has ever 

gone systematically back through the Social Security Act and say, 

well, is what we made sense in 1964, 1977, 1992, doesn’t make 

sense today. And it is an extraordinarily complicated act. And I 

think that there are opportunities where we shouldn’t come—any 

kind of partisan divide where we can say look, let us just make it 

simpler. I mean, one of the things that saved us the first year, we 

did administratively, is we realized for 30 years we have been requiring original birth certificates brought into the office or mailed 

to us with every retirement application and we did not need that 

because we could authenticate through other more modern needs. 

It made sense in 1965, but it did not make sense in 2007. 

I think there are a lot of opportunities to straighten out. This is 

only one small part. This is probably only about 10 percent of the 

Social Security Act right here, and I think that we can find opportunities—maybe you should get some outside expert advice, but I 

think you could find a lot of ways to simplify it that would lower 

our administrative costs. So if you don’t want to give us the money, 

there are other ways to do it. And I think that, I actually regret 

that I hadn’t given this speech a little bit earlier and asked you to 

consider doing that. And I think for the next person I think it is 

good advice. 

Chairman JOHNSON. Modernize the system. We can do that. 


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I forgot Mr. Smith. I apologize. I forgot Mr. Doggett first. So you 

are the second one. You are recognized. 

Mr. SMITH. Thank you, Mr. Chairman, and thank you, Commissioner, for your service, and certainly for your time here today. 

Going back to I think what Mr. Doggett was talking about a little 

bit, my office has worked with a situation where it is our understanding that an applicant’s attorney recommended the applicant 

request a delay of their hearing because they felt they would get 

a different, perhaps a more favorable hearing from a different ALJ. 

Obviously this raises questions and some were touched on a bit 

earlier, certainly about the uniformity of the system and perhaps 

what you could point to in addressing that uniformity. But I would 

say even more so when we talk about the workload, if one judge 

has prepared to hear a case and then ends up not doing anything 

with it and then someone else has to prepare and who knows what 

circumstances will surround that as well. How should we address 

this? What would you have to say about moving forward and perhaps on the judge anonymous policy that was touched on earlier as 

well? 

Mr. ASTRUE. I think the thing to do is to work with us to try 

to get some consensus on particularly the things that we need and 

notice and comment rulemaking. I have been surprised at least a 

few times where things that looked like there was consensus and 

not very controversial became very controversial in the rulemaking 

process, and sometimes the Congress contributed to that. 

So I think what we are trying to do is to try to figure out as 

much of a consensus approach as possible, and I do want to give 

some credit to the, to NOSSCR, the attorneys group, because they 

have already come to us and put some things on the table which 

I think we would have thought were unlikely to try to help us to 

fix this problem. And I want to commend them for you know taking 

that step in the public interest. And I think if we can all work together on this to try to devise a combination of administrative and 

regulatory approaches to straighten this out and just get it done 

and get it over with as quickly as possible, then I think the world 

will be better off. 

Mr. SMITH. Okay. Thank you. I yield back. 

Chairman JOHNSON. Thank you. Thank you for your testimony. 

We will proceed to our second panel now. 

And will the witnesses please on the second panel take your 

seats? 

Ethel Zelenske, Director of Government Affairs, National Organization of Social Security Claimants’ Representatives, on behalf of 

the Consortium for Citizens with Disabilities Social Security Task 

Force on the left, or your right. 

The Honorable Randall Frye, President, Association of Administrative Law Judges. Welcome back. 

Jeffrey Lubbers, who is Professor at American University Washington College of Law. 

And Richard Pierce, who is Professor at the George Washington 

University Law School. 

Thank you all for being present. 

And Ms. Zelenske, you are recognized. Please go ahead with your 

testimony. 


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STATEMENT OF ETHEL ZELENSKE, DIRECTOR OF GOVERNMENT AFFAIRS, NATIONAL ORGANIZATION OF SOCIAL SECURITY CLAIMANTS’ REPRESENTATIVES, ON BEHALF OF THE 

CONSORTIUM FOR CITIZENS WITH DISABILITIES SOCIAL SECURITY TASK FORCE 

Ms. ZELENSKE. Chairman Johnson, Ranking Member Becerra, 

and Members of the Subcommittee. Thank you for inviting me to 

testify today on behalf of the CCD Social Security Task Force. 

Title II and SSI cash benefits are the means of survival for millions of individuals with severe disabilities. In the past, I represented claimants at all administrative levels and in Federal 

court. My experience made me all too aware that behind the numbers are individuals whose lives have unraveled while waiting for 

decisions. 

I recently received an email from a gentleman who appealed to 

the hearing level. This is how he described the appeals process 

from a claimant’s perspective: ‘‘I just don’t understand why everyone is denied two times and forced to wait to have a hearing. I was 

very prepared from the onset with my documents. SSA was sent 

letters from my neurosurgeon, neurologist and two separate pain 

management doctors who I have been going to on a monthly basis 

for the past 8 years. Being denied was mind numbing. We lose everything we worked for over the years during the waiting process. 

I am currently over $100,000 in debt and have sold everything of 

value, including our wedding rings. My car was repossessed, and 

now my home of 18 years is in jeopardy. 

The pressures of my medical issues have caused our marriage of 

18 years to collapse. I have never been a fragile man. I am educated with a university degree. I have been active in my community and even own my own small company. It is hard enough for 

a family or a person just to deal with an illness, but it is harder 

when the government can keep your life on hold while you are ill.’’ 

While the wait for a hearing is still too long, processing times 

have been significantly reduced over the past few years, now 

around 350 days, dropping more than 6 months. We support the 

Commissioner’s goal of reaching 270 days by the end of next year. 

However, we are deeply concerned that any progress will be stymied due to a lack of adequate resources for SSA, thus putting that 

goal and other critical workload benchmarks at risk. We appreciate 

the subcommittee’s past support to provide SSA with adequate 

funding and urge support for the President’s fiscal year 2013 request that will allow SSA to continue to move forward. 

Central to the fairness of the SSA appeals process is a claimant’s 

right to a hearing before an ALJ. While ALJs have recently come 

under increased scrutiny, it is important to recognize several 

points. Favorable ALJ decisions account for only about one in five 

allowances with the vast majority made by DDSs. The overall ALJ 

allowance rate has been dropping, and it is at the lowest level in 

years. There are many legitimate reasons why ALJs reverse DDS 

decisions, as detailed in my written statement. And favorable ALJ 

decisions are being reviewed by SSA to determine compliance with 

agency rules and policies but in a manner consistent with the law 

ensuring the independence of ALJs. 


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We do not support proposals to have the government represented 

at hearings. The longstanding view of Congress, the Supreme 

Court and SSA is that the process is informal and not adversarial. 

SSA had a previous pilot where the agency was represented. I represented clients at a hearing office in the pilot and can confirm 

Congress’ findings at the time that the pilot did not achieve its purported goals. It led to longer processing times, did not improve the 

quality of decisions and did not result in better prepared cases. 

While radically changing the process, the expense was enormous, 

costing more than $1 million per year in 1986 dollars for just five 

hearing offices. Today there are more than 140 hearing offices. 

We support many of the Commissioner’s initiatives to reduce 

processing times and make the process more efficient, including 

technological improvements, such as online access to electronic 

claims folders and the ability to file appeals and submit evidence 

electronically. Also, there are a number case screening mechanisms 

that expedite decisions without sacrificing accuracy. 

I am glad to report that the gentleman I described earlier was 

found eligible through one of these hearing level screening initiatives. My written statement discusses our recommendations for improving the process for people with disabilities, such as increasing 

the time for hearing notices and helping claimants to obtain representation earlier in the process to assist with development of the 

claim. We also provide recommendations to better develop claims 

at the initial levels so that the correct decision can be made at the 

earliest point possible and then the unnecessary appeals can be 

avoided. Thank you and I would be happy to answer any questions. 

Chairman JOHNSON. Thank you. 

[The prepared statement of Ms. Zelenske follows:] 


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CONSORTIUM FOR CITIZENS 

WITH DISABiLiTIES 

Hearing before the 

House Ways and Means Committee 

Subcommittee on Social Security 

The Social Security Disability Appeals Process 

June 27, 2012 

Testimony of Ethel Zelenske, Co-Chair 

Social Security Task Force 

Consortium for Citizens with Disahilities 

Contact: 

Ethel Zelenske 

NOSSCR Government Affairs Office 

1025 Connecticut Ave., NW Suite 709 

Washington. DC 20036 

Phone: (201) 457-7775 

Fax: (202) 457-7773 

Enlail: n()~scrdc@aU.t\ct 

ON BEHALF OF: 

Association of University Centers on Disabilities 

Bazelol1 Center for Mental Health Law 

Community Access National Network 

Community Legal Services of Philadelphia 

Easter Seals 

Health & Disability Advocates 

National Alliance on Mental Illness 

National Association of Councils on Developmental Disabilities 

National Association of Disability Representatives 

National Multiple Sclerosis Society 

National Organization of Social Security Claintants' Representatives 

Paralyzed Veterans of America 

The Arc of tile United States 

United Spinal Association 
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TESTIMONY OF ETHEL ZELENSKE ON BEHALF OF THE SOCIAL SECURITY TASK 

FORCE, CONSORTIUM FOR CITIZENS WITH DISABILITIES 

Chainnan Johnson, Ranking Member Becerra, and Members of the Subcommittee. thank you for the 

opportunity to provide testimony for this hearing on the Social Security disability appeals process. 

I am the Director of Government Affairs for the National Organization of Social Security Claimants' 

Representatives (NOSSeR). [also am a Co~Chair of the Consortium for Citizens with Disabilities (CCD) 

Social Seemity Task Force. CCD is a working coalition of national con:mmer, advocacy, provider. and 

professional organizations working together v'lith and on behalf of the 54 million children and adults with 

disabilities and their families living in the United States. The CCD Social Security Task Force focuses on 

disability policy issues in the Title n disability programs and the Title X VI Supplemental Security Income 

(SSI) program. 

The focus of this hearing is extremely important to people with disabilities. Title 11 and SSI cash benefits, 

along with the related Medicaid and Medicare benefits, are the means ofsLlrvival for millions or individuals 

\\'11h severe disabilities. They rely on the Social Security Administration (SSA) io promptly and rairly 

adjudicate their applications for disability benefits. 

As the backlogs in disability claims have grown over the years, people with severe disabilities have been 

bearing the blUnt of the delays. Behind th13 numbers are individuals \\'ith disabilities whose lives have 

unraveled while waiting for decisions families are tom apart: homes are lost; medical conditions 

deteriorate; once stable financial security crumbles; and man) individuals die. 

Tille II disability benefits are modest and do not present a strong disincentive to work: Benel1ts average 

about $I,JOO per month, which is less than a minimum-wage job. Yet the benefits help to keep tens of 

thousands of people with disabilities and their families out of poverty and from being destitute and 

homeless. The majority of Social Security Disability Insurance (SSDI) beneficiaries tend to be older. In 

2010, about 70% \vere age 50 or older and about 30% were age 60 or older. The majority also have low 

educational attainment. Two-thirds of beneficiaries have only a high school or less education and about 

one-third did not finish high school. About 45% ofSSDJ beneficiaries qualified based on age-related 

impairments. which arc likely to worscn rather than improve over time. 

Demographic factors have been the primary factor for the increase in applications for disability benefits 

sllch as the baby boomers reaching their "peak disability years" and more women in the workforce who are 

now insured for benefits. As a result of the increase in applications, SSA tlnds itself at a critical 

crossroads. The wave ornew claims is having a very significant impact at the state Disability 

Determination Services (DDSs) where processing times are on the rise. 

The news has been more positive at the hearing level where processing times have been signiticantly 

reduced. The average processing time at the hearing level \vas at a record high of 532 days in August 2008. 

In May 2012, the average processing time had dropped to 353 days - a reduction o l' nearly 6 months. 

Commissioner Astrue has set a goa! of 270 days by the end of FY 2013. However, we are deeply concerned 

that any progress in eliminating the hearings level backlog and reducing the average processing tim~ will 

be delayed due to a Jack of adequate resources, thus putting the Agency's 2013 goal and other critical 

workload bcnchmarks at risk. 
42 


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SSA'S NEED FOR ADEQUATE RESOURCES 

For many years, SSA did not receive adequate funds to provide its mandated services. Bet\veen FY 2000 

and FY 2007. the resulting administrative funding shortfall "vas more than $4 billion, The dramatic 

increa!)(' in the hearing level dbabllity claims backlog coincided \\ ith thb period of significant 

underfunding. 

We want to lhank the Subcommittee for its erforts to provid(; SSA with adequale funding for its 

administrative budget. Between 2008 and 2010. Congress provided SSA with the necessa!)' resources to 

start meeting its service delivery needs, With this funding, SSA \vas able to hire thousallds of needed new 

employees, including additional Administrative Law Judge.'> (ALls) and hearing level snpport starr. There 

can be no doubt that this additional staff led to SSA's ability to make the drammic progress in reducing the 

hearings level backlog. 

Unfortunatdy, that trend did not continue and the recent reduction in funding threakns to undo all of the 

progress SSA has made. SSA has received virtually no increase in its Limitation on Administrative 

Expenses (LAE) since 2010. Tn FY 2011, SSA's appropriation was a smail decrease from the FY 20! 0 

level and the FY 2012 appropriation \vas only slightly above the FY 20 to level. 

The budgd shortfall has already impacted the Agency, \vhich in turn al1'ects the public. including people 

with disabilities. The carrent funding situation has led to a number of actions by SSA including: 

continuation orihe hiring fTeeze (except for the hearing level) that began in July 2010; delaying the 

opening of8 neVv hearing offices: closing 160 temporary remote hearing sites that serviced claimants in 

communities distant from permanent hearing sites; diverting resources from information technology 

projects that would have improved productivity in the future: and closing field oftices to the public 30 

minutes early each day. By the end of this year, SSA \vill have lost 9,000 employees in three years. 

A concrete e>.ample of the budget shortfall's impact on claimants at the hearing level is SSA 's decision to 

close 160 temporary remote hearing sites. Although "temporary," many had been llsed for years, if not 

decades. My organization received passionate complaints fr0111 our members about the serious difficulties 

and hardships lhat claimant~ now face \vith the closure o[these sites. In most of these locations, there is no 

public transportation to the nearest ODAR hearing office. Many of the claimants are unable to sit for a 

long car ride. Many do not drive and cannot find someone to drive them. Also, there has been conllicting 

and confusing information about the availability of travel reimbursement. 

The reduction in staffing at the field office and DDS levels \vill certainly impact the workload at the 

hearing level. Disability claims may be less developed, leading to incorrect decisions earlier in the process 

and more appeals. We are very conl.:"emed that the significant progress made in reducing hearing 

proccs~ing timcs and the disability c1aim~ backlog \vill be stymicd due to the lack of needed resources. At 

a Senate Finance Committee hearing in May 2012, Commissioner )\strue noted that "progress on backlog 

reduction (at the hearing level] has slowed in the last year, . "I 

Vie support the President's FY 2013 Budget request ofSll.76 billion for the Social Security 

Administration. This is the minimum amount needed to continue to reduce key hacklogs and increase 

deficit-reducing program integrity work and is only a very modest increase over the $1 1.46 billion 

I ''The Social Security Administration: Is it );feeting its Responsibilities to Save Taxpayer Dollars and Serve the Public?:' 

before the United States Senate Commiuee 0t1 Finance, 17, 2012, Statement of Michael J. Aslrue, 

Comm,,,,on,,", Social st..r.m~' .guv, n~o, mcdi:l,i,lUt"SS,\· 
43 


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appropriated in FY 2012. With this level of funding, SSA could continue to build on the progress achieved 

thus far, progress that is vital to millions ofpeop1c ",,,ho depend on their services, including people with 

disabilities. We strongly urge Congress to provide SSA with sufticient administrative funding so that there 

are enough personnel in the SSA field office, the DDSs, and the hearing offices, to adequately process, 

develop, and determine disability claims in a timely manner. This funding level will allow SSA to continue 

working down disability backlogs, to implement efficiencies in its programs, and to increase program 

integrity \vork. 

THE DISABILITY APPEALS PROCESS 

An Informal and Nonadversarial Process 

The longstanding view of Congress, the United States Supreme Court, and SSA is that the Social Security 

disability claims process is informal and nonadversaria1. with SSA's underlying role to be one of 

determining disa.bi.lity a.nd pay!ng benefits,. "In l~a~ing a <.ktcrmination or decisi~n in you~ case, wt: ~SS~] 

conduct the admmlstratlve revIew process m an miormal, nonadvers3ry manner."~ SSA's mterpretatlon IS 

consistent with United States Supreme Court decisions over the la~t thirty years that discllss Congressional 

intent regarding the SSA hearings process. Most recently in 2000, the Supreme Court stated: 

The differences between courts and agencies are nowhere more pronoLlnced than in Social SecLlrity 

proceedings. A lthough many agency systems of adjudication are based to a significant extent on the 

judicial model of decision-making, the SSA i~ perhaps the best example of an agency that i~ not. 

Social Security proceedings are inquisitorial rather than adversarial. It is the ALl's duty to investigate 

the facts and develop the arguments both for and against granting bendits .. ., 

The Supreme Court relied on another decision that was then nearly 30 years old, emphasizing Congress' 

intent to keep the process informal and nonadversarial: 

fhere emerges an emphasis upon the informal rather than the formal. I'h1s. we think, is as it should be, 

for this administrative procedure and these hearings should be understandable to the layman claimant. 

should not necessarily be stiff and comfortable only for the trained attomey, and should be liberal and 

not strict in tone and operation. This is the obvious intent of Congress so long as the procedures are 

fundamentally fai1'.-I 

The value of keeping the process inf<.mnal should not be underestimated. It encourages individuals to 

supply infonnation, onen regarding the most private aspects of their lives. The emphasis on informality 

also has kept the proces~ understandable to the layperson and not strict in tone or operation. 

The process should not be adversarial. Proponents of making the process advcrsarial by having SSA 

represented at the AU hearing believe that the Agency is not fairly represented in the disability 

determination process. It is important to note that SSA and the claimant arc not partics on opposite sides of 

a legal dispute. Further. SSA already plays a considerable role in setting the criteria and procedures for 

determining disability, \yhich the claimant must foHow. 

The issue of having SSA represented at the ALJ hearing was raised at a July 2011 House hearing held by 

this Subcommittee and the House Judiciary Subcommittee on Courts, Commercial and Administrative 

'2(1 CF.R. 404.900(b). -l16.1400(b). 

, Sims)' 530 U.S. 103, 110 (2000)(citJtions omitted). 

4 Richardson v. Pao/es. 402 U,S. 389, 400-401 (1971). 
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La\v.5 Agreeing with Commissioner Astrue's testimony at that hearing, \-ve do not support proposals to 

have SSA represented at the ALJ hearing, 

SSA previollsly tested. and abandoned. a pilot project in the 19805 to have the agency represented - the 

Government Representation Project (GRP). First proposed by SSA in 1980, the plan encountered a hostile 

reception at public hearings and from Members of Congress and was withdrm'l'n. The plan was revived in 

1982 with no public hearings and was instituted as a one-year "experiment" at five hearing sites. The oneyear expaiment was temlinated more than four years later following Congressional criticism and judicial 

intervention. 6 

Based on the stated goals ofthe GRP expenme11l, i.e., assisting in better decision-making and reducing 

delays, it was a failure. Congress found that: (1) processing times were lengthened; (2) the quality of 

decision-making did not improve; (3) cases were not better prepared; and (4) the government 

representatives generally acted in adversarial roles. In the end. the GRr experiment did nothing to enhance 

the integrity orthe admil1istrativ~ process. The GRP caused extensive delays in a Systt:ITI that was 

overburdened, even then, and injected an inappropriate level of fannality, technicality, and adversarial 

process into a system meant to be informal and nonadversaria1. 

In addition to radically changing the nature of the process, the financial costs of representing the ngency at 

the hearing level would be \'ery high. In 1986. SSA testil1ed in Congress that the cost \Vas $1 million per 

year for only five hearings offices in the Project (tht:re currently are more than 140 hearing offices). 

The Important Uolc of the Administrative Law Judge 

AL.Ts and their decisional independence pJay a critical role in protecting the rights of claimants. A 

claimant's right to a de novo hearing before an AU is central to the fairness of the SSA adjudication 

process. This right guarantees that individuals with disabilities have a full and fair administrative hearing 

by an independent decision-maker who provides impartial fact-finding and adjudication, free from agency 

coercion or influence. The ALJ questions and takes testimony from the claimant and other \vitnesses, and 

considers and weighs the evidence, all in accordance "",ith relevant law and agency policy. For claimants, a 

fundamental principle of this right is the opportunity to present ne\-v evidence to the AU, testify in person 

before the AU, and receive a decision based on all available evidence. 

Recently. the SSA AU corps has come under increased scmtiny. It is impOIiant to emphasize that the vast 

majority of the more than 1400 SSA AL.Ts perform their jobs consistent with the Social Security Act. SSA 

regulations and policy, and conduct themselves in a profe~sional and judicially appropriate manner. Key 

points to recognize include the follO\ving: 

Allowances at the ALl level account for only a small percentage of overall allO\vances. less than 2YYo. 

The overwhelming majority of favorable disability determinations are made by ODSs at the initial and 

reconsideration levels. 

Despite the increase in the number of disability applications and appeals to the hearing level, the overall 

ALI allowance rate has been dropping and is at the 10\\lcst level in many years, In FY 2011. the AL] 

'i Joint Oversight Hearing on the Role of Social Security :\dministrative La\\i Judges, July 11,2011, 

further proceedings under the Project. 
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allowance rate \vas 58%, four percentage points lower than in FY 2010. SSA statistics shmv that most 

ALJs fall within close range of the average. 

There arc a number of reasons \vhy ALJs reverse DDS disability determinations. By law, ALl hearings 

arc de novo and the AL.I is not bound by previous determinations. Claims are often bettcr developed at the 

hearing level, in part due to the fact that claimants are represented and the representative is able to obtain 

more specific medical evidence tailored to the SSA disability criteria. In addition, claimants' conditions 

change and deteriorate \vith the passage of time. Also, AUs are able to call expert \vltnesses - medical 

experts and vocational experts·" to provide hearing testimony on complex issues and \vho can better 

explain the claimani"s impairment(s). treatment, how functional limitations affect the ability to work, etc. 

And a critical difference tlom the earlier levels is that the ALI hearing is the first opportunity for the 

claimant to meet the adjudicator face-to-face, which can be especially important in cases involving 

llonexertional impainnents such as memal illness and pain. 

AU decisions are reviewed by SSA in a manner consistent with law. While ALJs have decisional 

independence, they must follow SSA Imv and policies. SSA has implemented a quality review process for 

ALI decisions. In FY 2011, the SSA Office of Disability Adjudication and Rt:viev,,' (ODAR) estahlished a 

Quality Review (QR) initiati\'e and opened four new Branches in the Oftice of Appellate Operations. The 

OR Branches re"k\v a computer-generated sample of un appealed favorable ALJ decisions (almost 3700 in 

FY 2011) hefore they are effectuated. Cases are then refelTed to the Appeals Council for possible review. 

If the Appeals Council accepts review, it can remand or issue "corrective" decisions, which may imolve 

changing the favorable ALl decision to a "partially" favorable decision or to an unfavorable decision. 

There also is some post-effectuation review of ALJ decisions. While these ALI decisions cannot be 

changed, post-effectuation review looks for policy compliance and can focus on cases where there is a 

recurring problem and on specific situations. Policy guidance can then be provided. 

RECENT IMPROVEMENTS AT THE HEARINCS ANI) APPEALS LEVELS 

To address the hearing level backlog, Commissioner Astrue has implemented a number ofiniliatives. 

vvhich we believe have improved the appeals process for all parties involved: claimants, their 

representatives, and SSA. 

Caution Regarding the Search for Efficiencies. While we generally support the goal of achieving 

increased efliciency throughout the adjudicatory process. we caution that limits must be placed on the goal 

of administrative efficiency for efficiency'S sake alone. The purposes of the Social Security and SSI 

programs are to provide cash benefits to those who need them and have earned them and who meet the 

eligibility criteria. While there may be ways to improve the decision-making process from the perspective 

of the adjudicators, the critical measure for assessing initiatives for achieving administrative efficiencies 

must be how they affect the vcry claimants and bendiciaries for whom the system exists. 

Commissioner Astrue has made a strong commitment to improve and expand the technology used in the 

disability determination process. CCD generally supports these efforts to improve the disability claims 

process, so long as they do not infringe on claimants' rights. SSA has implemented a number of significant 

technological improvements that have helped claimants and their represcmatives and have made the 

process more efficient for SSA employees. Some of these improvements include tbe following: 

1. Submitting e"idence electronically. Under Electronic Records Express (ERE), registered claimants' 

reprc:<.cmativcs are abk to submit cvidenct: electronically through an SSA :<.ccurc \\oebsite or to a dedicated 
46 


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fax number, using a unique barcode assigned to the claim. Evidence submitted through ERE is 

automatically "placed" in the claimant's electronic disability claims folder. As a result, submitted evidence 

is in the claimant's file sooner and is almost never lost or misplaced. 

2, Online access to claimants' electronic folders, SSA has implemented the Appointed Representative 

Suite of Services (ARSS) that provides direct access to a claimant's electronic folder for authorized 

representatives. Tn have access, the appninted representative must go through a strict enrollment and 

authentication process. Once authoril"cd, the represenlative has access to view and download the claims 

me at the hearings and Appeals Counci1levels. As a result. hearing office staff and Appeals Council staff 

do not need to copy the claims tile for the representative. SSA has recently expanded ARSS to allo\\-' 

access to the hearing level statllS report, \vhich allow's an authorized representative to vie\v the status of a 

specific claimant's case at the hearing office, \vithout the need to contact hearing office staff. ARSS is a 

very signiticant improvement thai has led to concrete efficicncics for all parties. 

3. Electronic appeals. Appeals can now be filed electronically when requesting reconsideration and 

requesting a hearing. In fact. SSA has recently made use of"iAppeals'· an affirmative duty under its Rules 

nf Conduct and Standards of Responsibility fnr Representatives7 jfthe representative requests direct 

payment offees. 8 The "mandate" requires an appointed representative to file these appeals electronicaHy 

along with the associated Disability Report-Appeals (Form SSA-3441). \\,'hcn filed electronically, the 

information in the appeals form and SSA-3441 becomes data, v·:hich is used by the SSA system to screen 

cases for possible expedited decisions, e.g., compassionate allowances, Ottice of Disability Adjudication 

and Review (OOAR) virtual screening by ~enior attorneys, selection for the "informal remand project." 

While we had a number of questions and concerns when the requirement was first announced, SSA has 

becn vcry cooperative in meeting w'ith us and responding to issues we have rais~d. 

4. Use of video hearings. Video hearings aJlO\v AUs to conduct hearings without being at the samc 

geographical site as the claimant and representative and have th~ potential to reduce processing times and 

increase productivity. We support the use of video hearings so long as the right to a full and fair hearing is 

adequately protected; the quality of video hearings is assured; and the claimant retains the absolute right to 

have an in-person hearing as provided under CUlTent regulations<) and SSA policy. 

The claimant makes the ultimate decision whether to accept the video hearing. In general, representatives 

report that video hearings arc usually accepted, primarily because they lead to faster adjudication. 

However, there are a l1llmber of reasons why a claimant may decline and choose to exercise the right to an 

in-person hearing, e.g., the claimant' I) demeanor is critical (e.g" respiratory impairments, fatigue caused by 

impairment)~ the claimant has a mental impairnlent with symptoms of paranoia; the claimant has a hearing 

impairment. 

Several years ago. SSA established National Hearing Centers (NHCs) to help reduce the hearings backlog. 

Cases are transferred from "brick and mortar" hearing offices to the five NHCs, where hearings are handled 

exclusively by video. If claimants exercise their rigllt to an in-person hearing, the claim is transferred back 

10 the geographic hearing office \vhere a local AU will hear the case. HO\.vever, \-ve have recently heard 

that NHC ALJs, in some cases, \vill travel to the local hearing offices to hear cases in person. 

The Representative Video Project (RVP) is another initiative that has been instituted to help reduce the 

disability claims backlog, Under RVP, the reprcs~ntative purchases video equipment that a1l0v,,'s the 

claimant and representative to be in the representative's office with the ALl in a hearing office location. 

2(1 ( I R ~H041740(b)(4)and4161'40(b)(4) 

~ 77 Fed. Reg. 4653 (Jan. 31, '201~). 

<) 20 C.F.R. §* 40-\..936 and 416.1436. 
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Some representatives and their clients \\'ho have participated in RVP have found it to be very satisfactory. 

However, others have bc('n less enthusiastic duc to thc inability to resolve technical issues and ALJ rerusal 

to accept use of RVP (the ALJ has the ultimate amhority to decide \vhether to allow its use). As a result, 

there has been limited use of RVP, with representatives hesitant to invest in purchasing the equipment 

unless they kno\o\ that AL.ls will accept its use. 

Screening Initiatives 

We support SSA 's efforts to accelerate decisions and develop new mechanisms for expedited eligibility 

throughout the application and review process, without sacrificing accuracy. We encourage the use of 

ongoing screening as claimants obtain more documentation to support their applications. 

1. The Senior Attorne:y Program. This program allows senior staff attorneys in hearing offices to issue 

fully hvorable decisions in cases that can be decided without a hearing (i.e .. "on the record"). This cuts off 

man) months in claimants' wait for payment of b~ncfits. In FY 2011, senior attorneys decided more than 

53,000 cases. In FY 1011, nearly 28,000 cases have been approved through May 2012 by ~enior attorneys. 

2. Virtual Screening Unit. Related to the Senior Attorney Program, the Virtual Screening Unit (VSU) is 

made up of about 100 ODAR senior attorncy~ who remain in their local hearing offices and screen 

dectronic folder cases identilied by the national ODAR office for possible favorable decisions. Cases they 

screen may come from hearing offices throughout the country. (In contrast, senior attorney advisors in 

local hearing offices review eases in their own re5.pective locations.) VSU attorneys have a limited time 

period tn screen cases for fully favorable decisions. Claimants do not lose their place in the hearing queue 

if the case is returned to the ALl 

3. lnformal Remand Project. Earlier this year, ODAR announced a new Infomlal Rcmand Project. 

While similar to previous informal remand projects, this OIlC is bigger in scope, involving hundreds of 

federal disability examiners (not DDS employees and not ODAR senior attorneys) around the country. Ira 

case is selected for this project, the goal is to complek review within 45 days of the case transfer. Only 

electronic folder cases are selected according to agency profiles. Examiners can only issue fully favorable 

decisions. Ifparlially favorable or unfavorable (in their opinion), the case will be rdurned to the hearing 

office. The eX<lIniner can make the fully tbvorable decision, based on the evidence already in the file, or 

\vith additional evidence from the representative. Like VSU cases, claimants do not lose their place in the 

hearing queue. 

Vv'e have not yet seen statistics on the number or cases transferred and the number of cases decided 

favorably hy the federal examiners in the Project. Representatives have reported some issues with cases 

that have been remanded, such as: (l) limited time to provide additional evidence, which is difficult to 

meet; (2) inability La access the electronic folder through ARSS while the case is in the Remand Project so 

that it is unknown what evidence is already in the tile if the claimant is a recent client; and (3) difficulties 

contacting the examiner. 

4. Compassionate AIlOlvanccs. This initiative a!lO\vs SSA to create "an extensive list of impairments that 

we [SSA 1 can allow quickly with minimal objective medical cviclt:ncc that is based on clinical signs or 

laboratory findings or a combination of both .... " In April 2012. Commissioner Astrue announced that the 

current list of 113 conditions \\ill be increased to 165 conditions, effective August 13, 2012. The 

conditions on the list involve very serious diagnoses, for which there is unanimoLls agreement that the 

severity of the impainnent meets the disability standard. The list includes cancers, neurological and 

immune system disorders, and other impairments affecting adults and children. Unlike the Quick 
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Disability Determination (QDD) screening, II) \"hich occurs only when an application is filed, screening for 

compassionate allowances can OC<;Uf at any levd of the administrative appeals process. including the ALJ 

and Appeals Coullcilleveis. 

RECOMMENDATIONS FOR IMPROVING THE DISABILITY DETERMINATION PROCESS 

We have numerous suggestions for improving the disability claims process for people w-ith disabilities. We 

helieve that Lhese recommendations can go a long way Lowards reducing the disability claims backlog and 

making the process more efficient for all parties involved. 

l. Increase the time fOI' headng notices. 'Ne recommend that the time for providing advance notice of 

the hearing date be increased from the current 20 daysll to 75 days. We believe that this increase will 

allow more time to obtain medical evidence before the hearing and make it far mor~ likely that the record 

will be complete when the ALJ reviews the file before the hearing. The 75-day time period has been in 

effect in SSA's Region 1 states since August 2006 12 and, based on repOlis from representatives, has worked 

'well. 

2. lmprove development of evidence earlier in tbe process. We support initiatives to improve the 

process at the initial levels so that the correct decision can be made at the earliest point possible and 

unnecessary appeals can be avoided. lmprovements at the iI'ont end of th..:: process can have a significant 

beneficial impact on preventing the backlog and delays later in the appe<lls process. inadequate case 

development at the DDS level means that ALJs will need to spend more time reviewing cases prior to the 

hearing. This leads to longer processing times at the hearing !eveL Our recommendations include the 

following: 

Provide more assistance to claimants at the application level regarding necessary and important 

evidence so that all impairments and sources of information are identified, including non-physician and 

other professional sources. 

DDS examiners should obtain necessary and relevant evidence. The DDSs generally do not use 

questionnaires or forms that are tailored to the specific type of impainnent or ask for information that 

addresses the disability standard as implemented by SSA. This "language" barrier cames delays in 

obtaining evidence, even fr0111 supportive and well-meaning doctors. 

Electronic records, like paper records, need to be adapted to meet the needs of the SSA disability 

determination process. Many proyiders ar~ submitting evidence electronically but these records are based 

on the providers' needs but often do not addre:'.s the SSA disability criteria. 

increase reimbursement rates for providers. To improve provider response to requests for records, 

appropriate reimbursement rates f()f medical records and reports need to be established. Appropriate rates 

should also be paid for consultative examinations and for medical experts \'\lho testify at hearings. 

Provide better explanations to medical providers. SSA and DOSs should provide better explanations to 

all providers, in particular to physician and non-physician treming sources, about the disability standard and 

a<;k for evidence relevant to the standard. 

Improve the qualitJ of consultative examinations. Sleps should be taken to improve the quality of the 

consultative examination (CE) process. There arc many reports of inappropriate referrals and short 

perfunctoryexaminalions. Tn addition, there should be more effort to have the treating physician conduct 

the consultative examination. as authorized by SSA's regulations. I

' 

III See 20 CF.R. §§ 404.1619 and 416.1019. 

II c.r.R. §~ 404.938(a) and 416.1438(a). 

C.F.R. ~ 405.315(a). 

IJ:W C.F.R. § ..).04.15J911 and 416.919h. 
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3. Help claimants obtain representation earlier in the process to assist with development. 

Representatives play an important rolt! in obtaining medical and other information to support their clients· 

disability claims and helping SSA to streamline the disability detennination process. They routinely 

explain the proces:-. and procedures to their clients with more specificity than SSA. They obtain evidence 

from all medical sources, other treating professionals, school systems, previous employers. and others \\'ho 

can shed light on the claimant's entitlement to disability benefits. Given the importance of representation, 

the Social Security Act requires SSA lo provide infonnalion on options for s(;eking legal representation, 

whenever the agency issues a notice of any "adverse determination.'.t4 In reality, this statutorily required 

information is rarely provided. 

Most representation occurs at the hearing level. A major reason is that it is only at that level, after the 

request for hearing is filed, that claimants arc given concrete information regarding local and national 

resources to contact. However. many claimants' representatives represent claimants prior to the hearing 

level, by helping them file their applications, obtain medical cv idence in support of the application, and 

assist in appealing if their applications are denied. My organization recently conducted a :-.urvey of our 

members regarding their representation of claimams prior to the hearing level. Although a limited and nonscientific measure, more than 500 of our members responded that they do represent claimants at the initial 

and reconsideration levels, in addition to the henring level. 

UnfOJiunately, the rak of representation at the initial and reconsideration levels is extremely lo"\v when 

compared to the hearing level because little or no ill formation is provided that is specific or targeted to the 

area where claimants live. We also receive reports that claimants are in fact actively discouraged from 

obtaining representation by SSA claims representatives or telephone ft.!preRentatives. 

Given the statutory requircment, \'\>'C recommend that SSA include more information on options for 

reprcsentation in initial and reconsideration denial notices similar to that provided at the hearing level. 

OTHER ISSUES REGARDING THE HEARING AND APPEALS PROCESS 

1. ~~~p _th£: T~~~r~ 9P~~_ fQr_~~~Y _~yjc).~_~~~~ 

Over the ye3rs, there have been frequent proposals to limit the ability to submit e\'idcnce within a set 

number of days before the hearing and/or to close the record entirely atter the ALJ hearing is held. 'Af,;; 

believe that these proposals are neither beneficial to claimants nor administratively efficient for the 

Agency. 

Under current law, new evidence can be submitted to an ALl and it must be considered in reaching a 

decision. J~ Conlrary to assertions by some that there is an unlimited ability to submit new evidence after 

thc ALl hcaring, the current regulations and statute are very spccific in limiting that ability at later [e"\'e!s of 

appeal. At the Appeals Councillcvcl. ne\v evidence wil1 be considered. but only if the Appeals Council 

determines it relates to the period before the ALJ decision and is "new and materia1.··!l, "Vhile the Appeals 

Council remands a little over one-in-five appeals filed by claimants, the reason for most remands is not the 

submi~sjon of ne\v evidence, but rather legal errors committed by the AL], including: the failure to consider 

existing evidence according to SSA regulations and policy and the failure to apply the correct legal 

standards. 

Ii 42 U.s.C. § 406(c); 42 U.S.c. * 1383(d)(2)(D). 

15 42 U.S.C'. § 405(b)(i). Curr<:n! regulations vvilh the statule by prOviding that the dainumt may submit nc\>,,' 

evidence at the hearing. 20 C.F.R. §* 

i(l 20 C.F.R. §~ 404.970(b) and 4J 6.1470(b). 
50 

f 

Chairman JOHNSON. Randall Frye you are recognized. 

STATEMENT OF THE HONORABLE D. RANDALL FRYE, 

PRESIDENT, ASSOCIATION OF ADMINISTRATIVE LAW JUDGES 

Judge FRYE. Thank you very much. 

Mr. Chairman, Ranking Member Becerra and Members of the 

Subcommittee, thank you very much for the opportunity to be here 

this afternoon to talk about some very important issues with respect to the disability adjudicatory system at the Social Security 

Administration. 


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51 

I am president of an organization that represents 1,400 judges, 

and I feel like the weight of all 1,400 are on me every day because 

I hear from them on a regular basis, and I understand the trauma 

that is ongoing dealing with a rather significant backlog. 

There are some good things, however, that are happening at the 

agency, good things that result from your actions: 3 years ago you 

responded favorably in a budget context that permitted the agency 

to appoint several hundred additional judges and staff, and we 

have dealt with the backlog. We have worked exceptionally hard. 

It is troubling to hear or to think that come January, the bottom 

may fall out of this progress. So I urge you on behalf of all of the 

American people to, please, do what you can to ensure that this 

agency is funded so we can continue with the disability backlog. 

While I think the judges and the staff have worked well, there 

are some things that haven’t worked so well, and we have some 

ideas that we would like to share with you. What isn’t or hasn’t 

worked well, quite frankly, is that—and believe me, we understand 

the importance and need for goals in everyone’s life, personal and 

professional. Goals have driven this democracy to the highest levels. What we have been faced with as judges, however, are not 

goals; they have been quotas. Quotas are destructive, and they 

force decisions before they are ready. If you understand the process, as you most certainly do, under the present structure, judges 

have the responsibility of wearing three hats, incredible responsibilities in wearing three hats, representing the government or the 

people, representing the claimant’s interest and of course ensuring 

that the law is applied correctly to a decision. That is a heck of a 

burden if you think about it. 

It requires the judge to engage in rather aggressive and vigorous 

examination of a claimant. Oftentimes that puts one at loggerheads 

with the claimants and claimant’s represent—it almost places the 

judge in truly an adversarial relationship in the process. That is 

not a healthy judicial environment. It is not good in my view to 

have the judge wear three hats. 

It is certainly good that the record is developed. Indeed, without 

record development, we cannot make a decision. 

An answer we think to this problem and an answer that at long 

term would save money is to have the government represented. If 

you think about it, and I have said this before, how many corporations or companies that you know of would go to court, facing a 

lawsuit where the plaintiff is seeking $300,000, without representation? That is what is happening in our courtrooms. The government 

comes without representation. 

Indeed, I recognize part of my responsibility is to represent the 

government, but what I am trying to communicate to you is that 

it is a very difficult process. It is a balance that sometimes gets 

skewed. 

We believe the advocacy of a government rep would be important, but even more important from the claimant’s perspective, a 

government representative would be assigned the cases early in the 

process. The government representative would develop or ensure 

development of evidence is in the record. The government representative would work with the claimant and the claimant’s attorney to pay the case as early as possible, without a hearing. Thus 


ccoleman on DSK8P6SHH1PROD with HEARING
52 

saving the more expensive time for conducting a hearing and having to issue a written decision after a hearing. 

The government rep has a lot of value. It is the individual that 

would be designated in a hearing office that the attorney on behalf 

of a claimant could call and talk to about a case to find out the status of a case. Right now, if you talk to many representatives, it is 

quite difficult to talk to anyone in a hearing office; not because we 

are unfriendly, it is just that everybody is swamped with work. 

The problem with the quotas is particularly perplexing to I think 

anyone, any professional who has to have time to consider important and complex issues. What has happened to us is because with 

all of the wonderful programs the agency has established over the 

last few years, the easier cases are getting addressed before a hearing or many of them are. The cases we hear are far more difficult. 

Chairman JOHNSON. Can you close? Your time has expired. 

Judge FRYE. I am sorry, I will indeed. I have other points that 

I made in my statement. And I would like if at all possible to submit a statement on the APA and its applicability to our hearings 

at the close of hearing. 

Chairman JOHNSON. Sure. 

Judge FRYE. Thank you very much. 

Chairman JOHNSON. Thank you, sir. 

[The prepared statement of Judge Frye follows:] 


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STATEMENT OF THE ASSOCIATION OF 

ADMINISTRATIVE LAW JUDGES 

COMMITTEE ON WAYS AND MEANS, 

SUBCOMMITTEE ON SOCIAL SECURITY 

June 27, 2012 

ADMINISTRATIVE LAW JUDGES 

PROTECTING JUSTICE AND DUE PROCESS 

FOR THE AMERICAN PEOPLE 

Statement of the Honorable D. Randall Frye, President, 

Association of Administrative Law Judges 

Protecting Due Process for the American People 
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Chairnlt:11 Johnson. Ranking Member Xavier Becerra and members of the Subcommittee: 

Thank you for pnwiding the Association of Administrative Law Judges (AALJ) the opportunity to 

submit this statement. My namc is D. Randall Fryc. I am a Unih::d States Administrativt: Law Judge 

(AU or Judge) assigned to the Social Security Administration (SSA). I have been hearing Social 

Security Disability ca~cs in Charlotte, NOlth Carolina for about 15 years. J ha\c also ,<"erved as 

Administrative Lm\ Judge for the National Labor Relations Board nx one and one-half years. I am 

currently President of the AALJ, \\hich represents the approximately 1400 Administrative Law 

Judges employed at the SSA. One oCthe stated purposes urthe AALJ is to promote and pre,<"erve due 

process hearings in compliance \."ith the Administrative Procedure Act (APA) and the Social Security 

Act for those individuals \\ho seek adjudication of program entitlement disputes within the SSA. It is 

the longstanding position of the AALJ that ensuring full and fair due process de novo hearings brin£s 

justice to the American people. The AALJ repre:.ents mo~t of the approximately 1600 administrative 

law judges in the cntire Federal govcrnment. 

Some criticism has been recently kvied against the world's largest adjudicatory sy~tem. Hmvever, 

the concerns raised do not pn:sent issues that arc insurmountable. In this statement, the AALJ 

proposes changes we belic\e arc neel.!ssary to make the federal disability administrative judiciary 

more efficient and effective as \\'dl as addresses some of the issues raised during the past year. In 

addition, the AALJ believes the proposed changes, 1110st of which are not new, would be cost 

dlectivc and would well serve the American people. For example, the AALJ has advocated tor over 

a decade that our government be represcnted in cases before Administrati\,c La,,-: Judgcs \'liith the full 

right to appeal. We are extremely pleased that such a program is now supported by Senator Coburn. I 

THE NEED FOR AN INDEPENDENT ADMINISTRATIVE JUDICIARY 

In 1946, the Congre:.s enacted the Administrative Procedure Act (APA) to reform the administrati\e 

hearing process and procedures in the Federal government and to protect, inter alia, the American 

public by giving AUs decisional independence. "Congress intended to make hearing ..:xaminers 

(now ALJs) 'a special class of semi-independent subordinate hearing officers' by vesting control of 

their compensatiun, promotion and tenure in the Civil Service Cum mission (nov\,' the Ortice of 

Personnel Management) to a much greater extent than in the case of other Federal employees." 

lRantspl!ck v. Federal Trial L~raminas COI!t"i:rence, 345 US 931 (1953)). The agcncies employing 

them do not have the authority to withhold tht: powers veskd in Federal AUs by the APA. 

Prior to the enactment of the APA, the tenure and status of these hearing examiners \\'ere governed by 

the Classification Act of 1923, as amended. Under that Act the classification of the hearing 

examiner:. \vas determined by ratings given to them by thc Agency and their compcnsation and 

promotion depended upon their classification. This plac..:d the hearing t:xaminers in a dependcnt 

status with the Ag.ency employing them. Many complaints were voiced against thi~ system alleging 

that hearing examiners wcre "mere tools of the Agency" and thus subservient to Agency heads when 

they decided and isslled decisions on issues i11voh ing: Agency determinations appealed to them. With 

the adoption of the APA, Congre~s intended to eon-eet these problcms. As carlier noted, this rather 

signilicant ref 01111 \\<as undeltakcn to protect the American public by giving ALJs decisional 

independence. Indeed, the Act's legislative history makes abundantly plain that the APA \>vas 

1 1 Bad .. ill Bl{fck- rresening Social Security for Fulure (;eneralions. U.:". Sena\(ll' Tom Coburn. i'vl D. (R-OK) . .lui) 

18, :!Oll. 
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intended to be broad s\\ccping legislation designed to restore to American government fundamental 

fTeedom~ for the American people, freedom:) \\hich had become clouded in the murky waters of 

unregulated administrative organizations that were not contemplated by the nations' founders, and 

whose conduct in the realms of investigation, prosecution and adjudication had bt.:comc so 

burdensome as to all but undo \vhat was thought preserved in the Constitution. The widespread 

concern regarding the absence of an independent federal administrati\ e judiciary to hear and decide 

complex administrative issues was underscored by the President's Committee on Administrative 

Management in [937.~ 

While the APA codified, inter alia. decisional independence of ALJs. it is not inconsistent with the 

Social Security Act. Thus in Richardson v. Perales, 402 U .. S. 389, 91 S.Ct. 1420 (1971) the COUl1 

i(Hlnd that the Social Security Act conforms \\1111 and is consistent with the APA. Specifically, the 

Courl found that the APA provisions do not differ from nor supersede the authority gi\·en '·the 

Secretary ... by section 205(a) and (b) to establish proct!dures." The broad sweep of the APA must not 

be minimized. The APA extends its reaeh to agency rulemaking and adjudications. No court has 

found that the Social Security Act stands apart from the APA. To the contrary, many courts have 

found that the two statues stand in pari material---to be consi(krcd together. 

l1,e APA was enacted to ensure that the Amcrican people \\ erc protected from arbitrary dccision 

making by government bureaucrats. The grant of decisional independence to tederal administrative 

la\-\ judgcs is fundamental to the ability of thc AU to bring justice to the American people. 'When 

federal agencies overreach and encroach on our decisional independence, the promise of 

ConstilUtional due process to the American people is broken. In our view, there is absolutdy no 

tension between the Social Security Act and the APA. The tension that docs exist at SSA has arisen 

ONLY \\-'hen unenlightened bureaucrats unlawfully interfere with the duties and re:-.ponsibiJitics of 

the AU. The fact that the APA provide~ some degree of protection to members of the kderal 

administrative judiciary should not be vie\ycd as a nt!gative. lndt!ed. thc minimal employment 

protection offered be the APA is absolutely essential to due process and the ability of the judge to 

correctly adjudicate cases fikd pursuant to the Social Security Act. 

HIGH VOLUME ADJUDlCATlO:\S 

Federal ALJs at SSA work in a strcssflll, high volume adjudicatory en\irOnmenL In recent years, the 

Agency has placed far too mueh emphasis on numerical performance rather than on correct judicial 

deci~ion making. According to Agency oflicials, Judges should spend no more than 2 ~/2 hours on 

each case. At the same time. hearing office staff attolTleys afe allotted 8 hours to prepare a draft 

denial decision for the judge's fe\ it!w. 

To be sure, federal AU:-. with conditional lifetime appointments and decisional independence tlrc 

essential to ensure that the American people. who file approximately 700,(}OO to 800,000 cases each 

year, will he provided full and fair due process hearings. In this context, due process and justice can 

only be accomplished if the judge has sufficient time to dcvelop and rt!viev .. · each case, provide a 

2 The Committee observes of the so-called 'fourth branch' of government, the administrative agencies: 'They 

are vested with duties of administration and at the same time they are given Important judicial work 

The evils resulting from this confusion of principles are insidiOUS and faHeaching Pressures and 

influences properly enough directed toward officers responsible for formulating and administering policy 

constitute an unwholesome atmosphere in which to adjudicate private rights. But the mixed duties of the 

commissions render escape from these subversive influences impOSSible. Furthermore, the same men are 

obliged to serve both as prosecutors and as judges This not only undermines Judicial fairness; it weakens 

public confidence in that fairness ., 
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thorough hearing, deliberate and decide the case and issue a \vell-rcasoned decision which is fully 

consi:.;tent with the facts of the case anJ the relevant law. While numerical goal:. are useful tools, 

these gO<l[s must not be used as ql1ot<ls. as to do so would likely deny due process to the claimant and 

impair the judge's ability to bring justicc to tht.: American pcopk. The current production line 

mentality robs the judge or one of the most imp01tant elements or due proecss ... time. Time is 

necessary for AUs to develop and 1'c\'ie\\1 the e"idence, conduct a full and fair hearing, deliberate, 

and prepare and issue a correct decision. Again. goals arc important; quotas violate the Social 

Security Act, the Administrative Procedure Act and the U.S. Constitution. In addition, and most 

detrimental to the American people, is the Ageney's application of constant pressure on judges to 

continue to increase the number or case:. they ai.ljudicate. The pre~sure of quotas is forcing judges to 

hear cases before they arc prepared to do so. This impair~ the judge's ability to adequately and 

thoroughly adjudicate cases. While some judges may be forced to hear and decide a higher volume 

of cases, highr.:r producing judge~ tend to pay a higher percentage of claims. 

As one Hearing OfTice ChicI' Judge pointed out, are too hi}:h the corners 

gel elft and the easiesr thing [0 do is to grail! a cose. 

While it nwy be true that over 75 percent of judges are meeting the goal-quota of 500-700 decj~iom 

annually, what is not prescnt in the data is the fact that most of those judges would appear before you 

and tell you that in order to mcet this level of production. they simply cannot adequately review all of 

the evidence in the cases they decide. 111 Ollr vic\Y, the current misplaced emphasis on numbers has 

pervclted our system ofju~tice. At an estimated value of $300,000 per case, the AALJ believes the 

American people are entitled to have ajudge who is given adequate time to develop and revie\v all of 

the evidencc in each case, conduct a thorough hearing and issuc a conect decision. 

As you kIlO\-", SSA AUs have adjudicated cases at record levels in each or the past ten years. 

Ho\vevcr. the AALJ believc~ the SSA adjudicatory system could be made more eflicient. elE~ctive 

and economIcal with changes and modifications that will imprO\e the process. On many prior 

occasions, the AALJ has urged consideration by the Agency of significant changes to the disability 

adjudication system. 

GOVERNMENT REPRESENTATION 

When sued. insurance companies proceed to trial represented by the best law finns in the nation. 

When a ci<lim is filed for disability benefits, the government (SSA) proceeds to trial without legal 

rcprcsentation. Whcn an ALI rules agaim.t a claimant in a disahility case, thc claimant can (and 

usually does) tile an appeal with the Appeals Council. When all AU rllles against the govc11lmcnt in 

a disability c<\:"c creating a 5300,000 liability. the gove111ment docs not have a right of appeaL There 

is elearly .:.omething wrong with this picture. In the context of disability adjudication, the 

government is the trustce of billions oCtaxpayer dollars. Tn our vicw, it is irre:.pomible to place these 

funds at risk at hearing without legal reprcscntation. 

The AALJ has advocated for well over a decade that the SSA be represented at adminisu'ative 

hearings by attorneys. This n:prcscntJtion should be provided by attorncys from the Office of 

General Counsel, with authority to advocate the American people's interest and \',i1h the authority to 

compromise, settle. and appeal cases which the government believes \\erc erroneously decided. The 

herm.: the ~Llhc()mmittc..: on Socl.ll SecurilY of the 
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cost of such representation could easily be funded by rcsourccs saved by eliminating: or restTlicturing 

the Regional Otlices of the Office of Disability Adjudication and Review (OIJAR). 

Thc Social Security Advisory Board (SSAB) has called ror the government to be represented as \\-clL 

1n its 2001 report. the SSAB made the t()llmving statement: 

I TJhc fact that most claimants arc now rcpn:scnted by an attorney 

reinforces the proposilion, \\'hich has been made several times in the 

past, that thc agency should be represented as \vcJl. Unlike a 

traditional court setting, only one side is now represented at Social 

Security's AU hearing~. We think that having an individual present 

at the hearing to ddcnd the agency's position would help to clarify the 

issues and introduce greater consistency and accountability into the 

adjudicati"c system. It would also help to carry out an encctive cross¥ 

examination of the claimant. lVltmy AUs have told us that they are 

sometimes reluctant to conduct the kind of crossNcxamination they 

belie\ e should be made becausc, upon appeal, thc record may makc 

them appear to have been biased against the claimant. Consideration 

should also bc giyen to allowing the individual who represents the 

agency at the hearing to file an appeal of the AU decision. 

This issue has not escaped the anal}sis of academic commentators. Two rrof~ssors made the 

t{)llowing caustic observation in the Journal q( Economic Pcr.\pectives (Volume lO. .'Vumbcl' 3. 

Summer l006. pages 71-96 at page 93): 

A second promising step would be for the Social Security 

Administration to consider attorney representation at Administrati" c 

La,,, Judge hearings, as the independent Social Security Advisory 

Board (2001) has repeatedly recommended [emphasis added]. At 

present, claimants are typically represented at appeal by legal and 

medical advocates who haye a financial stake in the claimant's 

success. The Social Security Administration, by contrast. is entirc!} 

dependent on the Administrative Law Judge to protect the claimant's 

and the public's interests simultaneously (U.S. GAO, 1997). 

Permitting the Social Security Administration to provide a 

representative or attorney to the hearings \ .. ould ameliorate this almost 

comically lopsided !wlfing [emphasis added) in v .. hich the Social 

Sccurily Administration ClllTently loses nearly three-quarters of all 

appeals. 

The overriding purpose orthe hearing i~ "tact-finding." The AALJ belie"es that the model used by 

SSA to conduct hearings is a relatively poor factNfinding model as compared to the adversarialmodel. 

We beJie\e that the center of any change at SSA should include, at a minimum, comersion from the 

inquisitorial model to the adversaria! model. The adversarial ~ystem of adjudication is fundamental 

to our American judicia! system. The AALJ knows of no state or Federal eourt that uses the 

inquisitorial model to adjudicate issues. SSA uses a model unheard of throughout our land to find 

facts in ajudicial-type setting. 
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THE BURDEN OF WEARING 3 HATS 

Federal AUs \vho hear and decide cases at SSA have an unusually complex job. As a fact-finding 

system. it is difficult f()f one person to perf(mn all three functions imposed on AUs: to represent the 

interest of the claimant; to represent the interest of the TlUSl Fund; and to serve as an impartial 

decision maker ("three hats''). To function and appear as an unbiased fact-finder and at the same 

time to examine a claimant vigorollsly and thoroughly. as one \vould expect a la\vycr defending the 

trust fund to do. is not possible. In fact, having the judge ddend the Trust Fund as well as the 

claimant's interest, places the judge in an untenable situation. Oftentimes vigorous examination of 

the claimant by the judge leads to allegations against the judge of bias and prejudice. S0111e judges 

have c\cn been subjected to disciphnc by the Agency because of aggressive examinatlon of the 

claimant, done in pursuit oftrulh alldjustice. 

The benefit of having a lav"yer representing the government with the authority to settle cases should 

not be mini01i7ed. In fact, this benclit may be even greater to the administration of justice than the 

government's role a:" an advocate. One of the facLOrs contributing to SSA's high volume jurisdiction 

is the ract that the vast majority of cases are tried. HmveveL TI\mhere else in our judicial system is a 

judg.: required to take to hearing such a high percentage of case::. compared to the total docket. \\lerc 

the state and Federal court::. required to actually conduct trials ill the same proportion as disability 

judgl!s are rorced to do \\ith their dockets, those courts would abruptly crash under the weight of 

trying viltually all of their dockcts. Having a lawyer \vith authority to negotiate and settle cascs has 

the potential to drastically reduce the number of cases that arc tried, and concei\'ably reduce the 

number of judges and support staff. 

l'laving government representation would also emure that the evidentiary file is complete and that all 

necessary de\'clopment has been conducted prior to the hearing. This would permit the judge to 

become fully informed about the nature and extent (lfthe daimant"s alleged impairments prior to the 

hearing. This type of prehearing preparation is necessary for the judge to under~tand complex 

medical evidence and to evaluate the iacts, as found at hearing, in the contei\.t or relevant the law and 

agency regulations. 

The AALJ believes an adversarial modd v,/ollld far better sene the claimants" and the puolic's 

interests by being a better [act~tinding system and hy more efliciently disposing of ca:.cs through 

compromise and settlement. With a \uvvyer representing the government, the gOye111ment can then 

decide \\hich cases to defend. Instead of hearing 90% of the cases (assuming lor% arc awarded on 

the record without a hearing), far lcwer cases would go to hearing because of the abi lity to settle the 

case without a hearing. This process would also serve to drive down thc backlog quickly. 

Another etTiciency, \vhich should accrue to having government representation, Ii~s in the shepherding 

of cases through the appeals process. Identifying those claims that are lik.ely to prevail before thc 

judg~ and agreeing with the claimant's position to enter a favorable award, means one f'c\\L'l' case that 

has to be scheduled and tried. The government la\\ yer can then focus re:-ources on defending those 

l:ases which ought to be defended, rather than spend time on perfunctory hearings. 

As above noted, the pressure on judges to produce an ever increasing number of cases has reached 

intolerable levels. In evaluating our concerns, it is essential that member~ of the Subcommittee 

understand the role of statT in the disability claims process. When case files arrive in a hearing 

office, they must be '"worked up" or "pulled:' that is, electronically organi.led for use in the hearing. 

This is a significant task, which if done properly, requires skill and one to three hours of time, as the 
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contents of a given fik arrive in the hearing office in random sequence, unidentitied, \\ ithout 

pagination. ,"vith duplications and without any numbered exhibits or table of contents to locate the 

exhibits. A staff member must identify and eliminate duplicate exhibits from the same source, label 

the remaining exhibits, arrangc the exhibits in chronological order, number and paginate thc exhibits 

and prepare the list of exhibits, After a case is worked up, it is ready for the assigned judge to 

rc",ie\\', 

In this process. the AALJ believes it important for members of the subcommittees to consider hov.' 

much time ALh should be spending on each disability case, At an estimated value ofS300,OOO per 

case, we respectfully suggest that this is 1I0t a rhetorical question, A judge must invest sufficient time 

to understand all of the facts in each case as \\-'dl as applicable law and regulations. It is imperative 

{'(H' the judge to review all evidence in the file, a\-eraging 600 pages, and then direct stafr to obtain 

any missing evidence including consultative medical exatnination~. When the record is fully 

developed, the judge determines if a hearing is needed or whether a favorable decision can be made 

on the evidence of record, without a hearing, In most ca~es. a hearing is required and thl: judge then 

determines \vhieh expert witnesses \vill be required for the hearing and if additional courtroom 

security is necessary, Atler this review. the stafr secures the expelt witne~ses and ~chedules the case 

for hearing. Once lhe hearing is scheduled, the judge continues to be involved with the case 

reviewing new!y submitted evidence and considering and reso!ving pre~hearing motions and issues. 

Typically, a day or two before the hearing, the jLldge will conduct another review of the file to 

eva!uate additiona! evidence and to insLln.~ familiarity \\ith the facts and issues for thc hearing. Many 

times. last minute evidence is submitted at the hearing which unnecessarily delays or otherwise 

impedes the adjudication of the case. When the hearing is concluded. the judge must deliberate. 

prepare thorough decisional instructions for the \\ riting staff and later revicw and edit the draft 

decision before ~igning it. Sometimes. additional evidence is submitted after the hearing. or even 

alter thc decision has been drafted but not yet ~igned by the judge, causing the l'xpenditure of 

additional judge timc. As can be glcaned from this brief oven,ie\-\, the disability adjudicatory process 

is complex and time consuming. 

As carlier noted, in courts and other agencies, triab and adjudications arc conducted under the 

adversarial process in \vhich the case is dcvcloped during tria! by evidcncc introduced by opposing 

counsel. The judge studies and reviev .. ':' the evidence as the trial progresses, However. in Social 

Security disahility hearings, AUs preside over an inquisitorial process, in which the judge develops 

the facts and the arguments both for and against granting benefits. In !arge part, this is required 

because the SSA is not represc:nted at the hearing and the COUlts are sympathetic to unrepresented 

claimants. Therefore, ALJs are reljuired to wear the so~ea!!ed three hats as referenced aboyc, After 

reviewing the record evidence, the judge ollen detern1ines that additional evidence must be obtained. 

This inquisitorial system places more responsibility on the judge. Hearings based on this model are 

more time consuming and !abor intensive lor the judge. 

Certainly, there is variance in the number of decisions issued by each judge. Such a distribution is 

normal in all hLlman activities, and is usually graphed a~ a "hell cune." However, the number of 

decisions issued by a judge is dependent on numerous factors such as adequate and well trained 

staffing, the complexity of the cases, the number of unrepresented claimants and the sophistication of' 

the bar, Thesc are factors dearly beyond the control of the judges, 

Quite compelling is data from SSA's last study on the issue of numerical goals for AUs, Planfhr a 

l\'ew Disability Claim Process, This study was conducted in 1994 and projected a time line for a 

disahility claim at aJ1levels of the proce<,s. The study. based on an aH~ragc month, concluded that a 
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reasonable disposition rate for an AU should be in the rangt: of 2S to 55 cases per month. The study 

also revealed that a judge would spend a range of 3 to 7 hour:;, adjudicating each casco Consistent 

\\ith this study is the following testimony of former SSA Chief AU Frank Cristaudo before the 

I·louse Way.'> and Means Committee, Subcommittee on Social Security, on September 6, 2008. in 

response to questions from Congressman Xavier BceelTa: 

Mr. Becerra. Do me a HlVOr. I am going to run out or 5 minutes rea14uickly. I am just 

asking, do you believe that they lAUsl can get to up\'\-urds 01'600 to 700 dispositions 

on an annual basis? 

Judge Cristaudo. Well, what \\e are asking the judges to try to do······\\e haven't mandated, 

\/., e arc asking ······is to get to 500. The 700 was more of an indication to lhis other group 

lhat are doing thousands. of cases thal at some point there may be a limit as. to ho\,o' many 

eases a Judge can actually do and still do quality work. That is \vhat the 700 \:vas about 

There hm·e been changes in the process since 1994, but most of those serve to sltn\' do\',:n, not specd 

up, the process, Tht: average file size grows every year. Revinving electronic files (cFiles) takes 

more time than reviewing paper liles. Evcn electronic signing (eSigning) of dcci<;ions takes longer 

than using a pcn. While technology may have reduced the Agency's overall processing time for 

claims, it has not reduced the amount of time most judges must spend in adjudicating a ca~e. 

In considering numerical pcrformance. it is imp0l1ant 10 understand that a judge must carefully 

revie\-v the voluminous documentary evidence in the claimant's file to effectively prepare and 

conduct the hearing and to issue a cOlTed decision. With an average estimated cost to the trust fund 

of $300,000 per case. a judge hearing 40 cases per month is entrusted to correctly decide case~ valued 

at 510,000,000 per month, or S120,000,000 annually. Nonetheless, judges are being subjected to 

\arious pressures lo meet evcr-increasing production "goals" \\'hieh in muny cases become de.f{J('{o 

quotas in violation oCthe APA and infringes on the constitutional requirement for ALJs to provide a 

full and fair due process hearing. 

As a re:.ult or SSA's pressure to meet or exceed goals-quotas, many judges are forced to give cas.cs 

less thorough reviews; adequate evidentiary development may not be undertaken; facts may go 

unseen; and incorrect assessments may be reached. In some offices, judge~ are being pressured to 

accept un-worked ca:.cs that have not been organized by staff which is inconsistent with the APA 

requirement that hearings be held with an identifiable record, The judge must \.\astc substantia! time 

in reviev'o'lng un-worked tiles that may havc many duplicate records, records out of sequcnce and 

exhibits \\'hieh are neither identificd nor paginated. This lo.'>t time should he, instcad, spcnt on 

rcviewing, heming and dcciding more cases. 

Revicwing a 600 page case file is not tmlikc n~ading a 600-page novel. In both instances, one must 

rcad carefully in order to understand the story being presented. Skipping page:;, in either distorts 

one's understanding of the whole story. If a judge skip:. evidentiary pages in a case lile, the judge 

could make incorrect decisions in that case, hanning either tbe claimant or costing the American 

taxpayers $300,000 for the incorrect decision. Selectively reviewing evidence is a short cut that 

must cease; otherwise faimess and juslice disappear from OLlr adjudicatory systcm. 

PEER REVIEW 
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The AALJ has advocatt.:d for an AU Pet.:r Rt.:vicw Program at SSA for approximately twenty years. 

The AALJ believes that <;uch a system \vould efliciently and d1ectivdy addrc<;s ALJ pcrfonnance 

and conduct issues in a manner that "\vould be beneficial to the Agency. the Judge and the American 

people. Instead, the Agency continues to address these issues in a manner that always lcad~ to costly 

and time consuming litigation. The Agency has not only consistently opposed the establishment of a 

Pcer Revic\v Program but abo any similar program. Thi:) past year, the AALl proposed a joint 

\vorkgroup to study and evaluate establishing an ALJ Peer Redevli Program. The Agency strongly 

opposed the creation of such a work group. 

ADJUDICATORY TRANSPAREJ'iCY 

In our democratic form of government, the need [or lransparency in federal administrative 

hearings is essential. Conducting hearings in secret fosters suspicion and creates 

mi~lll1derstandings about our system of justice. To build and maintain trust in our adjudIcatory 

system by the American pcople. \\c must conduct our hearings in the light of day. The AALJ 

has long advocated that hearings be open to the public. We believe there is a substantial public 

interest in how di~ability adjudication is conducted. We believe that the public'~ interest is 

generally paramount to a claimant's interest in keeping the hearing elosed to the public. Open 

bearings would lenLl tran~parency to our administrative adjudication system and instill 

confidence regarding our disability system of justice. Moreover. should the case be appealed to 

the Federal courts, the entire record i~ open to the public. Also. \ve helieve the Notice of 

Hearing should include a!l relevant infornwtion, not only the iSSlle~ to be heard. hut also other 

information such as the time. date and place of the hearing and the name of the assigned judge. 

AR~~ THE MEDICAL VOCATIONAL GUIDELINES RELEVANT TODAY 

for many reasons, Americans arc living longer and healthier lives. The nature and scope of work 

performed by the American people is significantly different than 40 years ago. There are far fewer 

unskilled jobs in the market place and lev\' jobs that require ~ignificant physical activity. As a result. 

application of the Agency's Medica! Vocational Guidelines (grid rules) oftentimes forccs thc ALl to 

av.ard bcnefits \vhen jobs an: availahle that claimants could perform. In our view. this approach to 

cvalullling disahility is out of datc and ~hould be climinated. Rather than using these outdated 

guidelines. judges should rely on vocational testimuny. At a minimum. the grid rules should be 

revised to reflect the increased life span of Americans. 

RULES OF PROCEDURE AND CLOSI:-IG THE RECORD 

The AALJ has advocated [()r tht: adoption or procedural rules. however, the Agency has cOll.'-istently 

refused to do so. No other judicial sy~tem functions without rules of procedure. further. no other 

judicial system operates by permitting the record to remain open continuously throughout the 

adjudicatory and appellate process. For example. mt:dical e\idence could be \'.ithhcld from tht: All 

and latcr submitted to the Appcals Council in order to secure a remand o[ the case and another 

hearing. There is no incentive under the current system to :)ubmit evidence in a timely fashion. 

Procedural rules v,t)uld cnsure an efficient, crlectivc and orderly judicial system. Like a road map. 

procedural fllJcS would aid litigants by gi\ing specific guidance on how to navigate the adjudicatory 

process. At SSA such rules could cover. inter alia, suhmission of evidence, dismissals. prehearing 
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confercnces, subpocnas, oral argunwnt, representatives' responsibilities, ex parte communications, 

continuances and prehearing development. 

Perhaps one of the most important areas ripe for procedural rules is closing the record. The AALJ 

has long advocated that the record should be closed at the conclusion or the hearing unless the AU 

directs otherwise. Any post hearing evidence submitted to the All prior to the issuance of a decision 

\vould be admitted into the record upon a sho'vving that such evidence is material and could not have 

been submitted prior to the c1o~e o[ hearing. If a party \vaives a hearing, the record \\ould be closed 

on the date the decision is is~ued. 

THE VALUE OF MEDICAL EXPERT WITNESSES 

Medical expert witnes,ses serve an important role in the a(~judicatory process in that their (e:-,timony 

assists the AU in reaching the correct decision in a given case. Presently, the Agency has a dearth of 

medical expert \vitnesses because their pay has not increased in more than a decade. Pay rates need to 

rise. and the SSA needs to develop a national pool of medical specialists who can appear at hearings 

by 'way of video. In most ca..;cs, courts arc more lil.;ely to uphold a decision if a knowledgeable 

medical expert witness testifies at a disability hearing. The cost f(x using a medical expert WiU1CS5 is 

less than the cost of holding another hearing lfthe case is remanded as a result orthe lack of medical 

expert testimony. 

REDIRECTED RESOURCES TO REDUCE THE BACKLOG 

The SSA expends a great deal of money on maintaining ten Regional Offices within ODAR. Since 

ODAR Regional Otlices do not directly contribute to the proces~ing and adjudication of cases, as 

they handle few, il'any, cases, Regional Offices are merely another layer or bureaucratic 

administration that depri\·es ODAR hearing offices of personnel. (her the last fifteen years, the 

Regional Oftices have added substantial staft~ which could have been better deployed in the bearing 

oakes. The AALJ advocates the elimination orthe ODAR Regional OJTices and the rea:'.signment or 

Regional Office staff to hearing offices to handle the backlog, with the savings from office rental 

costs being redirected to the hearing offices. The Overall responsibility ()f the disability adjudication 

system, including current Regional functions, should he consolidated in the Office ol'the Chief 

Administmti\e Law Judge and under the management of the Chief Administrative La\\.· Judge. 

VIDEO HEARINGS 

Face to face hearings provide the best method of delivering due process to the American people. 

Vihile there may be S0111e instances where video hearings are ad\'i.<,abk (such as handling cases in 

remote areas that would require excessive trmel), \\·jdcspread usc of the National Hearing Centers 

(NHCs) reduces the ability of the SSA to provide due process to the American people. Vidco 

hearing.', should be kept to a minimum in order to preserve the right of every American to have the 

opportunity to make their case in person to the Judge. No video hearing: can provide the same 

experience and the same cont<:lct bet,veen a claimant and Judge as an in-person hearing. Moreover, 

video hearings require the use of a second courtroom; one for the judge and one for the claimant who 

appears at the hearing by video. This requirement [or additional space imposes signi Ikant additional 

costs for the American taxpayer. 
63 

f 

Chairman JOHNSON. Mr. Lubbers you are recognized. 

STATEMENT OF JEFFREY LUBBERS, PROFESSOR, AMERICAN 

UNIVERSITY, WASHINGTON COLLEGE OF LAW 

Mr. LUBBERS. Thank you, Mr. Chairman, Ranking Member 

Becerra, for inviting me to be here today. I am a Professor of Practice in Administrative Law at American University Washington 

College of Law where I have taught since 1996. As I note in my 

biography from 1975 to 1995, I worked at the Administrative Conference of the United States, ACUS, and am now serving as special 

counsel at the revived Administrative Conference. However, I want 

to emphasize that my views I am expressing today are just my own 

and as an administrative law professor and should not be ascribed 

in any way to the Administrative Conference. 

The growth of the SSA disability adjudication program has been 

phenomenal. 


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64 

Chairman JOHNSON. Is your mike on? 

Mr. LUBBERS. The growth of SSA disability adjudication has 

been phenomenal. In 1973, the then president—— 

Chairman JOHNSON. I forget mine, too. 

Mr. LUBBERS [continuing]. Of the Association of ALJs reported 

that the number of disability proceedings reaching the hearing 

level had, quote, ‘‘jumped to an unbelievable 56,000.’’ That year the 

per judge disposition rate was 143 cases per year. Today those 

numbers seem miniscule. 

Commissioner Astrue has said that he expects the case load to 

reach 832,000 in fiscal year 2012 with about 1,400 ALJs. The per 

judge disposition rate has more than quadrupled to 594. And this 

rise in caseload shows no sign of slowing down. 

Now to sketch out the legal context of the program, I would mention that although SSA benefits once received are an entitlement, 

which means that the government cannot terminate benefits without a formal hearing. It is not so clear, based on Supreme Court 

case law, whether that level of due process applies to initial applications and denials of benefits. The Supreme Court has never held 

that an applicant for public benefits possesses a property interest 

protected by due process. 

Another unresolved issue is whether the formal adjudication provisions of the APA are applicable to SSA disability adjudications. 

While this is an interesting legal and historical question, it is one 

that I don’t think is all that crucial to resolve because, ultimately, 

the issue of the APA’s applicability is up to Congress, and the APA 

itself gives both Congress and the agency a lot of flexibility. 

But to clarify my own answer to this question that you mentioned, I think that if you just look at the language of the Social 

Security Act, an APA hearing would not be mandatory, but that 

analysis is probably trumped by the clear message Congress and 

this subcommittee sent in the 1970s when it converted the temporary SSI judges into full-fledged ALJs. 

Now, over the years, I have urged a number of key process reform proposals that I summarize in my testimony, many of these 

ideas were included in SSA’s 2006 DSI reform proposal. However, 

other than a couple of the proposals, the rest of the DSI program 

was prematurely terminated apparently due to resource constraints 

caused by the crush of caseload pressures that worsened after 

2006. 

I would like to see a renewed effort to implement these process 

reforms. However, that may not be possible now. So I have suggested some possible options and approaches in dealing with some 

of these caseload pressures. Some of them are incremental, such as 

increasing the use of rulemaking and increasing the use of video 

communications technology, and some more fundamental. Some of 

the more fundamental change options might include modifying the 

role of Appeals Counsel to increase the quality control review of 

grant cases and to use selected appeals counsel decisions as systemwide precedents; second, replacing both the Appeals Counsel 

and the district court stages with a Social Security court; third, 

making SSA hearings adversarial, although I am not convinced 

that that would be cost beneficial; and fourth, taking advantage of 


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65 

the APA provision that allows specially designated administrative 

judges, even in APA hearings. 

Now this last option requires a bit more explanation. If Congress 

does become persuaded that circumstances require that hiring 

more ALJs is no longer the tenable answer, Congress could specially provide for or designate another type of adjudicator under 

the APA. Congress has done this occasionally. A prime example is 

the special authority given to the Nuclear Regulatory Commission 

to use atomic safety and licensing board panel members to hear nuclear licensing cases. In those cases, Congress wanted to provide 

the agency with the flexibility to not only use law trained judges 

to hear licensing cases, but also scientists. Now some have suggested using doctors as adjudicators. I am not sure that is a good 

idea, but I do think that there are enough problems with the ALJ 

program to perhaps lead Congress to suggest that there is a need 

for a specially tailored SSA ALJ program. And in doing that, Congress could allow SSA to basically hire its own judges, using the 

OPM process. They have done that with the NRC and with boards 

of contract appeals. 

Congress could also consider departing from the current ban on 

performance appraisals for ALJs. I know there are arguments on 

the other side of that issue. 

So there are a number of things Congress could do if they specially designated Social Security ALJs. My overall point here is 

that the SSA’s ALJ program size and perhaps the character of its 

cases may now require some special treatment. By providing the 

menu in my testimony with some commentary along the way, I 

hope I can assist this committee in performing its historical role in 

protecting the viability of this historic program. 

Chairman JOHNSON. Thank you, sir. 

[The prepared statement of Mr. Lubbers follows:] 


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Testimony of Jeffrey S. Lubbers 

Before the Social Security Subcommittee 

House Ways and Means Committee 

June 27, 2012 

Chainnan Johnson and Members of the Committee: 

(Revised June 29. 2011) 

I am pleased to testify before the Subcommittee at today's hearing the fourth in a series on 

"'Securing the Future of the Social Security Disability Program." 

I am Professor of Practice in Administrative Law at American University's Washington College 

of Law, where I have taught since 1996. As noted in my biography. fi'OITI 1975-1995 [ worked as 

an attorney and then as Rcsearch Director at the Administrative Conterenee of the Unitcd Statcs 

(AClJS) and am now also serving as Special Counsel at the revivcd ACUS. However, I want to 

emphasize that the views I am expressing today (unless otherwise noted) are my own as an 

administrative la\v professor and should not be ascribed in any way to ACUS. Even more 

specifically, although as part-time Acting Resear'ch Director from January I-June 15, 2012. I 

helped ACUS launch its current, SSA-rcquested study of ways to reduce the decisional 

inconsistency of SSA AUs, the researchers are still engaged in preliminary fact-finding, and my 

testimony today is not informed by that study in arly way, nor have I formed any conclusions 

about that study. 

LQro"fthorthe.SSAAdjudicati()I1 .. ~ygelll 

The growth of the SSA disability adjudication program has been phenomenal. In 1973, the 

President of the Association of Administrative Law Judges (AUs) in the Department of Health, 

Education and Well;,re (HEW), made a presentation to a Civil Service Commission Advisory 

Committee on Utilization of Administrative Law Judges in which he said, "Administrative Law 

Judges in the Department of HEW have experienced a dramatic increase in the number of 

disability proceedings reaching the hearing level. There were 27,972 proceedings in 1969, 

34,901 in 1970,40,712 in 1971, and by fiscal year 1972 the total hadjull1ped to an unbelievable 

56,346,"[ A July 30, 1974 report of that Civil Service Commission indicated that the Social 

Security Administration (SSA) employed 430 AUs at the time. arld that the per-judge 

disposition rate had Jluctualed bel ween 114.1 and 143.6 cases per year between 1969 and 1973.' 

A few years later. in 1978, a team of scholars led by Jerry Mashaw, studying the SSA disability 

adjudication sy,lem described the SSA Bureau of Hearings and Appeals as "probably the largesl 

1 Statement of Frank B. Borowiec. pn:senh.:d to the Advisory Committee on Utilization of Administrative Law 

Judges, Civil Service Commission at:'i (July! !, 1973). 

::: U.S. CIVIL SIXVICL COMMJSS/():-.!, Rr.poRr or THE COJ\;l1-.1!rTEt 01\ -rH[ $cf\lDY OF rHh UT1UZXI10;-..j 01 

AD,\Ul\JS lRJnlVE 1../\ w JUJ)(WS 58 (July 30. 1 97-1-). 
67 


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administrative adjudication agency in the western world" with its 625 administrative law judges 

(AUs) disposing of J 80,000 cases in fiscal year 1976.,1 

Today those numbers seem miniscule. The SSA Commissioner has said that he expects the 

cascload to reach 832,000 in tiscal year 20J2 with about 1400 AUs:' One obvious by-product 

of this huge inllux of cases is that the per-judge disposition rate has more than quadrupled [rom 

114 per year in 1969, to 288 per year in 1976, to 594 in 2012. 

This rise in the caseload will likely continue as higher number of "baby boomers" retire,' (2) the 

economic dOv\l1lul11 drives unemployed workers to seek other sources or income,6 and (3) private 

insurance companies increasingly require, as a condition of payments, that claimants pursue 

offsetting SSA disability benefits. 7 

II. The Legal Context 

A. The Constitutional dimension 

The Disability Insurance program was authorized in 1956 by Title II of the Social Security Aet to 

provide benelits to disabled insured workers who no longer can work, and it was supplemented 

in 1972 by the Title XVI Supplemental Security Income (SSI) program for aged, blind, or 

disabled persons v,,-hose income and resources fall below a certain threshold. These programs 

thus have created statutory "'entitlements" of benefits for eligible claimants, which means of 

course that the govenlJ:nent cannot terminate benefits without due process. Sec j\4athnvs v. 

Eldridge, 424 U.S. 319.' 

But it is not so clear, based on Supreme Court ease law, whether due process applies to initial 

applications and denials of benefits. In fact, "the Supreme Court has never held that an applicant 

3 Jn~RY 1.. MA"llAV,:, Ff At.. SOCiAl SeCURITY fJCARI:-.JGS I\ND ApPEAr s I (1978). 

~ ~tai{'tnenl or wh:-hJ¢:! J. A::1Iue, Comrui.&:.il.H){'t". Social S~TlJti.1Y {\drni[;istralion, befort, tlw 111.1\15.(' CommiU{:(' on 

\VHY~ :md IVh'::,m .. SU1X:ClllllllHcc (m Social and tht' }Iou~c Cmnmitlct' on th' Subcmnmitl.:(: on th~' 

CODrt~, Cmll1tH'lci;;d ;lud Lm (Jnly 11, :~O' {rrailahte <"If 

http,';:/,\,'\\,·\\,.s,Kl::Jsc('urity.gov/ltgi"lal:on/tcsl'irann:v_071111.t\1!tl! 

5 Baby boomers began to reach the age 01'65 in 2011 and will finish reaching 65 in 2030. When they to retire 

in 2011. the1"e will be 40,.+ million seniors (or 13% of the pop1.Jlation) and \vill grow to 70.3 miUion of the 

population) by 2030. See Pre'lS Release. U.S. Census Bureau, Census Bureau Projecls Doubling 0[' Nation's 

Population by 2100 (Jan. l3. 2(00). 

(> It i<; \"ell ktlo\vtl that while the disability program is not an employment scheme, applications rise when the 

economy falters. In April :2000, the natiunal unemployment rate wu;, 3.8%; today it is 8.3%. 

(l D. Gregory Rogers, The Effects of Soda I Securf~r Awards on Long-Term D;.Wlbilily C{{film, 1 A TJ..A ANNUAL 

CONVENJ JON Ru f]{rl\n MATLR1ALS 1117, 1117 (July 2001). 

{( Sec id. al 332: "The Secretary does not contend that procedural due process i~ inapplicable to temlinations oj" 

Socwl Security disability bendits. I k recognizes, as has heen implicit in our prior decisions. that the interest of an 

individual in continued reccipt of these benefits is a statutorily created "propclty" interest protected by the Fifth 

Amendment." (citation omitted). 

2 
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[or public benefits possesses a property interest protected by due process."" In the social security 

context, in Richardson v. Perales, 402 U.S. 389, 406-407, an applicant for benellts contended 

thai SSA violated due process by relying all the VvTiUen reports of examining physicians \vho 

were not available f()f cross-examination, but the Court was not convinced that he, as an initial 

applicant, had such a claim. In dicta, the Court saiel: 

Perales relies heavily on the COUlt's holding and statements in Goldberg v. KeI~l', 

.. particularly the comment that due process requires notice "and an effective 

opportunity to defend by confronting any adverse witnesses * * *." 397 U.S., at 

267268. Kellv, howcwr, had to do with tcnnination of AFDC benellts without 

prior notice. It also concerned a situation, the Court said, "where credibility and 

veracity are at issue, as they must be in many termination proceedings." ... The 

Perales proceeding is not the same. We are not concerned with termination of 

disability benefits once granted. Neither are we concerned with a change of status 

\\ ithout notice. 

Even in A1athelVS, where the beneficiary's benefits were being terminated due lo a "continuing 

disability review"(CDR), the COUlt found that, Ulllike in the welfare context of Goldberg v. 

Kel(l', a pre-tellnination hearing was not constitutionally required. Congress, of course, has 

elected to continue allowing pre-tennination AL.I hearings in initial denial cases. 

B. Applicabilitv o{the Administrative Procedure Act (APA) 

One often debated issue is whether the tonnal adjudication provisions oftbe APA are applicable 

to SSA disability adjudications. Twelve years ago I was asked to facilitate a session of the 

SSA's Executive Leadership Conference!(J on this very issue and a set of materials on this issue 

was prepared for this occasion by the organiL,ers, which I would be happy to share with the 

Committee. I will provide some background about this issue, but will not dwell on it because, 

while an interesting legal and historical question, I think it is somewhat beside the pointbecause ultimately the issue of the APA's applicability is up to Congress, and moreover~ even if 

the APA's procedures continue to be required in these cases, the APA itself gives both Congress 

and the agency sufficient tlexibility to provide for hearings and hearing omcers suitable for 

deciding such cases. 

This issue arose in Richurdson v. Perales because the claimant also claimed "'that the 

Administrative Procedure Act, rather than the Social Security Act, governs the processing of 

claims and specifically provides for cros5-examination:,!l The Court's response was, ''''Ne need 

not decide whether the APA has general application to social security disabilhy claims. for the 

9 AM. BAR. ASS'l\, A GUIDE TO FEDfRAL AGENCY ADJllDlCATJON, 2D [0. 25-27 (Jeffrey B. LitvvaJ.... ed. 2012). 

IVlany COllrt~ of appeals have so held. h(l\\ever; sec Jeffrey S. Lubbers, For Veterans' And Other 

uOVL'rnment lJenejits Their Due (Process). 35 ADI ... lI\!. & RECi. L. Nl·WS 16 

)1) The ~ession \\as heJd on November 2.2000 in Berkeley Spring~, WV. 

Ii 402 U.S. at 408. 
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social security administrative procedure does not vary from that prescribed by the APA. Indeed, 

the latter is modeled upon the Social Security Act."" 

The SSA Act, 42 U.S.C. ~ 405(b), sets forth the hearing provision applicable to disability cases: 

The Commissioner of Social Security is directed to make lindings of fact, and 

decisions as to the rights of any individual applying for a payment under this 

subchapter. Any such decision by the Commissioner of Social Security which 

involves a detennination of disability and which is in whole or in part unfavorable 

to such individual shall contain a statement of the case, in understandable 

language, setting forth a discussion of the evidence, and stating the 

Commissioner's determination and the reason or reasons upon which it is based. 

Upon request by any such individual . the Commissioner shall give sllch 

applicant and such other individual reasonable notice and opportunity .li.)r a 

lU!aring with respect to such decision, and, if a hearing is held, shall, on the basis 

of evidence adduced at the hearing. aiIirm, modify, or reverse the 

Commissioner's findings of fact and such decision. . .. The Commissioner of 

Social Security is l\.nther authorized, on the Commissioner's own motion, to hold 

such bearings and to conduct such investigations and other proceedings as the 

Commissioner may deem necessary or proper for the administration of this 

subchapter. In the course of any hearing, investigation, or other proceeding, the 

Commissioner may administer oaths and affirmations, examine witnesses, and 

receive evidence. Evidence may be received at any hearing before the 

Commissioner of Social Security even though inadmissible under rules of 

evidence applicable to court procedure (emphasis supplied). 

Under prevailing administrative law doctrine, unless Congress clearly requires the use of a 

fonnal APA adjudication, by using "magic word.'}" such as "hearing on the record," agencies are 

free to interpret the simple "hearing" requirement as not triggering the APA's formal 

procedures. lJ Under this principle, based on the above language alone~ SSA would be allo\\ed to 

inlerpret the Act as allowing Jess fomlal procedures than the APA and use of non-AU 

adjudicators. However, some related legislative history cuts the other way. TIlis is the story of 

the saga of the hearing officers appointed to hear the new cases created when the SSI program 

was enacted in 1972. 14 

Originally, when SSA requested the authority to hire additional AUs to hear these cases, the 

Civil Service Commission (eSC, OPM's prcdec~ssor) d~termjncd that SSI hearings did not 

require APA-appoillted ALls to hear such cases. The Department of flEW (within which SSA 

operated at the time) challenged fbis view and the Chairman of the CSC "granted SSA's request 

to establish registers lor [ALls]." A group of AUs "from 'old line' agencies" objected and was 

granted a hearing before the CSC. The then-SSA Commissioner "urged that full APA 

)21J. al.:t.09. 

), See AM. BAR. AS\'N, A G! 'IDE TO FEDFRAL AGE~CY ADJUOIC." nUN, 20 ED, 41-45 (Jertl'ey B. Litwak. ed. 2(12) 

J-J. The follov.ing recounting is dra\vn from Comm. Staff Report on the Disahi!ity Program, House Comm. on \Vays 

and Means, 93d Cong., 1st Se%. (1974) 

4 
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procedures be applied under SS1 as under SSA." But the CSC Chairman reversed his position 

once 1110re again tinding that AUs were not required in SSI hearings, because that program is 

not under the AP A." 

In January 1976, Congress then acted to confer "temporary ALl" status to these SSI hearing 

officers for two years. IS The saga ended \vhen, in December 1977, Congress enacted legislation 

"deeming" these temporary AUs to he filll-tledged, permanent AUs." 

This legislative history does seem to indicate lhat Congress, and this Subcommittee specifically, 

clearly expressed its intent that hearing officers presiding over SSA DI and SS[ cases be 

Administrative Law Judges. Obviously, however, this decision is up to Congress to make or 

maintain, and, as I will mention below, the APA itself specifically provides that Congress can 

specially provide for other types of designated presiding officers, even in APA proceedings. 

Ill. SSA DI Adjudication Reform Proposals 

As this committee well knows, there are four levels of administrative decisionmaking for Social 

Security claims-and 1(lf most claims, they must pass through all 1<lUr betore a decision is 

subject to judicial review'" The process begins at local SSA offices, where the all-important 

initial disability detenninations arc contracted out to state-run Disability Determination Service 

(DDS) offices. SSA, together with the DDSs, makes the initial decision on an application and 

the initial decision to terminate benefits in CDR cases; in case of appeaL SSA and DDS also 

handle the first level of reviev.,, known as "reconsideration." Further adminbtrative appeals are 

handled by SSA, but through its omcc of Disability Adjudication and Review (ODAR), which 

houses the Office of the Chief Administrative Law Judge and approximately 1400 AUs who are 

responsible lor administrative hearings, along with the Appeals Council (with a chair and 70 

"Administrative Appeals Judges,,)/ll \vhieh reviews administrative hearing decisions on appeal 

by a claimant or, in a few cases, on its own initiative. 

l~ See Pun. L. No. 94-20:2 * 3: 

The persom appointed to ~er\le a<; hearing examiners in hearing.;; under section J63J(c) of 

~uch Act may conduct hearing~ under titles fI, SV1, <md XVIII orThe Social Security Act if the 

Secretary of Health, Education, and Welfare finds it will promote the <lchicvement of the 

objectives of slich title. notWithstanding the fact 111at their appointments were made \vithout 

meeting the requirements for [:\Us"j appointed under section 3 105 of title 5. United States Code; 

but their appointment'> shall terminate not later than Ht the c1os0 of the poniod ending DeC01l1her 

31, J 978, and during that period they shall be deemed to be hearing examiners appointed under 

such section 3105 and subject to aU oflhe other provi')ions of such title 5 which apply to tAUs], 

16 Puh. L. No. 95~216, tit.UI, § 371, 91 Stilt. 1559. See also Subcomrn. o[Soc. Sec. of the House ComlTI. Ways and 

Means, 96th Congo '·Sol.:lal Security Administrative Law Judges: Survey and Issut! Paper" (COI11I11. Print 1(79). 

I' See. e.g. Johnson v. Shalalll, 2 F . .3d 918,920 (9th Cir. 19(3) (Social Security Act, 4-2 1l.S.C S 405(g), "requires 

each Social Security claimant to exhaust his admini<;tm.tivc remedies before appealing to a federal district court"), 

There are special rules for expedited appeals where the only issue is the constitutionality of an applicable provision 

of the Social Security Ad. 

J8 See http://v.'w\v.soeialsecurity.gov!appcals!about_Hc.html. These judges are not AU:-- and lack the statutory 

independence and AP/\ protection enjoyed by A Us. 
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Over tile years, I have supported a number of program-specific improvements to the SSA 

adjudication process,19 These are most fully set forth in the study that Paul Verkuil, Frank Bloch 

and I did originally for the Social Security Advisory Board (SSAB) in 2003 20 

We were originally asked by the SSAR to examine lh~ options of introducing some tonn of 

government representative and closing the record at a pre-ordained time. We decided not to 

propose a revival of the SSA's experimental program involving a government representative as 

an advocate. Instead we suggested a somewhat different approach to improving tile record for 

decision at ALJ hearings: inlToducing a non adversary "Counselor" into the disabillty 

adjudication process whose central role would be to monitor the process of developing the 

evidentiary record. This Counselor would work closely with all of the key actors-the claimant 

(and the claimant's representative. if there is one). the AU, and SSA (most likely through 

DDS)-in order to identify any gaps in the record and to fill them as quickly and eflleiently as 

possible. The idea was that these Counselors would remove much of the development work 

Irom the AU, including the seeond- and third-hat roles of assuring that the claimant's and SSA's 

(or DDS's) positions are fully supported, and would serve a much-needed administrative liaison 

function between the DDS and ODAR. 

We also recommended that the Counselors be givcn the resources and authority necessary to 

move claims quickly. especially those where henetits can be granted without a full administrative 

hearing. Consistent with the concept of nonudversarial representation, \ve noted that SSA 

Counselors need not······and perhaps should l1ot······be lavv,),ers. Most importantly, they should be 

qualified and trained to assure that they understand the relevant medical, vocational, and legal 

issues involved in Social Security disability adjudications. 

Another central recommendation was that "SSA should revise its regulations to close the 

evidentiary record after the ALI hearing," with a proviso that ALls may extend the time to 

submit evidence after the hearing and before deciding the claim, and that claimants be allowed to 

request a reopening to submit new and material evidence (within ::1 certain time period) if they 

can demonstrate good cause. 21 

::0 Sec iJ. 

::! Frank S. Bloch, .Tcfti·cy S. Lubbers, & Palll R. VerkuiL Developing {/ FilII and Fair E"idenfiary Re(ord in ,) 

/o·/onadl'er ..... ary Setting: Two Proposals/or rmproving Social Security Disahility A.Jj7ldicatiot1s, 25 ("ARDO/D L. REV. 

1,62 (1003). 

6 
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We also made a number of other specific recommendations; I have appended to this testimony 

the full set of our proposed recommendations. 

In 2005. SSA proposed. and in 2006 finalized, a revised set of procedures for disability 

adjudication known as the Disability Service Improvement (DSf) process.22 We were pleased to 

see that a number of our recommendations were incorporated into the DSI process, including the 

introduction of a Quick Disability Determination (QDD) process for certain types of claims 

where an initial linding of disability can be made within twenty days; the creation of a Medical 

and Vocational Expert SyslBm (MVES), designed to improve the quality and availability of 

medical and vocational expertise throughoLlt the administrative process; the addition of a Federal 

Reviewing Official (FRO) (somewhat similar to our proposed Counselor). who would review 

appealed initial decisions before such decisions are scheduled for an administrative hearing; and 

rules implementing the closing of the record at the ALJ stage that "vere consistent \vlth our 

rccommendatiolL:!3 In addition, the DSl also ehminated the reconsideration level of review 

following an initial denial of disability benetits; and replaced the Appeals Council with a new 

Decision Review Board (ORB) charged with broader responsibility for identifying and 

correcting systemic decision errors. But in a sign that that the agency was not completely 

conLident about these changes, the plan was only implemented in the Boston region to start with. 

In our review of the new program, we lauded Commissioner Barnhart for having "undertaken a 

much-needed, comprehensive ref 01111 of the SSA disability adjudication process.,,24 We did, 

hO\vever, disagree with aspects of the DSI, most significantly the nile's authorizing the FRO to 

issue decisions to deny benefits. Our concern \vas that this would "excesshe1y fonllulize this 

stage of the process, caneding out the streamlining provided by eliminating the reconsideration 

stage.,,25 

Since the establishment, in 2006, of the DSI program in the Boston region, however, much of the 

program has 1"llen by the wayside. Although the QDD process was implemented nationally in 

September 2007,26 shortly after Commissioner Astruc took over, and is apparently working 

n Admini"trutivc Review Proces", for Adjudicating Initial Disability Claims. 70 Fo:d. Reg. 43.590 (prnpos~d July 27. 

2005); Administrative Re\'iev,' Procc&.s for Adjudicating Initial Disability Claimf:-, 71 Fed. Reg. 16,424 (Mar. 3l. 

~006) (to he codified at 20 C'.P .R. pb. 404, 405. 416 & 422), 

~l See Frank S. Bloch, Jeffrey S. Lubberf:-, & Paul R. Vcrkuil, The Sodal Admini,'>tratioll ','>' Nell' Disability 

AU,Iua,,,,m,,m Ru/(!s: A Significant and Promising Rejrmn, 92 Cornell L Rev. 2-16 (2007) (explaining that SSA 

revis..:d its proposed closing¥of¥th..: record rule to "markedly improve" it by "retainling] the policy of dosing the 

record after the AU stage y..,hilc allowing the AU sufficient discretion with :-.ome\',hat mon; liberal guidelines than 

the proposed rules~to hold the record open at th(: time of rhe hearing or reopen it after the hearmg"). 

~-l lJ. at 236. 

c'i Jd. at 243. 

2'" Social Security Administration, final rule. Amendment&. to the Quick Disability Determination Process, 1'2 Fcd. 

Reg:. 5 Ll73 Sept. 6, 2007). 
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well,27 he also. about the same time, issued a new notice of proposed lUlemaking. proposing to 

suspend the MVES and FRO provisions of the Boston region pilot DSI procedures." 

He explained: 

Our experience over the last year in the Boston region demonstrates that the 

administrative costs associated with [FRO] and its consequent use of the [MVES] 

to develop medical and vocational evidence is [sic] greater over the foreseeable 

I,llure than originally anticipated. We do not yet have sul1icient results to fully 

evaluate the potential improvements in program elTicacy that are the goals of the 

[FRO] and [MVES]. Therefore, we propose to suspend new claims going through 

the [FRO] and [MVES]. so that we can reallocate resources to reduce the backlog 

at the hearing level. while we evaluate the [FRO] and [MVES] through the 

processing of claims already received. 2

c.) 

When this proposed suspension was finalized. in January 2008;'° he tllrther explained: 

The staffing levels for these organizations have been approximately 50% of the 

levels we believed would be needed to handle the Boston region workload. \Vith 

the reduced statTing at the [MVES otTice]. [the FRO otTice] has experienced 

delays in getting required medical evidence, consultative exams, and medical 

expert input. Budget constraints precluded us from hiring a full staff.3l 

A month atier he proposed to end the FROfMVES program, in October 2007, he also proposed 

extending the rest of the OSI program ~rocedllres nationwide and apply them to hearings on both 

disability and non-disability matters 3 - Changes were also proposed to the final level of' the 

administrative review process "to make proceedings at thal Jevd more like those used by a 

Federal appellate court when it reviews the decision o1'a district court, to establish procedures for 

appeals to that level. and to change the name of the hody that will hear such appeals" to "Review 

Board;' and to limit "'the circumstances in which new evidence may be added to the record 

during the appeals process.,,33 

r See, e.g, Socia! Security Administration, notice of proposed ru!cmaking, Disability Determinations by State 

Agency Disability Examiners, 75 Fed. Reg, 9821. 9822 n.4 (Mar. 4, 2010) ("Our data demQn-:.trate that the lQDDj 

model if> \""orking as we intend."). 

Social Security t\dmitli~lratioll, notice of proposed mlcmaking, Proposed Suspem,ion of Nc\\ Claims 10 the 

Federal Revie,<,;ing Oiliciul Revie'\'v Level, Changes lo1he Role of the Medical and Vocational Expen System, and 

Future Demonstration Projel:b. 72 Fed. Reg:. 45.70! (!\ug. 15.20(7). 

:'4Id. at 45,702. 

3<) Social Security Administration. final rule, Suspension of New Claims to the Federal Reviewing Official Revic\\. 

Level, 73 Fed. Reg. 2411 (Jan. 8, lOOR). 

31 ld. at2412. 

31 Social Security Administration, notice of proposed rulcmaking, Amendments to the Administrative Law Judge. 

Appeals Council, Hnd Decision Re\'iew Board Appeals Social Se-.:urity Administration, notice of proposed 

rulemaking, 72 Fed. Reg. 61.218 (OCi. 29,2007). 

~3 Jd. at 62,218 hummary). 
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No further action has been taken on this rulemaking; in fact the agency reversed course in 

December 2009, by proposing to tern1inate the DSI program by ending its application in the 

Boston region." This proposal was partially finalized in May 2011, when SSA issued a final 

rule eliminating the Oecision Review Board aspect of the DSI program in the Roston region. 35 

However, that rule did announce SSA was continuing to use the DSJ's c1osing-of-lhc-rccord 

provision, and in fact announced that the October 2007 proposal to extend those specific rules 

nationally is still ali ve36 

It seems ITom this history that only the QDD and the closing-ot~the-rccord provisions of the DS! 

have survived. The rest of the changes, even in terms of the pilot process in the Roston region 

have not-apparently due to the crush of the case load and pressures and resource constraints that 

worsened after 2006. But I continue to believe that the "Counselor" and DRB ideas are good 

ones and that the closing-ol~the-record procedures, that apparently are still alive in the Boston 

region, should be extended nationally as well. 

IV. Current Pressing Problems 

Turning to the pressing problems that have at least partially led to today's hearings-the 

crushing cascload pressure, persistent backlogs, and strikingly inconsistent decisional rates 

among A Us, I will tirst outline the problems: 

A. Backlogs 

Although there has been some significant recent progress in reducing the pending case10ad and 

concomitant processing delays, the problem is persIstent. In March 2010, Commissioner Astruc, 

announced: 

that the number of disability hearings pending stands at 697,437 cases-the 

lowest level since June 2005 and down more than 71 ,000 cases since December 

2008, when the trend of month-by-month reductions began. In addition, the 

average processing time for hearing decisions has decreased to 442 days, down 

from a high of 514 days at the end of fiscal year (FY) 2008.'7 

The pre~s release mentioned that 

The agency hired 147 Administrative Law Judges (AUs) and over 1,000 support 

staff in FY 2009, and has plans to hire an additional 226 AUs this year. The 

n Socia! Security Adminio;tration, notice of proposed rulcmaking, Rccstablio;hing Uniform National Di"ability 

Adjudication Provisions, 74 Fed. Reg. 63,688 (Dec. 4, 2009). 

3." Social Security Adillini-,;tration, final rule. 

National Disability Adjudication Provi!,ions, 76 F~d. R~g. 

J(, ld at 2.1-,80:1-. 

th~ De~ision Review Board Ree"tablishing Unif<Jml 

(May 3. 2(11). 

,7 Social Security Administration, 1\e\\I.'> Release, Social Security Hearings Backlog Falls to Lowest Level Since 

2005 (Mar. 2, 2010), ol'l.1i/ab/e at hUp:i/w\vw.5.sa.govipressofficeiprlhearings-backlog-031 O-pr.htm. 

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agency now has four National Hearing Centers to help process hearings by video 

conference for the most hard-hit areas of the country. The agency also has 

aggressive plans lO open 14 new hearing offices and three satellite omces by the 

end of the year.·" 

However, in September 20 II, according to a Syracuse University analysis, "'The number of 

disability cases awaiting a hearing and decision by [SSA] continued to climb during the most 

recent quarter, from July I to September 30, 2011. Pending cases rose to 771,318 at the end of 

this period. up 9.3 percent from 705,367 one year ago."" 

B. illconsistent decisions and high grant rates 

There have been widely reported decisional inconsistencies in the SSA disability adjudication 

system.'" As the SSA Inspector General reported in a letter to Chairman Johnson of this 

Committee in February of this year, among the 1,256 ALJs with 200 or more dispositions in FY 

2010, the average decisional allowance rate was about 67 percent, but the 12 ALJs with the 

highest allowance rates averaged between 96.3 and 99.7 percent. and the 12 ALJs with the 

lowest allowance rates averaged between 8.55 and 25.1 percent4 ! The disuniftwmity is 

troubling, but lost in those headlines is the fact that the two-thirds overall national average 

allowance rate is strikingly high given that in granting claims, AL.ls are in eflecl reversing prior 

decisions by the declsionmakers at both the DDS and reconsideration levels. 

SSA is aware of the inconsistency problem and has commbsioned ACUS to study the fairness, 

efficiency, and accountability issues raised by these inconsistencies; the study is ongoing and T 

hope that it will ultimately be useful to both SSA and this Committee when it is completed later 

this year. 1 am not going to prejudge the ACliS study, but I will note that in today's testimony 

Professor Pierce makes a good point when he points to perverse incentives that make it easier 

and less of a "hassle" for ALJs to grant cases than to deny them. But even so. that doesn't 

account for the rather extreme tai Is of the bell curve among individual decisionmakers, some of 

which, at first blush at least, appear to be based on the location oftbe hearing office. That latter 

point may be related to a desire for popularity in the community by being known as a "generous" 

judge. Moreover. claimants' representatives may also have an unfortunate incentive to drag out 

cases. since their fees are tied to a percentage of the back pay provided to successful applicants 

in order to cover the time between their claim and the decision. As a USA Today editorial noted, 

J~ hi, 

19 See "SSA Dj<;ability Ca<;cs Continue to C!jm~~~Ri<;e in Backlog as of September 20J L" Transactional Rec~)rd<; 

Access Clearinghoust: (Nov. 3, 20 J 1), http://lra\:.~yr.C"du/tracreportsis~aC66i. 

.. 0 See e.g.. Damian Paletta. Disability Claim Judge Hm' Trof!hle S(~ving ?v'o, . \\1..\; L ST. J. (May 19,201 I), available 

at bUp:/lonlinc.\\.sj.com/articlc/SB I 000 1424052748704681904576319163605918S:::4.html. 

'11 Congressional Re.1ponse Report, Oversight [ml' Ju(~!!,e Workload Tn:nds, at 4-5. No. A- 12-11-

01138 (Feh. 2012), transmitted by letter to Sam Johnson, Chairman, Subcomm. on Social ')ccurity, House 

Comm. on Ways and lV1catl<: (Feb. !4, 2(12), (Ivailable at http://oig.ssa.gov/sites/dctaultifiics/uuditifullipdD'A·J2· 

I 1-01 I 38_0.pdf 

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"This gives the lawyers a potent incentive to drag the process out, to the deU'iment of everyone 

but themseh es. ,,", 

Yo . Possible New Approaches 

As mentioned above, T would like to see aspects of the DS! program revived. But since the 

reason for abandoning many of them \-vas that the apparently long-term and grmlvlng caseload 

problem makes it impo;sib1e to devote enough resources to test them properly, it would seem 

that this fundamental case load problem needs to be addressed with some new approaches. 

1. Doing more rulemaking 

\Vhi1e 110t a new initiative, onc that I would at least like to sec explored more is the lLse of 

mlemaking by SSA to reduce the number of issues that mu~t be heard in individual 

adjudications. The Supreme Court blessed this approach in Heckler v. Campbell, in which the 

COUlt upheld agency's use of its .4medical-vocational guidelines," \vhich determined ·'the types 

and numbers of jobs that exist in the national economy" so that the issue did not have to be redetermined in e~ery individual adjudication."' To be sure, the Court also noted that "Respondent 

does not challenge the rulemaking itself: and ... rcspondent was accorded a de novo hearing to 

introduce evidence on issues, such as physical and mental limitations, that require individualized 

consideration .... .+4 

The simple question r have is whether there might be other general tactual issues that could be 

resolved as fairly and mure el1icicntly through ruiemaking as through casc-by-case adjudication. 

Another existing initiative that might bear more fruit is the use of video teleconferencing 

technology (VTC) to conduct hearings. As repOlted in the Administrative Conference 

recommendation urging greater use of VTC; 

USA TODAY, EdilOfiai: Di...I'uhili{v claims swel!iJ~r; 111 recessIOn (fcb. 22, 2012), online at 

http://www.tlS<.1today.com/ne\\ .. s/opjni()n/cditOlialslstol).l~OI2-02-02/di-;ahility-Socjal-Secl1fity-n.~.cL.Ssion/S29..f{).27X/l. But see the 

opposing ICtLcrtoli1cedilOf rL'Spnndinglolhi:.edilnrial hy Jim A!lsur. CEO; AII"up Inc.; BcJcvillc, Ill .. a natiomVldc disahility 

repre~ent<ltion company: 

According to the OK;, having <l repre~entatiye can help eligible applicants receiye an allowance 

decision earlier in the proce:-.s. Experienced representatives help claim<lnts navigate the 

complicated system and avoid common pitfalls that lead to tmnecessary delays and deniaLs that 

later get re\"er~ed at an expensive hearing. Claimants analyzed in an OrG report could have saved 

500 days by engaging a third-party representative \\hen they applied. 

H ltp://wVv\'; .u'}atoday .com/neVv",/opinion/letters/",toryI10 12-02-08/Soci:.JI-Sec urity-Disabil it y-otrshor~­

invt:stmenb/53014844/I.USA Today. Editonal. Disability claims ~l,tiellil!g li1 nwssion (Feb. 22. 2012), onJint: at 

http:/A\v.,'\v.usat()(]ay.cominc\\"S/opinion/cditorials/story!201:2-0:2-0:::/disahility-Social-Sccurity-r~s."ion/5:::q40278/1. 

lJ 461 U.S. 458 . ..1.59, 461 (1983). Tht: so called ;'grid rules" are codifit:d in 20 C.F.R. pl. 404. "uhp1. P. appx. 2 . 

.. p Jd. at +70 n.!4. 

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[l]n 20lO, ODAR conducted a total of 120,624 video hearings, and a cost-benefit 

analysis conducted for the agency by outside consultants found that ODAR's 

current use of video hearings saves the agency a projected estimated amount of 

approximately $59 million dollars annually and $596 million dollars over a 10-

year period. A study by the agency has also dctcrmined that the lise of VTC has 

no effect on the outcome of cases. 4) 

This shows the potential magnitude of savings of time and money in sLlch a huge program. Of 

course, it is necessary to remain vigilant in maintaining the fairness and acceptability of such 

hearings and to continue to improve the technology. Moreover, there is at least a hypothesisworthy of examination-that use of VTC (in the sense of "distance judging") may help eliminate 

some of the decisional variations among AUs-especially if an AU might otherwise be 

thinking about his or her popularity within a particular community. 

3. Modifi'ing the role o(the Appeals Council 

Not surprisingly, the case load of the Appeals Council is grO\ving along with the rest of the 

adjudicative system. SSA reported that the Appeals Council received over 173,000 requests for 

review in the year ending September 30, 2011. During that period it processed about 127,000 

cases, with an avera¥e processing time oC360 days, leading to a pending cascload of 153,000 at 

the end of that year. (, Requests Il)r review are up significantly-Irom 106,965 in FY 2009 and 

128,703 in FY 2010. 47 

The DS[ process as promulgated in 1996 (only implemented in the Boston region) would have 

substituted a Decision Review Board for the Appeals Council. This proposal was rescinded in 

2011-primarly due to caseload pressures, But it is worth revisiting the announced purpose of 

the ehange . .tB 

The DRB would have substituted Jor the appeal process used by the Appeals Council an 

expanded "own-motion" type of rcvie\\" that covered review of both allowances and denials. 

Claims were to be reviewed before the AU decision was effectuated. The DRB could amrm, 

modily, or reverse the AU's decision or remand the claim to the AU. 

-.I' ACUS Recommendation 2011-4, Usc or Video Hearings: Best Practices and Possibilitie" ror 

E>.pansion" (.June 17, 1011), at http://\\·\Yw.acus.gov/aeus-recornmcndations/agcneY-llsc~Of-vidco~ 

hcarings-best-practiecs-and-possibilitics-Cor-expansion. lNote, hm\(:ver, thai attcr this testirnony ~\as. dcli'vcn;>d, 

SSA notified ACUS that it had correcied the ten-yr;::ar savings figurr;:: to 552-109 million. OIliee ofthc InspectO! 

General, SSA, COl1?,ressional Response Report, Current and Erpanded Use qf" Video Hearings at 3, No. A-05-12-

112&7 (June 2012), transnllt{ed hy letter 1(1 Hon. Dave Camp, Chairman, Comm. on Ways and Means (June 18, 

1011), amilah/e at hnp;l/oig.ssa.gov i audils-and-invcstigations/audit-rcports/A-05-12-21287.J 

~6 SSA, General i\ppeab. Council Statistic", http://www.ssa,gov/appeab/ac .. statistics.html. 

~7 Social Security Adrnini<;tration, final rule. Eliminating the Dccision Revicw Board Rccstabli1.hing Unit"ixrn 

National Disability Adjudication Provisions, 76 Fed. Reg. 24,802, 24,8OJ (Jv13y 3, 20J I). 

-I~ Administrative R.:vicw Proces)' for Adjudicating InitialIJisabili1y C!mms. 7\ Fed. Reg. \6,424, 16,437··39 (MaL 

31.2006). 

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The ORB was also to be charged with selecting claims for review after the AU's decision was 

effectuated for purposes of studying the decision making process, but in slIch cases the ORB 

would not change the AU's decision except in limited circumstances. 

If the DRB did not complete its action within the 90-day time [j'amc, the AU's decision would 

become linal. subject to judicial review. The DRB "as to apply a substantial evidence standard 

to questions of fact and to consider only the record that was closed at the time that the ALl 

issued the decision (sllbject to a good cause exception). 

The DRB wus to be composed of experienced and highly knowledgeable ALJs and 

administrative appeals judges, serving on a rotational basis. with staggered terms, and supported 

by a highly qualified staff. To enhance accountability and to provide feedback in the 

decisionmaking process, DRB decisions that \-vere in disagreement vvith ALl hearing decisions 

were to he sent to the ALJ who issued the decision. 

SSA explained that it had decided to have the ORB rely on own-motion review and not to allow 

claimants to initiate appeals to the ORB (unless the AU had dismissed the claim entirely) 

because claimants already "have t\VO levels of Federal administrative revil:w after the initial 

determination, and the [AU] level of review allows the claimant the opportunity tor a face-toface hearing. Neither the Social Security Aet nor due process requires further opportunities for 

administrative review.,·.J-9 

It also said in response to public comments on its proposal that it did not believe the ncw process 

would be more complicated for the claimant, because the claimant would simultaneously receive 

notice of the AU's decision and whether the ORB would be reviewing the case. The claimant 

would not have to take any further action until such time as the DRB issued its decision, 

although the claimant could submit a written statement to the DRB. SSA concluded that the new 

process would benefit the claimant by providing an opportunity for further administrative revic\v 

in problematic cases or, otherwise, with a quicker final decision so that the claimant can proceed 

judicial reviev\" i1'so desired. 

A key to the success of this process, obviously, is appropriate selection of cases for review by the 

ORB, Although SSA declined in its rule to include "a specific statement regarding the method 

and range of sample sizes," hecause "our methods of selecting cases for review will change over 

time as we gain experience and knowledge in the use of om computer-based tools," it said that it 

would select cases in different ways so as to "efficiently identify problematic cases without 

unfairly targeting any specific category of claimant:' SSA also pledgcd not "'to review clajms 

hased on the identity of the administrative law judge who decided the claim." But it did say that 

"the claims that the ORB will review may include claims where there is an increased likelihood 

of error. or claims that involve new policies, rules, or procedures in order to ensure that they are 

being interpreted and used as intended:"o 

In 10 11, when SSA abandoned the DRB in the Boston region, it explained: 

19 71 F!;!d. Reg. at 16,438. 

50 Jd at 16,437. 

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The DRB has not functioned as we originally intended: its workload has grown 

quickly and become overwhelming. We had intended to use an automated 

predictive model to select the most error-prone cases for DRB review. However, 

because we were unable to implement this predictive model, the DRR processed 

100% of the unfavorable and partially favorable decisions, requiring significantly 

more resources than we had anticipated.51 

think it is unJ()f(unatc that the DRB experiment \()l!ndercd hccausc SSA was wmblc to 

implement an appropriate predictive model, though it is understandahle that nationwide caseload 

pressures on the Appeals Council made it difficult to fully carry OLlt its proposal in a single 

region. 

I hope, however, that if the Appeals COLlncil is maintained in its current form. some way can be 

found to increase the "'quality control"' review of grant cases, and to use selected Appeals 

Council decisions as system-wide precedent so that recurrent issues can be settled at that level. 

This, of course, would also require some mechanism to enforce (or at least strongly encourage) 

compliance with such precedential decisions at the lower levels. 

This is consistent with ACUS's 1987 recommendation, where ACUS recommended an enhanced 

role t()f the Appeals Council in making systemic improvements: 52 

a. Focus on System Improvements. SSA should make clear that the primary 

function of the Appeals Council is to focus on adjudicatory principles and 

decisional standards concerning disability law and procedures and transmit advice 

thereon to SSA pollcymakers and guidance to lower-level dcclsionmakers. Thus 

the Appeals Council should advise and assist SSA policymakers and 

decisionmakers by: 

(I) Conducting independent studies of the agency's cases and procedures, and 

providing appropriate advice and recommendations to SSA polieymakcrs; and 

(2) Providing appropriate guidance to agency adjudicators (primarily ALls, but 

conceivably DDS hearing officers in some cases) by: (a) Issuing, after 

coordination with other SSA policymakcrs, interpretive "minutes" on questions 

of" adjudicatory principles and procedures, and (b) articulating the proper 

handling of specific issues in case re\'iew opinions to be given precedential 

significance. The minutes and opinions should be consistent ¥/ith the 

Commissioner's Social Security Rulings. Such guidance papers should be 

distributed throughout the system, made publicly available, and indexed. 

51 76 Fed. Reg. at 24.803. 

52 ACLJS Recommendation 87··7, "/\ Nc\\> Role for the Social Security Appeals COl1ncil" t· I (Dec. lR, 1987) 

available al http://\.\·\\w.aclls.goviacl1s-recommendations!a-ne\V·-role-for-the-social-security-appeals-council. 

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ACUS closed its recommendation by saying: "If the reconstituted Appeals Council does not 

result in improved policy development or case-handling performance within a certain number of 

years (to be determined by Congress and SSA), serious consideration should be given to 

abolishing il."" 

That statement retains its il)rce and, with the demise or the DRB experiment, it is up to SSA and 

the Congress to consider something beyond simply increasing the size of the Appeals Council to 

massive. proportion. 

When SSA proposed the DRB, one of the prominent commenters was the Administrative Omce 

orthc u.s. COUtts, which "thought that the shift of the Appeals Council's functions to the DRB 

would have an adverse effect on the Federal court system and would result in an increase in the 

number of cases appealed to the Federal courts.,,54 

This is not a nc\v concern; various federal court study commii)sions have noted the high 

proportion of SSA cases in the high proportion and burdensome nature of SSA cases in the 

federal district COUltS." Not surprisingly, appeals ofSSA decisions to the district courts continue 

to be at high levels in 2011 with 15,705 appeals to the district court (many of which are lirst 

handled by Federal Magistrate Judges), and 577 to the coutts of appeals." 

Another problem is that there is also a lack of uniformity among the district COUlt decisions. A 

study T worked on li:lUnd that in FY 2000, there was a wide range of outright allowances (not 

including the numerous remands) among the 48 district courts that had over 100 appeals, with a 

high of about 28% and a low of zero. 57 

These problems, along with the seeming inetTectl13lity of the APreals Council, led Profe"or 

Vcrkuil and mc to recommend the creation of an Alticle 1 Social Security Comt \~'hjch would 

substitute for both the Appeals Council and the federal district courts. Appeals from that Court 

would then go the regional courts of appeals. Following a suggestion of the Association of 

ALls, we also suggested that perhaps the All stage could be reconstituted into a two-tier stage 

with a possible appeal of a single AU decision to a panel of three AUs in some cases. This is 

similar to the t\vo-tier bankruptcy judge panels authorized in bankruptcy cases?~ 

<; ld all;" 2. 

S-l71 Fed. Reg. at 16,439. 

55 SCc' Paul R. Verkuil & Jeffrey S. Luhbers, Altemative Approaches to Judicial Review (~lSocial Secllrity Disability 

Cases, 55 ADMT1\,. L. RLV. 731,752 ·54 (2003) (discussing thc ~tudies). 

56 ADMIN. OfFlC[ OF TIlE U.S. COlIRTS, .Tt:D1ClAL B\':~lNESS OF TIrC U.S. COlIRTS, 2011 ANN. REPORT OF TIlE 

DJRfCl'OR, Ibis. B-IA, C-JO, at'ailable at 

hUp:/iw\\w.u:)couns.gov!uscouns/SwtisticsIJudicialBusiness!201 JiJudir.:ialBusjne~s20J I.pdf. The~e relleet all 

appeals. but the va<;t majority are mo"t are disability cases. 

'i7 Verkui\ & Lubbers, :wpm note 55, at 783-84 (Appendix A). 

58 See 28 U.S.c. J58(b), discussed, it! at 747 ·48 

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We concluded that a Social Security Court would not only reduce the burdens on the federal 

district courts, but would also produce more unifonnity in the decisions, thus providing more 

guidance to the agency decisionmakers as well. It 1V0uld also have the potential benefit of being 

a vehicle for potentially consolidating judicial review of other benefit program decisions into a 

single court. 59 

SSA cases have traditionally been non-adversary in nature······with 110 government representative 

and \\l1th the ALl often having to wear '"three hats"-making a decision on the record while also 

ensuring that the record reflects the best arguments for unrepresented claimants and protecting 

the overall public interest (the public tISC). This can make the ALl's job more difficult and there 

have heen some well-intentioned suggestions to institute government representatlon, especially 

as claimant representation has incrca~cd now to levels of about 80%), SSA experimented with a 

government representation project from 1982-1986, but it \\'as shut down prematurely after a 

district court judge issued an injunction against continuation of the program, which for some 

reason was not appealed by SSA60 

Allowing government representation might make sense in some cases. For example, a former 

President of the Association of AUs, recommended that adversary hearings be used in (a) all 

court remand cases and (b) in cases where an applicant seeking SSJ funds ~'has created 

corporations or other legal devices that might mask his true Income:,61 But as a general matter, 1 

am not convinced that the benefits of transforming the program from an inquisitorial to an 

adversary program would outw0igh the considerable costs of doing so. These costs would 

include: (I) the upfront costs of hiring a cadre of highly paid government litigators, (2) the 

probable increase in complexity and combativeness of the hearings, and (3) the resulting 

applieability of the Equal Access to .lustice Act's attorney fee provisions to SSA administrative 

proceedings (which only apply to "adversary adjudications" in which the position of the United 

States is represented by counsel or otherwise,,).62 

For those reasons I continue to prefer the deployment of govemment "Counselors" to help the 

AU and the parties develop the record instead of assigning governmentlitigators to these cases. 

6. O{JIiol1s Regarding A LIs and Specia/lv Designated AJ, 

'i~ For an 

Michael 

of this argument anJ a comparison with the Australian Sociill Security Appeals Tribunal, see 

& S. Lubhers, The Merits oj" ·'Merits" Review. A Comparafire Look at the Australian 

28 WINDSOR Y.B. ACCES~ JL~;j. 261 (2010). 

fli Statement of Frank B. Borowiec, presented to the Advisory Committee on Utilization of Administrative Law 

Judges, Civil ')ervice Commission at 12 (July 1 t, lQ7.3). 

61 5 U.S.C. § 504(b)(1)(C). This issue is discussed at Bloch. Lubhers, & Verkuil at 38--42 (cstimuting a potential 

additional annual c050t of 5100 million that u:ollld have to come out ofSSA's. budget). 

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As discussed above. in tbe 1970's, Congress seemed to ratify tbe SSA's long-standing position 

favoring the use of A Us in disability adjudication, Whether that might change if SSA changes 

its position is an open question, Bul as a legal matter, the APA certainly pem1its such a reevaluation, Section 556, afler providing j(ll" the use of AUs in [om1al adjudications, states: 

"This subchapter docs not supersede the conduct of speci tied classes, of proceedings. in whole or 

in part, by or berore boards or other, employees specially provided jell' by or designated under 

statute." 

Thus, if Congress became persuaded that circumstancc~ require that the long-standing model of 

using AUs is no longer tenable, it could "specially provide for or designate" another type of 

adjudicator, even as it maintains the APA procedures. Congress has done this occasionally. For 

example, once was \vhen it designated the temporary SSI judges described above. Another 

example is the special authority given to the Nuclear Regulatory Commission (NRC) to use 

Atomic Safety and Licensing Board Panel members (lawyers and scientists) to hear mlclear 

licensing cases,G3 Of course there arc also numerous nOl1-APA hearing provisions (such as 

immigration cases, public employee disciplinary cases, and government contract appeals) \~.:here 

Congress has speciany designated the use ofnon-ALJ adjudicators.64 

In the case of the NRC adjudicators. Congress wished to provide the agency with the flexibility 

to not only use law-trained judges to hear licensing cases, but abo scientists, While there might 

be some basis to open up SSA adjudicators to medical experts, I think the general consensus 

among commentators is that it is preferahle to have legally trained judges in sllch cases.65 

However, there are well documented problems with the government-wide AU program that 

might lead Congress to introduce more tlexibility into the process of hiring SSA judges in the 

future (of course, any change \-vQuld almost certainly require the grandfathering in of current 

AUs), 

63 42 U.S,c. § 2241: 

J>.,;ot'\-\ithswndmg lhe proVISIOns of sections 556(b) and 557(b) of Title 5, the Commis~lOn IS 

authoriLed to estubli~h one or more atomic salety and liceming boards, each comprised of three 

members, one ofwholTl1>ha!l be qualified in the condW.:l ofadminislTative proceeding!'> and two of 

\\ hom shall have ~uch technical or other qualilicalion" <I::; the Commission d~ems appropriate to 

the issues to be: decided, to conduct such hearings as the Commissinn may direct and make .:;ueh 

interrnediate or final decisions as the Commis,>ioll may authori/.c vi'i1h rc'>pect to Ihe granting, 

511spending, revoking or <lmending of <my licen5c or authoriz<ltion under the provisions or this 

chapter, any other provision ofhm, or any regulation of the Commission issued thereunder. The 

Commission may delegate to a board s.uch other regulatory functions as the Commission deems 

appropriate. The Commis.,>ion may appoint a panel or qualified persons from which board 

members may be selected. 

h~ See Jeffrey S. Luhber,,_ AJ)A~Adjudi('ation: Is the QUl'st/or UF/{jormitJ' Fultering?, 10 ADMIN. L 1. AM.l .65,70 

71 (1996) ~rl.':gardmg us.C' ornol1~APA judges.) 

tiS Set' C.g._ ACUS Recommendution 89-10, ·'Improved U~e of Medical PersOlmel in Social Security Disability 

Determinations" (Dec 15, 1989). available lIt htlp:i/\\ ww.HCtls.gov/actls~recornmendatlOnsiJmproved~use~of~ 

medical~per~onnel-in~~ocial~&ecllrity~di~ability~delenl1inations (which notably did not re\.'ommend using medically 

traincd adjudicator.;; at the hearing :-.tagc, but did urge SSA to "encourage iL.;; administrative 1m\' judges to calion an 

independent medical expert in appropriate cases to as~ess the need for any additional medical \:\"ickncc and to 

explnin or c1ariiy medic81 evidence in the record"). JJ. at, 5. 

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Perhaps the biggest frustration for agencies with the AU program is the inflexibility in hiring 

AUs. While designed as a merit selection program. the OPM proce>s for assembling the register 

of eligible applicants and the statutory restrictious on how agencies can hire judges otT the 

registcr~ has led most agencies to hir~ existing ALJs lateraJly from other agencies, mos1 often 

SSA, which employs over 85% o!"the overall AU corps. SSA. for its part, has also experienced 

frustrations in hiring the large number of ALJs it needs. 66 I have supported some governmentwide changes in the AU selection program, but given the predomlllance of SSA in the o\'era11 

program. I would also support tailoring a special selection process for SSA AUs. This could be 

done in two ways-either by ordering OPM to provide for specialized hiring of SSA AUs, or by 

specially designating them as "Social Security Judges" and allowing SSA to fashion its own 

hiring process that uses the OPM process as a model. This latter suggestion is essentially what 

has happened with the NRC panel membcrs. For example when NRC hires a lawyer member for 

its pand~ it posts a notice of an opening and conducts an ()PM-lik~ hiring process.67 1 

understand that the two Boards of Contract Appeals also conduct a tailored OPM-like hiring 

process as well \vhen they hire Administrative Judges. 68 

Creating a specially designated category oC Social Security Judges would not require, but could 

allow for, adding some othcr specially tailored attributed for these judges as lVell. For example, 

given the high degree of importance of case load management in this huge program, Congress 

could consider departing from the extant prohibition of performance ratings for ALJs. While I 

know there are legitimate arguments on the other side of this isslIc,tW I have advocated for this in 

the past for all AUs)" and the Administrative Conference has formally so recommended. 

I think it is lVorth quoting in detail the ACUS Recommendation on this point: 

66 See Lhe position pap~r of Ronald Bernoski. Presid.::nt, Association of Administrative Lavv Judg.::s, 

"Recommendations on the Social Security Case Backlog" at p. 30 (January 2008): 

We agree \vitll a statement of the Social Security Advisory B{)ard (SSAB), that "the fact that a 

new AU register ha~ not yet been established in and of itself raises qu~stiOI1S about \\ hethel' the 

ALJ recruitment proee,<,,<,, as currently constituted, serves the be.;;t intcrcs.ts of the Social Security 

progr<un and the public v.;iw look to the program for adjudication that is both impartial and 

efTicient." To paraphrase another SSAB conclusion, OPM has ~ho\\n that it is incapable of 

providing the Am~rjcan public v·;ith the "best qualifIed" admini~trative la\~ judges. 

Judge Bernoski',<, proposed s.olution is. to remove the government-wide ALJ program from OPM and give it to a 

,<,epmate AU-run conference. I would prefer ,U1 approach that is more limited to dealing specifically \.\ith the SSA 

AU corps. 

6' Sec, e.g., the ext<:n~iv<: requirement~ detailed in this job opening notice for a lawyer panel member, 

http://www.usajobs,go,,/(}etJob/vie\vDetailsi2284269#. 

68 See 42 U.S.c. § 7105. providing that the mcmht:rs of the Amled Services. and Civilian f3oaJ·ds. of Contract 

Appeals <lre to be appointed by DOD and USA using a process that mirrors the one used for ALJs, e>..cept that they 

must l1(l\e flve year~ of experience in public contract Jaw. Tht!y aho have their own ~talutory salary provision. 

t>9 James P. Timony, 

64J (FJII1993/Winter 

El'aiuution (?f Federal Admillistrative LalV '!uLfges. 7 ADM1~. L. J. AM. U. 6:29. 

70) Jeffrey S. Lubbers, The Federal Administrative JudicidlY' Estahlishing an Appropriate System of Performance 

Eva/uation Ii}!' ALJs, 7 /\DMlN. 1..J. AM. U. 5g9 (1994,. 

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Chief AUs should be given the authority to: 

1. Develop and oversee a training and counsel1ng program for ALls designed 

to enhance professional capabilities and to remedy individual performance 

deficiencies. 

2. Coordinate the development of case processing guidelines, with the 

participation of other agency ALJs. agency managers and, vvhere available, 

competent advisory groups. 

3. Conduct regular ALJ performance reviews based 011 relevant factors. 

including case processing guidelines, judicial comportment and demeanor, and 

the existence, if any_ of a clear disregard of or pattern of non-adherence lo 

properly articulated and disseminated rules. procedures, precedents, and ofher 

agency policy. 

4. Individually, or through involvement of an ALJ peer review group 

established for this purpose, provide appropriate professional guidance, 

including oral or written reprimands. and, ,vhere good cause appears to exist~ 

recommend disciplinary action against ALJs be brought by the employing 

agency at the Merit Systems Protection Board (MSPB) based on such 

performance reviews. 71 

In the SSA context, it would be appropriate for the Chief AU and the Hearing Omce Chief AUs 

to lmdertake this role. I would also suggest that once such appraisals are permitted, then 

probationary status for new AUs could also be considered as well as bonuses for highperformers-both of which are barred in the overall AU program. 

Finally, and perhaps even more controversially, I think that it might be possible to establish 

specialized standards [or what constitllles the sort of "good cause" that is necessary [or SSA to 

show before the MSPB can discipline or remove a Social Security Judge. Given the relative 

fungability of SSA cases, at least over time, '"good cause" should encompass unjustified lo'l-Y 

productivity, and for that matter, repeated failures to fbllov.i authoritative agency rules or 

precedential decisions. 

My overall point here is that the SSA ALJ program's size and perhaps the character of' its cases 

requires some special treatment, and given the inf{)nnality and lack of advcrsarial nature of it, 

fhere is ample reason to rethink the role and attributes of these AUs-at least going forward." 

71 ACUS Recommendation 92-7. ··The Federal Admini~trative Judiciary" ~ lII(B) (Dec. 10. 1992) available at 

http://ww\\'.acll~.gov/acus-recommendations/the-redera)-administrative-judiciary. 

This \\ould not be unprecedented. Until the carly 19805, OPM maintained a distinction bct\y('~n GS-I5 und us- ! 6 ALJs with two separate hiring registers. SSA ALh wefe in the US-IS category. SeC' Jeffrey S. Lubbers Ff'dera/ 

Adminis[rative Law Judges: A Focus on QUl'lm'isible 33 ADM1K L. Rrv. 109, J 12-15 (l981). I note 

her~ lhat a memher of the SSAB has ad\located limiting SSA terms LO 15 yenfS "to ensure turnover." Mark.l. 

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VI. Conclusion 

There have been many studies of the disability adjudication process, lrom the initial claim stage 

to the judicial review stage and every stage in bct\vecn. Rut the dramatic caseload pressures on 

the process has seemingly overwhelmed the ability or willingness or the Social Security 

Administration to experiment with procedural reforms. A case in point is the abandonment of 

most of the recent promising set of refoml proposals instituted in 2006 in the Disability Service 

Improvement project. 

1 would like to see a renewed effort to implement these process reforms. However, Congress 

may wish to consider some more fundamental structural reforms due to the caseload pressures 

which appear to be steadily ,vorsening. It may not be enough or tenable to simply keep enlarging 

the existing organizational structure of ALJs and the Appeals Council. 

Therefore, I ha\'e suggested some possible approaches to dealing \.\lith these caseload pressuressome incremental, such as increasing the use of rulcmaking and video communications 

teehn()logy~and some more Ilmdamental such as modilying the role of the Appeals Council, 

considering tbe establishment of a Social Security Court, making SSA bearings adversarial, and 

creating specially designated Social Security Judges in place of regular AUs to allow for more 

t1exible and tailored selection and management of the judges 1n this high volume program. 

By providing this menu, with some commentary along the \\iay. I hope I can assist this 

Committee in performing its historical role of protecting thc viability of this historic program. 

Warshawsky, Administrative Problems fYilh S'ocia/ Sect-wilY DisahililY Progrmt/:s" Some SO/lIliom at 2, BLUUMHHHi 

BNA PENSJUNS AND BENFFJTS DAJl.Y (April 2, 2012). 

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Appendix to Lubbers Testimony 

Recommendations in Frank S. Bloch, Jctl'rey S. Luhbers, & Paul R. Verkuil, Introducing 

NOlludver!>.ur;ui Government Representative:'" to Improve the Record for Decision in Social 

Security Disability Adjudicatiom, Report to the Social SeclI.-ity Advisory Board 76-78 

(March 2003), at'ai/able at http://www.ssab.gov/documents/Bloch-Lubbers-Verkuil.pdf; 

also published as Developing a Full und Fail' Evidentiary Record ill a Nonudl'ersary Setting: 

Two Proposals for ImpflJl"ing Social Security Disabili(v Alijltdicati{}ns, 25 CARDOZO. L. REV. 

1,60-63 (2003). 

Recommendations Relating to Development of a Complete Record for Decision by the A LJ. 

1. SSA should concentTate its efforts in the disability adjudication process on improving 

the record for decisions. 

2. SSA should consider implementing administrative and personnel reforms aimed at 

identifying and obtaining key information as quickly as possible, such as: 

a) Requiring that the DOSs communicate clearly and fully the rationale of their 

disability decisions and the evidence on \vhich they are based. 

b) Developing specific guidelines for transmitting key medical information, such 

as the data necessary to assess residual functional capacity. 

cJ Providing adequate flmding to pay for requested medical records, including 

but not limited to thosc from claimants' treating sourCC5-,. 

d) Encouraging ALJs to use their subpoena powcr \vhcn needed to obtain 

relevant information, and providing the DOSs with comparable mechanisms 

for enforcing similar requests. 

eJ Requiring DOSs and [ODAR] to make the existing record for appealed claims 

available to claimants and their representatives as quickly as possible, and 

requiring [ODARJ to set the date for ALJ hearings at least two months in 

advancc. 

3. SSA should consider creating a ne\v administrative position. called a "Counselor," 

\vith the express mandate of overseeing and facilitating the development of the 

evidentiary record lor decision. As part orthis process, the Counselor position should 

have the following characteristics and responsibilities: 

a) [t should be charged with developing a full and complete record as quickly as 

possible. in cooperation with claimants (and their representatives), DDS. 

[ODAR], and other SSA personnel. 

b) It should have direct access to key DDS personnel in order to question and 

clarify the DDS's rationale [or its di~abiljty decisions. 

c) It should have independent authority to obtain in()rmation for the record, 

including access to any available lunds and enforcement mechanisms. 

d) It should have a formal role, either independently or in cooperation with AUs 

and other OHA staff: to narrow and resolve particular issues and, when 

appropriate, to recommend to an AU a fully favorable, on-the-record 

decision. 

c) It should be designated nonadversarial, even if attomeys 1111 some of the 

positions. 

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f 

Chairman JOHNSON. Mr. Pierce you are welcome aboard. Go 

ahead. 

STATEMENT OF RICHARD J. PIERCE, JR., PROFESSOR, THE 

GEORGE WASHINGTON UNIVERSITY LAW SCHOOL 

Mr. PIERCE. Chairman Johnson, Ranking Member Becerra, and 

other Members of the Committee, thank you for giving me the opportunity to share my views on this important topic. To me, there 

are two major problems at present with the present Social Security 

disability program. One is that it is increasingly and unsustainably 

generous. The proportion of the population that has been deterVerDate Mar 15 2010 22:51 May 07, 2013 Jkt 80262 PO 00000 Frm 000091 Fmt 06633 Sfmt 06602 I:\WAYS\OUT\80262.XXX GPO1 PsN: 80262

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88 

mined to be disabled has doubled. The cost of the program has 

more than quadrupled, and that is primarily due to ALJ grants 

after two denials by State agencies. 

The other problem is related to that; there is massive variation 

in the ALJ grant rates. The latest numbers I have seen were 8.6 

percent grant rate for one judge; 99.7 percent for another judge. 

This is a problem that has been extremely well documented for 

over 35 years. A book written by six reachers in 1968–1978, excuse 

me, concluded that the identity of the judge is far more important 

than facts of the case in determining the outcome of the case. If 

you don’t address that problem in some way, 35 years from now, 

someone else is going to be telling you that it still exists. 

I think there are three sources of the problem. First of all, let 

me back up and say that one of the reasons this is so difficult is 

most of the cases that are in the subject of dual denials at the 

State level and grants at the ALJ level involve one of two disabilities, mental disease and pain. And the National Institute of Medicine and the National Institute of Mental Health tell us that over 

half the population suffers from one of those conditions. Obviously, 

we cannot have a situation in which over half of the population is 

qualified as permanently disabled. 

What judges have to do, and it is difficult for any decisionmaker, 

judge or not, is to figure out whether someone is so severely mentally ill or so severely subject to chronic pain that they are not able 

to work. And when you look at the variation in the ALJ grant rates 

and you look at the overall increase in the grant rates over time, 

it is quite obvious that while some judges are continuing to grant 

disability only to those with severe mental illness or severe pain, 

some now grant them routinely to people with minor mental illness 

and minor chronic pain. 

And by the way, I fit in both categories, so I suppose I should 

have applied a while back. The sources of the problem are three: 

First of all that the administrative law judges cannot be subjected 

to any process of evaluation or system of quality control. You are 

in a position to correct that problem and I hope you will. 

The second is that this whole system of decision making was designed to operate without lawyers. Well, today, 85 percent of the 

applicants are represented by lawyers or other professional representatives. This has changed the nature of the process dramatically and certainly as a contributor both to the wide variation in 

grant rates and to the increase in the number of people who are 

determined to be disabled. Something needs to be done about that. 

What I think you need to do, what I would urge to you do, is reduce the extremely generous fees that are now available that, as 

I read a report the other day, amounted to $1.5 billion last year 

and change the method of calculating the fees to eliminate this 

problem of a major economic incentive to delay cases. 

The third source is, frankly, the courts. The courts pay no attention to what you say in your statutes about scope of review. I have 

in my testimony citations to studies that show the courts absolutely do not pay any attention. What I would urge at least initially 

there is that the Social Security Administration start taking cases, 

more cases, to the United States Supreme Court. It has shown over 

the years far more respect for your views about scope of review 


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than have the district courts and the circuit courts. It may take 

two or three cases, but I think that is what has to be done. 

And to help that along, I am going to file a petition for rulemaking at SSA next week to urge them to take an action that most 

certainly will get them into court. And I hope the United States Supreme Court will then get the lower courts back doing what you 

have told them to do. Thank you. 

Chairman JOHNSON. Thank you, sir. I appreciate that. 

[The prepared statement of Mr. Pierce follows:] 


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Testimony of Richard J. Pierce, Jr. 

Before the Social Security Subcommittee 

of the House Ways and Means Committee 

June 27,2012 

My name is Richard .I. Pierce, Jr. I am Lyle T. Alverson Protessor of Law at 

George Washington University. I have taught and written about administrative law for 35 

years. I have wTitten over 20 books and over 120 articles on administrative law. The 

Supreme Court has relied on my books and articles in over a dozen opinions. One of the 

topics I have addressed in my teaching, research and writing is disability decision making 

by the Social Security Administration (SSA). My most recent writing on that subject is 

"What Should We Do About Social Security Disability Appeals?" 34 Regulation 34 

(2011). 

There are two major problems with the social security disability decision making 

process. first, the SSA disabi lity program has become increasingly and unsustainably 

generous. Over the past four decades, the proportion of the population that has been 

detemlined to be pemlanently disabled has doubled. The cost of the prognlm has 

increased four-fold over the past two decades. During that period, the cost of disability 

benefit awards has increased from 10% of SSA's total budget to 18% of its budget. The 

trust fimd trom which disability benefits are paid is projected to be exhausted in 2016, 

long before the projected dates ror exhaustion of the Social Security or Medicare trust 

funds. 

Second, there is a large disparity in the rates at which benefits are granted by the 

Administmtive Law Judges (A Us) who have the tinal say in the SSA decision making 

process in the vast majority of cases. Thus, for instance, the SSA Office of Inspector 
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Gcneral found that, while the average grant rate for SSA's 1400 AU's was 67%, the 

range of grant rates was 8.6% to 99.7%. An applicant in San Juan has an 87.92% 

probability of obtaining a lllVorable decision lhlln an SSA AU, while an applicant in 

Shreveport has only a 37.42% probability of getting a hlvorable decision from an SSA 

ALl. In every case in which an ALl grants benefits, a team consisting of a disability 

examiner and a medical advisor has determined that the applicant is not disabled. In most 

cases, two such teams have detemlined that the applicant is not disabled. 

The root of these two problems is the inherent difficulty of the decision making 

process in the cases in which one or two examiner/medical advisor teams have 

determined that an applicant is not so disabled that he can not work and that decision is 

appealed to an AU. Most such cases involve claims that the applicant is unable to work 

because of one of two conditions-mental illness or chronic pain. These conditions are 

extremely common in the popUlation that is potentially eligible for disability benefits. 

The National Institute of Medicine (NIM) has determined that 116,000,000 Americans 

sutfer from chronic pain, while the National Institute of Mental Health (NIMH) has 

determined that 61,000,000 Americans sutTer from mental illness. The incidence of 

chronic pain is higher in the relatively older population that accounts for most disability 

applications than in the total popUlation. Thus, over half oflhe relevant population suffers 

[rom one or both of the two health conditions that account for most of the AU decisions 

to reverse denials of benefits by disability examiner/medical advisor teams. 

Given the prevalence of mental illness and chronic pain in the population that is 

potentially eligible for disability benefits, it would make no sense to say that anyone who 

suffers from one of those conditions is eligible for pennanent benefits without 

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considering the severity of the condition. Thus, the task for thc decision maker is to 

determine whether the applicant suffers from mental illness or clu-onic pain so severe that 

he should be classified as permanently disabled. Detemlining the severity of an 

individual's mental illness or chronic pain is extremely dillicult. Chronic pain illustrates 

the problem. Pain is completely subjective. The same underlying physical condition can 

causc one person to suffer an unbearable level of chronic pain, while another person with 

the same physical source of pain experiences only minor and sporadic pain. 

In this difficult context, all that a decision maker can do is to attempt, however 

imperfectly, to determine the severity of an applicant's pain or mental illness and to grant 

benefits only to applicants who fall on the severe end ofthe spectrum of the population of 

applicants. The large increase in the per cent of the population that has been determined 

to be disabled in recent years demonstrates that AUs, on average, have granted benefits 

(0 many applicants with less severe mental illness or pain (han AUs considered suflicient 

to qualify for disability benelits in (he recent past. That is the primary cause of the lirst 

problem I identified-an increasingly and unsustainably generous rate of granting 

disability benefits. The large variation in the grant rates of individual AUs demonstrates 

that A Us vary greatly in the place on the spectrum of severity of mental illness or 

chronic pain where each draws the eligibility line. Some AUs grant benefits to applicants 

who sutTer minor mental illness or pain, while other AU s grant benelits only to 

applicants with se\'ere mental illness or pain. 

The task of managing the SSA disability decision making process is greatly 

complicated by three factors-tbe decisional independence of SSA ALJs, the new role of 

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lawyers for disability applicants. and the attitude of the courts that review the ALl 

decisions. I will discuss each in hlrn. 

The roughly 1400 SSA AUs have complete decisional independence. By statute, 

their performance cannot be evaluated, and their decision making can not be subjected to 

any form of quality control. When SSA attempted to implement modest quality assurance 

programs in the past, AUs enjoyed a great deal of success in persuading district courts to 

hlock SSA's attempts to implement quality controls of any type. In a recent survey, SSA 

staff attributed the large disparity in AU grant rates primarily to AUs' decisional 

independence. By statuk, SSA can not take any action against an AU without 

persuading another AU, who works at the Merit Systems Performance Board, that it has 

"good cause" to take some action against the AU. Without some major change in 

applicable law, it would he impossible for SSA to establish "good cause" to take any 

action against an AU based on fhe AU's pattern of decisions. Thus an AU can, if he 

chooses, grant beneJils in 100% of the cases that come beJ()re him without any concern 

that SSA will take any action against him. 

In my opinion, the institutional structure in which SSA ALJs can take final 

actions and can only be removed for cause by someone who, in tum, can only be 

removed tor cause, violates both the Appointments Clause and the Take Care Clause of 

the Constitution. I recommend that Congress eliminate the role of AUs in the disability 

decision making process. The ability to appeal a denial of benefits by two disability 

examiner/medical advisor teams to an ALJ introduces far more errors in decision making 

than it eliminates. At a minimum, Congress should amend the statute that limits SSA's 

ability to act against AU s by making it clear that SSA has the power to evaluate the 

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performance of AUs and to take such actions as SSA considers necessary to insnre that 

AUs are not unduly generous in their grant rates and do not grant or deny benetlts at a 

rate that diverges signit1canlly from the rate at which most SSA AUs grant or deny 

benefits. 

As the Supreme Court has recognized, the SSA disahility decision making process 

is designed to he impicmented by SSA without any involvement of lawyers or other 

professional advocates either for applicants Of for the government. Today, however, over 

80% of applicants are represented by lawyers or other professional advocates, while the 

government is never represented. This systemic imbalance between applicants and the 

government undoubtedly has contributed to the increase in the rate at which AUs grant 

benefits. Lawyers and other professional advocates for disability applicants have devised 

systems for maximizing the probability of a decision granting benefits to their clients by 

soliciting and emphasizing medical evidence favorable to their clients while withholding 

medical evidence that is unfavorable to their clients. The government is helpless to stop 

these abusive practices, since the AU has a statutory duty to help the applicant develop 

the record and the government is not represented. This gaming of the system by lawyers 

and other protessional advocates has become extremely lucrative. One finn made 

$81,000,000 in a single year representing disability applicants. When the role of lawyers 

and other professional advocates is combined with the statutorily-based rule that allows 

an applicant to supplement his application and the evidence in support of his application 

with additional claims and evidence at any time, the results are awful, measured by any 

criteria. Lawyers and other professional advocates regularly sand bag SSA and its AUs 

by declining to present important evidence unti I late in a proceeding. 

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I recommend that Congress limit the fees that can be earned by lawyers and other 

professional advocates for SSA disability advocates. The Supreme COUl1 has upheld a fee 

limit of $1 0 for advocates for VA disability benefits, so Congress has broad discretion to 

limit the fees of advocates lor SSA disability benefits. I also recommend that Congress 

amend the Social Security Act to empower SSA to issue rules that govern the time when 

claims can be made and evidence can be submitted in support of an application for SSA 

disability benefits. Virtually all other federal agency decision making processes have 

rules that require parties to submit all of their claims and all of the evidence in support of 

their claims no later than a point relatively early in the decision making process. 

Federal courts are required by statute to engage in deferential review of SSA 

disability decisions, but COllltS routinely ignore that statutory command. Courts are 

required by statute to uphold SSA findings of fact if they are supported by substantial 

evidence. The Supreme Court has characterized !"he substantial evidence test as highly 

deferential. In the Supreme Court's words, a court must uphold any agency finding that is 

supp0l1ed by "such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion." 

Paul Verkuil, a well-respected scholar who is now Chairman of the 

Administrative Conference of the United States, published the results of his careful 

empirical study of judicial review of social security disability decisions in "An Outcomes 

Analysis of Scope of Review Standards," 44 William & Mary Law Review 679 (2002). 

Verkuil's tlndings were surprising. He expected to find that courts applying the 

deferential substantial evidence standard would uphold 75-85% of SSA decisions 

denying benetlts. He also expected the rate of affirmance of decisions denying disability 

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benefits to be higher than the rate of affinnancc of a class of agency decisions that arc 

subject to de novo review. His tlndings were inconsistent with both of those expectations. 

He found that courts uphold less than 50% of decisions that deny social security disability 

benefits and that courts reverse a much higher proportion of disability decisions than of 

agency decisions that are subject to de novo judicial review. Verkuil expressed doubt that 

"Congress wants judicial scope of review to be an irrelevant labeling exercise," but his 

I1ndings demonstrate that it is "an irrelevant labeling exercise" in the context or judicial 

review of social security disability decisions. District courts and circuit courts routinely 

pay lip service to the deferential substantial evidence standard while actually applying a 

standard more demanding even than de novo review. 

A sequence of events that took place between 1978 and 2003 illustrates the 

extreme tendency of district courts and circuit courts to refuse to apply the substantial 

evidence standard and to apply instead a much more demanding standard of their own 

choosing. Beginning in 1978 and extending through the 1980s, several circuit courts 

adopted the "treating physician nile," a nile that required SSA to make a decision 

consistent with the opinion of a physician who treats a disability applicant unless SSA 

can amass a great deal of evidence that contradicts that opinion. The treating physician 

nile was obviously inconsistent with the deferential substantia I evidence test, but that 

blatant inconsistency had no apparent effect on the courts. After over a decade of 

unsuccessful attempts to persuade the courts to accord it the deference that Congress 

required, SSA capitulated and issued a nile in wbich it codified the treating physician rule 

and instructed its AUs to apply the rule. 

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A fter successfully persuading the eourts to defy Congress and to force SSA to 

adopt the treating physician rule, disability advocates embarked on eftorts to require 

other agencies with responsibility to implement other disability programs to adopt the 

treating physician rule. They enjoyed initial success in that effort when they persuaded 

the Ninth Circuit to require the Department of Labor to adopt the treating physician rule 

in the context of the disability programs it implements under ERISA. The Ninth Circuit 

concluded that "there is no reason why the treating physician rule should not be used 

under ERISA. . . ." The Supreme Court unanimously reversed the Ninfh Circuit in 

Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003). Justice Ginsburg 

explained: 

The question whether a treating physician rule would "increase the accuracy of 

disability detem1inations" under ERISA plans, as the Ninth Circuit believed it 

would . . . seems to us one the Legislature or superintending administrative 

agency is best positioned to address. As compared to consultants retained by a 

plan, it may be true that treating physicians, as a rule, "have greater opportunity to 

know and observe the patient as an individual." Nor do we question the COlllt of 

Appeals' eonce111 that physicians repeatedly retained by bcnefits plans may have 

an "incentive to make a finding of 'not disabled' in order to save their employers 

money and to preserve their own consulting arrangements." But the assumption 

that the opinions of a treating physician warrant greater credit than the opinions of 

plan consultants may make scant sense when, for example, the relationship 

between the claimant and the treating physician has becn of short duration, or 

when a specialist engaged by a plan has expertise the treating physician lacks. 

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And if a consultant engaged by a plan has an "incentive" to make a finding of 

"not disabled," so a treating physician, in a close case, may favor a finding of 

"disabled," Intelligent resolution of the question whether routine deference to the 

opinion of a claimant's treating physician would yield more accurate disability 

determinations, it thus appears, might be aided by empirical investigation of the 

kind courts are ill equipped to perform, 

An experienced SSA AU explained to me the effects that lawless judicial 

decisions like those that require SSA to apply the treating physician rule have on the 

behavior of SSA AUs, Congress and the Social Security Commissioner impose a great 

deal of entirely appropriate pressure on SSA's ALis to decide a large number of 

disability eases promptly, AUs know that they ean write a brief opinion explaining a 

decision to grant benefits with little risk of reversal. Courts can not review decisions that 

grant benefits, and the Social Security Appeals Council reviews only a liny proportion oj' 

AU decisions to grant benefits, By contrast, AUs know that they must wTite an 

extremely long and detailed opinion explaining a decision to deny benefits to have any 

chance of surviving judicial review, 

The incentive effects of such an unbalanced system of judicial review are 

obvious, My academic colleagues understand the bizarre incentive effects immediately 

when I analogize to a grading system in which a school gives a professor complete 

discretion to choose the gradc he awards each student but couples that unlimited 

discretion with a rule that requires the professor to write a three page explanation for 

every A he awards and a twenty page explanation for every grade he awards tllat is less 

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than A. Such a bizarre asymmetric set of grading rules would produce a pattern of grades 

in which the vast majority of students receive an A. ALJs respond to the asymmetric 

system of review of disability benefit decisions in a similar manner. 

It is hard to identify a promising means of persuading reviewing courts to apply 

the deferential scope of review standard Congress requires them to apply to SSA 

disability decisions. Congress always has the option of amending the Social Security Act 

to preclude all judicial review of SSA decisions in disability cases except the exceedingly 

rare case in which an applicant makes a plausible claim iliat the denial violates his 

constitutional rights. If the courts persist in their pattern of lawless behavior in this 

context, Congress will have no choice but to take that step. 

r recommend an alternative approach initially, however. Congress should 

encourage SSA to take two actions. First, SSA should rescind the treating physician rule. 

That would be a major step in the right direction. Second, SSA should choose one of the 

many circuit court opinions that exhibit judicial defiance of the congressional command 

to engage in deferential review of disahi lity decisions as the basis for tiling a petition for 

writ of certiorari ti'om the Supreme COUlt. As the Court's unanimous opinion in Black 

and Decker illustrates, the Supreme Court is far more respectful of congressional 

commands to engage in deferential review of SSA disahility determinations than are most 

district courts and circuit courts. It makes sense to provide the Supreme Court the 

opportunity to do its job of keeping the lower courts within statutory bounds before 

Congress gives up completely on the ahility and willingness of the judicial branch to 

perform its review function in a manner consistent with law. 

10 
100 

f 

Chairman JOHNSON. Judge Frye, the agency has published its 

expectations to do 500 to 700 cases a year. In your testimony, you 

say the current misplaced emphasis on numbers has perverted our 

system of justice. So are you saying there should be no expectations? 

Judge FRYE. No. 

Chairman JOHNSON. That judges should take as much time as 

they like as claimants wait in line? 

Judge FRYE. Absolutely not, as I indicated earlier, I strongly believe in goals, but the better standard a wider range. If you just 

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101 

ical evidence, do you want a judge to spend 2 hours on that or do 

you want a judge to spend whatever time he or she needs to understand the case? That is the problem with you have to do 500; you 

have to do 700. Judges work hard—to do those numbers, they are 

working 7 days a week. I get emails every week complaining and 

asking for some help. So, no, we are working hard, and we believe 

in goals, and judges are responding to goals. Most professionals 

don’t work well with unreasonable quotas. 

Chairman JOHNSON. How many did you do last year? 

Judge FRYE. You know, I don’t know. I have—I am 90 percent 

on official time, but I honestly don’t know, probably somewhere 

around 50 to 100. 

Chairman JOHNSON. Okay. Well, I was in the office in Dallas, 

and I can tell you that one judge out of 12 was working a normal 

day. 

I understand one of the ALJ union vice presidents in the Buffalo 

hearing office told judges not to process more than 300 cases a 

year. Is the union pushing that? 

Judge FRYE. I have never heard that statement, and I honestly 

find it incredible. 

Chairman JOHNSON. Thank you. 

And earlier this year, after the Inspector General reported that 

claimants or their representatives were declining video hearings so 

that a case would be assigned to a judge who allowed more cases, 

Social Security is now not identifying the ALJ until the day of the 

hearing. Do you think that is right or wrong? 

Judge FRYE. I think all of our hearings should be transparent, 

should be open to the public. I think our notice of hearing should 

clearly set forth all of the issues of the hearing, including the 

judge’s name. The government can’t do its business in secret. 

Chairman JOHNSON. I hear you. 

Ms. Zelenske, do you know why claimant representatives would 

cancel hearings for their clients who had been waiting months to 

see a judge? 

Ms. ZELENSKE. There are many legitimate reasons why people 

ask for a continuance if that is what you are asking. I mean, the 

claimant may be ill and unable to travel to the hearing that day. 

I mean that is usually the most typical reason that people ask for 

a continuance of the hearing. I mean, I get from the reports we get 

from our members, it wouldn’t normally be because the evidence—— 

Chairman JOHNSON. What percentage of them are done by TV 

nowadays, do you know? Any of you? 

Ms. ZELENSKE. SSA has that information. I think I saw—I 

think it may be around 5 percent. 

Chairman JOHNSON. So, is that all? 

Ms. ZELENSKE. I could be wrong. 

Chairman JOHNSON. They have it rigged for more than that. 

Professor Lubbers, with a program this large and this complex, 

does it make sense that Social Security can’t oversee the performance of judges for consistency? And are there any other programs 

that you know of that do it right? 

Mr. LUBBERS. I think, and I have written on this government 

wide, that I think that administrative law judges should be subject 


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to some sort of performance appraisal in a peer review way conducted by the chief judges at the agencies. And doing that properly 

would not infringe on their independence. 

I think in this particular program where the caseload pressures 

are so great and efficiency is such an important value, I think 

there is even a stronger reason do it in a Social Security Administration program. 

Chairman JOHNSON. Thank you. 

Mr. Becerra, you are recognized. 

Mr. BECERRA. Chairman, thank you. 

And to the witnesses, thank you very much for your testimony. 

Judge Frye, I want to ask you about some of your comments 

about this current informal process that is used. I have deep concern with what you said about moving toward an adversarial system. Let me tell you why, we just heard the commissioner tell us 

that he has a very tight budget, a budget that doesn’t allow him 

to do everything he needs to do, which is putting a greater load on 

many of your fellow judges. 

Where would we get the money to pay for the new now government attorneys that you would want to have conduct these adversarial hearings where now you would have a more formal presentation of documents, and it seems to me, not only do you increase 

the cost of going through that administrative appeals process now, 

but you probably prolong it to the point of maybe having appeals 

to the appeals hearing to the different stages going up to the Federal courts, in which case now Social Security is now having to pay 

for representation at the court level, Federal court level as well. 

I would think that we would want to recognize that, one, we are 

talking about typically the poorest folks in America who are the 

sickest, probably the frailest, who probably do not have money to 

hire really high-powered attorneys, maybe hire an attorney, but we 

are not talking about hiring, you know, the Jones & Jones law 

firm. My sense is that it would be better to give you quite a bit 

of power to conduct the informal hearing to try to extract as much 

information as you can from the individual or his or her representative. And therefore, you feel comfortable that you can go at that 

individual if have you to go at them pretty harshly or treat them 

with a little bit more care because they may be very ill, in which 

case what you are trying to do is extract the information as best 

you can, so you can come out with the decision. Ultimately, that 

individual still can go above you if he or she is not satisfied with 

your decision, but at least what we do is give you quite a bit of discretion to try to come up with a good decision and then, of course, 

deal with the outlier judges who are granting too many or too few. 

Judge FRYE. I could give you so many different answers to each 

of the points you make. 

I think, however, with respect to government representation and 

the cost, there would be so much savings from the appeals of cases 

at the higher range that was mentioned earlier, 99 percent, I suspect you would save billions ultimately. Now, there is another 

built-in savings—— 

Mr. BECERRA. Do me a favor, send me whatever you can to corroborate what you just said. 


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Judge FRYE. We will do the math. And I would be most happy 

to. 

[The information follows: Transcript Insert 4] 


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765,000 cases claiming disability benefits nnder Title 11 and Title XVI of the Social 

Security Acl.") Still, no lawyer or representative appears for the Government. 

The presence of claimant's counsel in morc than 80% of all hearings introduces a 

fundamental change upon the underlying jurisprudence. The need for one of the "Three 

Hats" is minimized in the presence of claimanfs counsd as counsel should adequately 

prepare the claimant's casco Inclusion ofa government representative would climinate 

the need for the second "Hat", returning the judge to his or her traditional role as a 

neutral, impaltial decision maker; no longer charged with the primary responsibility of 

developing the evidence for either the government or the claimant. Indeed, the duty to 

develop the record would shift to the agency, now represented by counsel. This would 

reducc a signiticant portion of the current ODAR workload, as judges by alld through 

ODAR personnci would have a far reduced need to ohtain documents or compile records 

for the benefit of the claimant. Of course, in those cases where the claimant remains 

unrepresented, it is clear that the judge must discharge the responsibilities of each of the 

'Three Hats' jurisprudence model. 

Nevertheless, the presence of government counsel in an adversarial setting would 

immediately accomplish two critical things. First, claimant's counsel would have 

someonc with whom they can speak in hopes of resolving the claim before a hearing. 

Second, as a result, the number of hearings actually held would drop dramatically, 

reducing the backlog as claims would be resolved by agreement with the claimant's 

attorney or representative. 

The presence of government counsel would enable claimant's counsel to address the 

question of potential resolution at the outset, thus reducing the time necessary f<)f ajudge 

to dispose of the matter, and which would potentially eliminate a vast number of pending 

claims wcll before judicial disposition under the current jurisprudence. Put simply. this 

means that a vast number of cases, given the current national reversal rate of 

approximately 60%, would never go to hearing, thus dramatically reducing the current 

cascload. This is consistent with the function of the advcrsarial system in the courts, 

where only 10- 15% of all cases are actually tried to conclusion. In the courts. R5 - 90% 

of all cases are resolved between counsel before trial. The presence of government 

representation would work a similar result in the disability appeals process. A 

fundamental change in jurisprudence would not necessarily require an overwhelming 

number of new lawyers, but could draw heavily upon the current cadre of attorneys and 

senior attorneys currently employed by the agency. 

Addressing the process through to conclusion, if a signiticant percentage of cases were 

resolved by agreement between counsel without hearing by submission of an agreed upon 

order to the administrative law judge for approval. the work now performed by attorneys 

and senior attorneys in the hearing ofticc, would largely be done by claimant's counselthat is, preparation of the decision awarding benefits. The number of "decision-writers" 

needed in the hearing omce would decline, with agreed upon orders, much as is now seen 

in many state Worker's Compensation systems. The net effect would be that a number of 

cases, each of which are now tried to conclusion in hearings. would be resolved without a 
105 

f 

The other savings, quite frankly, and it is a huge savings, we are 

one of the—my background is with the National Labor Relations 

Board. And I well know the regional office structure there and how 

they function. This agency also has a regional office function, the 

district offices. But in addition, we have ODAR, Office of Disability 

Adjudication, having regional offices that performed no direct case 

adjudications. These are very expensive. They are in the most expensive cities in the government, occupying the most expensive 

space. Maybe 30 years ago, that layer of management and that 

layer of bureaucracy was okay. I don’t think we can afford it anymore. Those resources should be in direct—— 

Mr. BECERRA. Now, you are going into a little beyond what I 

asked, but fair. I think anything you can tell us that will help us 

reduce cost, I—we would love to hear it. I am concerned about moving what is an informal hearing process into a very formal adversarial process. 

And Ms. Zelenske, let me see if I can ask you the same question 

because you represent or your organization helps represent a lot of 

claimants that go before the Social Security agency for these benefits, disability benefit hearings. What is your opinion about moving 

toward, from an informal non-adversarial hearing process to a 

more formal adversarial process, where you would have attorneys 

on each side going at it in front of a judge? 

Ms. ZELENSKE. I did have experience with that in the pilot in 

the mid-1980s, and it didn’t really work out the way it was intended. It was cases weren’t allowed more, and they weren’t better 

developed, which I think was one of the bigger issues about it. 

If you think about it, the people, the claimants going into a hearing are asked very personal questions about their lives and what 

is going on in their lives. And I think you want to keep it more as 

informal as possible. It is still nerve-wracking for them when they 


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go into a hearing. It is their day in court. It is their day dealing 

with the government. And you want to try to keep it informal. 

I mean, I have to say that from my experience, when I did hearings, most of the ALJs weren’t adversarial with the claimants. 

They were trying to elicit the information or have the representative help get the information out that is necessary to make the determination to see if they are eligible under the statutory definition 

of disability. And I think that this is why you don’t want to turn 

it into an adversarial process. 

Mr. BECERRA. Mr. Chairman, thank you very much. And thank 

you all for your testimony. Please, any information you can provide 

us to help guide us, we would very much appreciate it. 

Chairman JOHNSON. Mr. Marchant, you are recognized. 

Mr. MARCHANT. Thank you, Mr. Chairman. 

Mr. Pierce, can you explain to this member of the committee the 

disincentive or the incentive for a lawyer that takes a disability 

case to resolve the case quickly as opposed to over a period of a 

year or two? 

Mr. PIERCE. As I understand it, there is no incentive to resolve 

it quickly. There is the opposite incentive because the fee is dependent on the amount of the past benefits that are awarded. And 

so there is a natural incentive to delay as long as possible in order 

to maximize the potential fee. 

Mr. MARCHANT. So it is just a pretty simple math equation for 

most of the lawyers? 

Mr. PIERCE. That is my understanding. 

Perhaps Professor Lubbers has looked at it in more detail than 

I have. 

Mr. LUBBERS. No, but I think Mr. Astrue reaffirmed that position when he talked about most claimants’ representatives didn’t 

do this, but that some minority did. 

Mr. MARCHANT. And Judge, what was the average age or what 

is the average age of a case once you sit down and begin to focus 

on it? What is the time that has elapsed from the time the person 

called the State, made the claim from that date, and then what is 

the average time of the mature claim, once they get to the appeal 

process? 

Judge FRYE. Of course, it varies depending on the office staffing 

and so forth, but the typical case that I have been hearing is somewhere close to 2 years old from the time it was filed. And what 

typically happens once the process that the State agencies process 

the case and they come to the hearing level, usually that is when 

the attorneys get involved and far more development is done at 

that point. I think that is also a reason that you see judges’ decisions that disagree with some of the DDS. It is not because they 

made a bad decision; it is just that there is more evidence at the 

time the hearing is conducted. I think, in most cases, I think you 

are looking at 2 years by the time you file the application. 

Mr. MARCHANT. So that person either has a support system in 

place, are the claimants allowed to advance fees, advance expenses 

to the claimants? 

Judge FRYE. No, no. They may in certain circumstances, such as 

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ination by a medical doctor, for example. But I don’t know about 

any direct payment. 

Mr. MARCHANT. Is it legal or illegal? 

Judge FRYE. That is a very good question. I have never had it 

come up before. 

Mr. MARCHANT. That is a very common practice in other parts 

of law. I wondered if it had pervaded this element. 

Judge FRYE. I—— 

Mr. MARCHANT. You talk about—what would be the claim 

amount at 2 years? 

Judge FRYE. What would be the attorney’s fee at 2 years? 

Mr. MARCHANT. No, the claim. 

Judge FRYE. It would depend on the earnings of course of the 

claimant. It would be the monthly benefit times the—whatever 

number of months back benefits would be payable, so there could 

be a lump payment of $10,000. I have had it as high as $30,000 

and $40,000. 

Mr. MARCHANT. So we are talking in the $10,000 to $40,000 

range, usually? 

Judge FRYE. Right. 

Mr. MARCHANT. So that is not enough of a financial incentive 

for a lawyer to go out and advance living expenses to someone 

while their case was developing? 

Judge FRYE. I am not sure I can answer that. I don’t know. If 

wouldn’t be for me, but I am not sure. I couldn’t answer for all lawyers. 

Mr. MARCHANT. Do any of you know of any situations where 

that is the case? 

Ms. ZELENSKE. I don’t think attorneys would be allowed to advance, I guess, what you are talking about sort of the cost, the benefits, the possible benefits. 

What does happen and I used—my practice was with legal services so I never charged claimants fees. And what we would do—I 

think attorneys do that now is there is an agreement if you are 

going to get an independent examination or you have to pay for 

medical records, you have an agreement with the claimant that if 

they win the claim, that they will pay you back. We do that even 

at my Legal Aid office. We didn’t have a lot of money, but we wanted to get that examination. But I don’t think you would be allowed 

to advance living costs like you described. 

Mr. MARCHANT. So most lawyers that appear before you, 

Judge, are they single practitioners? Are they in law firms that advertise on Sunday nights, late, that have hats on? 

Judge FRYE. All of the above. I think typically it is a boutique, 

small law firm. There are a number of solo practitioners, but usually a small firm of three to four to five individuals. Oftentimes, it 

is combined with workers’ comp practice because they kind of overlap to some extent. For the most part, they are highly skilled and 

competent attorneys who appear before us in cases. 

Mr. MARCHANT. I have a sister that I assisted through this 

process years ago, and I found that to be the case. It was a sole 

practitioner. This was his practice. He certainly could not have become rich off of this process and seemed sincere in trying to get it 


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resolved as quickly as possible, yet it took 2 years, and it was finally resolved. 

And a big part of our case work still in our district offices is this, 

referring people and assisting people. 

Judge FRYE. I am sure. 

Mr. MARCHANT. After they have been turned down. 

Thank you, Mr. Chairman. 

Chairman JOHNSON. Thank you. 

Professor Lubbers, it is my understanding that the district courts 

should uphold the agency decision if there is evidence in the file 

that supports the decision. Do you believe magistrate justices are 

applying that standard of review? 

Mr. LUBBERS. Well, the APA standard is that if there is substantial evidence to support the agency’s decision, it should be 

upheld, the substantial evidence test. And I think the statistics 

show that in the Social Security caseload area, the district courts 

are either remanding or reversing at a much higher rate than in 

other programs. 

So why that is, many of these cases do go to the magistrate 

judges first and then to the Social Security judge. Professor Pierce 

made some comments about the courts not holding the statutory 

standard. It may be that these judges don’t see that many cases 

individually, so they feel sorry for the claimants in those cases. 

Chairman JOHNSON. Is that right? 

Mr. LUBBERS. I think the statistics do show that they do not 

affirm the agency as often as courts do in other programs. 

Chairman JOHNSON. How much fraud do you reckon is in this 

system? Do you have any estimate at all? 

Mr. LUBBERS. I think you should ask the IG. 

Chairman JOHNSON. Yeah, the IG is into it. 

What is the role of the appeals council in setting procedural decisions or establishing quality control? 

Mr. LUBBERS. Well, as I understand it, the appeals council does 

mostly hear cases where the claimant has been denied and makes 

an appeal to the Appeals Counsel. But in a small number of cases, 

very small number of cases, the appeals counsel does review granted cases, just for quality control purposes. But because of their 

caseload and the denied cases, they can’t do much of that. So I 

would like to see them do more of that, and I would also like to 

see them write some decisions that would be used as precedent decisions and that those precedent decisions would be circulated 

throughout the administrative law judge—— 

Chairman JOHNSON. So all the judges could follow them? 

Mr. LUBBERS. Follow it. They would be supposed to follow 

them. And that is, for example, the way—not that this is the greatest comparison—but the Board of Immigration Appeals does have 

certain decisions that they make precedential and are supposed to 

be followed by the immigration judges. 

Chairman JOHNSON. Professor Pierce, how is Social Security 

supposed to balance the fact that ALJ decisions should not be 

interfered with as the Administrative Procedure Act requires with 

ensuring consistent outcomes and productivity needed to administer this national program? 


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Mr. PIERCE. Well, I would start by saying I certainly don’t think 

that anybody in the Social Security Administration should attempt 

to influence the outcome of any individual case. 

But it is pretty easy to do what, for instance, the vast majority 

of law schools do to their law professors and say that your grades 

have to be in a particular range, and it is pretty easy to conform 

to those norms. And if the alternative is what we now have, an 8.6 

percent probability of a yes before one judge and a 99.7 percent 

probability before another, I don’t think there is any question that 

due process and equal protection of law would be served very well 

by establishing some boundaries within which we expect judges to 

have grant rates. 

Chairman JOHNSON. I appreciate that comment, thank you. 

Mr. Becerra, you have another question. 

Mr. BECERRA. Yeah, a couple questions. 

I want to make sure I dispel any notion that there aren’t— 

judges, Judge Frye don’t you have some template that you get to 

use? We have Federal district court decisions that have been handed down that give you some guidance. My understanding is the Social Security Administration also tries to provide you with a template where there are screens where you all can sort of go through 

some threshold questions that you have to get—you have to answer 

yourself through these hearings to figure out if the claimant has 

answered those adequately to be able to get to the point of saying 

yes or no, that they should be entitled to benefits. So I think the 

point that Mr. Lubbers makes, which I think is a good one, is to 

try to standardize this more so that judges aren’t left to their own 

devices. And I think Mr. Pierce has gone to that as well. So you 

have some way of evaluating when a judge does or doesn’t grant 

these benefits. 

But I want to stress something, and I think it came out in some 

of the earlier testimony, we are not talking about rich folks. And 

even if these folks win these benefits, we are not talking about 

them getting millions of dollars. As you mentioned, it is maybe 

$10,000 a year, and maybe because they didn’t get the benefits for 

the longest time because the process took a year or two to finish, 

they are getting $20,000. But most of that is money that they probably have to use to pay back family and friends and others that 

they borrowed money from to provide for their assistance while 

waiting to see if the Social Security Administration would grant 

their disability claim. 

The reason I point that out is because I fear that we are going 

to start to treat this the way we treat the regular legal system, 

where we have attorneys going at it, and you figure you better get 

the higher priced attorney who does this all the time and you better be prepared to go after them really hard because you want to 

win your case. This is the not the case where you are going to come 

down with a six figure judgment. This is very basic benefits, and 

the folks we are talking about are the frailest of the frail. 

And I asked staff to get me some information on the whole process itself, and this is from the Social Security Administration, 

where they go through and give their—this is 2011’s disability 

workloads. They can’t give us 2012 because it is still ongoing. So, 

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ability benefits? Excuse me, 3,295,806 disability decisions were 

issued by the Social Security Administration in 2011. How many 

of those decisions were to allow benefits? Thirty-four percent. Twothirds, 66 percent, were to disallow at that initial stage. So, right 

away, two-thirds of all those applicants were denied benefits. Of 

those two-thirds that are denied, some of them say, okay, you deny 

it, that is it. Many will say, wait a minute, I that you made the 

wrong decision, I want you to reconsider. So they go to the next 

level of appeal, which is in many cases reconsideration; not every 

jurisdiction has that interim level of reconsideration. 

Appeals to reconsideration—how many of those appeals to reconsideration did the Social Security Administration receive—853,142. 

They issued 819,710. Of the 819,710 decisions on reconsideration, 

how many of those were to grant benefits at that stage now? 

Twelve percent; 88 percent of those individuals who sought benefits 

after that initial rejection at the second level, how many at the second level of 819,000 decisions, how many were allowed? Only 12 

percent. So now have you 88 percent that is denied. They say, wait 

a minute, we still think you are wrong; what can I do to appeal 

that? Now you can get to that ALJ. This is now at the administrative appeal level. So you are now at the third level where you are 

constantly narrowing down the universe of folks who are appealing, 

and by the way, you are now probably getting to the more complicated cases, where it is not a simple clear fact of whether you 

get the benefits or not. At the administrative judge level, the hearing level, 662,775 cases were decided. How many were allowed? 

Fifty-eight percent of those cases were allowed; 13 percent were 

dismissed; 29 percent were denied. There are still two other levels 

of appeals, the so-called appeals council, which is much smaller, 

only 103,000 in decisions. Only 2 percent of the individuals got allowance of benefits, and then, of course, you go to the Federal court 

from there, where the allowance rate for 13,271 decisions was 3 

percent. 

My point here is to say this: There are different steps along the 

way and every time you narrow the number of folks who are appealing because the cases are probably more complicated, more severe, and so you have a lot of work, Judge Frye, to do because you 

are dealing with folks that after two stages of being told no, they 

still believe yes, and so you are making some very important decisions. That is why some of us believe you should be able to be aggressive through an informal process, where you can do all the 

questioning, as Ms. Zelenske mentioned, of that individual, the personal questions. Try to make it as easy as possible for SSA to come 

out with a decision. But it is a tough process, and I hope we recognize that we are dealing with folks who are for the most part very 

poor and very frail. We appreciate your testimony and anything 

you can do to help enlighten us on how to move forward would be 

appreciated. 

Mr. Chairman, it has been a great hearing, as have been the previous hearings on this matter. With that, I yield back. 

Chairman JOHNSON. Thank you. I would like to ask unanimous 

consent to enter into the record a report by the Congressional Research Service which provides an overview of Administrative 

Judges and how they differ from ALJs and some examples of how 


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administrative judges are used by other agencies. Everybody has 

received a copy of that. 

Without objection, so ordered. 

[The information follows: Transcript Insert 5] 


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Following the introduction, the memorandum will then provide examples from selected adrninisrrative 

agencie~ and describe tbe role ofAJs in those agencies. The five sel~cted agencies are the Board of 

Veterans Appeals (BVA). the Civilian Board of Contract Appeals (CBCA). the Equal Employment 

Opportunity Commission (EEOC), th..:: Merit Syskm Protection Board (MSPB), and the Nuclear 

Regulatory Commission (NRC). for each of these agencies the memorandum win address the number of 

administrative judges \vithin the agency, provide infomlation on their pay and evaluation, explain the 

legal authority for their positions, and describe their jurisdiction and hearing procedures. This section 

will illustrate how the role ofAls vades from agency to agency. 

Finally, the memorandum concludes with a selection of literature for further information on the subject. 

A. Adjudication 

Under the APA an adjudication is defined as "agency process for the formulation of an order.";: An 

"order" is defined as "a tinal disposition ... of an ag\!ncy in a malter other than rule making but including 

licensing."; Therefore, whenever an agency reaches a determination on a particular is~ue, other than 

through the creation ofa rule, it is performing an adjudication. Agencies adjudicate a wide range of 

subjects that can generally be broken dmvn into tour categories: (1) enforccment cases; (2) entitlement 

cases (e,g., benefits claims); (3) regulatory cases (e.g., licensing or ratemaking); and (4) certain cases 

involving federal procurement contracts:~ Although the term adjudication is not necessarily limited to a 

decision reached in a trial-type heaJing,~ this memorandum will focus on adjudications that occur in these 

trial-type settings. Both AUs and AJs may preside over adjudication procedures. However. in some 

instances an agency's enacting statute may require an AU, and not an AT, to preside over a hearing. 

Sections 5:'14, 556, and 557 of the APA establish requirements for formal adjudications that are heard 

within an ~gCl1Cy.6 These fO~'maJ hearings I~ust be heard by ~n ~d~injstrativc La\~' Judge or th~ head?f 

an agency: AJs cannot preSIde over these torma! agency adJudlcattons and, therefore, nccessardy preSide 

over "infonnal" hearings.~ 110\vever, under the APA, fonnal hearing procedures only need to be followed 

\vhen the agency's enacting statute calls for an administrative hearing to be held "on the record."" Many 

stalutes do nol contain this lriggcring language and, therefore, numerous agency adjudications are not 

required to follow these formal APA hearing procedures. In these situations, administrative judges (AJs) 

arc able to preside over the hearing and make a determination on the case heard before the agency. 

'5 Li.';.C. § 551(7) . 

. 5 ti.S.C. § 551(6). 

cbimunt. 

(,5 t.l.":.C. ~~ 554, 556-51. 

~ 5 U.S.C. § 554. 

Harold Le,·insoll. The SWillS o/fhe 
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According to a count from 1992, the number of AJs in the administrative judiciary nearly doubled the 

number ofALJs.lO This illustrates that many administrative cases are held according to "informal" 

hearing procedures in front ofAJs. 

B. What is an Administrative Law Judge? 

Although this memorandum focuses on the role of AJs in administrative law, it may also be helpful to 

understand how they di1Ter ITom AUs. When the APA was enacted in 1946, Congress created the 

position of the AU within the federal govemmcnt. The reason for creating this unique position \vas to 

ensure that the presiding officer at formal administrative hearings \\'35 th~c from agency int1uence or 

coercion. In order to ensure that these ALJs are able to render independent decisions, the APA provides 

for their protection in numerous ways. 

First, ALls are selected through a centralized process run by the Office of Personnel Management 

(OPM).ll There are certain qualifications lhal applicants must med in order to he considered f()r a 

position of AU. ALJs must be "authorized to practice law under the laws ofa State, the District of 

Columbia, thl! Commonwealth of Puerto Rico, or any territorial cOUli.,,12 Furthl!rmore, applicants for AU 

positions must have at least seven years of"expcrience as a licensed attorney preparing for, participating 

in, and/or reviewing formal hearings or trials involving litigation andlor administrative la\v at the Federal. 

State, or locallevel.,,13 Applicants, assuming they pass the OPM examination, are then assigned a score 

and placed on the register of eligible hire.',. Agencies in need of an ALl are then permitted to select an 

AL.l from the top thre~ available candidates. This hiring process keeps the AUs lrom being too 

connected with their employing agl!ncies. 

Following the selective hiring process, ALJs are provided withjob security in order to promote 

independent decision making. ALls are hired as career positions, and there is no set term for their 

appointments. Furth~rmore, they can only be removed for good cause l4 or through a reduction in forcc.l~ 

A Senate committee report states that "individuals appointed as [AUsj hold a position with tenure very 

similar to that provided for Federal judges under the Constitution:,I" ALJ salaries are also pf<Jteded and 

cannot he reduced unless good cause is sho\"il1.J7 

The APA also requires that ALls remain insulated from agency influence during their tenure. The APA 

expressly states that an ALJ may not "be responsible to or su~ject to the supervision or direction of an 

115 U.S.c. § 1302: 5 ('.F.R. ~§930.201-930.211. 

J~ Orlvl, Qualification Stanuaru (()r Administrmi",t! Lim Juuge Po~iti(Jns, hltp:! \-\,\\\.opm.g::oy,'qualifk<ltiomifllj',dj.asp. 

I; Jd 

16 S. RFP. NO. 95-697, at 2 (1978). 

1/ 5 ('.f.R. § 930.2Il; 
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employee or agent engaged in the performance of investigative or prosecLlting functions for an agency:'l~ 

OPM regulations further establish that agencies have "[t]he responsibility to ensure the independence of 

the administrative lm,v judge."l'! Additionally, employing agencies may not conduct performance 

evaluations in order to modify the behavior or decisions ofALJs, and OPM regulations state that an 

"agency may not rate the performance of an administrative law judge.-,20 

Finally, the APA grants certain powers that ALJs may exercise while presiding over administrative 

hearings, AUs may issue subpoenas, take depositions. receive evidence, and administer oaths. 21 Unlike 

AJs. as discussed below, these powers are granted to ALJs by the APA and not by the employing agency. 

As sLlch, agencies are nGt permitted to withhold any of these powers from anALJ,22 whereas the pmvers 

ofAJs are dependent on the types of hearings and procedures the employing agencies establish. As sllch, 

procedures fix ALI h~arings are more uniform while adjudication procedures tf)f AT hearings vary from 

agency to agency. 

All of these statutory mechanisms were designed to ensure that AUs arc free from undue agency 

influence or coercion during the adjudication process, 

C. What is an Administrative Judge? 

Administrative judges are perhaps best defined by their negative, An administrative judge (AJ) is an 

agency employee who makes an adjudicatory decision and is not an AU, Therefore, although an Al J is a 

specific position;!} the term administrative judge is not specific, but rather describes a ,yhole class of 

adjudicators across numt!rous administrative agencies. Hearing examiners. hearing officers. 

administrative judgt:s. immigration judges, veterans law judges, and numerous other agency officials with 

varying titles are considered to be Als. That is, they make adjudicator} decisions within an agency, but 

they are not ALls. For the purposes of this memorandum. the concept of an AJ \-vill be limited to an 

agency official \-",ho presides over a hearing within the agency.24 

Because AJs are not confined to a specifically ddined position, there is no cross-agency uniformity in AJ 

hiring practices, salaries, or jurisdiction. Instead, all of these elements may be unique to each agency 

v,iithin the rederal government that employs Als. Furthermore, because A.ls are pre~iding over "in[omwl 

adjudications:' the types of hearings they preside over vary trom agency to agency as \velL 

First. AJs differ from ALJs in the selection process. Unlike ALJs. AJs are not hired through the OPM; 

imtead, the employing agency is in charge of the hiring process.?> FurthemlOre, AJs are not necessarily 

l~ 5 U.S.L. ~ 55 .. Hd). 

I'! 5 C.F.R. ~ 930.201(1)(3). 

~q 5 C.LR. § (}30.206(<l). 

21 5 U.S.c. § 556(c). 

;..c J hE'~e al'e SUL1JE'ct h) an ag.eflcy h<l\'wg the ~tatutor) authority to exerci~e the"e powers generally. Jd 
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required to be attorneys or experienced in legal practice. The requirements for the various positions are 

determined by lhe hiring agency?) In tact, in some agencie~, A.Ts do not necessarily come from a legal 

background. In the Nuclear Regulatory Commission (NRC), gome of the AJs are required to be physicists 

or enginct:rs, though at least one member of the presiding panel must be qualified in the conduct of 

administrative proceedings.lI Other agencies do employ experienced attorneys as their A.Ts. Members of 

the Board of Veterans' Appeals, for example, m'e attorneys \vith experience in the field of veterans affairs 

Ia\~/. Still other administrative agencies require their AJs to meet similar qualifications as ALJs. 

Immigration Judges from the Exccutive Office for Immigration Review. which arc not AL.h., are required 

to have an LL.B or a JD degree, must be licensed to practice law as an attorney, and must have seven 

years of legal experience after passing the bar. ~8 

Second, an AJ is not necc~sarily guaranteed the same job security as an ALl Because they are hired 

through their employing agencies, the terms and conditions of their employment are controlled by the 

hiring agencies. Thus, they l11a) have less statutorily required insulation from agency influence. For 

example. in the NRC, AJs do not necessarily enjoy u career appointment; instead, they may be appointed 

to live-year terms with the possibility orrene,,"'uL However, other agencies, sHeh as the Civilian Board of 

Contract Appeals, provide their AJs with the same protections as AIJs. 2<! Furthermore, an agency may 

promulgat~ regulations that provide for ~ome degree ofindependencc from agency policy-making 

ot1icials, and Congress can separate the adjudicative functions of an agency from the policy branches of 

the agency through statute.~o 

Third, although an OPM regulation states that agencies "may not rate the performance of' an ALJ, 

agencies may rate the perfomlance of their AJs. AI's performance may be evaluated objectively (e.g., 

timeliness) and sll~jecti\'c!y (e.g., quality). The MSPB, fix example. provides both objcctiv(: and 

subjective review of their AJs \York. 

The adjudicatory processes that AJs oversee vary from agency to agency as well. As mentioned ahove, 

AJ's can only preside OWl' informal administrative hearings. informal agency hearings arc conducted by 

vat) jng methods, "some resembling what is traditionally thought of as adjudication and othl."fS not 

resembling adjudication at all:'Jl For example, during NRC adjudications a panel of three adjudic<l1ors 

will accept written testimonies, hear witness testimony, provide for cross-examination by counsel, and 

then render written opinions.3~ This resembles the traditional concepts of a trial-type hearing. However, 

,,,,hen the Board ofVderans' Appeals (BVA) heHrs an appeal from a veteran, the process is far less tormal 

and not as similar to a trial.33 A hearing with the BVA is essentially a conference with the BVA member 

( ... continued) 

hirIllgdecisiolls. 

,I, Jd 

Sbe inff", ~cction on NRC AI yuaiiticalio!ls . 

. ~ Vm'ious agencies' tenure pro\'isions for AJs are prm ioed below. 

0') Sec John H. Frye, 1II, Sl!rve.V(~t VIJI1-AJ.J Heoring Programs in tiJ<: Federal Government. 44 Admin. L Rev. 261. :i-l.2--J.3 

(l992). 

"See if//i'a 

'l See BVA. Huw])o I ApPEAl? 7-10.l.1wliiable at hap:'/I{'wlI.bra.vII.gov/doc.l/f'amphiet5'(}!02(!2A.p'V 
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and the claimant (and the claimant's representative) in attendance. The BVA member listens to the 

evidence presented by the clai11lnnt and eyen receives new evidence that has not been previously included 

in the record. So, although some AJs are performing more trial-type adversarial hearings, not all 

admini~trativc hearing}; are conducted in this manner. Similarly, rule~ of evidence, rules on \vitnes~es, 

and various other pro~edural rules vary from agency to agency~14 

AJs also provide decisions at varying stages of the administrative adjudication process. For example, at 

the NRC. AJs preside over hearings that are subject to review by the Commission. Meanwhile, AJs f1"om 

the Board of Veterans' Appeals have the final say during the appeals process within the agency, subject to 

revie\v by the U.S. Court of Appeals [or Veterans Claims. In some agencies, AJs will have the power to 

review decisions issued by ALJs. In the Social Security Administration (SSA), for example. a claimant 

may seek review of an SSA detel1ninalion by an ALl. Tfthe claimant i~ dissatisfied with the ALl's 

decision, the claimant may appeal to the SSA Appeals Council. The Appeals Council is staffed hy 70 

Administrative Appeals Judges, not AL.I s. 

Als, therefor..!, vary grcady from agency to agency. Hiring practices, levels of independence, hearing 

procedures. and the types of decisions that AJs make are different throughout the federal government. 

D. ALJs versus AJs 

Congrcss has granted both AUs and AJs authority to preside ovcr agency adjudications. Tht.': 

Administrative Conference of the United States (ACUS) noted that: 

it is quite clear that similar types of determinations made in diftf:rent agenciet. are beiog ma.de 

different types of decision mellen.. For example, di.,abillty bene Ills adjudil'atiollS at the 

Security i\dll1inist'"alion <ire hundled by i\U:", at the Deparlment of Veterans Am-lirs. AJs adjudicak 

similar types of c;)ses. l;i 

Congress, ho\vever, seemingly did not intend for A Us to preside over all agency adjudications. When 

Congress enacted the APA, Congress "intended to leave the decision to employ AL.ls to agency·specific 

legislation by stating that ALJs would only be required where statutes called for 'on the record' 

hearings.'"]U Since that time, Congress has not acted to require the use of AUs in all administrative 

h~arings. 

Allhough ALJs enjoy the protections provided by the APA, AJs greatly outnumber ALls in the 

administrative judiciar,}, and AJs continue to "preside over relatively formal proceedings and perfonn 

functions virtually indist:nguishablc from those performed by ALJs.,·,7 Many proponents of using AUs 

suggest that the institutional independence of ALl s makes an ALl better qualified to preside at 

administrative hearings. However, others point to the fact that Als have successfhlly presided over 

administTative hearings throughout the years. FurthemlOre, agencies can and often do provide their Ah 

with protel1ions similar to those granted to ALJs.~~ 

": See As~imo\'\'\ supra notl' 3{l, at 147 ·48 

Recommendation 91-7, The I'cdl'ml Administrative Judiciary :1 (19l}2), uvuiluh/" {)f http:,' \\'ww.aeu~.go\'!\\'P.e()ntenl/ 

1.'1 Of92-7.pd( 

1l)92. /:'lIpra note 4. st 790. 

17 Charles H. hoeh, Jr., Administratiye La'll ;:lIld Practice § 5.24 (3(J ed. 2010). 
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The follo\ving section provides examples ofhO\v AJs are used in a select set of adminislTutive agencies. 
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II. Selected Examples 

A. Board of Veterans' Appeals" 

1. Legal Authorization 

The authority and functions of the Roard of Veterans' Appeals (BVA) are codified in statute at Chapter 71 

of Title 38. United States Code (U.S.C.), 10 and in regulations found in 38 Code of Federal Regulations 

(C.F.R.) Part 19." 

2. Jurisdiction" 

The BVA is a component of the Department of Veterans Affairs (VA) with the authority for making final 

decisions 011 behalf of the Secretary ofVdcrans A Hairs (VA Secretary) for claims for veterans benefits 

that are presented for appellate review. The BVA issues tinal decisions on all appeals for entitlement to 

veterans benefits. including claims pertaining to: service connection; increased disability ratings; total 

disability ratings; pensions; insurance benefits: educational benefits; home loan guaranties: vocational 

rehabilitation; and waivers of indebtedness, fee basis medical care, dependency and indemnity 

compensation, among other benefits and services:n 

3. Number and Distribution" 

The BVA is lead by a Chainnan, appointed by the President and confirmed by the Senate, and a ViceChainnan, designated by the VA Secretary. Additionally, the BVA consists ofa Principal Deputy Vice 

Chairman, 64 Veterans l.aw Judges {VLJ ),--15 twelve Senior Counsel. mor~ than 300 staff coun<;e!. and 

other adminIstrative and clerical stan~ The Chairman reports directly to the VA Secretary. 

The BVA is comprised of four Decision Teams with jurisdiction over appeals arising !rom the VA 

Regional Offices (ROl, Medical Center<;. and the National Cemetery Administration, in one of four 

geographical regions: Northeast, Southeast (including Puerto Rico), Midwest. and West (including the 

Philippines). Each Decision Team includes a Deputy Vice Chainnan. two ChiefVUs, 13 line VUs, t\\'o 

Senior Counsel. and approximately 75 staff counsel. The Deputy Vice Chainnen are members oUhe BVA 

who are appointed to that office by the VA Secretary upon the recommendation of the Chairman. Staff 

counsel review the record 011 appcaL research the applicable law, and preparl.! comprehensive drafl 

memorandum. the A.ls employed by the BVA 'wi!! be refcll'cd to as Veterans Len\' Judges (VLh), as 

wilhin th", agt'IK). 

~9 7101-7112. 

11 38 (,.I'.R. *~ 19.1-\9.102. 

t! 38 C.S.c. ~7104 and 38 CY.R. 0 20.101. 

Benefit~ and BuYlu! i'I'ORFWIlS and Deportmentaf 

4~ This ~ectlon vv'as drav.n ITom Department of Veteram AfRlirs. Annual RepoN of th(' BoaI'd oj VeTerans for PY20; 1, 

Washington, DC, rebrUill)' 1. 2012. p.:i. 

~i According to the VA, HVA currently has 59 VUs 011 board WiTh 5 nominations pending with the PI'I;!si{]ent tor a total of64. 
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decisions or remand orders [or review by a VLJ \vho reviev,ls the draft and issues the final decision or 

appropriate preliminary order in the appeal. 

The nVA also has an Appellate Group. which consists of the Principal Deputy Vice Chairman, the Chief 

COUll&ei for Policy and Pro<:edure, the ChiefCoun&el for Operation~, the Chief& of Litigation Support, the 

Quality Review· Team, the Training Office, a Medical Advisor, a Counsel for Labor Relations. several 

Special Counsel covering a variety of legal specialty areas, and numerous legal support personnel. The 

Ofttcc of Management, Planning, and Analysis is the administrative directorate of the Board, consisting 

of the Director. the Deputy Director, the Administrative Support Division, the Decision Team SUppOlt 

Division, and the financial Management Division. 

4. QUlllificatiOlIS 

Requiremellts ior VLJs include: knowledge of veterans' !mv and of specialized areas of medicine and law; 

ability to conduct hearings; ability to manage attomeys; ability to participate in training acth·ities. A 

candidate also mllst be a member in good standing: of the bar ora state.4h Generally, two or more years at 

the GS-14 or GS-IS leve! of experience is net:ded.47 

5. Tenure 

The BVA Chairman is appointed by the President with advice and consent of the Senate. The ChaimlUn 

serves for six years and may serve for more than one term. The Chairman may be removed by the 

President alone f(lr "misconduct, inetlicicncy, neglect of duty, or engaging in the practice oflaw or for 

physical or mental disability which, in the opinion of the President, prevents the proper execution of the 

Chairman's duties. The Chairman may not be removed from office by the President 011 an} other 

grounds."4g The VA Secretary appoints the other BVA members based on reconnnendations of the 

Chairman subject to approval of the Presic\cnt.·w VLJs are not care~r appointed positions and must be 

recertified pursuant to cvaluatiotls.50 

6. Pay and Promotion 

Board Members are compensated at rates equivalent to the rates payable to AUs."l The Deputy Vice 

Chairman positions of the BVA arc appointed at the A1.-2 level. All other VUs are placed into the AL-3 

pay scaJe. for that pay scale, the waiting period between AL-3A and AL-3B is 52 weeks; between AL-3B 

It> 38 U.S.C. 7101A(a)(2). 

"""rpei!h Regulatjoll~; Title fiJf \h:mbers oflhe Hoard ofVelerans' Appeals," 68 Fedend 

'(' See "Supcn·ision :lnd Evaluation·· infra for more inf~)rmalion 011 recertification, 

'118 L:.S.C 
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andAL-3C is 52 \\leeks; bet\veen AL-3C and AL-3D is 52 weeks; between AL-3D andAL-3E is 104 

weeks; and, between AL-3E and AL-3F is 104 \veeks. Currently, the Board has two AL-2 (Deputy Vice 

Chairman (DVe»; one AL-3C; eight AL-3D: eight AL-3E; and forty AL-3F. 

10 

There is no "promotion policy" per se [or VLJs. If they are performing at a fully success[ulleve!, they 

progress bel\veen the various AL ~teps (AL-3A through AL-3F) depending upon their initial pay levels at 

their appointments. To be promoted to the AL-2 would require that they compete for the Deputy Vice 

Chaimlan position. 

7. Adjudication Procedures 

In general. a veteran wishing to receive a benefit begins the process by submitting an application with one 

of the VA's 57 regional offices (RO). If the veteran is satistied with the benefits decision, the process 

ends. However, there may be a Humber of reasons why the veteran may be dissatisfied with the RO's 

decision. When the veteran is dissatisfied with the RO's deci~ion, the veteran has the option to pursue an 

appeal \vithin the VA by filing a "Notice of Disagreement" (NOD) wilh the RO. The NOD triggers the 

RO's obligation to prepare a "Statement of the Case" (SOC) that tells the vel\:rans how and ,,;hy it came 

to the decision that it did. If the vekran wishes to pursue an appeal after receiving the SOc. the veteran 

must file a specific form (VA Foml 9) \vith the RO indicating the desire that the appeal be considered by 

the BVA. Current law provides that veterans are entitled to one appeal to the BVA when denied benefits. 

The EVA bases its decision "on the entire record of the proceeding and upon consideration of all evidence 

and material of record and applicable law and regulation.',52 In addition to the material developed at the 

RO, the BVA may also condLlct personal hearings with the veteran at \vhich new evidence may be added 

to the record. An appellant may request that a hearing before the AVA be held at its principal location or 

at a facility of the VA located within the area served by a RO of the VA. A final BVA decision generally 

concludes the administrative process. 

8. Internal Review and Appeals 

The I3VA allows the claimant or the 13VA itsc!fto seek reconsideration ofa tlnal deci~ion. There arc 

possible situations \vhere the final decision could be reconsidered: 1) revision on the grounds of clear and 

unmistakable enor;53 2) discovery of new and materia! evidence; 54 and 3) false or fraudulent evidence 

presented illlhe initial appeal:'5 The BVA is to decide all such requesls on the merits, without refenal to 

any adjudicative or hearing oflicial acting on behalf orthe VA Secretar). 

11' a veteran is dissatisfied \\ith a final BVA decision. the veteran may appeal that decision to the U.S. 

Court of Appeals for Veterans Claims (C AVe), which has exclusive jurisdiction to review such matters. 

The VA Secretary or any other VA official may not appeal an adverse BVA decision. 

;2 3~ V.S.c. ~ 7104(a). 

38 C.F.R. § :W.1000.! t, error of law or tact, 

'i,{ Jd 

<iJd 
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9. Supervision and Evaillation 

The Chainnan of the BVA i~ required to appoint a performance review panel. The panel i~ compri~ed of 

the Chainnan and t\VO other members of the BVA (other than the Vice Chairman). The Chairman 

periodically rotates membership on the panel so as to ensure that each member of the 8VA (other than 

the Vice Chainnan) serves on a panel for and within a reasonable period?' The perfomlancc review pand 

detemlines, with respect to each member ofthe BVA (other than the Chairman or a member who is a 

member of the Senior Executive Service) including VLJs whether that person's job performance meet~ 

the perfonnance standards established by the BVA. lfthe determination of the performance review panel 

is that the person '5 job performance meets the performance standards, the Chairman shall recertify the 

person's appointment as a member of the 8VA. Ho\vever, if the performance revkw pane! determines 

that the person's job performance does not meet the performance standards, the Chairman shall, based 

upon the individual circumstances, either grant the individual a conditional recertification or recommend 

to the VA Secretary that the member be noncerlifieci.'7 

'il. 38 U.S.C.§71OJA(c)(I)ZM. 

38l·.S.C. § 710lA ic)(H){2)-(3). 
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B. Civilian Board of Contract Appeals" 

1. Legal Authol'ization 

The Civilian Board of Contract Appeals (CBCA) was established within the Geoeral Services 

Administration (GSA) in :2006 to hear appeals from the decisions of contracting officers of civilian 

agencies.~') Prior to the creation of the CBCA, these agencies generally had their own boards of contract 

appeals, established pursuant to the Cuntraet Disputes Act (CDA) of 1978.60 Hmvever, even before the 

enactment of the CDA. some agencies had established boards to hear certain appeals relative to theIr 

contracts lmder other authority,ti; or had required contractors to consent to a board's jurisdiction over sllch 

appeals as a term of their contracts.fl2 

Federal procurement contracts currently include terms indicting that the contract is subject to the CDA 

and that, except as provided in that act. all "disputes arising under or relating to th( e] contract ~hall be 

resolved under this c1aHse,',id These terms further require that "claims" by contractors shall be made in 

writing and, unless othenvise provided for in the contract, shall he submitted ""ithin six years or accrual to 

tk contracting atticer tor a written decision.(l-l C0ntractor claims in excess of$\ 00,000 rnu::;t be 

certified.tiS Claims by the government against a contractor arc also to be submitted to the contracting 

officer.o6 Once any claims are submitted, the contracting officer is required. if requested to do so in 

writing by the contractor. [0 render a decision on claims of S 1 00,000 or less within 60 days of the 

request,(,7 For celtified claims in excess of S 1 00,000. this decision mllst be rendered within 60 days, or the 

contracting otlicer must notify the contractor or the date by which the decision will be made.h8 Claims 

that arc not decided within the prescribed time frames arc deemed to have been denied.6

'l Once the 

,8 for tho: purpos..:~ ofthi~ memorandum, all ofthe members of the Ci\·jlian l30ard of Contract AppeJIs are con~idered A.b. 

"9NJlional De!~m<: Authorintion Ae! Ji)r fY2006. P.l \09-J63. diy. A, 

(codified. as amended, at 41 USc. S 

conjrach). 

e K, Board o(Col1tract Appeals, supra note 60. at 749-50 (~tandHrd dau:.es used in War Departmenl C()l1tmct:.l 

63 4:,; C.F.R. ~ 13.215 (governing usc o!'thc ,>Iandard conu'ad clause): 4~ C.F.R. ~ 52.233-1 (:.tandard "Disputes" Clause). 

(';48 C.F.R. 

M 4:'; C.F.R. * 52.233-1 (d)( I). 

((' 48 c'F.R. * 52.233-I(e). 

6S Jd. 

6'141 l.S.C. ~ 7103(f)(:').Seeaiw Pathman Constr. Co. ine. v. United Slates, 817 F.2d J:,73 (f'ed. Cix. 1987). 
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contracting officer makes a decision. that decision is final unless the contractor appeals to a board of 

contract appeals within 90 days, or files suit, as discussed below, \vithin 12 months.70 

2. Jurisdictio" 

13 

The CBCA generally has jurisdiction over "contract disputes," or appeals of contracting officers' final 

decisions regarding claims submitted hy contractors against the government, or by the government against 

a contractor. relative to an express or implied contract for the procurcmcnt of services, construction, or 

personal pHJpCliy, or fbr the disposal of personal propcrty,71 In sucb ca.')es, it may grant any tonn ofrdief 

that would be available to a litigant asserting a claim in the U.s. Comt of Federal Claims. including 

monetary or other relief arising trom or related to a contract,7:C Ho\vever, the ('Be A's jurisdiction over 

conlract disputes is non-exclusive, and contractors may opt to bring actions on contract claims directly in 

the U.S. Court of Federa1 Claims, instead of with a board of contract appeals,71 

The CBeA may also, if the agencies aiTected concur, exercise jurisdiction over any additional category of 

laws or disputes over which an agency bomd of contract appeals exercist"d jurisdiction prior to the 

establishment ofthe (,RCA, or any other fUllction a board perfonl1(~d Oil behalf of an agency prior to the 

CBCA's establishment. 74 At present, this means that the eBC A exercises jurisdiction over: (1) cases 

arising under the Indian Self-Determination Act; (2) certain disputes between insurance companies and 

the Department ofAgriculture':o, Risk Management Agency; (3) claillls by federal employees f()l' 

reimbursement of expenses incurred while on official temporary duty travel or in connection with 

relocation to a nev,..' duty station: (4) cel1ain claims by carriers or f)'eight forwarders regarding payment lor 

services: and (5) requests for arbitration involving public assistance applications arising from damag~ 

from Hurricanes Katrina and Rita.i~ 

3. Number altd Distributio" 

The CBCA currently has J 5 members,76 but has reportedly had as many as 18 members in the past.77 The 

Board is located in Washington, D.C., but the Board could potentially order hearings in other places, and 

parties may submit their case on the record without a hearing.n 

n See. (! g. -1-1 ll.S.C ~ 71 05(e)(2); Todd Con~truclion, L.P. 1:. Uni1ed Stales, :-;8 Fed. Cl. ~::I5. 243-44 (200')). 

T' -1-1 l '.S.c. ~ 7104~bl(l) 

7~ 41 l.S.C. ~ 7l05(b)(4)(H)(D-(ii). 

the Board, Jan. 4. 20! !. umilahle at 

7" Civilian BO<1rd ofContrm:t Appeal:., Judg.;~, Jan. 12, 20!2, <mlliahtcut http://v,ww.cbca.gsa.govljudges/jlldge~.htm. 

~r Ralph C. Na,h, Jr .. Steve L. and Vernon J. E(l\:vards. THE (JOVERNMFNT CONTRNTS 

RlrLHL)\.cl· Boo)....: A CO;'lPRUH'l'<~tVI RII\JJ)\.r 66 Od ed., 20(7). 

n l1.&. Civilian 
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4. Qualifications 

Board members are appointed based solely on the "professional qualitications required to perform the 

duties and responsihilities of a Civilian Board member," and must have at least five years experience in 

public contract la\\,.79 fhese are statutory requirements. However, additional qualifications have been 

imposed in the hiring process, and recently include the requirement that at least hyo years 1..1fthe 

qualifYing e-xperience in public contract 1m\' must have been "at a IeyeJ of difficulty and responsibility 

comparable to the GS-lS grade level or above.'·x~ 

5. Tenure 

CBCA members serve until tlley are removed for cause. resign, or retire.R' 

6. Pay and Promotion 

There are three levels (or "pay rates") of members: 

• CA-I Chairman (I incumbent) 

• CA-2 Vice Chair (1 incumbent) 

• C A-3 Board Judge (13 incumbents). 

rhe total pay of each CBCA member (Chairman, Vice Chair, and Board Judges), including locality pay, 

equals $165,300 per year (rate limited to the rate for levellli of the Executive Schedule). There is no 

promotion policy for Board Judges. 

7. Adjudication Procedures 

14 

The eBC A decides appeals of contracting officers' tinal decisions pursuant to rules of procedure that it 

has adopted. These rules address time limits for filing, pleadings and amendment of pleadings, service of 

papers other than subpoenas, motions, conferences, discovery and exhibits, and hearing procedures, 

among other thil1gs.~~ For example. any hearings are to be held at the time and place ordered by the 

Board. and \\'ill be scheduled at the discretion of the Board based on its rules, the need for orderly 

management of the Board's caseload. and the stated desires of the parties. Xi All hearings on the merits 

"shall be open to the public and conducted insofar as is convenient in regular hearing rooms," except 

when necessary to maintain the con1identiality of protected material or testimony, or material submitted in 

l'amcra.8~ Hearings are generally recorded and transcribed.s.' Except at the Board's order, no proofshall 

be received in evidence aftcr a hearing is completcd, or in cases submitted on the record \vithout a 

1'1 41 L.S.C. * 71{)5{h)(2)(A)-(B). 

for Selection of Civilian Board of Contract Appeals Members, available at http:, ~\·",>\".cbca.gsa.go\" (last 

U~ provided in ~ 

&2 S'ee generally Rule:; of Pmccdurc, .l"lIpro !lote 78. 

&~ Rulcs ofProcedmc, .wpm note 7X, at Rule 20 

I\.< Jd .• at Rule2J. 

xi Jd .• at Rule22(J). 

in the same manner as administmtive la\vjudgc~. 
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hearing. after the Board has notified the parties that the record is closed and the case is ready for 

decision. b6 Except in the case of small claims, decisions shall be made in \vriting upon the record.S

] 

Board procedures generally parallel those of the Federal Rules of Civil Procedure and Federal Rules of 

Evidence, although they do depart hom these Rules in certain ways, such al:> by generally allowing the 

admissibility orhcarsay.SI( As required by statute, the CBC A provides for the use of accelerated 

procedures, simpJitled procedures for small claims, and altemative dispute resoJution.~9 "Small claims" 

are those \vhere the amount in dispute is S50,000 or less, or in the case of a small business, $150,000 or 

less.'JO 

8. rlltenzal Review and Appeals 

15 

Decisions arc generally made by a panel of three board members.91 Parties may move for reconsideration, 

amendment. or new hearings on any or all orthe issues addressed in a CBCA decision. However, such 

relief will generally only be granted on one of the grounds specified in the CBCA rules (e.g., the decision 

is void),'!:: or lor "reasons established by the rules of common law or equity as bet\veen private patties in 

the courts of the United Statcs:m Decisions may also be appealed to the U.S. Court of Appeals for the 

federal Circuit by eithcr the contractor or the govcrnment within 120 days fi'o1l1 the date when a copy of 

the decision is reeeived.'M 

9. Supervision and Evaluation 

The CA-3 Board Judges are supervised by the CA-2 Vice Chair, \vho is supervised by the CA-l 

Chainnall. The Chainnan of the Board reports to the Administrator of Gelleral Service5. 

M /d., at Rule 24(a). 

&7 Jd., at Rule 25\a). 

1;$ Jd., a! Rule 10. 

p -1-1 U.S.c. * 7103(h) (alternative dispute resolUtion): -1-1 USc. § 7106 (a) & (b) (accelerated and small claims procedures). 

~iI 41 l .S.c. ~ 7106(b)(1 t 

~; Jd .• at Rule 26. 

"" 41 l'.S.C. § 7107(a)(I )(A)-(B). rile Attorney General mnst appwve any appeal taken by a contracting agency. Jd. 
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C. Equal Employment Opportunity Commission 

1. Legal Authotization 

The Equal Employment Oppornmity Commission (EEOC or Commission) is a federal agency, established 

by statute,<l" that is responsible for enforcing a variety of federal laws prohibiting employment 

discrimination. In addition to imestigaling complaints regarding employment in the private sector, the 

EEOC conducts administrative hearings and issue::. appellate decisions regarding employment 

discrimination complaints tiled by federal employees. These latter duties are handled by EEOC AJs. 

\-vhich are authorized under the :-.tatutory provisions governing procedures for federal employees 

who file discrimination charges. In addition, the EEOC has extensive regulations that address AJ 

responsibilities and procedures.')] 

2. Jurisdiction 

In general, EEOC AJs do not have jurisdiction to adjudicate matters involving allegations of 

discrimination by private employers,93 Instead, they conduct hearings and issue decisions regarding the 

discrimination complaints of ICderal employees. A federal employee who believes he is a victim or 

discrimination must first file a complaint \vith his agency, which then conducts an investigation. At that 

point, the employee may request a hearing before an EEOC' AJ or a final decision from the agency. If an 

employee requests a tinal decision from an agency and wishes to contest that decision, the individual may 

file an appeal with the EEOC. EEOC Als also have jurisdiction to a(ljudicatc such appeals.')'! 

3. Number and Disttiimtioll 

According to the EEOC,")!) the agency employs 108 AJs at the following District Office (DO), Ficld 

Omce (FO), Area omce (AO), and Local omce (LO) locations: 

Atlanta DO(5) 

Birmingham DO(4) 

• Charlotte DO(3) 

• Nort(llk LO (I) 

Raleigh AO (2) 

• Chicago DO (2) 

'" -i-2l'.S.C. § 2000e--i-. 

~('See. e g. 42 ll.S.C. ~ 200Ge-16(b), (c); 29 U.S.c. § 633a(b); 29 L:S.c. § 794a(a). 

See. c g. ~9 (,.F.R. §§ !61-1-.106 et~0q 

\ill! rhis infOlmation \Vel,'; provided to CRS hy the U:OC on June 20, 2012. 
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Milwatlkcc AO (3) 

Minneapolis AO (1) 

Dalla, DO (5) 

San Antonio FO (3) 

Houston DO (3 ) 

New Orleans FO 12) 

Detroit FO (2) 

Indianapolis DO (3) 

Los Angeles DO (7) 

Memphis DO (2) 

Miami DO(S) 

San Juan LO (I) 

Boston AO (1) 

New York DO (5) 

Baltimore FO (6) 

Cleveland PO (5) 

Philadelphia DO (3) 

Albuquerque AO (I) 

Denver FOm 

Phoenix DO (3) 

San Francisco DO (9) 

Seattle FO (21 

Oklahoma City AO (I) 

St. Louis DO (3) 

Washingtnn (State) FO (10) 

4. Qualifications 

According to an AJ position description provided by the EEOC, the qualifications necessary to be an 

EEOC AJ include the follmving: (1) admission to the Bar; (2) a demonstrable knmvledge of"currcnt 

employment Imv, as \vel1 as EEOC regulations and policies; (3) a comprehensive knowledge of the legal 

system and processes; (4) knowledge of the organization, policies, regulations, and procedures of the 

federal government; t5} ability to interpret Jaws. analyze facts, and issue a decision; (6) ability to deal 

17 
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with parties wider pressure; and (7) possession ofa high-level of judicial temperament and skill to preside 

over heuTings.!P1 

More detailed qualificution requirements may appear in vacancy announcements that are periodically 

published on the USAJOBS website. 

5. Tenure 

EEOC A.Ts appear to be serving in pennanent appointments that enjoy certain civil service protections. 

The do not appear to be subject to any tenure restrictions. 

6. Pay and Promotion 

Cun'ently, of the total number ofAJs. 5 AJs are paid at the OS-1 3 level. and 103 AJs are paid at the GS-14 

level.l(t, EEOC AJ positions have a career ladder to the GS-14 level. Therefore, J\Js can be promoted to 

that leveJ without competition. and the position does not have to be posted. 

7. Adjudication Procedures 

In general, a federal employee who files a discrimination claim with her federal agency has two choices 

once the agency has completed its investigation: (1) request a hearing before an EEOC AI; or (2) request 

a final decision from the agency. 

Under the first option, the EEOC AJ conducts a hearing, issues a decision. and orders rcliefif 

discrimination is found. The f~dcral agency must then respond by issuing a finaJ order that acccpt~ or 

rejects the AJ\ decision. [fthat final order rejects the AI's decision, then the agency must simultaneously 

file an appeal with the EEOC AJ. A federal employee may appeal the agenc)'s final order to the EEOC's 

Office of Federal Operations, at which point EEOC appellatt:': attorneys \vill review the entire tile. 

including the ag\.!ncy's investigation. the AJ's decision. the hearing transcript, and any appeal stakments. 

Alternatively, th.;: employee may file a lawsuit challenging the agency's order in federal district cou11. 

Under the second option, a fed~ral employee may request a final decision f-rom thc agency. lrthe 

employee is dissa6sticd with the agency's decision, he may appeal it to the EEOC. This appeal is heard 

by an EEOC Al Alternatively, the employee may file a lawsuit challenging the agency's dedsion in 

federal district court. 

More details about the EEOC's adjudication procedures regarding tederal employment discrimination 

complaintb are available on the agency's website.1ll3 The Commission has also published detailed 

guidance regarding adj udication procedures in a handbook for its AJS. 104 

101 Equal Fmplll) mcllt Oppnrtunity Commission. Position Description. Admillistrarivc Judge. Jul) 10, :WD2 (011 file with ('RS). 

1('" The GS-13 AJs arc in Atlantn DO (I). Memphis DO (I). and Nc\\ York The GS·14 I\J., arc in 

all (J[the DO, kw the General locality pa) "reu, 

1(1; See httr:lfwv"w.eeoc.govifederaJ/ted_ell1rloyee~iitldex.dm. 
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8. Internal Review and Appeals 

Appeals procedures are described in the preceding section. 

9. Sup .. -oision and Evaluation 

The EEOC's position description for AJs describes supervision of AJs as follows: 

The incumbent \\orks under the general supervision of a Supervisory AttorneYNExaminer tCR) or 

Lead Administrative Judge who assigns cases without preliminary instructions. The incumbent is 

independently responsible for case processing and adjudicatory activities and retains signatory 

authority for his/her a~~igned cases. Th<: incumbents decisions arc !:> ... 'lJom rcvi ... 'wcd prior to iswallcc 

for conf(mnancc \vlth commission policy, prcccJentiaJ effect and ovcrall quality. Decisions delivcrcd 

n·om the bench followmg the hearing, lfreviev ... ed. are reviewed only aller they are rendered. 

of law such as \vhcthcr or not dIscrimination is proVI.'I1 by a prcpondcnmec of the 

evidence, is an independent fllnction ofEhe Attorney-Examiner (CR). Work is consIdered iechmcal1y 

Huthoritaiive. l(J5 

CRS was unable to lind init.H1natioll regarding evaluation of EEOC AJs. 

111\ Equal} mployment Opportunit." Commission. f'o5ilion Description. A<imlflistmrive JllliKC, July 19,2002 (on file \'> ith CRS~. 
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D. Merit Systems Protection Board 

1. Legal Authol'izatiott 

The Merit Systems Protection Board (MSPB or Board) is a federal entity - created by statute - that itself 

hears or adjudicates, or provides for a hearing or adjudication via other adjudicators, all matters \vithin the 

jurisdiction of the Board under title 5 of the U.S. Code. chapter 43 of title 38 rdating to veterans, or any 

oth~r law, rule, or regulation relating to Icderal merit systems. Subject to oth~rwisc applicable provisions 

of law, the MSPB takes tinal action on any such matter. It can order any federal agency or employee to 

comply with its order or decision and enforce compliance with any such order. The Board also can 

conduct, from time to time, special studies relating to the civil service and review rules and regulations of 

the Office of Personnel Management. Any member of the Board and any employee of the Board 

designated by the Board, including AJs, may administer oaths. examine witnesses, take depositions, and 

recei\~ evidence. Th~se individuals also may issue subpoenas requiring attendance and presentation or 

testimony and production of documentary or other evidence. ~(l6 An employee or applicant for 

employment may submit an appeal to the MSPB from any action which is appealable to the Board under 

any law, rule, or regulation. Jeri 

2. jurisdictiol1 

The Board itself has original jurisdiction including actions brought by the Special Counsel under:; U.S.c. 

§§ 1214 (investigation of prohibited personnel practices; corrcctivc action), 1215 (disciplinary action for 

prohibited personnel practices), and 1216 (other matters within the jurisdiction orthe Special Counsel 

such as enforcing the Hatch Act); requests for informal hearings from persons removed from the Senior 

Executive S~rvkc for performance deficiencies; and actions against AL.Ts under 5 U.S.C. § 7521. iOB 

The Board has appellate jurisdiction in various categories: appeals tl'om agency' actions including 

reduction in grade or removal for unacceptable performance or for such c.:[luse as \vil1 promote the 

effidency of the service, i.e., adverse actions; appeals lruder the Uniformed Services Employment and 

Reemployment Rights Act (P.L. J 03-353) and the Veterans Employment 0pp0rlunities Act (P.L. 103-

353): and appeals involving an allegation that was the result of\vhistleblowing (5 C.F.R. § 1201.3). The 

AJs may hear, adjudicate, and issllc initial decisions in appellate jurisdiction cases. The MSPB cmploys 

noALJs. 

3. Number attd Distl'ibution 

The MSPB currently employs 59 AJs in career ladder positions that begin at the GS-13 pay grade and end 

at the GS-15 pay grade. Currently. the staff includes 3 AJs at the GS-14 level and 56 AT at the GS-JS 

level. There are currently no J\Js at the GS-13 level. 

The AJs hy regional otlic.:c (RO) and field office (FO) location fol!ow: Atlanta RO (8), Chicago RO (8), 

Dallas RO (6), Denver FO (5 I. New York FO (5). Philadelphia RO (7). San Francisco RO (J 0). 

Alexandria (VA) (RO) (9) and thc Washington, DC, Hcadqumters office (I). 

1<)6.'i U.S.C § ]204. 

1117:, L1.'i.c. § 770l. 

lIIx:'C.F.K. § 1201.2, 
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4. Qua lificatiol1s 

To qualify as an AI, the individtlal must be duly licensed and authorized to practice as an attorney under 

the la\\'s of a state, Territory, or the District of Columbia and meet the following requirements within 30 

days of the closing date. 

GS-90S-13: Th~ first protCssionallmv degree (LL.B. or J.D.) plus one orthe following: 

21 

a. Superior law student (i.e, academic :;tanding in the upper 1/3 of an accredited law school graduating 

class; work or achievement of significance on the Jaw school's official law review or moot court board; 

special high-level honors for academic excellence in law school-such as, election to Order of the Coif; 

winning: of a moot COUli team \vhich represent the law school in competition with other law schools, fu11-

time or continuolls participation in a legal aid program-as opposed to intem1ittent or casual participation; 

signitkant summer law clerk experience) or other evidence of clearly superior work achievement: plus 

two years of professional legal experience in employment la\\- applicable to tederal employees and 

agencies. one of which must be at a level of difficulty comparable to the CiS-90s-12; 

b. Three years of professional legal experience in employment [a\\i applicable to federal employees and 

agencies, one ol"w·hich must be at level of"difficulty comparable to the GS-905-12; or 

c. S.:cond professional law· degree (LL.M.) plus two Yl.!ars ofproiessional legal .:xpericnce in I..'mp!oymcm 

law applicable to federal cmplo)ees and agencies, onc of which must be at tbe level in difficulty 

comparable to the GS-905-12. 

GS-905-J.J: The first professional law degree (LL.B. or J.D.) plus one of the following: 

a. Superior Jaw student work plus three years of professional legal experience in employment law 

applicable to federal employees and agencies. one of which must be at a level of difficulty comparable to 

the GS-90s-1J; 

b. Four years of professiDnal legal experience in employment law applicable to federal employees and 

agencies, one of which must be at level of difficulty comparable to the GS-90S-I3; or 

c. Second professional law degree (L.LM.) plus three years of professional legal experience in 

employment law applicable to federal employees and agencies, one of which must be at the level in 

difficulty comparable to the CiS-90S-l3. 

GS~9()5-15: The first professional law degree (LL.B. or J.D.) plus one of the follO\ving: 

a. Superior lmv student work plus four years of professional legal experience in employment law 

applicable to federal employees and agencies, one of which must be at a level ofditIiculty comparable to 

the GS-905-14; 

b. Five years of professional legal experience in employment law applicable to federal employees and 

agencies, one of which must be at level of ditliculty comparable to the GS-905 R 14; or 

c, Second professional law degree (LL.M.) plus four years of professional legal experience in 

employment law applicable to federal employees and agencies, one of which must be a1 the level in 

ditllcu1ty comparable to the GS-905-14. 
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5. Tenure 

All AJs within the MSPB serve in pennanent appointments and enjoy the protection of 5 U.S.c. § 4303 

(actions based on unacceptable perforn1ance). Moreover, because they are in the MSPB Professional 

Association's bargaining unit, they are covered by the grievance and arbitration provisions of the 

agreement, Articles 14-16, as well as the articles that relate to adverse and disciplinary actions and 

performance based actions, Articles 21 and 22, respectively. 

22 

Section 1201.12 (Appea!s by Board employees) of title 5 of the Code of Federa! Regu!ations provides. in 

relevant part. that, "The Board's policy is to insulate the adjudication of its own employees' appeals t1'om 

agency involvement as much as possible. Accordingly, the Board will not disturb initial decisions in these 

cases unless the party shows that thee has been hannful procedural irregularity in the proceedings before 

the administrative law judge or a clear error of law." 

6. Pay a11d Promotion 

The promotion policy f{)r AT is governed by the MSPB's Personnel Manual and the Collective Bargaining 

Agreement Bet\veen the MSPR Professional Association and the agency. Under the provisions of the 

Personnel Manual. an MSPB attorney may receive a "career ladder"' promotion to the next higher 

nonsupervisory grade in the same location and MSPB organization without competition \vhen: 

Nonsupervisory higher grade duties are available in the same location and organization 

where the attorney works; 

I'he attorney meets the applicable requirements for the next higher grade and has 

completed one year offederal attorney service at the present (or higher) grade; 

The attorney has received an MSPB summary rating of "Fully Successful"' or better in a 

perfofl1wl1cc appraisal which was completed since acquiring the current grade and has 

demon:-trated the ability to adequately perfonn at the next higher grade level; and 

The immediate supervisor submits a Request for Personnel Action (Standard Fom1 52) 

through the approving manager to the Director of Human Resources. 

The Colledive Bargaining Agreement provide:- that the time-in-grade requirement for promotion from the 

GS-13 to the GS-14 level is 18 months. The Agreement specifies that the time-in-grade requirement for 

promotion from the GS14levei to the GS-lS level is 24 months. However, the Personnel Manual permits 

an "accelerated career ladder promotion" t{)r an AI who: 

Is within 6 months of completing one year of federal attorney service at the present (or 

higher) gTade; 

Has received an MSPB summary rating of "outstanding" in a perfomlance appraisal 

completed since acquiring the current grade; and 

Is recommended for an accelerated career ladder promotion by the immediate supervisor 

with the concurrence of the Director of Regional Operations. 

7. Adjudication Procedures 

An appellant has a righllo a hearing for \vhich a lranscripl \vill be kept and to be represented by an 

attorney or other representative. The Board itself may hear any case appealed to it or refer it to an AJ. in 

any case involying a removal from the civil service, the case shall be heard by the Board or an employee 
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experienced in hearing appeals.:09 While an appellant has a right to a hearing under 5 U.S,C', § 7701, if a 

reque:o.t for il is nol Iiled in a timely manner, that right is waived,no 

AJ:o. have the authority in hearings to administer oaths and affirmations. issue slJbpoenas, and issue final 

decisions. Tht!y also may initiate "ttempl!> to settle appeals inrOlmally at any time. If pmties agree to 

settle their dispule, lhe settlement is the final and binding resolution of the dispute and the AJ dismis$es 

the appeal with prejudice,! II 

In actions involving discrimination, the Board must, \vithin 120 days of tiling ofthe appeal, decide both 

the issue of discrimination and the appealable action in accordance with the Board's appellate procedures 

under 5 U.S.c. § 7702. 

Decisions of the Board are subject to the judicial review by the U.S. Court of Appeals for the Federal 

Circuit, except for those involving discrimination which are subject to judicial review in U.S, district 

courts.ll:: 

An initial decision of an AJ becomes 11na135 days after it is i~sued. It is not precedcntial. An initial 

decision does not become final ifany paJ1y files a petition for revie\v in a timely manner or if the Board 

reopens the case on its own motion. ft also becomes final if the Board denies all petitions for rcvic\V.l)3 

8. 11ltemal Review 11l1d Appeals 

Any party to a proceeding, the Director of the 01lice of Personnel Management, or the Special Counsel 

may file a petition for review oran AJ's initial decision to the MSPB. 11 .! lrthe Board grants a petition I'llI' 

review or a aoss petition for n:view, or reopens or dismisses a case, the decision of the Board is final ifit 

disposes of the entire actioJl. 

9. SupenJisioll alld Evaluation 

AJs are supervised and evaluated by their Regional Directors, who interact with them on a regular, ifnot 

daily basis. Regional Directors review AJs' \\-ritten products and. from time to time, observe their 

conferences and hearings. A,Is in the Board's two field offices are supervised b'y the Chief Administrative 

Judge in the office, \\lho also evaitJates them subject to the formal agreement of the Regional Director. All 

evaluations DfAJs are reviewt!d and concurred on by the Director of Regional Operations before they 

become unal. 

The AJs are evaluated in accordance with their work performance standards. These standards ar..:: 

intended to measure all the significant components of'their \vork. both the objective aspect:. of timeliness 

and production. and the more subjective aspects of quality. To gauge the quality of their performance, 

skills slich as the management of their cases, the competence with which conferences and hearings arc 

1Il~:, ([s.c. ~ 7701 

11(1:, C'.F.R. ~ 1201.2--1. 

II) :'C'.F.R.~ 1201.41. 

lle:1 U.S.C. § 7703. 

113:, C.F,R. ~ L~01.113 

114." C.F,I{. § 1201.114. 
134 


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Congressional Research Service 24 

conducted, the manner in which they interact \vith the parties in their cases and v..tith their colleagues. and 

the legal and tactual soundness and complekness of their decision are all considered. Each o[these 

aspects of their performance is a critical part of an AJ"sjob, and several indicia of how \vell each one ig 

pcrf(mned arc prescribed in the perfOlmancc standards. These standards do not vary between CiS-13, -14, 

and -15 grade levels because each is a critical component ofanAJ's job. Nevertheless, the degree of 

difliculty and complexity o[the cases assigned. as well as the amount of review afforded, vary at the 

ditferent grade levels and based on the experience of the AJ. 
135 


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COItgressiollal Research Service 25 

E. Nuclear Regulatory Commission 

1. [egal Authorization 

The Atomic Energy Act of 1954 (.specifically 42 U.S.c. § 2241{a)) authorizes the Nuclear Regulatory 

Commission (NRC or Commission) "to establish one or more atomic safety and liccnsing boards, each 

comprised of three members, one of whom shall be qualitied in the conduct of administrative proceedings 

and two of whom shall have sllch technical or other qualifications as the Commission deems appropriate 

to the issues to be decided," 

2. Jurisdiction 

The Atomic Safety and Licensing Board Panel (ASLBP) conducts hearings for the Commission and other 

regulatory functions as the Commission authorizes with respect to the ·'granting. suspending, revoking. or 

amending of any license or authorization.": 15 

3. Number and Distribution 

At this time, the NRC employs 16 full-time AJs and 25 part-time Special Government Employee (SGE) 

AJs. IlfI The NRC Chairman. subject to the approval of the Commission. initiates the appointment of NRC 

AJs to the Atomic Safety and Licensing Board Panel. The Panel conducts the hearings through threeperson boards, The COl11mission or Chief Administrative Judge appoints the members of these threeperson boards from the Pane!. Currently, 41 individuals are Pane! members and may serve on these 

boards. 1

)", The Panel members include individuals \vho are engineers, scientists or lawyers and may serve 

as ""legal judges" (lawyers) or "technical judges" (scientists or engineers), and some members who may 

serve as both.llll 

One member of the board must be qualified in the conduct of administrative proceedings (legal), and at 

least 1\vo members shall have technical or other qualifications as deemed appropriate for the Commission 

regarding the issues being decided. I I') 

The NRC Chairman, subject to the approval of the Commission, initiates the appointment of the Chief 

Administrative Judge. The ClliefAdministrative Judge designates the Associate Chief Administrative 

Judge (legal) and the Associate Chief Administrative Judge (technical). 

1)5 42 C.S.C ~ 224!(a): !(lC.F.R. ~ US (2{\02). 

- intermittent \\'011 schedules. f'or 

117 1d 

11'142 L.S.C. S 2241(a). 
136 


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COItgrcssiolltll Research Service 26 

4. Qualifications 

AJs may be lawyers, physicists, engineers, or environmental scientists, A review committee screens 

candidates for full-time and part-time positions on the Panel. In order to qualif-y fix membership on the 

Panel, the candidak must have a bacl..ground in law. engineering, or science, including at least 7-10 years 

of work experience in f1clds related to the Panel, A security clearance is also required, 1 ~(t 

5. Tenure 

Full-time AJs are appointed under a career (permanent) or a term appointment (typically five-years), 

ParHime AJs are appointl'd wldcr one-year, temporary appointmcnts - v..hich are renewable indefinitelyv"ith bltennittent work scheduJes,i~1 

6. Pay and Promotion 

The Commission approves the pay system for full-time NRC AJs and establishes the pay ofSGE Als. The 

16 full-time AJs are all currently paid at a rate of$165,300 per year, The 25 SGE AJs are all currently 

pnid at a rate equivalent to EX-IV ($74.51 per hour).1::'.2 

Board members may be appointed by the Commission from the private sector or from Commission staff 

or another federal agency. Board members appointed fi'om the private sector receive per diem 

compensation for each day spent in meetings or conferences, All members of a board, regardless of 

appointment, receive traveling and other expcmes accmed \vhile engaged in the "vork ofa board. In 

The NRC does nol have different grade levels for fLlll~time or SGE Als. An SGE AJ can be appoimed as 

a full~tjme AJ if she is compctitivel) selected for a full~tjme AJ position. or jftbc vacancy announcement 

from which the SGE employee \vas selected indicated the possibility of com'crsion to a full-time position 

\vithout further competition. 

7. Adjudication Procedures 

The NRC's regulations outline the different types of hearing procedures, informal and formal, 1~4 The 

Commission's formal hearing procedures conform to the APA Proceedings of the boards involve t)-picaL 

chil trial practice~ such as pleadings, motions, and mandatory document disclosure. The hearings rely 

extensively upon pre-filed written testimony as oiten found in administrative proceedings. Evidentiary 

proceedings entail public hearings with sworn witnesses questioned by the board members and sometimes 

cross-examined by counsel, The board thcn produces wTitten decisions.l:~ 

1.,\) Nuclear Regulatory CommIssion, D'I-93-07, :\dministrativc Judges Compensation and StafIing. Directive 10.153 (,\1arch 2, 

1991) 

Icl Ja' 

Ic2 Ja' 

Ic. 42 C.S.C. ~ 21.J-l(b, 

le4 10 c.r.R. ~ 2.120U (20 11) (lnf(l1111<l1)~ 10 C.F.R. § 2.iOO (2006)(fhrmaO. 

IcSSee 
137 


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Coltgrcssiollal Rescarch Service 27 

The Chief Administrative Judge develops and applies procedures governing the activities of the boards, 

iUS, and AL.Ts <lnd makes appropriate recommendations to the Commission concerning the rules 

governing hearing procedures. The Commission then determines the appropriate procedures f()r hearings, 

whether informal or f()mlaI. J26 

8. llltemal Review alld Appeals 

The Commission shaH hold a hearing upon request of any person \vh05e interest may be affected by a 

board proceeding. The hearing shall occur 30 days after publication of notice in the Federal Register 

All decisions are reviewable by the Commission. Final decisions by the Commission arc subject to 

judicial review available under chapter 158 of ritle 28. 1

::'H 

9. Supervision and Evaluation 

The Chief Administrative Judge, who reports to the Commission, supervises the Panel and its members. l2" 

A.Ts are excluded hom the NRC's performance appraisal system for Senior Level System (SLS) 

employees. l31) 

10. Miscellaneous 

Members of the Pane! are subject to the conflict of interest laws and regulations regarding ethical 

standards for federal judges. An AJ cannot participate in any proceeding that could affect the interests of 

any party funding the judge's activitie~. UI 

126 42 t; S.C § 2239(a)(1)(H){iY). 

12': 42 t; S.C § 2239(a)( 1)(A). 

l2~ 42 \ .S.C. § 2239. 

l2'! )\RC Manual OI06.()L 

1;0 5enlor l.~"el Performance Appraisal System Directive 10.14S-01. 

I n See 10 C.F.R. § 7.20 (2(02). 
138 


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COItgrcssiollal Research Service 

III. Appendix: Administrative Judges -- A Selected Review of the 

Literature 

The following is a selected bibliography of recent articles and surveys on administrative judges C'Als"). 

Materials have been selected from various CRS databases and the Library of Congress online catalog. 

James E. MoJjterno, The Administrafh'e Judiciary s Independence ;\1)'lh, 41 Wake Forest L. Rev. 1191 

(2006). 

Review of AU and administl1ltive judge~ in vari0u~ agencie~ and issues surrounding their 

independenee. t\h.o adUn.::sses ethics <.'Ind ",hcthcr administrative judgcs arc .. judgc:-, ... 

Charles H. Koch, Jr., Poliqmaking by the AdminisfrafiveJudicim),. 56 Ala. L Rev. 693 (2005). 

Article on 3dmilllstrmive adjudic8tions as part of the policymaking process. Covers variOlls lypes of 

administrative judges and their role in applying policy and intluencing the devdopment of future 

policies. 

Michael Asimow, Spreading timbrel/a: L):tcnding tflt? AP4:~ Adj1/dication Provisions to All Evidentiary 

Hearings Required by Statute, 56 Admin. 1.. Rev. 1003 (2004). 

DiscussIOn of evidentiary hearings that fall outSIde the scope of the Adrninistratiye Procedure Act, 

",hieh the author calls ''Type B'- evidentiary hearings. I-Ie refers to tho')t! presiding ovt!r these hearings 

omeer~". Discussll1g the meaning proceeding,> III the administrative 

issues such as due process and regulations. 

28 

JefTrey A. \Vcrtkin, A Return to FirsT PrinCIples: Rethinking AL.I Compromises, 22 J. Nat'l As::.'n Admin. 

L. Judges 365 (2002). 

Revic\vs thr: !t..'gislatJve hi~lory of the Administrative Procedure Act and includes a discussion oftbe 

role of "hearing examiners". 

Jeffrey S. Luhbers, ,~vmposium on the 5()'1! AnniversaI)' of the APA: APA~Adjudication: Is the Quest/or 

Uniformi!)' Faltering. lOAdmin. L..T. 65 (1996). 

Disclission of "non-AU a(~judicators" CItes John Frye's 1989 sllIdy identifying ::;,692 non-AU 

adjudicators and dc\'clopmenb since that survey. (.i-iYes nlllllberofadministrative judges and hearings 

oHicers at the Boards of Contract Appeals, DepartmentofColnmcrce. Department of Defense. Board 

of Veterans Appcal~, the MSPB, the FEOC', and the Atomic and Safety Licensing Board members. 

Bernard Sch\vartz, The Fiftieth Anniversary of the Administrative Procedure Act: Past and Prologue: 

Adjudication and the Administrative Procedure Act, 32 Tulsa L.J. 203 (\996). 

Brief discussion ofnon·APA administrative judges. Discusses pre-APA adjudication processes and 

APA reforms. Orrers suggl.!'slions for adjudicatory process imprO\-cmt:nts. 
139 


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COItgrcssiollal Research Service 

Charles Koch, Administrative Presiding OJ/lcials Today, 46 Admin. L. Rev. 271 (1994). 

Dii:>cusses the n:::oullS of sc"\uill surveYi:> done on i\ I./s ilnd AJs. OtTers prop!Nds for those positions 

going forward based on the results ofll1os(' studies. The AJs represented in the study \verc from the 

Bnard of Veterans Appeals (BVA). Equal [~mploymellt Opportunity Commii:>i:>ion (EEOC), Merit 

System Protection Board (MSPB). Board of Patent Appcalsilnterfcn::nces (BPA), Department of 

[mmigralion and Naturalization Scrvicc~ (INS), Ddcnse Department (DISCR). Armed SCf\'ices Board 

of Contract Appeals (A SHe A), Trademark Tnal and Appeal Hoard (Trademark). and the Nude<tr 

Regulatory Commission. 

William Robie. Contemporary ISi:>ues in Administrative Adjudication: Article and Commentary: A 

Response to Professor Vcrkuil, 39 UCLA L. Rev. J 365 (1992). 

Commentary in response to Proiessor Verkuil's article on ALJs and AJs. Discusses detenninations on 

"hether to have an AU or nOllNAU to make a particular lype ofadministrmive decision. L'ses the 

Nuclear Regulatory Commission and the SpC'cialInquiry OfficC'rs (also kno\\'n 80. Immigration Judges) 

at the D~partmellt of Justice as an example of AJs v.;ith a high degree of independence. Cites the 

Board of VeL crans Appeab as an examplc of AJs in llonN adH.'fi:>arial pWl.:cedings. 

Paul R. VcrkuiL Contemporary Issues in Administrative Adjudication: Anic1e and Commentary: 

Reflections Upon the Federal Administrative Judiciary. 39 UCLA L. Rev. 1341 (1992), 

Overview of the two tYPCi:> of judges in the "hidden judiciary' : AUs and A.1s. A'>sessment llftheir 

qll[lhficmion~, how they are selected, compensation, the lypes of proceedings over ""\'hich they preside. 

and their independence. Reference'> ca'>e load information ii'om the J 989 sUl'Yey conducted by the 

Adminislrati\'e ConiCrence ofthc United States (ACUS), Notes Ihe sckction and appointment of AJs 

is by the ag.ency rather than the Oftice of Pc:rsonnel Management, in the case of AUs, Compares 

dccisiom by ALJs in the Socia! Security Administration (SSA) with AJs in the D-.;partmcnt of 

Veterans' Athirs, Highhghts the mdependence of AJs at the FOIR. 

29 

William R. Robie and Marvin H. Morse, The Federa! Exccutiw A{ljudicator: Alive (and) Well Out~ide the 

Administrative Procedure Act?, 33 Fed. B. Ne\\·s & J. 133 (1986). 

Rnises questions on issues coneerning-non-AU executive branch adjudicators slleh as independence, 

selection, review of decisions, and performance appraisal. Contains a tahle listing rull-time 

adjudicator positions by GS level. 

Paul R. Verkuil et aI., The Federal Administrative Judiciary, 1992ACUS 771 (1992). 

A 368-page study commissioned by thc Administratiye Conference of the United States at the requcst 

oflhe Ornee or'Personnc1 Management. The roeus orthe :.tudy \\as the selection rind appoinUllcnl 

process t~)r ALh, however. it also examined the current and future role or ALh in the administrative 

proc-.;ss, Sections include hi~t()fical background of ALJs und the ewlution of administrati, e 

ajudicatlOns over time, the variety of <:ldministrative adjudicators. empirical study of the roles and 

attItudes of the federal administrative judiciary, the };election of agency adjudicators. the scope ami 

degree of AU and nOll-AU independence, effects of AU and non-AU decisions, and the developing 

standards tll]' when to use AUs as presiding officers. The report include') an appendjx detuiling the 

survey fmdings and a bibliography ofrclevant books. article~, and government material. 
140 

f 

Chairman JOHNSON. Again, I want to thank you all for being 

here today and for your testimony. I look forward to continuing this 

discussion on ways to secure the future of this important program 

at our next hearing. You know, Social Security is a vital part of 

this Nation, so we need to protect it, and I thank you all for being 

here. With that, the committee stands adjourned, thank you very 

much. 

[Whereupon, at 3:53 p.m., the subcommittee was adjourned.] 


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(141) 

[Submissions for the Record follow:] 

David McCaskey 


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142 

f 


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143 

Disability Law Center, Inc. 


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.DI:C .. Disability 

Lfi ihLaw 

Center, Inc. 

11 Beacon Street, Suite 925 

Boston, Massachusetts 02108 

(617) 723-8455 Voice 

(800) 872-9992 Voice 

(617) 227-9464 TTY 

(800) 381-0577 TTY 

(617) 723-9125 Fax 

http://www.dlc-ma.org 

Hearing before the 

House Ways and Means Committee 

Subcommittee on Social Security 

June 27, 2012 

The Social Security Disability Appeals Process 

Statement of Linda Landry 

Disability Law Center 

July 11,2012 

Western Mass, Office 

32 Industrial Drive East 

Northampton, MA 01060 

(413) 584-6337 Voice 

(800) 222-5619 Voice 

(413) 582-6919 TTY 

(413) 584-2976 Fax 

email: mail@dlc-ma.org 

Chairman Johnson, Ranking Member Becerra, and Members of the Subcommittee, 

thank you for this opportunity to provide a written statement for the record of the June 

27,2012, hearing on the Social Security disability appeals process. 

I write to urge you to seriously consider the thoughtful testimony presented at the 

hearing by Ethel Zelenske for the Consortium for Citizens with Disabilities. 

I am a Senior Attorney at the Disability Law Center where I have worked for 22 years. 

My practice has focused primarily on Social Security matters and the related health 

benefits, I have also served on the Advisory Committee of the Massachusetts Disability 

Determination Service for over 20 years, The Disability Law Center (DLC) is a nonprofit 501(c)(3) organization functioning both as a public interest law firm, and as the 

designated Protection and Advocacy ("P&A") system for the Commonwealth of 

Massachusetts under federal authority, DLC's mission is to promote the fundamental 

rights of all people with disabilities to participate fully, equally and independently in the 

social and economic life of Massachusetts, Access to Social Security disability benefits 

and the related health coverage through Medicare and Medicaid is crucial for many to 

achieve this goal, as are the work incentives associated with the disability benefits. 

The Protection and Advocacy System for Massachusetts 
144 

f 


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2 

During my time at the DLC, and before that in a legal services program, I have observed 

the severe hardships that result when individuals who cannot work due to disability 

encounter delays in accessing the safety net of disability benefits. Often, individuals 

have struggled to hold onto jobs or have tried to manage with part-time work until they 

can no longer do it - or are let go. Without higher education or very desirable skills, 

individuals with disabilities often cannot get jobs that allow work at home or the flexibility 

in scheduling that may be needed to remain employed. Often, they've had no or 

inadequate health coverage and have not received optimal treatment. The stress of 

being unable to make ends meet also impacts health. 

A case in point is "Joan." Joan survived aggressive treatment for advanced cancer as a 

young woman. The treatment damaged her lungs, kidneys, and other internal organs. 

She recovered enough to eke out a living with her high school education in low level 

work in her small town, with occasional set backs, but was never again strong. The 

aging process exacerbated the damage to her organs such that, by her early fifties, she 

no longer had the stamina to tolerate even the part-time work to which she had had to 

resort. The work was worsening her condition and her doctor told her to stop. She had 

little financial cushion and was worried about how she would manage. She applied for 

Social Security disability benefits - but there was a delay in obtaining sufficiently explicit 

medical evidence of the nature of her condition. Fortunately for Joan, the delay did not 

outlast her modest resources or result in homelessness. Her benefit is just under 

$1000 per month, less than what she had been earning, but she is grateful and her 

health has stabilized. Many applicants are not so lucky. 

I agree with but will not reiterate all of Ms. Zelenske's points about the importance of 

retaining a full and fair administrative appeals process that is informal and nonadversarial for disability benefit applicants. I will emphasize that it is critical that the 

Social Security Administration have sufficient resources to properly manage its 

important and beneficial services. Social Security's disability standard is restrictive, 

difficult to meet, and requires complex analysis. Commissioner Astrue has made efforts 

to address capacity issues at the Administrative Law Judge hearing level, but budget 

cutting has also resulted in a lack of sufficient staffing at earlier levels. Many of Social 

Security's field offices are too short staffed to adequately meet service needs, including 

providing the assistance many individuals need in completing benefit applications. This 

gap is not being met by short-staffed state and other human service organizations. A 

complete and well prepared application is important to the ability of the Disability 

Determination Services (DDS), to properly obtain and analyze all the evidence against 

the disability standard. The DOSs are also trying to do more with fewer resources, but 

adjudication delays are growing at the Initial and Reconsideration levels. The DOSs 

need resources for fully developing the medical evidence, for sufficient, well-trained 

adjudication staff, for medical evaluations, and for the important outreach to hospitals, 

schools, and other sources of evidence. The earlier in the process that the evidence is 

fully developed and a well- considered decision is made, the better for both the 

applicant and the agency. 

RespectfullySubmllled 
145 

Federal Administrative Law Judges Conference 


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THE FEDERAL ADMINISTRATIVE LAW JUDGES CONFERENCE P.o. Box 1772. Washington, DC 20013. V.l\\'\y,faljc,org 

omce of the President July 11,2012 

Statement of J. Jeremiah Mahoney submitted to the House Ways and Means Subcommittee on 

Social Security (Fourth Hearing in a Series on Securing the Future of the Social Security 

Disability Insurance Program): 

May it please the Committee; I have served as a federal Administrative Law Judge 

("AU") for 4 years, and am currently employed as the Acting Chief AU Cor the U.S. 

Department ofl'lousing and Urban Development. In 2000, I retired lrom the U.S. Air Force as 

the longest-serving Military .ludge in U.S. history. 

My comments today are my own, in my role as President of the Federal Administrative 

Law .Judges Conference, which is a professional organization composed of over 260 lederal 

AUs appointed under 5 U.S.C. § 3105. AUs conduct lormal, "'on-the-record" administrative 

hearings, which are governed by the Administrative Procedure Act of 1946 ("APA"). Congress 

passed the APA to ensurc thc integrity orthc administrative adjudication process, and FAUC 

seeks to preserve those APA guarantees. 

One of the issues raised at the Committees' hearing on .lune 27.2012, centered on the 

question of whether AUs are required by law to decide Social Security Administration ("SSA") 

disability appeals. Judge Randy Frye indicated he would address that issue in written comments. 

However, whether or not AUs are required by law to adjudicate SSA disability appeals, 

as a matter of legislative policy the committee should carefully consider whether disability 

appeals should be decided by ordinary agency employees--·or by judges whose independence is 

guaranteed by statute. As is well known, ordinary agency employees are subject to incentives 

and sanctions that may bear upon the speed and outcome oflheir decision on each appeal. AUs, 

on the other hand, are hee of such extraneous agency influence in arriving at the correct decision 

based upon a complete record. 

The APA requires that on-the-record agency proceedings be presided over by the head of 

the agcncy, a member of the body (e.g, a commission) heading the agency, or ALis. "Congress 

contemplated that "agency heads, unable personally to conduct hearings, would be forced to 

delegate that duty", permitted such delegation only to ALls, and enacted provisions assuring that 

such AUs would be "qualified" and '·impartial". 

The APA and its implementing regulations subject all AU applicants to the rigors of the 

competitive civil service, and thereby remove any hint of cronyism or agency politics ±rom lhe 
146 

f 


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2 

AU appointment process. The Office of Personnel Management COPM") exercises exclusive 

government-wide authority to evaluate and qualify AL.I candidates through the maintenance of a 

celtitied register, which ranks the candidates based on their ability to meet rigorous, objective. 

merit-based criteria. These criteria include a review of the candidate's career accomplishments, 

perf0l111ance on a lengthy written examination and perfonuance in a structured interview before 

a panel of three professionals. Undcr the "Rule of Three," OPM must refer only the three 

highest-ranking AU candidates to each agency seeking to hire trom the certified register. In 

addition, OPM must approve all transfers of ALJs between agencies. These niles assure that 

agencies will hire only the most qualilied applicants. 

Equally critical, the APA and its implementing regulations prevent agencies li·om 

inlluencing AUs' decisions by shielding AUs trom the scheme of rewards and punishments to 

which other federal employees are subject. The APA precludes federal agencies from 

subjecting ALls to performance standards for federal agency employees. and from granting A Us 

monetary awards or incentives (e.g., bonuses). Unlike other competitive~service federal 

employees. AUs are subject to removal, suspension, reduction in grade or pay, or a furlough 

under 31 days, "only It)r good cause established and determined by the Merit Systems Protection 

Board on the record after 0ppOltunity for hearing before the Board." In addition, agencies must 

assign cases to each ALl on a rotational basis to the maxin1um extent practical. 

The Committee has hcard commcnts trom academic witnesses who suggest that 

claimant's appeals can be adequately handled by ordinary agency employees. As one 

consequence dissatistied claimants-seeking an independent decision maker-would have 

recourse only to the Article III courts. There are respected academics who oppose that 

suggestion, and believe that AU decision-makers are an essential pan of the process. Such 

opposing views should be carefully eonsidcred by the Committec. As an example pleasc sec, 

Scapegoating Social Securitv Disability Claimants (and the .fudges Who Eval1late Them), by 

Professors Jon C. Dubin and Robert E. Rains. http://v''\V\.\'.dcsb\v,nrg:'nllbli(atinn~ii~slK~·· 

1?.ri.~Jfl[:~~.;.n.~£~~;"ttjJ}g:5D.f;.L~t::~.~91lrj.!.Y~Qi.f:gbjJ.!1Y::9.J.~jln9,m}.:f!!l4.:.H.K:lg~£~~.:}2':h0.:5:-:.~:§h.~ Addi ti onally, 

two Social Security A Us have re,ponded to a critical anic1e by Professor Richard Pierce, who 

appeared belorc the Committee. ALI Jeffrey S. Wolfe and AU Dale D. Glendening, What We 

Should Do Ahout Social Securitv Disability, RFGULATION. Spring 2012, at 16. 

Many of the members of the Federal Administrative Law Judges Conference have 

previously served as Social Security AUs. and many other members are still employed as AUs 

by SSA. We believe that AU decisions on disability appeals are an impOltant part of the SSA 

Disability Insurance process because the A L.I exercises decisional independence from the 

agency. That fact enhances the perception of iaimess that is essential to the credibility of the 

administrative process at SSA, and the acceptance of decisions by your constituents. 

111cre were several matters raised and discussed at the hearing-aside from expensive 

resources-that may help alleviate the current disability appeal adjudication problems and case 

backlog. Closing the record at a specifiC point in the process; providing incentive for 
147 

Federal Bar Association 


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STATEMENT OF THE 

SOCIAL SECURITY LAW SECTION 

FEDERAL BAR ASSOCIATION 

COMMITTEE ON WAYS AND MEANS, 

SUBCOMMITTEE ON SOCIAL SECURITY 

SECURING THE FUTURE OF THE SOCIAL SECURITY 

DISABILITY INSURANCE PROGRAM 

JULY 11,2012 
148 


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Chairman Johnson. Ranking Member BecctTa, and Members of the Subcommittee: 

These remarks are exclusively those oflhe Social Security Law Section of the Federal Bar 

Association and do not necessarily represent the views of the Federal Bar Association as a 

whole. Moreover these remarks are not intended to nor do they necessarily reilect the views of 

thc Social Security Administration. 

Unlike other organizations associated with Social Security disability practice that tend to 

represent the interests of one specific grouP. the Federal Bar Association's Social Security Law 

Section embraces all attorneys involved in Social Security disability adjudication. Our members 

include: 

Attorney representatives of claimants 

Administrative La\v Judges 

Administrative Appeals Judges 

Stan' attorneys in the Office of Disability Adjudication and Review (ODAR) 

Attorneys in the Social Security Administration's omce of General Counsel 

U.S. Attorneys and Assistant U.S. Attorneys 

The common focus of the FBA's Social Security Law Section is the etTectiveness of the 

adjudicatory process at all phases, including hearings in the Omce of Adjudication and 

Disability Rcview (ODAR), the appeal process before the Appeals Council, and judicial review 

through the Federal courts. Our highest priority is ensuring the integrity, fairness, independence, 

and eiJectiveness of the Social Security disability adjudication process to those it serves -- both 

Social Security claimants themselves and the American taxpayers who have an interest in 

ensuring that only those who are truly disabled and entitled to benetits receive these benefits. 

We appreciate the continuing commitment that this Subcommittee has sho\vn for fair and 

encctive adjudication of disability claims. As will be discussed in more detail below, your 

support has enabled Social Security to reverse the long-standing trend toward increased backlogs 

and longer wait times. Most importantly, this is being done without sacrificing due process. We 

strongly believe that the growing disability claims workload can, and indeed must, be addressed 

without limiting claimants' opportunity for full due process. In tact, we believe that af"t()fding 

due process is essential to fulfilling the Commissioner's ohjective of reaching the right decision 

at the earliest possible stage oCthe process. The ODAR hearing before an impartial judge is the 

method by which claimants have an opportunity to ten their story. It is also essential to meet our 

Constitutional obligations. This right should newr be abridged. 
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This Subcommittee has considerable knowledge and depth of understanding of the decisionmaking process applicable to disability applications. This depth of knowledge is demonstrated in 

the information set out in the Committee's notice ofthese hearings and has been clearly shown in 

this Section's experience in testifying before the Committee. In these remarks, we will not set 

out the proccdural information of which the Committee is clearly aware, but will address some of 

the concerns that were raised by the Committee in announcing the current hearings as well as a 

few other areas that have been the sllbject of comment. We also will respond to some of the 

specific questions raised by the Chairman in his opening statement, as well as address several 

other issues. 

Concerns Expressed by the Committee 

Processing Time 

In setting these hearings, the Chairman noted that the average waiting time for an administrative 

law judge decision (average processing time) is currently 354 days. As the Subcommittee is 

aware, this waiting period is dramatically shorter than that which claimants faced just a few years 

ago. At the end of liscal year 2008, the average processing time was 514 days. This 

improvement has been achieved through determined efforts by the Commissioner, ChiefALJ, 

and thousands of dedicated employees. Some ofthe key elements in this success are: I) 

Increased funding to provide for more staff including ALls and support stalT; 2) Additional 

hearing offices so all areas of the country are served; 3) National Hearing Centers to handle areas 

where there is a substantial increase in workload; 4) Administration of the program on a national 

level so the workload is balanced among the hearing offices rather than the prior local 

administration where there were substantial variations in \vorkload and \vaiting times; and 4) 

Increased screening initiatives so that favorable cases are paid without the need, expense and 

delay for a AL.I hearing. Despite the hard work of these individllals, this reduction would not 

have been possible without the SUpp011 of this Subcommittee in ensuring that the Agency 

received necessary resources. 

The Section applauds this progress, but we strongly believe that wait times remain lar too long. 

H must be remembered that the time counted as average proce"ing time only begins after (he 

claimant has completed a sometimes kngthy administrative process. Even with the 

improvements, the average claimant must still wait nearly a year between requesting an 

administrative law judge decision and getting the decision. Of cOllrse~ many claimants wait far 

longer than the average. For a person with no income and limited or no access to medical care, 

this wait seems interminable. 

Progress has been made through both increased personnel and improved technology. The 

Section believes that continued technological improvement is important and will be llsclul. 

However, every indication is that there are rew major efficiency gains remaining to be achieved 

from teclUlology. We can foresee efficiencies from technology that, for example, would digitize 

medical records and permit searches [or words or phrases. However, even if the Agency does 

pursue such technology, it is unlikely to bear fruit in the near lhturc. 
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The Social Security Lmv Section would oppose any increase in AL.l disposition goals. We 

belic\'c that any increase in the current goals would undcrmine the adjudicatory process. Judgcs 

attempting to meet such goals would simply not have enough time to fully analyze and consider 

the voluminolls medical records in each casco I These decisions arc far too important to each 

claimant and to the taxpayer for anything less than a full and thorough consideration of all of the 

evidence. 

We are fully cognizant of the difficult economic times that our nation faces. Despite this, we 

must urge that the Agency be provided the maximum feasible resources to ensure, at a minimum, 

that the progress that has been made is not lost and that waiting time is further reduced. 

Disability claimants are among our most vulnerable citizens. Whether their claims are 

eventually deemed meritorious or not, claimants deserve thorough considl.:ration of the merits of 

their claim. Tn struggling to meet our serious budgetary issues, it is 1111portant that \ve not neglect 

the needs of the claimants and the taxpayers for a prompt, fair decision based on a full due 

process hearing. 

ALJ Productivity and Disparity in ALJ Decision Outcomes 

The Committee correctly notes a disparity among administrative la\v judges in terms of the rates 

at which they award benefits. While we share the Committee's concem ill this area, \ve would 

note that the magnitude of this problem has been exaggerated by the media, which have focused 

on one West Virginia ALJ who has now resigned. It is important, hmvever, that any sollltion not 

create a problem of even greater magnitude. V./e believe that any solution to this concem must 

preserve these judges' adjudicatory independence. Claimants depend 011 these judges to issue 

fair and impartial decisions. Without this independence, it v·;ould be all too easy for one 

administration to reduce expendltures and for another to try to put more money in the economy, 

by forcing judges to issue fewer or more awards. 

In a recent article by Professor Richard Pierce in the Cato Institute' s Fall 2011 issue of 

Regulation, it was sLlggested that the solution to this "problem" is the abolition of the due 

process ALJ hearing. We believe that such an action would deprive claimants of 

Constitutional1y mandated due process. The factual, legal and logical flaws in Professor Pierce's 

article are well refuted in two articles: 

I. See Dubin and Rains, Scapcgoaling Social Security Disability Claimanls (and the Judges 

Who Evaluate Them), American Constitution Society (March 2012) 

http~:!!v\'w\\'<acsl.J.w.t)rg:'<.;iks/dd::.lllIt/n~cs/Dubin Rain..,-

_~gw_zggmiDL1Ld a I ~~f_:JljIY=1~lL~f:..hllih':...Lkt.im0J2f~.J~f 

2. Whal We Should Do About Social Security Disability. A response to Richard J. Pierce, Jr. 

By Jeffrey S. Wolfe and Dale D. Glendening 

lJJtp;_,j.~x.\~:,~x_,_l,":m.Q.,s?DIlml.b.~~/r~,m.ltf.!J.[5~n!.[~_m)2x)J.LY}_~.n,L::L12Q[ 

I There arc approximately 50 workweeks in a year (52 weeks minus 10 Federal holidays), which 

is 250 days. Ifwc allow for only 20 days per ycar for vacation, sick leave, etc., an AU deciding 

600 cases would only have three hours per case to review the evidence, hold a hearing, issue 

decisional instructions, and edit a draft decision. Would you want the Judge to spcnd less than 3 

hours on a case involving your loved one? 
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4 

Further, the Commissioner submitted an attachment to his testimony that compares all ALb with 

more than 100 dispositions in Fiscal year 2007 and llscal year 2012 through May 25, 2012. 

There were 7 A Us in 2007 that awarded benefits in 20% or less of their cases and 13 in 2012. 

This is shown as 1% or less of the AUs with 100 or more dispositions. "ille Commissioner's 

attachment also shows that in 2007,217 AUs (19.6'",) allowed benefits between 85 to 100%, 

while in 2012 the number declined to only 74 AUs (5.1 %). We are not suggesting thatthc 

Commissioner should not consider issues of "outliers," but the small magnitude of these awards 

clearly docs not justify abolishing a hcaring process that has stood the test of time and judicial 

review. 

One of the witnesses raised the issue of disparity in outcomes among omces. The commenter 

noted that San .iuan, Puerto Rico ODAR had an approval rate of87.92% whereas Shreveport, 

Louisiana ODAR's rate is only 37.42'%. Such statistics tell us little standing alone without 

further analysis. This is particularly true in the cited examples. The Medical-Vocational 

Guidelines direct finding disability I(x those who arc illiterate ,vhen even those with marginal 

education would not bc found to be disabled. These Guidelines deline illiterate as unable to read 

or write in English. In Puerto Rico, this could include educated Spanish-speaking individuals 

who arc not literate in English. To illustratc, a 50-yoar-old high school graduate capable of light 

exertional-level \vork \\'ho is fluent in Spanish but not English would be found to be disabled 

under Medical-Vocational Rule 202.09 even though he lives in Puerto Rico. An individual who 

is who is literate in English but with only limited education would be found not to be disabled 

under Medical-Vocational Rule 202.10. 

In contrast, Shreveport obtained fame in a 1995 Reader's Digest article that discussed near 

universal application by poor parents il)r Supplemental Security Income lor their children. [t is 

not surprising that denial rates would be high in such an environment. 

We believe that before deciding how to address this issue .. the Agency should use valid statistical 

means to determine the nature and extent of the problem. It is easy enough to note that there are 

a few judges whose award rates seem to be out ofline with the norm. It is another matter 

altogether to identify any significant group which might legitimately be considered ··outliers." 

We cannot know hmv many judges are true "'outliers" without an appropriate statistical model 

analyzing the distribution of outcomes ofthc judge corps as a whole. Arbitrary cutofl points lor 

favorable or un1avorable outcom~s arc of no value without such an analysis. Even a basic 

statistical model must consider relevant factors. For example. some state disability adjudication 

services award benettts at much higher rates than others. For example, in Fiscal year 20 J 0, the 

state agency in Mississippi granted 24.9% of all claims at the initial determination level, whereas 

the state agency in New Hampshire granted 49.5% of all claims at the initialleve!. It seems 

likely then that the mix of cases a judge in New Hampshire receives may vcry well be different 

from that received by his counterpart in Mississippi. 

Even after identifying statistical outliers, individual cases mnst be reviewed. The possible 

legitimate explanations arc myriad, e.g., Hearing Omce Chicf Judges who help omce 
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productivity by issuing on-the-record decisions identi1ied by senior attorneys who did not have 

the authority to issue some types of decisions. 

In a limited number of eascs, SSA makes initial claims itself: In 20 I 0, the Atlanta Region 

Disability Program Bmnch awarded beneJits in 18.4% of initial claims, while the New York 

Region awarded beneJits in 58.4% of initial claims. Disparity exists at all levels of the disability 

program and further individual study is required to determine those cases that present an actual 

issue. Abolishing the due process hearing does not address the problem. 

If and when the Agency identities problems with "outliers," it then must address these in ways 

that do not disturb adjudicatory independcnce. This likely would be best done by training, 

l11cntoring, etc. To avoid the pitlalls that come with diminishing judicial independence, other 

measures should only be considered in extremc cases and under carefully crafted rules. 

Remands 

Almost one ALI decision in six is appealed to the Appeals COlmcil with about one in ten of these 

being further appealed to the federal courts. Annually, there are over 25,000 cases remanded to 

administrative law judges for new hearings and decisions. "INc note that this is only 4% of all 

AU adjudications and that remands occur in only approximately 9% of all unfavorable AU 

decisions. While remands constitute a relatively small percentage of the ODAR workload, they 

still amount to the equivalent of the lull time work of 50 - 60 judges. The right to appeal is 

obviously important and must be preserved. We believe, however, that there can be a notable 

reduction in this workload without sacriticing claimant's rights. 

In a number of remands the Appeals Council seems to be expressing a significant inclination that 

benelits should be awarded. These cases return to the same AU for another hearing. 

Occasionally they then go back to the Appeals Council where they arc then remanded to a 

dit1erent AU for a third hearing. Much effort could be avoidcd and claimants could receive a 

much faster resolution it~ in these cases, the Appeals Council either awarded benellts or set out a 

specitic factual tinding which it believes to be established. If the Appeals Council needs 

additional staff support to enable it to take such actions, the costs would pale compared to the 

current avoidable expenses. 

Chair's Questions 

We now respond to some of the specific questions raised by the Chair in his Opening statement 

Why are almost 12% of AUs are deciding 200 or fewer cases per year" 

We do not know the basis ofthis figure. The Commissioner testified that 72% of the AUs were 

on course to meet the goal of 500 700 dispositions in 2012 and that the percentage was 

expected to rise as the year goes on. However, we believe certain AL.Js should be excluded from 

any such calculation: 
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I) Management AUs and union otlicials who are assigned to non-adjudicatory 

responsibilities either in whole or the majority of their time. If this is a large number of 

AUs, it might suggest that SSA may have too many ALJs assigned to non-adjudicatory 

responsibilities. 

2) AUs who do not work an entire year because they were hired or retired during the 

year or were absent for military leave. extended sick leave. etc. 

6 

If an individual review is conducted of the ALJs and if it identities some ALJs who are assigned 

to adjudicate cases and, without good reason, are not doing so, then the Commissioner should 

take action. This may be in the forn1 of additional training on relevant issues to increase the AUs 

productivity. If this is not successful, we believe that low productivity can result in disciplinary 

action. Nash v. BOlren, R69 F2d 675. 680-681 (2nd Cir). cert. denied, 493 U.S. 812 (1990). The 

Commissioner has taken disciplinary action in the past where warranted and we have no doubt 

that he will continue to do so. 

It was stated that the decisions of so-called "outlier judges." who deny or allow most of the cases 

they hear, cannot be questioned. The Appeals Council can and does hear appeals of claimants 

who are dissatisfied with the decision in their case. Furthermore, the Appeals Council can and 

does take "own motion" revievv of favorable or partially favorable decisions. The Commissioner 

has also recently established a Quality Review initiative and opened four new Branches in the 

Oftice of Appellate Operations to address these concerns. 

It was stated that "claimant's representatives are part of a billion dollar plus a year industry. 

encouraging appeals and making a living by collecting their fees trom the benefits awarded their 

claimants." We believe representatives playa vital role in the disability application and appeals 

process. For many years. claimants were rarely represented. As a result. the Administration 

routinely expended tremendous resources contacting treating sources to obtain treating records. 

In a large percentage of cases, the claimant then disclosed additional treating sources or more 

recent tests that had not been obtained. This resulted in delays in issuing a decision. 

Representatives now undertake this role. taking on a tremendous amount of work Social Security 

would otherwise be required to do. With the complexity ofHIPPA and Privacy Act concerns, 

this is more than many claimants can accomplish without a representative or Social Security 

doing it tor them. As Vice President Hubert Humphrey once said, "(t)he moral test of 

government is how that government treats those who are in the dawn oflife, the children; those 

who are in the twilight of life, the elderly; those who arc in the shadows of life. the sick, the 

needy and the handicapped." We strongly believe that claimants must retain the procedural 

protections they have had for decades. These protections arc provided by representatives who 

usually take the cases on a contingency fee basis and get paid nothing if the claimant is not 

successful. 
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Other [ssues 

Hearings Open to the Public 

It has been suggested that disability hearings be open to the public. We strong.ly oppose such a 

move. Disability hearings inherently involve discllssion of highly personal mental and physical 

health issues and medical records. Such information should not he made available to the public 

\vithout an extremely compelling reason or consent of the claimant in an individual case. The 

certainty of causing stress and embarrassment to claimants far outweighs any theoretical benefit 

to the public. 

In addition, we would anticipate that, if hearings were open to the public. there would be 

frequent motions by claimants to close specific hearings or portions thereof when there is 

disclIssion of particularly sensitive issues. The added time consumed in adjudicating such 

motiollB vmuld simply add to the resources required in each casc and exacerhate the hearing 

backlog. 

Medical-Vocational Guidelines 

For many years Social Security has Llsed Medical-Vocational Guidelines to enhance uniformity 

and efficiency in decision-making. These Guidelines direct outcomes in cel1ain cases depending 

on the claimant's age, education, skill level, and funclional ability. It has been suggested that 

tl1cse Guidelines be abolished or modified to take into account longer life expectancies. As 

discussed below, the Social Security Law Section docs not oppose updating these Guidelines but 

strongly opposes these particular suggestions. 

The Subcommittee has correctly noted its concern about the signilkant variation in outcomes 

depending on the assigned judge. Abolishing these Guidelines will geometrically increase the 

variability in outcomc~. Judges must consider each of these factor~ and \vithout the Guidclinc~, 

each judge \vill be len to do so without clear rules or directions to follO\v. Many may seek 10 

resolve this dilemma by increased reliance on vocational expelt opinion. The system will clearly 

not be improved by reliance on the opinions of thousands of vocational experts, as opposed to 

reliunct! on one set oi'regulatory guidelines. 

The suggestion that the Guidelines be updated to account for increases in I1fe expectancy 1S 

fWldamentally flawed. Nothing in la\v or regulation allows consideration of how long the 

claimant may live to collect benetits. Age is a factor in decision-making because of its 

vocational effect. The guidelines consider the ability to make occupational adjustment to 

diminish with age. Life expectancy is simply irrelevant to this factor. 

The Section would not oppose updating the Guidelines based upon a study of the current effect 

of age and all of the other factors on employability. It is entirely possible that a study would 

show changes in the effects ofthcse factors since the Guidelines were established. If a valid 

study demonstrates a need tor the Guidelioes to be updated, then they should be updated. 

However, unless and until such a study is done, we oppose modification ofthe McdiealVocational Guidelines. 
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Medical Experts 

Other commenters have noted the importance of medical experts in the adjudicatory process. 

Medical experts often serve invaluable roles when testifying or responding to interrogatories for 

disability hearings. Consultative examiners can provide direct evaluations of claimants' 

functional abilities that generally are not i()Und in treatment notes. Judicious use of medical 

experts can assist judges in reaching the right decision as early as possible. Pre-hearing 

consultative examinations or interrogatories may ehminate the need for a hearing. Medical 

te;timony reduces the number of remands and expedites the process. The co;t ofthc medical 

experts is off~et by the savings in time and resources. 

Despite the advantages ufthe use of medical experts and consultative examiners, the agency has 

a dearth of such individuals. ft 1S often impossible fbI' the Agency to lind experts in 111any 

specialties. The cause ofthls is simple: compensation rates are too low, Rates have not 

increased in over a decade. The Section supports increased compensation for consultative 

examiners and medical experts. We do not, hovvever, feel that increased compensation is the 

vl-'hole answer. 

Many claimants a1lege that, when they went to consultative examinations, they received only 

very cursory examinations by someone in the physician's oflice and barely met the physician. 

There have been far too many complaints for these to be dismissed out-of-hand. This problem 

will not be solved by merely giving the same providers more money for doing the same thing. 

Social Security must enhance its efforts to ensure that examiners are providing the full 

examination for which they arc being paid. This is essential for fairness to both the claima11lS 

and the taxpayers \\iho are compensating the consultative examiners. 

Continuing Disability Reviews 

SSA has a process of Continuing Disability Reviews (CDRs). These CDRs arc conducted in 

order to determine if a recipient of disability benefits continues to meet the disability and other 

criteria related to the benefits they are receiving. CDRs serve two important purposes. First, 

they save taxpayer mont:y. As Commissioner Astrue noted in his March 24,2009 testimony 

before this committee, every $1 spent on CDRs yields $10 in program savings. Secondly, CDRs 

provide benefit recipients an additional incentive to fully utilize available medical care, 

vocational rehabilitation services, and job training to enable them to fe-enter the workforce. 

Because of inadequate funding levels for over a decade, SSA has accumulated a significant 

backlog ormedical Continuing Disability Reviews. It has been estimated that, if these CDRs 

had been conducted, the long-term program savings would be over $20 billion. Failure to 

conduct the full complement oCthese reviews has adverse consequences 1'01' the 1ederal budget 

and the deficit. 

The Social Security Law Section supports full hmding of CDRs. As the SSA 's 2013 Budget 

Request Report notes on pages 7, 16, and 17, billions of dollars have been saved by these 
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Max Rae 


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House Ways and Means Committee 

Subcommittee on Social Security 

Max Rae Attorney 

P. O. Box 7790 

Salem, OR 97303 FAX: (503) 363·5460 

(503) 363·5424 

maxrae.atty@comcast.net 

June 27, 2012 Hearing Concerning Disability Appeals Process 

Fraudulent Job Numbers Testimony 

In a February 28, 2012 hearing in Salem, Oregon, the vocational cxperttcstilied that she had 

been instructed by speciEc ALls to provide talse job numbers testimony, exaggerating the 

numbers of jobs existing within specific occupations. She further testified that she had consulted 

with other vocational experts and continned the practice. I reported this to Patrick P. O'Carrol! 

Jr., Inspector Gencral, Social Security Administration, on March 9, 2012, and asked that he take 

immediatc protective action to safeguard the integrity oflhe disability adjudication process from 

what appears to bc an ongoing and deeply ingrained local practice of Iraud and perjury. 

On June 21, 2012, Mr. O'Carroll informed Representative Kurt Schrader that he had requested 

that SSA account for any actions taken \vith respect to these concerns. and that he had directed 

his Omce of Audit to review and consider this issue in planning future audits of SSA 's hearings 

and appeals process. 

This is the problem. At the end of most Social Security hearings, the AU calls a vocational 

expert to describe the claimant's past work and to identify occupations that could be performed 

under various hypothetical sets of limitations, The vocational expert is then asked the numbers 

of jobs in each identified occupation, because to deny the claim based on the existence of other 

jobs, those jobs must exist in "signiticant" numbers. Hence, the job numbers testimony is often 

outcome determinative of the claim. In the Ninth Circuit, to deny at Step 5, the AU usually has 

to have testimony identifying a significant number of jobs. 

At this hearing, the vocational expert gave job numbers testimony that seemed grossly 

exaggerated in response to the AU's questions. When challenged, she readily admitted that she 

had provided the numbers of jobs for a group of occupations and 110t the individual occupation, 

and further testified under oath: 

"When I spoke with judges, the specific judges told me, 'Ms. Ruck, all of the other VE's 

give the numbers for the OES grouping. If you don't give those numbers, you're 

stepping out of bounds, or not complying with other vocational experts', and so in order 

to be in compliance with what the judges have requested, 1 haye stuck wilh the initial 

numbers lor the OES grouping, but when queslioned further I've given the reduced 

nnmber, which is the number tor the specitic DOT code." 

'-"Vhen I became a vocational expert. I consulted with other vocational expelts as to how 

they convey the employment numbers, and most of my colleagues do use lob Bnnvser 

Pro and they do give the employment numbers in the way that Ijust gaye them." 

This vocational experi was very innocent and open about all of this. I think that she was doing 

what she had been told to do and did not realize how wrongly she \\"as being coached. Hut if this 

vocational expert's testimony is correct. and I believe it is, countless claimants have been 

cheated out oftheir claims as a result of exaggerated job numbers testimony. 
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159 

Organization of Social Security Claimants’ Representatives 


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Executive Director 

Nancy G. Shor 

NATIONAL ORGANIZATION OF 

SOCIAL SECURITY CLAIMANTS' REPRESENTATIVES 

(NOSSeR) 

560 Sylvan Avenue' Englewood Cliffs, NJ 07632 

Telephone: (201) 567-4228' Fax: (201) 567·1542' email: nosscr@att.net 

Written Statement for the Record 

on behalf ofthe 

National Organization of Social Security Claimants' Representatives 

Hearing on the Social Security Disability Appeals Process 

Submitted by: 

Subcommittee on Social Security 

House Committee on Ways and Means 

June 27, 2012 

Nancy G. Shor, Executive Director 

Founded in 1979, NOSSCR is a professional association of attorneys and other advocates who 

represent individuals seeking Social Security disability and Supplemental Security Income (SSI) 

disability benefits. NOSSCR members represent these individuals with disabilities in 

proceedings at all SSA administrative levels, hut primarily at the hearing level, and also in 

federal COutt. NOSSCR is a national organization with a current membership of more than 4,000 

members [rom the private and public sectors and is commilled to the highest quality legal 

representation for claimants. 

The Subcommittee's f()cus on issues related to Social Security disability claims is extremely 

important to people with disabilities. Title II and SSI cash benetib, along with the related 

Medicaid and Medicare benefits, are the means of survival for millions of individuals with 

severe disabilities. They rely on the Social Security Administration (SSA) to promptly and fairly 

adjudicate their applications for disability benefits. 

NOSSCR is a member of the ConsOltium for Citizens with Disabilities Social Security Task 

Force and fully endorses the written statement and oral testimony of Ethel Zelenske who testified 

at the hearing on behalf of the Task Force. This Statement for the Record addresses additional 

issues for the record ofthe hearing. 
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I. THE REPRESENTATIVE FEE PROCESS 

Testimony was presented at the hearing that was inaccurate regarding the SSA fee process for 

representatives, 

The fee process for representatives in Social Security c1aims is highly regulated. 

Fees at the administrative levels. Fees for representatives' services must be approved by the 

Social Security Administration. The Act sets out the two processes from which rcprt!sentatives 

can choose. 42 U.s.C. * 406(a). The processes are mutually exclusive: 

(1) The fee agreement process. Most representatives choose to use the fee agreement 

process. Fees are 25% of past-due benet Its or S6,OOO, whichever amount is smaller. The statute 

gives claimants and adjudicators the opportunity to ohject to the amount of the fcc. The statute 

does permit representatives to seek permission to charge more tban $6,000, but this happens 

rarely. 

(2) The fee petition process. Some representatives will choose to use the fee petition 

process. They submit time records along with their fcc requests. In fee petition situations, the 

adjudicator will set the ICc in each individual case. 

Fees at the federal court leveJs. In federal court, fees in Social Security cases are regulated 

pursuant to 42 U.s.c. § 406(b). They must be contingent, and they are sel by the federal judge. 

Fees in Veterans Administration (VA) cases. Prolessor Pierce stated that fees in VA cases are 

limited to S I 0.00. That statement was true until 2006 when Congress enacted legislation that 

became effective in 2007 to amend the fee structure. Since 2007, fees in V A cases are tested for 

"reasonableness." Fees are 20% of past-due benelits if the representative asks lor withholding 

and direct payment See 38 U.S.c. § 5904; 38 C.F.R. § 14.636(h). There is no cap. If the 

representative does not ask for withholding and direct payment, the fee must meet the test for 

"reasonableness"; there is no cap. See 38 C.F.R. § 14.636(1). 

II. THE IMPORTANCE OF MAINTAINING ALJ DECISIONAL INDEPENDENCE 

A clalmant'~ right to a de novo hearing before an admlnistrative law judge (ALJ) is central to the 

fairness of the Social Security Administration (SSA) adjudication process. This right guarantees 

that individuals with disabilities have a full and fair administrative hearing by an independent 

decision-maker who provides impartial tact-finding and adjudication, Iree Irom any agency 

coercion OJ' influence. The ALl questions and takes testimony Irom the claimant and other 

witnesses, and considers and weighs the evidence, all in accordance with relevant law and 

agency policy. For claimants, a fundamental principle of this right is the opportunity to present 

new evidence to the ALl, testify in person before the ALl, and receive a decision based on all 

available evidence. 

2 
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AUs are appointed under the Administrative Procedure Act (APA), which guarantees their 

independence 1rom undue agency intluence, as demonstrated by the following requirements: 

The Ot1ice of Personnel Management (OrM) - not SSA - conducts the competitive AU 

selection process, While SSA ultimately appoints AUs, it can only do so 1rom a list of 

eligible candidates created by OrM. 

AUs can be removed only for "good cause." 

Most disciplinary actions may be taken only according to standards and procedures 

established by the Merit Systems Protection Board (MSPB). 

The pay classification system for ALls is set by Ol'M, not by SSA, and is separate fi'om the 

agency's performance rating process. 

The critical role that AU decisional independence plays in protecting the rights or claimants 

cannot be underestimated. In the early to mid-1980s, the SSA disability claims adjudication 

process \vas in turmoil. In the most detrimental example for beneficiaries, the agency had 

changed its policy regarding the cessation of disability. As a result, between 1981 and 1984, 

nearly 500,000 severely disabled beneficiaries who continued to meet the statutory eligibility 

requirements had their benefits terminated. Legal advocates represented thousands of 

individuals in appeals of'SSA 's decision to terminate their benefits because their disabilities had 

allegedly "ceased." Many ALJs agreed vliith their arguments that the agency's policy was 

inconsistent with the Social Security Act and due process and reversed the termination of 

benelits. Thus, bene1iciaries were able to retain the cash and medical benefits vital to their wellbeing:. 

There are other cxamples 1!-0111 this period of AUs conlronting agency policies they considered 

inconsistent \vith the Social Security Act~ including a clandestine policy to deny and terminate 

benefits to tens of thousands of seriously mentally ill claimants who did not meet the thenoutdated Listings of Impairments. Also at that time, the agency had a policy of nonacquiescence. i.e., not following preceuel1tial decisions issued by the U.S. Courts of Appeals in 

subsequent individual cases. ALJs frequently reversed the lower level administrative decisions 

because SSA's policies, at that time, were not consistent with the Social Security Act and 

precedential case law. 

During the same period in the mid-1980s. SSA was pressuring AUs to reduce the rate of 

ravorable decisions. "Bellmon Review" involved SSA targeting the performance or ALl, that it 

considered to have favorable decision rates that were too "high" and imposing quotas for 

allowances and denials. ALls challenged the program in litigation and the agency eventually 

abandoned the program. 1 

SSA no longer follows these policies. However) the importance of maintaining the APAprotected AUs in the SSA adjudication process was brought to light within the past few years 

regarding actions at the U.S. Department of Justice (DOl). Some lederal agencies use non-ALls 

as adjudicators and their independence. as a general rule, is less protected than ALls. One 

example of non-ALl adjudicators is Immigration Judges (TJs) in the 001. The process I(lr 

I See. e g. Association oj Admlflislrallt'e LmvJudges \' Heck!('/'. 594 F. Supp. ) 132 (D.D.C. 1994). 
162 

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163 

ScottDaniels 


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To The Committee On Ways and Means: 

My name is Scott Daniels and I am disability lawyer in the state of New York. The below piece is my 

response, in part, to some of the testimony provided in last week's hearing. I will note that it is 

published on my firm's blog at "~.\~.\,!""Wg.!>.i,-~i.UW~.t12LQ.~yQLQK.~Qm. 

Last Wednesday, June 27th 2012, the Committee on Ways and Means held their 4th hearing on 

"Securing the Future of the Social Security Disability Insurance Program." The point of these hearings is 

to get a better understanding about the disability program, how it works, it's shortcomings and to get 

ideas on how to fix it's ongoing solvency problem. 

Among others, speakers at this hearing included Michael Astrue, Commissioner of Social Security; 

Honorable Randall Frye, President of the Association of Administrative Law Judges; and Richard Pierce, 

Jr., law professor at George Washington. 

Commissioner Astrue was questioned at length about his highly controversial policy to no longer inform 

attorneys or representatives about the Judges they will be appearing in front of. For the most part, 

Commissioner Astrue attempted to justify the policy by explaining that too many attorneys were 

manipulating the system by declining video conference hearings if they didn't like the Judge they were 

appearing in front of. This excuse went nowhere with the committee. 

The reality is, while attorneys did (and still do) have the opportunity to decline a video conference 

hearing after they saw who the Judge was on the case, SSA still randomly selected a new Judge to 

perform the live hearing. Therefore, the attorney is not choosing their Judge, nor is he/she partaking in 

any forum shopping since SSA is still assigning the Judge. 

My favorite part of the hearing came when Commissioner Astrue expressly stated, "some of this is our 

fault," while dodging questions from the committee on the legitimacy and logic his new "secret Judge" 

policy. Well Commissioner, you are absolutely right. SSA has created the rules whereby you allow 

claimants and their attorneys to decline a video conference hearing if they choose to do so. And since 

claimants have exercised this right, whether represented by an attorney or not, is it fair to cry foul and 

claim fraudulent practices by attorneys because they simply played by the rules you created? 
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Commissioner Astrue made it very clear that he wants to fix the integrity of the system ~ and I 

appreciate that. But the integrity of the system will not come by hiding who the Judge is for a disability 

hearing. 

In what appeared to resemble a blatant smear campaign against disability lawyers, Richard Pierce, 

esteemed law professor at George Washington University, practically blasted the Administration's policy 

governing attorneys fees stating that lawyers have figured out ways to "game" the system and that one 

particular firm made 81 million dollars last year. 

What Mr. Pierce failed to mention is that attorneys fees, for the most part, which are regulated by the 

federal government, allow for attorneys to earn 25% of a claimant's "back~pay" or a maximum of 

$6,000, whichever number is less. Therefore, if an individual is entitled to "back~pay" from the 

government, the government is shelling out the same amount of money REGARDLESS of whether that 

claimant is represented by an attorney. If in fact, the person did receive representation, their total 

"back~pay" check is reduced by the attorneys fee. Mr. Pierce also failed to recognize that SSA takes an 

$83 fee on every check they write to an attorney or licensed representative. 

Here is a direct quote from Mr. Pierce's written testimony, which you can see by CLICKING HERE: 

"Lawyers and other professional advocates for disability applicants have devised systems for maximizing 

the probability of a decision granting benefits to their clients by soliciting and emphasizing medical 

evidence favorable to their clients while withholding medical evidence that is unfavorable to their 

clients. n 

Not only is this statement out of line, but Mr. Pierce outlandishly implies that all highly qualified 

disability lawyers actively misrepresent the court by withholding evidence that is unfavorable to a 

claimant's case. Funny how one story in the Wall Street Journal about Binder & Binder allegedly 

withholding medical evidence on certain cases can be translated to mean that the entire legal 

community partakes in this activity. 

Coincidentally, the one firm that made $81 million last year was Binder & Binder ~ information also 

extracted from another Wall Street Journal piece. I resent Mr. Pierce's negative statements and as a 

highly ethical disability attorney in the state of New York, I have never withheld evidence that might 

have been unfavorable to my client. Mr. Pierce's arrogance and overall lack of awareness Within the 

disability sphere IS eVident in his testimony 

AS for Mr. Pierce's implication that lawyers have devised systems of maximizing the probability of a 

favorable deCISion, I'm pretty sure most people call that good lawyering. Isn't it the lawyers Job to 

zealously represent their clients and make every effort within the scope of the law to successfully secure 

a favorable deCision on behalf of their client? Of course lawyers "solicit and emphasize medical 

eVidence" • how are else are we supposed to prove our client's case? 

I hope that the federal government sees right through Mr. Pierce's utter disregard for the disability legal 

profession We eXist because the national denial rate of disability claims is hovering around 75% 

IndiViduals seeking disability benefits are not in a position to take their cases lightly. More Importantly, 

the alleged actions of one firm IS not representative of an entire market. 
165 

MATERIAL SUBMITTED FOR THE RECORD 

Questions for the Record: 

The Honorable Michael J. Astrue 1 


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Questions for the Record 

For the June 27, 2012 Hearing 

On the Disability Appeals Process 

Questions from Chairman Johnson 

I. If medical evidence is sufficiently developed prior to the hearing, are there other 

reasons to leave the record open? 

The main reason to leave the record open is to allow an administrative law judge (ALl) to 

consider, without requiring a new application, a new condition (e.g., the individual suffers a 

heart attack the day after the hearing but before the decision is issued) or undiagnosed 

conditions existing at the time of the determination or decision (e.g .. the claimant had been 

diagnosed with Hepatitis C at the time of the hearing but a month later is diagnosed with 

Stage 4 liver cancer). 

2. What are the pros and cons of closing the record either .iust before the hearing or at the 

close ofthe hearing before an Administrative Law Judge (ALJ) issues a decision? 

A closed record would provide the ALl with all the necessary information to fully consider 

the claim prior to the hearing. and the ALl would have the necessary information to 

adequately question the claimant or witnesses at the hearing. Furthermore, a significant 

number of ALl decisions are remanded because new and material evidence (i.e., relevant to 

the time adjudicated by the ALl, not previously considcrcd. and may change the outcome) 

available at the time of the ALl decision is submitted after the ALl issues a decision. Some 

have argued that closing the record at the time of the ALl's decision would encourage 

claimants to develop and present such evidence in time for the hearing (where possible). 

leading to a timelier and lower-cost resolution ofthe claim. 

As previously stated, the main reason to leave the record open at the hearing level is 

procedural. Should a claimant's condition worsen or a new condition arise, there are fewer 

administrative steps if the ALl record remains open. For example, the claimant would not 

have to tile a new application if a new condition arose the day atler the hearing but before the 

decision was issued, assuming the ALI became aware of the condition. 

The same protections afforded under the current process can be incorporated into a closed 

record provision, like the provision our Boston Region hearing offices use. [n the Boston 

Region (as noted in 20 CFR 405.331), absent certain criteria, evidence must be submitted no 

later than five business days before the date of the scheduled hearing. However, to protect 

claimants. the rules do allow for the acceptance of evidence after this time period if our 

action misled the claimant. the person had a limitation that prevented submission of the 

evidence earlier, or some other unusual, unexpected, or unavoidable circumstance beyond the 

claimant's control prevented submission of the evidence. This provision encourages the 

timely submission of evidence while still allowing for the late receipt of evidence in 

appropriate circumstances. We are continuing to evaluate use of these procedures in the 

Boston Region. 
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Enclosure - Page 2 - Questions for the Record 

3. The expectation for judges to produce between 500-700 cases per year has been in place 

since October 31, 2007. Judge Randall Frye believes this focus on "numerical quotas" 

does not provide sufticient time for the ALJ to do the proper job and issue a correct 

decision. Do you believe that this is still the right expectation'! 

The following chart shows the percentage of AUs (excluding newly-hired AUs) meeting 

our 500 to 700 case expectation since fiscal year (FY) 2007: 

2010 74 

2011 77 

The vast majority of AUs are meeting this expectation. Since 77 percent of AUs met this 

expectation in FY 2011. while maintaining a high level of decisional quality, we believe the 

cxpectation is reasonable. 

Moreover, in a recent survey conducted by the Association of Administrative Law Judges, 

nearly three out of four respondents found it "not difficult at all" or only "somewhat 

difficult" to meet the expectation. When given an opportunity to explain why they had not 

met our expectation, many respondents cited their status as new ALls. We do take into 

account the leaming curve for new ALls. We reiterate the importance of making the right 

decision; consequently, we excluded newly-hired ALls trom the data shown above. 

4. What percent of judges are meeting this expectation and what will it take to get the 

remaining judges to meet this expectation'! 

In FY 20 II, 77 percent of AUs achieved the expectation of 500 to 700 dispositions per year. 

We have initiated a number of measures to help AUs achieve this goal and to identify any 

impediments to achieving this goal. To that end, we regularly monitor whether AUs are on 

pace to achieve the dispositional goal. When AUs are not on pace, we discllss it with them 

to detennine the root cause of the problem. When appropriate, we offer assistance in the 

form of docket management, mentorship, policy training, and technology-related support. 

We have also developed an online tool, "How Ml Doing," which provides AUs with current 

real-time statistical information about their individual productivity and quality of their 

decisions. Accordingly, ALls are now able to track their performance and take selfcorrective measures when necessary. Additionally, we are developing another automated 

tool, the electronic bench book (eBB), which we believe will help AUs increase their 

efficiency and productivity. 
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Enclosure - Page 3 - Questions for the Record 

5. What new authorities, if any, do you need to address ALJ conduct and performance 

issues? 

We constantly strive to improve our ALl hearings and are guided by the principles that they 

must be fair, accurate, and efficient. We are continuing to evaluate ifany statutory measures 

would enable us to better to meet these goals. 

6. According to an April 2012 Inspector General Audit Report, "The Role of National 

Hearing Centers in Reducing the Hearing Backlog," AL.ls in the National Hearing 

Centers had a disposition rate 15 percent higher than the average national disposition 

rate with 2.77 cases per hearing center ALJ compared to 2.42 cases per hearing office 

ALJ. The Inspector General attributed some of this increase to productivity, at least in 

part, to the supervisory relationship between the ALJs and the attorney writers. Would 

this be a good model for all hearing offices? 

We agree that the model for our National Hearing Center (NHC) offices is conducive to 

productivity and certainly has some advantages. We are continuing to study which aspects of 

NHC model warrant expansion to our broader hearing offices. 

7. A recent Social Security Inspector General (IG) report, "Current and Expanded Use of 

Video Hearings," requested by the Appropriations Committee, noted that video 

hearings helped to reduce backlogs, improve case processing times, and decrease ALJ 

travel to remote sites, generating savings ranging from $52 to $109 million over a tenyear period. The ALJs at the National Hearing Centers use video hearings exclusively. 

Do you plan to expand their use? 

Yes. So far this fiscal year, we have installed an additional 108 video units, bringing our 

national total to 1,339, We plan to install an additional 76 units by the end of the calendar 

year. 

8. You were asked several questions about your decision not to reveal the presiding ALJ's 

identity until the day of the hearing. In a recent report, the IG reported that claimants 

01' their representatives were declining video hearings so that their case would be 

assigned to a judge with a higher award rate. To prevent this, the IG recommended 

that the agency establish regulations to prevent claimants and their representatives 

from declining a video hearing close to the day of the hearing and to remove the ALJ's 

name from hearing notices as well as not revealing the ALJ's name when asked by the 

representative. The Senate Fiscal Year 2013 Labor-HHS Appropriation bill includes 

language supporting your actions, saying that efforts by claimants or their 

representatives to manipulate the hearing process to find favorable judges challenges 

the integrity of the process. 

a. Tell us more about the abuses you were trying to correct in deciding not to reveal 

the ALJ's name until the day ofthe hearing and how the process is working. 
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Enclosure -- Page 4 - Questions fix the Record 

We prefer not to identify specific abuses because \ve do not want to give a road map. In 

general terms, the decision to remove the names ofALJs from pre-hearing notices limits 

the potential for forum shopping, prevents decisional delays, helps maintain the integrity 

of OUf decision-making, and is a part of our ongoing effort to ensure that all claimants 

(including those who are not represented and are less likely to be aware of ALl rates) 

receive a fair, consistent, and timely disability hearing. This process has only been in 

place for a few months, but we are not aware of any new instances of forum shopping 

similar to \vhat we had discovered. Therefore, the process seems to be helping. 

However, given the disquiet about this process, we hope that removing ALl's names 

from the notice is a temporary fix and that the representative community will work with 

us to ensure the integrity of our system. Sincc the hearing, 1 have had very positivc 

interactions with both the National Organization of Social Security Claimants' 

Representatives and the National Association ofDisahility Representatives about options 

to address forum shopping. 

b. The IG's report focuses on video hearings. Could you have instituted your "Judge 

Anonymous" policy only for video hearings and not for in person hearings? 

While the fG's report focused on video hearings, forum shopping is not limited to those 

hearings. Under the current regulatory authority that \vas in effed at the time the '"Judge 

Anonymous" policy was implemented, claimants are assigned the first available slot for a 

hearing, \vhich may be in person or by video teleconference. We schedule the hearing 

and notify the claimant and his or her representative of the time and place of hearing. Ifa 

claimant is scheduled for a video hearing, then he or she can decline to appear by video 

when he or she ackl1O\v1edges receipt of the notice of hearing. Because \ve cannot 

determine under the existing system who will and will not decline a video hearing prior 

to scheduling a hearing, we could not have instituted the "Judge Anonymous" policy for 

only video hearings and not for in-person hearings 

9. What changes have you made to help the Appeals Council reduce its backlogs and how 

often does the Appeals Council use own motion review to consider ALJ decisions? 

The Appeals Council backlog has grown primarily becausc ofthc unprecedented number of 

requests for review filed in the past four years. In FY 2011, the Appeals Council received 

173.332 requests for review. an increase of nearly 35 pcrccnt from FY 2010 

(128,703 requests for review). Through June 2012. the Appeals Council received 

] 28,750 requests for review, an increase of 15.5 percent from the same time period in 

FY 2011. The Appeals Council issued 126.992 dispositions in FY 2011 and 119.545 in 

FY 2012, through June. 

In recent years, the Appeals Council has made great strides in systems automation and 

capturing data on case adjudication. The Appeals Council developed. and is now using. the 

Appeals Review Processing System (ARPS), an Intranet case processing system. ARPS 

helps statTidentify errors, prepare recommendations for review, identify trends, and provide 
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Enclosure - Page 5 - Questions for the Record 

feedback to adjudicators and stalI This process allows us to decide cases more quickly and 

accurately. 

In addition to the data collected in ARPS, Appeals Council management developed numeric 

productivity standards for analysts who revie\\' and prepare recommendations for the Appeals 

Council. The Appeals Council tracks staff performance and provides additional training in 

areas where analysts do not meet productivity standards. 

In the last few years, the Appeals Council developed an interactive training model that 

received the prestigious W. Edwards Deming Training A\vard Ji-om the Graduate School 

USA in 2011. 

The Appeals Council is creating a new case assignment model that will group cases with 

similar issues and assign those cases concurrently. This change will improve consistency and 

help identify areas Jor future training, while also decreasing processing times for all 

claimants. 

Regarding own motion revie\vs, the Appeals Council revic\vs fully favorable cases and 

bureau protests (Le., cases that our employees bring to the Appeals Council's attention 

because they cannot effectuate the ALl decision). The Appeals Council exercised own 

motion review on 812 fully favorable cases (22 percent of cases revie\ved) and 326 bureau 

protests (55 percent of cases referred) in FY 2011. Through June FY 2012. the Appeals 

Council exercised own motion review on 1,449 cases (26 percent of cases reviewed) and 

156 bureau protests (44 percent of cases referred). 

10. Do all decision makers, whether at the State Disability Determination Services, or the 

hearing level, or the Appeals Council, use the same criteria for deciding claims? If not, 

how can we correct this problem? 

Yes. The Act and our regulations set forth the criteria all decision makers must usc. We 

have developed tools at the disabil1ty determination services (DDS) and hcaring levels to 

ensure that adjudicators follow our policies consistently. 

At the DDS level, we have the Electronic Claims Analysis Tool (eCAT), which will be 

mandatory as of October 1,2012. eCAT is a policy compliant web-based application 

designed to assist the user throughout the sequential evaluation process. The tool aids in 

documenting, analyzing, and adjudicating the disability claim according to our regulations. 

eCAT utilizes "intelligent palhing" and quality checks to assist the user in addressing critical 

policy issues relevant to the claim. The output from eCAT is the "Oisability Oetennination 

Explanation (ODE), II which is a detailed record of the documentation and analysis supporting 

the determination. The DDE is uploaded to the electronic folder so it is available for 

subsequent reviewers. 

At tht: h~aring level, we are working on a pilot of the eBB for hearing level adjudicators later 

this year. The eBB is a web-based tool that aids in documenting, analyzing, and adjudicating 

a disability case according to our regulations. Wherever possible, we reuse data to limit the 
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Enclosure - Page 6 - Questions for the Record 

need to re-enter information. eCA T and eBB are designed to pull in and display information 

entered from various sources. We designed these electronic tools to improve accuracy and 

consistency in the disability evaluation process. Additionally. our tool "How MI Doingo •. 

gives adjudicators extensive information about the reasons their cases were subsequently 

remanded and allows them to view their performance in relation to the average of other ALls 

in the office, region, and Nation. Currently, we are developing training modules for each of 

the 170 bases for remands that eventually will be linked to this tool. 

11. The new partnership between the Social Secnrity Administration and Kaiser 

Permanente will electronically transmit complete medical records of Kaiser 

Permanente patients to the agency with appropriate consent, What are your views on 

the impacts health information technology will have on the disability process'! 

Health IT has enormous potential. Providers and our agency spend considerable time trying 

to track down, copy, and mail medical records. The use of Health IT will dramatically 

improve the speed, accuracy, and efnciency of this process, reducing the expense of making 

a disability decision for both the medical community and taxpayers while improving service 

to the pUblic. 

On an annual basis, we send more than 15 million requests for medical records to healthcare 

providers-and we count on those providers to take time from their busy practices to 

respond. This mostly paper-based, manual workload is a time-consuming part of the 

disability process. By fully automating the process for requesting and obtaining electronic 

medical records, we can receive medical records within a matter of minutes as opposed to 

days, weeks, or months. 

In addition, electronic records lend themselves to computerized analysis, which alerts 

disability examiners of an impairment that may meet our medical criteria. We look forward 

to the standardization of electronic records because that will give us other opportunities to 

provide decisional support for examiners. it will also help us collect data that may influence 

our policies and training. 

Unfortunately. we must wait for Health IT to become the standard before we can truly realize 

its potential. In FY 2012 (through July), only about 16,500, or .11 percent, of our 15 million 

requests for medical evidence utilized Health IT. We now can quickly obtain electronic 

medical records from 14 organizations, which continue to expand their use of Health IT and 

add facilities. We estimate receiving an additional 10 percent of electronic medical records 

each year. We are excited that Kaiser Pennanente has agreed to help us move this needle. 

Currently, the average time for initial disability decisions is 21 percent lower in cases with 

electrooic medical evidence obtained through Health IT. In fact, we decided 3 percent of 

those cases within 48 hours. 
172 

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173 

The Honorable Michael J. Astrue 2 


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174 


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Questions for the Record 

For the June 27, 2012 Hearing 

On the Disability Appeals Process 

Questions from Representative Becerra 

L Docs SSA usc objective diagnostic criteria in determining ",hether non-exertional 

impairments or limitations are of such severity that the individual meets the eligibility 

criteria to receive disability benefits? Please discuss. 

Yes we do. Allegations of pain or other non-exertional (i.e., non-strength related) 

impaim1ents or limitations are not sufficient ror us to a\vard disability benefits. We require 

objective medical evidence and laboratory findings that show: 1) a claimant has. a medical 

impairment that could reasonably he expected to produce the pain or other symptoms alleged, 

and 2) when considered with all ofthe other evidence, meets our disability requirements. 

2. How extensive is the ,'ariability in allm\'ance and denial rates between Administrative 

Law .Judges (AL.Js) - that is. do the majority ofjudges cluster within a middle range, or 

are the)' widely distributed? :\'1ight there be legitimate circumstances where an AL.J 

could have allowance rates that are higher or lower than the average'! What steps is 

SSA taking to address concerns that some judges may not be properly following SSA's 

criteria and procedures for weighing evidence and making determinations? 

fhe majority orAUs cluster within a narrow range of the mean, with a reduction in the 

significant outliers in the last few years. Some variance is cxpected in decision-making 

bceause ofthc variation cxpccted in the random allocation of claims caeh judge rcvicws and 

judIcial independence required to adjudicate a claim. Our main concern with outliers is 

whether their decisions are policy compliant and accurate. 

To ensure adjudicators issue policy compliant decision~. v"e continue to improve training 

programs and create bettcr individual fecdbaek tools, such as "How MI Doing?" This 

resource gives adjudicators information about their rcmands. including the rcasons for 

remand, as well as information on their performance in relation to other ALJs in their office, 

their region, and the Nation. Currcntly, we arc developing training modules rclated to each 

or the 170 identified reasons for remand that we \\il! link to the "How M( Doing?" tooL 

Further efforts to promote policy compliance include a test pilot oftbe Electronic Bench 

Book (eBB) later this year. The eBB is a policy compliance web-based tool that aids in 

documenting, ::malYLing, and adjudicating a disability case in accordance with our regulations 

to improve decisional accuracy and consistency. 

Our Office of Appellate Operations ereated the Division orQuality (DQ) to perform focused, 

post-effectuation reviews of hearing offices, AUs. representatives, doctors, and other 

subjccts. We idcntify potential subjects for focused revicws from data collectcd through our 

systcms, findings from pre-cffectuation rcvicws, and internal and cxternal referrals received 

from various sources regarding potential non-compliance with our regulations and policies. 

Focused reviews allow us to examine ho\\ AUs and hearing offices adjudicate cases, and, if 
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Enclosure - Page 2 - Questions for the Record 

necessary, help develop training programs, materials, tools, and software to support AUs and 

hearing otlices, A focused review also allows us to provide feedback regarding our findings. 

3. What fraction of all allowances are made at each decisional level - DDS, 

reconsideration, AL.I, Appeals Council, and federal court? Are ALJs responsible for 

the recent growth in the number of disability beneficiaries? What are the reasons that 

an AL.I ,""ould allow benefits that have been denied previously by the DDS'! 

The longitudinal data for claimants \vho filed claims in a givcn ycar provides the most 

accurate information on the percentage of total allO\vances at each level. It can take several 

years for a cohort of claimants to move through the appeals process; theretore. the most 

recent cohort for which we have the most complete data are claimants who applied fix 

disabilIty benefits in 2007. We tracked those claims through October 2011, and thc 

breakdo\'vll ofaHowances is: 

initiallcvd (DDS): 69.4 percent of all allowances 

• Reconsideration: 5.6 percent of all allowances 

Hearing level (AU): 24,9 percent of all allowances 

Appeals Council and Federal Court levels: 0.1 percent of all allowance~ 

Our AUs are not re~ponsible for the grovvth in the number ofbendiciaries. Allowance rates 

have dropped at the initial and AU levels, The growth in beneficiaries is not surprising as 

the Baby Boom generation enters its most disability prone years and the increase in women 

working has increased the size of the workforce that may be eligible for benefits. 

Therc arc several rcasons why AU:; allow prcviously denied claims. For cxample, 

claimants' conditions worsen over time; claimants may submit new medical evidence at the 

hearing level that was not previously available; they may hire an attomey or non-attorney to 

represent them; and a claimant's age at the time of the decision may require different 

evaluation criteria. In addition, hearing cases involve complex issues with conflicting 

evidence. 

4. What is SSA's view on the question of whet he I' the ALJ process is constitutional? 

it is constitutional. 

5. What is your perspective on some of the proposals made by Professor Piene in his 

testimony M such as revising the AL.I discipline process, eliminating non-exertional 

impairments as a basis for qualifying for benefits, and eliminating appeals before an 

ALJ? Would these require statutory changes? 

Changes regarding any of these complex issues would require Congressional action. Some 

relevant citations include 5 U.S.c. S 7521,42 U.S.c. S 423(d), and 42 U,S.c. ~ 405(b). 
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Enclosure Page ~ Questions for the Record 

6. How many requests for review does the Appeals Council receive each year? What is 

the average length of time to log: a request for review into the system, and once log:ged, 

to make a determination on that request for review? What safeguards are in place to 

ensure that all requests for review are indeed logged and processed? Chen that all 

other administrathe appeals must now be tiled electronically, have electronic requests 

for re"'iew been considered? 

In recent Yl:ar:;, the Appeals Council has experienced a substantial increase in requests r01 re\'iew. In FY 2011, the Appeals Council reeci\'(:,d 173,332 requests f()[ review, 

35 percent more than the 128.703 requests recei\'ed in FY 2010. Through June 

Appeals Council recel\ed 128,750 requests for review, an increase of 15.5 pt:rcent over the 

same time period in FY 2011. 

Despite this significant increase In the Appeals Couneil'~ \\·orkload, the average processing 

time (APT) at the Appeals Council increased only 15 days H-om 345 days in FY 2010 to 

360 days in FY 2011 and another 18 days to 378 days through June FY 2012 bccause \\e 

focused on adjudicating our most aged. complex cases iiI st, \\ hich incn:a:;es thc APT. 

We recently impnwed our business process to ensure that once we receive a request tor 

review it is logged into our system ,vi1hin We agree that electronic 

requests for Appeals Council re\ iew would be beneficial: mu:;t prioritll:c our 

limited resources, and \\e have many other higher priority mitiatives that will help us better 

fulfill our responsibilities to serve the public_ 

7. What h. the average length of time that a case spends at the Appeal~ Council? In 

responding to these questions, please provide )'early data for the prior 10 years to date. 

\Yhat is the longest a case has spent at the Appeals Council? Are there any goals or 

processes in place to reduce the length of time for Appeals Council proceedings'? Once 

a case is at the Appeals Council, how long has that claimant typically been in the 

application and appeals process'? 

Belo\\ is a chart with the APT for Appeals COllncil decisions for the last tcn fiseal years 

Fiscal Year APT 

2002 412 

2003 294 

2004 251 

200S 242 

2006 203 

2007 227 

2008 23X 

10()9 261 

~010_ }is -! 2011 360 

2012 (thou8:h 6/29112) 378 
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Enclosure - Page 4 - Questions for the Record 

Currently, the oldest request for review pending before the Appeals Council is from October 

18, 2007. Although our business process does not support electronic filing of requests for 

review, we accepted this request for review using the process for accepting evidence 

electronically, which misfiled the request in the closed hearing folder. Once we realized that 

this type of misfiling could happen, we developed a computer program to search for such lost 

requests and found this one. We discovered this particular case on November 2,2012, and 

we are expediting the case. Of the more than 160,000 requests for review currently pending, 

we have only 30 pending requests for review dated prior to 2010. 

We have implemented changes in our business processes, systems, and training, and as noted 

above, we are continuing to evaluate other ways to improve our processes. For example, we 

are currently developing clustering analysis technologies to identify cases that il1\'olve 

similar issues. Assigning cases with similar issues concurrently will help improve training 

and consistency while providing quicker decisions for all claimants. In FY 2012, our goal is 

to handle 80 percent of the cases pending over 365 days and 99 percent of the cases pending 

more than 545 days. We are currently on pace to achieve these goals. 

At each level of adjudication. the processing time ends when we make a decision; therefore, 

we do not currently capture the information on the average time between initial application 

and an appeal to the Appeals Council. 

8. What percentage of requests for review are granted by the Appeals Council and what 

percentage of requests for review are denied'? \Vhat percentage of reviewed cases are 

affirmed? What percentage of reviewed cases are overturned or remanded'! In the 

event a case is overturned or remanded, what are the most common reasons that the 

Appeals Council makes that decision? 

The enclosed chart provides the requested infonllation. 

The Appeals Council captures data on approximately 170 reasons for remand, but the most 

common reasons for Appeals Council remands are: improper evaluation of treating source 

opinions; inadequate evaluation of exertional and mcntallimitations; failure to discuss the 

required factors when assessing credibility; improper dismissal of a hearing request; 

inadequate consideration of mental impairments; and new evidence presented at the Appeals 

Council. 

The most common reasons for Appeal Council reversals relate to improper evaluation of the 

listings and misapplication of the Medical-Vocational Guidelines. 
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Enclosure - Page 5 - Questions for the Record 

9. What percentage of denials of review result in a civil action'? Are there any estimates 

regarding the change in number of civil action'! filed (increase or decrease) if the 

Appeals Council were eliminated'! Is there any evidence regarding the co!>t of' an 

Appeals Council denial versus a civil action? 

As the data below indicate, the percentage of Appeals Council denials resulting in a civil 

action has decreased 10 recent years. 

'FiscaIY.;u:-- -- ~umberofdeniab~'berappeal~ Percentage of -

issucd to Fcderal court dcnials aUDealcd 

2002 I 81 ,20R 16,431 20.2 

2003 .0:;:: 18,191 25.6 

2004 6)(216 15,053 22.1 

~~t- ---- ~t,ffi---r+¥o~-- *;--- 2007 59.511 11,868 19.9 

2008 59.781 12,257 20.5 

2004 I 63,iNI 12.167 19.0 

2010 S79 11 ,420 16.8 

lOll 92,145 13,955 15.1 

2012 (thru March 30, 2(12) 55,892 7,648 n.7 

The data above suggest that eliminating the Appeals Council \\-ould negatively ailect Federal 

courts. Some of the cases that the Appeals Counc!l remands or reverses (i.e., issues a 

favorable decision) would be directly appealed to hderal District Court. In fY 2011, the 

Appeals Council remanded 26,909 cases and reversed 3,122 cases. In the absence of an 

Appeals Council review, we estimate that Federal District Courts could receive at lcast 

15,000 more cases a year, which would more than double Federal District Court case filings. 

Eliminating lhe Appeals Council would also negatively affecl claimants. The Appeals 

Council protects the integrity ora national disability program, thus ensuring consistent 

treatment for claimants residing in different areas of the country. Further. the Appeals 

Council's oversight of the AU hearing process provides an appellate reviev, for all 

claimants, without the cost of court tiling fees. In FY 2011, the Appeals Council revicw 

provided a more favorable administrative action (remand or favorable decision) for elaimant~ 

in over 30,000 cases. 

The Appeals Council has several other crucial roles. It is the only administrative body that 

can reverse, reopen, or reVlse hearing-level decisions on behalf of the Commissioner. 

Appeals Council review not only ensures that ALJs apply appropriate policies, but also 

provides structured data to evaluate agency disability processes and policies, The Appeals 

Council also perfonns focused reviews of hearing-level decisions. to ensure policy 

compliance and identify possible AU training needs. Appeals Council feedback and review 

has resulted in several policy and procedural changes, thereby saving resources and 

improving our disability process. 
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Enclosure - Page 6 - Questions for the Record 

In FY 2011, the average cost of an Appeals Council review \\as SI.405. We do not know all 

eo~b \l1\'oh"ed with a cIvil actIon lD Federal court. 

to. Statistics from 2011 kept by th~ :"Jational Organization of Social Security Claimants 

Representatives show that 49% of appeals to federal cou,·t result in a remand for either 

payment of benefits or a nc\'\' hearing. Given this statistic, are there any goals or 

processes in place to improve the quaJit)' of Appeals Council review and reduce the 

number of cases tiled in fcderal court? 

We have seen a decline in the pef(;entage of cases remanded to the Appeals Council from 

Federal District COUltS. In FY 2004, the remand rate \\-as nearly 63 percent. By contrast, the 

remand rates for FY 2011 and the first halfofFY 2012 were 42 percent and 39 percent, 

respectively. V./e continue to work in a variety of areas to maintain thi~ trend by ensuring 

that our decisions are factually accurate and procedurally adequate and that the courts 

understand the rules \\-e tollO\\. 

For example, last year \H! assigned administrative appealjudges to the Divi~ion ofCi\ il 

Actions to analy/.e court remands and requests for voluntary remands, prO\ ide feedback, and 

conduct trend analyse;,. Additionally, we reinstituted the quality assurance sample review 

conducted hy the Appeals Council so that \ve can ofter training to improve quality and 

reduce the number of court cases remanded from district courts. 

For several year~, we have collected data on the reawns for remand from the Appeal;, 

Coundl and Federal Di..,trict Courts. With innovative techniques that anange data in heat 

map formats, we can identify variances and areas of concern. Heat maps for FY 2010 and 

FY 201\ show inconshteneies among the Federal District Courts regarding the percentage of 

cases remanded, shO\\ ing th .. need to further evaluate how certain courts apply our pohcks. 

suggest trends in the reasons for remand. In Federal Di~trict Courts, the top two 

reasons 1) evaluation of the claimant's credibility; 

and 2) treating physician opinion:.. rhese reasons also fank high among remand:. from the 

Appeals CounciL 

To address the evaluation oferedlhility issue. \ve formed a workgroup to revise deCisional 

language addressing credibility and the decisional templates that AL.Js and decision writer;, 

lise to e\aluate eredihility. We anticipate these revisions will be available early in 2013. 

We arc also con~idenng how Federal Courts' interpretations of our treating physician policy 

affect remands. The courts hm'e intlueneed our rules in this area. While court:. generally 

agreed that adjudicators should give special weight to treating source opinions, they havc 

formulated ditTering rules about how adjudicators should cyaluatc treating source opinions. 

In 1991, we i:.sucd that at1icLIlate how \\'e evaluate {reatll1g source opinions. 

Howe\er, the courts to interpret this rule in conflicting ways. 

The Administrati\e Conference of the Umted States (ACUS) is cllnently studying the 

fUIeS. We have asked ACeS to analy/.e the clTeet of these rules on Federal 

of disability decisions and consider mea:>urcs that we could take to reduce 
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Enclosure - Page 7 - Questions for the Record 

the number of cases remanded to the Appeals Counci1. We have also requested that ACUS 

study the role of the Appeals Council in reviewing cases to reduce any observed variances in 

adjudication. This study will consider issues such as expanding the Appeals Council's 

existing authority to conduct reviews of ALl decisions. We will be happy to work with the 

Subcommittee on this issue. 

While \ve wait for the report from ACUS, the Appeals Council is evaluating the consistency 

of its actions and performing quality assurance reviews. Using these initiatives, we will be 

able to offer training to improve quality and reduce the number of cases remanded from 

district courts. 

II. What is the annual cost of the Appeals Council stage orthe Social Securit)' claims 

process'! \Vhat fraction does this represent of the entire amount spent by SSA on 

adjudicating disability claims? 

For FY 2011, Appeals Council costs were $17'6 million. This amount represents 3 percent of 

the total amount spent on our disability process. 

Despite having a relatively small percentage of the agency workforce, the Appeals Councll 

handles critical functions in addressing the most complex cases pending with the agency and 

performing a variety of other responsibilities to assure quality. Many of the cases pending at 

the Appeals Council involve very difficult and complex issues that were unable to be 

resolved at a lovver level of adjudication. Especially in regards to cases involving 110ndisability issues, the Appeals Council frequently encounters issues that are novel and require 

extensive research. Notwithstanding the complexity of these issues. however, the Appeals 

Council is on pace to meet the FY 2012 processing goal of clearing 80 percent of the cases 

pending over 365 days, and 99 percent of the cases pending over 545 days. Due to 

significant improvements in the process, the Appeals Council has continued to increase the 

number of dispositions. 

For many years, the Appeals Council was not adequately staffed or funded to perrorm its 

oversight responsibilities. and there were significant efforts to eliminate the Appeals Council 

altogether. Reccntly, with additional staffing, the Appeals Council was ablc to impicment 

quality assurance initiatives and improve judicial training, both of which have had a 

substantial positive impact on the agency. By utilizing more of its oversight role, the 

Appeals Council has been instrumental in driving a dramatic decline in programmatic errors, 

unexpected outcomes, and the allO\vance rate, resulting in substantial costs savings and a 

decrease in overpayments to claimants. 

Enclosure 
181 

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182 

Ethel Zelenske 1 


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July 30, 2012 

CONSORTIUM FOR CITIZENS 

WITH DISABILITIES 

The Honorable Sam Johnson 

Chainnan 

Subcommittee on Social Security 

Committee on ·Ways and Means 

U.S. House of Representatives 

Washington, DC 20515 

Dear Chairman Johnson: 

Thank you for your Questions for the Record in [oIlO\v-up to the Subcommittee's June 27, 

2012 hearing on "Securing the Future ofihe Disability Insurance Program" looking at the 

Social Security Disability Appeals Process. 

1. One suggested solution to improve the disability process is to hire Social 

Security Judges who are Administrative Judges like those on the Appeals 

Council, at the Veterans Administration and at the Merit Systems I)rotection 

Board. Another solution is to change the Social Security Act so that the Social 

Security Administration (SSA) can hire Administrative Law Judges (ALJ) 

directly, with term limits, and then give the SSA the authority to discipline them. 

The AL.J union believes that these hearings should be adversarial. "'hat do you 

think about these options and are there any other options you would suggest? 

SSA should continue to use ALJs. We believe that ALJs and their decisional 

independence playa critical role in protecting th~ fights of claimants. A claimant's right to a 

de novo hearing before an ALl is central to the fairness of the SSA 3(ljudication process. This 

right guarantees that individuals with disabilities have a full and fair administrative hearing by 

an independent decision-maker who provides impartial fact-linding and adjudication, free 

from agency coercion or intlucl1Lc. The ALI questions and takes testimony from thc claimant 

and other \vitncsses, and considers and weighs the cvidence, all in accordance with relevant 

law and agency policy, For claimanls. a fundamenlal principle of this right is the opportunity 

to present new evidence to the ALL testify in person beJore the ALl, and receive a decision 

based on all available evidence, 

The critical role that ALJ decisional independence plays in protecting the rights of 

claimants cannot he underestimated. In the early to mid-1980s. the SSA disability claims 

adjudication process \vas in tunnoiL Tn the most detrimental example fC:)f beneficiaries, 

the agency had changed its policy regarding the cessation of disability, As a result, 

between 1981 and 1984, nearly 500,000 severely disabled bendiciaries 'who continued to 

meet the statutory eligibility requirements had their benefits tcnninatcd. Legal advocates 
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represented thousands of individuals in appeals of SSA 's decision to terminate their 

benefits because their disabilities had allegedly "ceased." Many AUs agreed with their 

arguments that the agency's policy was inconsistent with the Social Security Act and due 

process and reversed the tenninatioTl of benefits. Thus. beneficiaries were able to retain 

the cash and medical benellts vital to their well-being. 

There are other examples trom this period of AUs confronting agency policies they 

considered inconsistent with the Social Security Act, including a clandestine policy to 

deny and terminate benefits to tens of thousands of claimants with serious mental illness 

who did not meet the then-outdated Listings of Impailll1ents. SSA no longer follows these 

policies. However, tbe importance of maintaining tile APA-protected AUs in the SSA 

adjudication process was brought to light within the past few years regarding actions at 

the U.S. Department of Justice (DOJ). 

Some federal agencies use non-AUs as adjudicators and their independence, as a general 

rule, is less protected than AUs, for example, Immigration Judges (Us) in the DOJ. The 

process ror selecting Us provides a stark contrast to that for ALJs, since, as noted in a 

recent report by the DOJ Office of Inspector General, the Attorney General of the United 

States has the autbority to manage the selection process and appoint Us. ' The report 

documented an investigation by the DOJ Office of the Inspector General and the DOJ 

Office of Professional Responsibility regarding possible political influence in the hiring of 

Us. 2 

ALls should continue to be selected by the Office of Personnel Management AUs in 

federal agencies are appointed under the Administrative Procedure Act (APA), which 

guarantees their independence hom undue agency int1uence, as demonstrated by the 

following requirements: 

The Office of Personnel Management (OPM) -not SSA - conducts the competitive 

AU selection process. While SSA ultimately appoints AUs, it can only do so from a 

list of eligible candidates created by OPM. 

ALJs can be removed only for '-good cause:' 

Most disciplinary actions may be taken only according to standards and procedures 

established by the Merit Systems Protection Board (MSPB). 

The pay classification system tor AUs is set by OPM, not by SSA, and is separate 

from the agency's performance rating process. 

The process should not be adversarial. The issue of havIng SSA represented at the ALJ 

hearing was raised at a July 2011 House hearing held by this Subcommittee and the House 

Judiciary Subcommitlec on Courts. Commercial and Administrative Law. 1 Agreeing with 

Commissioner Astruc's testimony at that hearing, ,ve do not support proposals to have SSA 

represented at the A LJ hearing. 
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In the 1980s, SSA tested, and abandoned, a pilot project to have the agency represented -

the Government Representation Project (GRP). First proposed by SSA in 1980, the plan 

encountered a hostile reception at public hearings and from Members of Congress and was 

withdrawn. The plan \vas revived in 1982 with no public hearings and was instituted as a 

one-year "·experiment" at five hearing sites. The one-year experiment was terminated 

more than four years later following congressional criticism and judicial intervention.4 

Based on the stated goals of the experiment, i.e., assisting in better decision-making and 

reducing delays, it was a failure. Congress found that: (I) processing times were 

lengthened; (2) the quality of deeision-making did not improve; (3) cases were not better 

prepared; and (4) the govenunent representatives generally acted in adversarial roles. In 

the end, the GRP experiment did nothing to enhance the integrity of the administrative 

process. 

The GRP caused extensive delays in a system that was overburdened, even then, and 

injected an inappropriate level of fonnality, technicality, and adversarial process into a 

system meant to be informal and non-adversarial. 

The longstanding view of the C0U11S, Congress, and the agency is that the Social Security 

claims process is infonnal and non-adversarial, with SSA's underlying role to be one of 

determining disability and paying benefits. Proponents of representing the agency believe 

that SSA is not being fairly represented in the determination process. It is impOltant to 

nole thaI SSA and the claimant are not parties on opposite sides of a legal dispute. SSA 

already plays a considerable role in setting the criteria and procedures for determining 

disability by establishing regulations, Rulings, and other policy guidance; by providing 

more detailed internal guidance for SSA and DDS workers; and by hiring AUs. To 

establish disability. the claimant must lollow the rules set by SSA. 

In the current non-adversarial process, SSA's role is not to oppose the claimant. SSA's 

role is to ensure that claimants are correctly lound eligible if the statutory definition of 

disability, as contemplated by Congress, is met, whether or not a representative is 

involved. AUs, like all adjudicators, have a duty to develop the evidence and investigate 

the facts. Nevertheless, they should view the claimant's representative as an ally in 

collecting necessary and relevant evidence and focusing the issues to be addressed. 

In addition to radically changing the nature of the process, the linancial costs of 

representing the agency at the hearing level would be very high. [n 1986, SSA testilied in 

Congress that the cost was $1 million per year for only five hearings oflices in the Project 

(there currently are more than 140 onices). Also, given that the hearings would be 

adversarial, SSA would be subject to paying attorneys' fees under the Equal Access to 

Justice Act in appropriate cases. 

Given the past experience with govemment representation and the enormous cost, we 

believe that the limited dollars available to SSA could be put to better use by assuring 

adequate stalllng at field offices, at the DDSs, and at hearings olllees, alld developing 

4 In S'alling~ 1'. Howell, 641 f. Supp. 1046 (W.I).Va. 1986), the lederal district court held that {hI.': Proiect 

was tlOCOll::'1itutional and \·iolated the Social Security AL't. In July 1986, it i::.sued an injlmction prohibiting 

SSA from holding further proce~dings nnder the Project. 
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bettcr procedurcs to obtain evidence, including reasonable payment for medical records 

and examinations. 

Other options. We support Agency revicw of AU dccisions in a manner that is L:onsistent 

with the Administrative Procedure Act. \Vhile ALls have decisional independence, they mllst 

follow SSA law and policies. SSA has implemented a quality review process for ALI 

decisions. In FY 2011, the SSA Oftice of Disability Adjudication and Revie\\' (ODAR) 

established a Quality Review (QR) initiative and opened four new Branches in the Office of 

Appellate Operations. The QR Branches revie\v a computer-generated sample of un appealed 

favorable ALl decisions (almost 3,700 in FY 2011) before they are effectuated. Cases are 

then referred to the Appeals Council for possible review. Jfthe Appeals Council accepts 

review, it can remand or issue "corrective" decisions. which may involve changing the 

lavorable ALl decision to a "partially" favorable decision or to an unfavorable decision. 

There also is some post-effectuation review of ALl decisions. \Vhile these ALI decisions 

cannot be changed, post-effectuation review looks for policy compliant:e and can focus on 

ca::.cs where there is a recurring problem and on specific situations. Policy guidance can then 

be provided. 

The Agency could expand its review ofALJ decisions, so long as that expansion is consistent 

with the la\\,. For instance, a significant percentage of claimants, for the most part 

unrepresented. do not appeal their unfavorable ALI decisions. SSA could revie\:\,' a sample of 

these cases to see \vhether these cbimants differ from tho~e who do request review by the 

Appeals Council. It is quite possible that pro se claimants who do not appeal their 

unfavorable ALl decisions are as disabled as those claimants who do appeal. 

Much of the recent media and Congressional scrutiny of variations in ALI decisions has been 

on ALJs \\'ith what are considered "high" allowance rates. Hmvever, there are many ALJs 

with extremely low allowance rates. undoubtedly resulting in "errors," \vhich in many ca::.es, 

are never reviewed. In order to be even-handed, SSA could look at extreme deviations from 

the average on both ends of the "bell curve" for ALJ allowance rates. 

Finally, we \vallt to mention that \ariations in allowance rates are not in and of themselves 

"wrong." We recogniLe that in our system of justice, \vherejudges are human beings, 

variations in favorable decisiol1 rates, whether 111 the judicial or administratiyc process, arc a 

gl\en. 

2. During calendar year 2011, the SSA withheld over $1.4 billion from past due 

benefits to pay representatives their fees. What can Social Security employees do 

to help claimants minimize the need for representatives in the first place'? 

V../e support initiatives to improve the proces') at the initial levels so that the correct decision 

can be made at the earliest point possible and unnecessary appeals can be avoided. 

Jmprovemcnts at the front end of the process can have a significant beneficial impact on 

preventing the backlog and delays later in the appeals proces~. Often, c1aimants are denied 

not because the evidence establishes that the person is not disabled, but because the 

hmited evidence gathered cannot establish that the person is disabled. lnadequate case 

development at the DDS level means that ALJs will need to spend more time rcvie\\ ing cases 

prior to the hearing. This leads to longer processing times at the hearing level. 

4 
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We strongly support full development of the record at the earliest point possible. This 

benefits the claimant and avoids unnecessary appeals, which contribute to the backlog. As 

detailed in our testimony before the Subcommittee, there are a number of ways that SSA 

and the state agencies could improve the process, nOlle of which requires regulatory 

changes: 

Provide more assistance to claimants including: better explanation of the evidence 

that is necessary and relevant to the claim; and assistance with completing application 

papenvork so that all impainnents and sources ofinfonnation, including nonphysician treating sources, are identified. 

DOS examiners should obtain necessary and relevant evidence. The DOSs 

generally do not use questionnaires or forms that are tailored to the specific type of 

impainnent or ask for infot1nation that addresses the disability standard as 

implemented by SSA. This "language" barrier causes delays in obtaining e'oidence, 

even from supportive and well-meaning doctors. 

Electronic records, like paper records, need to be adapted to meet the necds of the 

SSA disability detennination process. Many providers are submitting evidence 

electronicaliy but these records are based on the providers needs and often do not 

address the SSA disability criteria. 

Increase reimbursement rates for providers. To improve provider response to 

requests for records, appropriate reimbursement rates for medical records and reports 

need to be established. Appropriate rates should also be paid for consultative 

examinations and for medical experts who testify at hearings. 

Provide better explanations to medical providers. SSA and DOSs should provide 

belter explanations to all providers. in particular to physician and non·physician 

treating sources, about the disability standard and ask for evidence relevant to the 

standard. 

Improve the qLlality of consultative examinations. Steps shollid be taken to 

improve the quality of the consultative examination (CE) process. There are many 

reports of inappropriate reierrals and short perfunctory examinations. In addition~ 

there should be more effort to have the treating physician conduct the consultative 

examination, as authorized by SSA's regulations" 

Provide more training and guidance to adjudicators. This training and guidance 

should focus on policies that are frequently misapplied, e.g., standards for weighing 

medical evidence, the role of non physician evidence, evaluation of subjective 

symptoms, etc. 

Expand use of existing methods of expediting disabil1ty determinations. SSA 

already has in place a number of procedures including "'Quick Disability 

iJetenninations."' Presumptive Disability" in SSl cases. Compassionate Allowances, 

and terminal illness ("TERI"') cases. 

3. Last December, the Wall Street .Iou mal wrote an article entitled "Two 

Lawyers Strike Gold in U.s. Disability System." The a,·tiele is about the law firm 

of Binder and Binder, which collected $88 million in fees, all paid from awarded 

claimant benefits. Is it true that the longer it takes to get a decision for a 

'20 CF.R. § 404.151911 and 416.91911. 
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claimant, the higher the representative's fcc will be? What would happen if legal 

fees were fixed at some nominal amount per case'! 

Providing that claimants' representatives \~..:i1l be paid a fee for successful v ... :ork on a 

claimant's behalf helps to ensure that a knowledgeable, experienced pool of 

representatives is available to represent claimants. 

The fee process for representatives in Social Security claims is highly regulated. Under 

the most frequently used "fee agreement" process (described below), there is a cap on the 

amount offees. In addition, a user fee is charged when SSA withholds and pays the fee 

($86 per case in calendar year 2012) . 

• Fees at the administrative levels. Fees for representatives' services must be approved 

by the Social Security Administration. The Act sets out the two processes from which 

representatives can choose. 42 U.S.C. § 406(a). The processes are mutually exclusive.' 

(1) The fcc agreement process. Most representatives choose to use the fee agreement 

process. Fees are 25% of past-due benefits or $6,000, whichever amount is smaller. The 

statute gives claimants and adjudicators the opportlmity to object to the amount ofthe fee. 

The statute does permit representati\'es to seek permission to charge more than $6,000 

under the fee petition process, but this happens rarely. 

(2) Tlte ree petition process, Some representatives will choose to use the fee petition 

process. They submit time records along with their fee requests. 111 fee petition situations, 

the adjudicator will set the fcc in each individual case . 

• Fees at the federal court levels. In federal court, fees in Social Security cases are 

regulated pursuant to 42 U.s.c. § 406(b). They must be contingent. and they are set by the 

federal judge. 

Ifan AU believes that a representative has acted contrary to the interests of the 

client/claimant, remedies exist to address the representative's actions. SSA's current 

"Rules of conduct and standards of responsibility for representatives" set both affirmative 

duties and prohibited actions. For example, the Rules require representatives to act \vith 

"reasonable diligence and promptness in representing a claimant" and "provide competent 

representation to a claimant." A representative may not "'[tJhrough his or her own actions 

or omissions, unreasonably delay or cause to be delayed, without good callse ... the 

processing of a claim at any stage of the administrative decisionmaking process." 

The Rules or Conduct establish a procedure lor handling violations, which can result in 

suspension or disqualification from practice before the SSA. 20 C.F.R. §§ 404.1740 and 

416.1540. If a representative acts to unreasonably delay the proceedings against the 

6 At the hearing, Professor Pierce 5t,lted that fees in VA casl:s are limited to $10.00. That ~tatemenl wa~ true 

until 2006 \Yhen enacted legislation that became dlectiye in 2007 to omend the tee structur~. 

Since 2007, fees in cases are tested for ··reasonabkness." fees are 20%, Ofpu5l-due benefits if the 

representative asks for withholding and direct payment. See 3R u.s.c. ~ 5904; 38 C.F.R. ~ 14.636(h). 

Unlike Social Security and SSI claims, there is no cap in VA cases. If the representative docs not ask for 

withholding and din:ct payment. the fc(; must meet the test t()r "reasonableness'·; there i& no cap. See 38 

C.F.R. § 14.636(1') 

6 
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claimant's interests, we believe that it is rare and unjustifiable. But SSA has the tools to 

penalize a representative for this behavior. In addition to the SSA Rules of Conduct, 

attorneys are subject to the Professional Rules of Conduct of their respective State Bars 

and, ultimately. could be sanctioned, leading to the suspension of the right to practice law. 

4, Why are lawyers needed to assist claimants? Could law school clinics and 

Jegal services provide representation to claimants? 

Claimants' representatives, both attorneys and nonattomeys. play an important role in 

assisting claimants for Social Security and SST disability benefits. 

The Social Seemit} Administration's disability detennination system is a complex, multilevel process. Appealing the denial of an application for disability benelits can be a 

dawlting task for anyone who does not have experience with the process, but for 

individuals who are in poor health or disabled, the procedural hurdles that must be cleared 

in order to obtain disability benefits can seem insurmountable. As a result, many 

individuals applying for Title II or SSI disability benefits choose to obtain a representative 

to help with the appeal. 

It is not surprising that individuals seek representation. given the individual challenges in 

each case and the undeniable importance of the outcome. Exactly why a claim has been 

denied is frequently a mystery to the claimant who receives an initial dental notice. 

Claimants often have been out ofwark for many months and have 110 income other than 

the financial support they receive from their friends, family, or non-profit organizations. 

Most have no health insurance and cannot pay for the medical treatments necessitated by 

their disability. They also understand that their family's wellare may be dependent on 

receiving disability benetits and the accompanying Medicare or Medicaid health insurance 

coverage. 

The ability to have an experienced professional provide legal assistance is certainly 

valuable for claimants. SSA's own statistics show that claimants who are represented have 

a significantly higher allowance rate at the hearing level than claimants who do not have 

representation. Given the importance of representation, the Social Security Act requires 

SSA lO provide inforrnation on options for seeking representation, \vhenever the agency 

denies a claimant's application for benefits 7 

Most representation occurs at the hearing leveL A major reason is that it is only at that level, 

after the request for hearing is tiled, that claimants arc given concrete information regarding 

local and national resources to contact. However. many claimants' representatives represent 

claimants prior to the hearing level, by helping them file their applications, oblain medical 

evidence in support of the application, and assist in appealing if their applications are denied. 

We believe the main reason lor the higher allowance rate ofrepresented claimants is due 

to the assistance of a knowledgeable representative who is familiar with the sequential 

evaluation process set forth in the regulations and Social Security Rulings. The 

representative marshals evidence from doctors and hospitals, other treating professionals 

'42 US.C. §§ 406«) and 1183(d)(2)(D). 

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(e.g., therapists, social workers, nurse practitioners), school systems, vocational testing 

centers, previous employers, and others who can shed light on the claimant's entitlement 

to disability benefits. 

These trained and experienced representatives can also thoroughly examine vocational 

and medical witnesses during the hearing before the Administrative Law Judge (ALJ). 

These are daunting tasks for pro se claimants, especially when we consider that they are in 

poor health and many onen have only a limited education. 

Experienced representatives also are a valuable resource for SSA by helping to streamline 

the disability determination process. Altome),s and other representatives routinely explain 

the disability determination process and procedures to their clients with more specificity 

than SSA. In addition. they ensure a more efficient system by developing an accurate and 

complete medical and vocational record and presenting the sllpporting documentation and 

statements that the adjudicators require for a lull and fair evaluation of the claim. Onen. 

the evidence obtained by representatives and the legal briefs they prepare on behalf of 

their clients contain the requisite evidence to support a finding of disability by an AU 

without the necessity of a hearing, thereby saving time and expense for both the Social 

Security Administration and the claimant. 

Legal services and law school clinics cannot provide wide-scale representation to 

claimants. Legal services programs provide civil legal assistance to low income 

individuals. Funding to local legal services programs has been reduced drastically, 

despite the fact that those eligible for services has increased signitlcantly. Between FY 

2010 to 2012, federal funding was reduced by 18 percent and is now at the same level as 

in FY 2007. even tbougb the population eligible for services bas grown by more than 15 

million people since 2007. In addition, funding from state and local government 

appropriations and private donations has decreased. As a result of the funding reduction, 

legal services around the program are experiencing significant reductions in staffing and 

operations, inclllding ofTice closures.!-i Local legal services programs rely on private 

attorneys and non attorneys to represent claimants in Social Security and SSI disability 

claims. That allows the programs to allocate their limited resources to areas where there 

are no options available. 

Law school clinic programs do provide limited representation to claimants. However, that 

represenlation is not extensive and cannot substitute for representation by claimants' 

representatives who practice in this area: Not all law schools have clinical programs: even 

ifthey have programs, they may not represent individuals in Social Security and SSI 

cases; law schools are not located in widespread geographic areas; and clinic programs 

may be limited by the academic year. 

5. Earlier this year, the agency established a new policy of not identifying tbe 

ALJ who would be holding the hearing until the day ofthe hearing because 

representatives ,"yere declining hearings before certain ALJs. According to the 
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Social Security Inspector General, declined hearings create processing delays and 

extra work for the hearing office staff. Why would your mem bers decline or even 

cancel hearings for claimants who have been waiting in line to be heard'! 

Claimants' representatives are encouraged to seek postponements as infrequently as 

possible because of the length of time claimants must wait for a hearing date and because 

of the potential disruption to the overall hearings process. However, there are 

circumstances when a postponement is necessary to adequately represent the claimant. 

One of the main reasons that a representative may seek a postponement of a scheduled 

hearing is when the claimant seeks and obtains representation shortly before the hearing or 

after receiving the hearing notice. frequently fewer than 20 days before the hearing date 9 

Based on the experience of representatives, this is not an unCOlllmon occurrence since the 

AU hearing is the claimant"s lirst in-person contact with an adjudicator. It should be 

noted that the current regulations state that a good reason for requesting a postponement is 

when the representative is appointed within 30 days of the scheduled hearing date and 

needs additional time to prepare. J() 

Under this circumstance) whether a representative and claimant decide to proceed with the 

scheduled hearing or request a postponement wi 11 normally depend on the quality of the 

records already in the hearing record file. After representation is obtained. the 

representative will need time to review the Hie in order to formulate legal arguments and, 

most importantly, develop additional evidence. fffurther evidence is needed to fully 

develop tile claim, which is typically tile case, tllen additional time will be required to 

request and obtain the records and other infonna11on. 

The other most frequent rcason for requesting a hearing postponement is that the claimant 

is ill or hospitalized. SSA'5 regulations require the AU 10 reschedule the hearing in this 

circumstance. I I Other reasons for requesting a postponement include: 

Serious illness or death ofa family member. 

Lack of transportation to the hearing site. This is a problem not only in urban areas 

where there is mass transportation but the claimant lacks funds to pay the fare, but also 

is a problem for claimants who reside in rural areas and small towns and must travel 

some distance to a hcaring sitc. 

The claimant is homeless or is being evicted. 

The representative has a scheduling conflict. 

The claimant cannot be located. 

SSA 's regulations l~ provide a nonexhaustive list of reasons, including many listed above, 

tor requesting that the hearing be rescheduled. 

Factors considered by representatives in deciding whether to seek a postponement include: 

o Under curren1 regulations (in all aren~ orthe country e:\ct!pt for SSA Region 1), only a 20-day notice is 

required. 20 C.F.R. 9~ 404.938(3) and 416.143R(u). 

"20 C.F.R. ~§ 404.936(t)(2) and 416.1436(1)(2). 

"20 C.F.R. §§ 404.9361,)11 land 416.1436(cl(l l. 

u20 C.F.R. j\ 404.936 and 4 \6.1436. 

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The length of time the claimant has waited for a hearing. 

The claimant's medical condition. 

The claimant's financial situation. 

Whether further development is needed. 

The impact on the system. 

What the client/claimant wishes to do. 

Decisions will not necessarily depend 011 a single factor but wi II involve a discussion with 

the claimant. Ultimately, the decision rests with the client, after the benefits and risks 

have been explained. 

6. Do claimant's representatives present all evidence to ALJs, including evidence 

that might not be supportive of an aUowance? 

Under current regulations, a claimant is reguired to disclose material facts in his or her 

claim lor benetlts and to prove disability.l., This duty extends to the representative under 

SSA's "Rules of conduct and standards of responsibility for representatives.',14 We 

belIeve that the current regulations regarding the duty or claimants and representatives to 

submit evidence work well, especially when combined with the duty to inform SSA of all 

treatment received. 

A requirement to provide "all" evidence may connict with state bar ethics wles \vhich 

limit the submission of evidence that could be considered adverse to a client. In every 

state. attorney representatives are curt'entiy bOWld by state bar rules that forbid an attorney 

from engaging in professional conduct involving dishonesty, fraud, deceit. or wi11fi.II 

misrepresentation. SSA's Rules of Conduct for all representatives impose similar 

prohibited actions." 

7. Why do claimants need four levels of appeal? Why is the record not 

developed more fully earlier in the process'? 

Eliminate reconsideration, for many years, the CCD Social SccW'ity Task force has 

been on record as supporting elimination of the reconsideration level and providing more 

time and effort to better develop disability claims at the initial level. As long ago as May 

1994, in response to SSA's "reengineering" proposal, 16 the Task Force submitted 

comments in favor of eliminating reconsideration, while urging SSA to "collect the 

correct information at the earliest possible time in the process to ensure that correct 

decisions are made the first time. SSA must improve the collection of medical and 

nonmedical evidence by explaining what is needed and asking the correct questions, with 

appropriate variations for different sources." 

13 20 c.r.R. ~9 404.15 J 2la) and 416.912(a). 

"20 C.'.R. s! 404.1740(hl( 1) and 416.1540(h)( I l. 

15 SSA previously propo:.e-d adding a requirement 20 c.r.R. §.::;> 404.1SI2(a) and 416.912(a) thaL the claimanl 

tlubmit all cvidencl.' "ayailablc to you." 70 Fed. Reg. 43590 (July 27, 2005). This propotlcd change was 

rejectc:d when the final rule \.vas published. 71 Ft'"d. Reg. 16424 (Mar. 31, 2006). 

1"59Fcd.Reg.181Sk(Apr.15,1994). 

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These comments, made 18 years ago, still remain true today. While the 1994 

reengineering proposal was not implemented, it seems to have evolved into a ten-state 

prototype, which eliminates reconsideration. The prototype was announced in 1999 and 

started in October 2000. It continues in those ten states and was recently extended into 

September 2013. 17 

Over the years, the Task Force has continued to support elimination of the reconsideration 

level. We have stated many times in testimony before this Subcommittee" and in 

comments to SSA that elimination of reconsideration with better development of evidence 

and some type of pre-decision contact with the claimant will create a more streamlined 

process and better serve individuals with disabilities applying for benefits. 

Retain claimant-initiated review by the Appeals Council. We recommend retention of 

a claimant's right to administrative review of an unfavorable ALJ decision. The Appeals 

Council currently provides reherta over twenty percent of claimants \\/ho request review, 

either through outright reversal or remand back to the AU. While the vast majority of 

Appeals Council actions arc remands back to the hearing level, claimants clearly benefit 

from Appeals Council review - over 60 percent of remands result in favorable decisions. 

The Appeals Council has made significant improvements in reducing its backlog and 

processing times. When it is able to operate properly and in a timely manner, tbe Appeals 

Council provides claimants with effective review of ALJ decisions_ A major basis Cor 

remand is not the submission of ne\v evidence, but rather legal errors committed by the 

AU, including the failure to consider existing evidence according to SSA regulations and 

policy, the failure to apply correct legal standards, and the failure to follow procedural 

requirements. By providing relief in these cases, the Appeals Council allows the 

Commissioner to rectify errors administratively. rather than relying on review in the 

federal courts. The Appeals Council can act as an effective screen between the AU and 

federal court levels and prevent a significant increase in the courts' case loads. 

In addition, the procedure to request review is relatively simple. SSA has a one-page form 

that can be completed and tiled in any Social Security office, sent by mail or faxed. In 

contrast, the procedure for tiling an appeal to federal district court is much more 

complicated and, unless waived, there is a filing fee, which may be cost-prohibitive for a 

claimant. Under the current process, there is a large drop-off in appeals from the Appeals 

Council to federal court. TIlcre are a number of factors contributing to this lower rate of 

appeal, including the fact that some attorneys do not take cases to federal court; some 

representatives are not attorneys; many attorneys do not take cases to federal court if they 

did not represent the claimant at the hearing: and pro se claimants are intimidated by the 

process. As a result, having an administrative mechanism to corrcct injustices is essential. 

P77 fed. Reg. 35464 (June 13, 2012). 

I~ For a more Jetailed discussion of our reasons supporting the elimination of reconsideration. see 

Testimony of Nancy G. ShOT, On Bchalfofthe ceD Social Security Task Force, "Joint Hearing on Social 

Security Disability Claims 13acklog::.," HOllSC \~iays and Means Subcommittees on Income Security and 

Family Support (now the Human Rcsourcc~ SuhcnmmiU>.!e) and on Social Security, April '27, 2010. 

II 
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\Vhy evidence is not developed earlier in the process. The answer to question two 

addresses gaps in collection of evidence earlier in the process and recommendations for 

\vays to improve the process. 

8. What are your views on the efficacy and fairness of video hearings? 

Video hearings allow ALJs to conduct hearings without being at the same geographical site as 

the claimant and representati\"c and ha\"e the potential to reduce processing times and inercase 

productivity. \Vc support thc usc ofvidco hearings so long as the right to a full and fair 

hearing is adequately protected; the quality of video hearings is assured; and the claimant 

retains the absolute right to have an in-person hearing as pro\"ided under current regulations III 

and SSA policy. 

fhe claimant makes the ultimate decision whether to accept the video hearing. In general. 

representatives report that video hearings are usually accepted, primarily because they lead to 

faster adjudication. However, there are a number of reasons \vhy a claimant may decline and 

choose to exercise the right to an in-person hearing, e"g" the claimant's demeanor is critical 

(e.g., respiratory impairments, fatigue caused by impairment); the claimant has a mental 

impairment with symptoms of paranoia; the claimant has a hearing impairment. 

Several years ago, SSA e~tablished National Hearing Centers (NHCs) to help reduce the 

hearings backlog. Cases are transferred from "brick and mortar" hearing office::. to the five 

NHCs, where hearings are handled exclusively by video. If claimants exercise their right to 

an in-person hearing, the claim is transferred back to the geographic hearing office \vhere a 

local ALJ "vill hear the case, Ho\vever, \\ e have recently heard that NHC ALJs, in some cases, 

will tra\·el to the local hearing offices to heal" cases in person. 

The Representative Video Project (RVP) is another initialive that has been imtilUlcd Io help 

reduce the disability claims hacklog. Undcr RVP, the reprcsentative purchases video 

equipment that allows the claimant and representative to be in the representative's ofl1ce with 

Iht: ALJ in a hearing office location, 

9. What are the pros and cons of closing the record either just before the hearing or 

at the close of the hearing before an ALJ issues a decision? 

Closing the record betore the hearing or at the close of the hearing before the AU issues a 

decision conOiets with the goal of ensuring that there is a complete record, especially 

since the evidence provided may be valuable and probative in detennining disability. 

There are many legitimate reasons. often beyond the claimant's or representative)s 

control, why evidence is not submitted earlier and thus why closing the record or creating 

unreasonable procedural hurdles is not beneficial to claimants" We have many concernsboth legal and practical- if the record is closed at any point before the AU issues a 

decision. which is the current rule. 

"20 C.F.R. '~404.936 and 416.1-136. 

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Closing the record before the hearing is inconsistent with the Social Secnrity Act. 

The Act provides the claimant with lhe right to a hearing with a decision based on 

"evidence adduced at the hearing."'" Current regulations comply with the slatute by 

providing that "at the hearing" the claimant "may submit new evidence.'·~l 

Closing the record is inconsistent with the realities of claimants obtaining 

representation. As discussed above in the response to question 5. many claimants seek 

and obtain representation shortly before. or even aller, the ALI hearing date. Many 

claimants do not understand the complexity of the rules or the importance of being 

represented until just before their hearing date. Many are overwhelmed by other demands 

and priorities in their lives and by their chronic illnesses. As a practical matter, when 

claimants obtain representation shortly before the hearing, the task of obtaining medical 

evidence is even morc difficult. 

Closing the record is inconsistent with the realities of obtaining medical evidence. 

We strongly support the submission of evidence as early as possible, since it means that a 

correct decision can be made at the earliest point possible. However, representatives have 

great difficulty obtaining necessary medical records due to circumstances beyond their 

conO'ol. TI,ere are many legitimate reasons why the evidence is not provided earlier. 

There is no requirement that medica! providers tUlll over records within a set time period. 

In addition, cost or access restrictions may prevent the ability to obtain evidence in a 

timely way. 

Another factor, often outside the claimant's control, is the problem with obtaining records 

and infom1ation from medical sources. Legitimate reasons why evidence is not submitted 

earlier include: 

DDS examiners fail to obtain necessary and relevant evidence. FU11her, the DDSs do 

not use questionnaires or forms that are tailored to the specific type of impairment or ask 

for infonnation that addresses the disability standard as implemented by SSA. Witnesses 

at the Compassionate Allowances hearing noted this "language" barrier and how it causes 

delays in obtaining evidence, even from supp0l1ive and well-meaning doctors. 

Neither SSA nor the DDS explains to claimants or providers \vhat evidence is 

important, necessary and relevant for adjudication of the claim. 

Claimants are unable to obtain records either due to cost or access restrictions, 

including confusion over HlPAA requirements. We have heard from representatives that 

medical providers have different interpretations of H I PAA requirements and as a result 

require use of their own forms f," authorization to disclose information. Frequently, if the 

medical records staff finds a problem with the request for infonnation, e.g., it is not 

detailed enough or a difTerent release form is required, the new request goes to the end of 

the queue when it is resubmitted. 

Claimants ... and many representatives ... also face difficulties accessing medical evidence 

due to the cost charged by providers. Medical facilities often require upfront payment for 

US.c. \ 4U5Ib)(l). 

20 C.F.R. !t 404.929 and 416.1429. 

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medical records, which many claimants cannot afford. Some states have laws "hich limit 

the charges that can be imposed by medical providers~ however, many states have no 

limits. And "hi Ie some representatives have the resources to advance the costs for their 

clients, some representatives and many legal services organizations do not. 

Medical providers delay or refuse to submit evidence. Disability advocates have noted 

that requests for medical evidence are given Imv priority by some providers. The primary 

reasons are inadeql13te reimbursement rates and lack of staff in non-direct care areas, such 

as medical records. Despite extensive efforts by representatives, sllch as hiring s1aff 

"hose sole job is to obtain medical evidence, numerous obstacles and lengthy delays are 

still encountered in a significant number of cases. Even those representatives who have 

staff solely dedicated to obtaining medical evidence encounter problems. 

Reimbursement rates for providers afC inadequate. 

Closing the record is inconsistent with the realities of claimants' medical conditions. 

Claimants' medical conditions may worsen over time and/or diagnoses may change. 

Claimants undergo new treatment. are hospitalized, or are referred to ditTerent doctors. 

Some conditions, such as multiple sclerosis, autoimmune disorders or certain mental 

impairments, may take longer to diagnose definitively. The severity of an impamnent and 

the limitations it causes may change due to a worsening of the medical condition, e.g., 

what is considered a minor cardiac problem may be understood to be far more serious 

after a beait attack is sutTered. [t also may take time to fully understand and document the 

combined efTects of mUltiple impainnents. Fuither, some claimants may be unable to 

accurately cuiiculate their own impairments and limitations, either because they are in 

denial, iackjudgment, simply do not understand their disability, or because their 

impairment(s), by delinition, makes this a very difficult task. By their nature, these claims 

are not static and a finite set of medical evidence does not exist. 

Also, as with some claimants who seek representation late in the process, their disabling 

impairments make it difficult to deal with the procedural aspects of their claims. 

Claimants may have difficulty submitting evidence in a timely manner because tiley are 

too ill, or are experiencing an exacerbation, or are simply ovenvhelmed by the demands of 

chronic illness, including the time and logistical demands of a caregiver or advocate to 

help submit evidence. 

Current law sets limits for submission of new evidence after the ALJ decision is 

issued and these rules should be retained. Under current law, an AU hears a disability 

claim de 1101'0. Thus, new evidence can be submitted and will be considered by the AU in 

reaching a decision. However, the ability to submit new evidence and have it considered 

becomes more limited at later levels of appeal. 

At the Appeals Council level, new evidence will be considered, but on(v if it relates to the 

period before the AU decision and is "new and material."" While the Appeals Council 

remands about one-fouith of the appeals filed by claimants, it is impoitant to note that a 

major basis for remand is not the submission of new evidence, but rather legal errors 

22 20 C.F.R. §§ 404.970(0) and 416.1470(0). 

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committed by the ALJ, including the failure to consider existing evidence according to 

SSA regulations and policy and the failure to apply the correct legal standards. 

At the federal district court leveL the record is closed and the court will not consider new 

evidence. Under the Social Security Act," there are two types of remands: 

(1) Under "sentence 4" 01'42 U.s.c. § 405(g), the court has authority to "aflinn, 

modifY, or reverse" the Commissioner's decision, with or without remanding the case; and 

(2) Under "sentence 6," the court can remand (a) for further action by the 

Commissioner where "good cause" is shown, but only before the agency files an Answer 

to the claimant's Complaint; or (b) at any time, for additional evidence to be taken by the 

Commissioner (not by the court). but only if the new evidence is (i) "new" and (ii) 

'''material'' and (iii) there is "good cause" for the failure to submit it in the prior 

administrative proceedings, 

While there is a fairly high remand rate at the court level, the vast majority of court 

remands arc not based on new evidence. but are ordered under "sentence 4," generally due 

to legal errors committed by the AU. Because courts hold claimants to the stringent 

standard in the Act, remands under the second part or "sentence 6" for consideration of 

ne\v evidence submitted by the claimant occur very infrequently. 

On the otllcr hand, remands under the first patt of "sentence 6" occur w1th some 

frequency. In these cases, SSA may move for a voluntary remand before it has filed an 

Answer to the claimant's Complaint because a me or hearing tape is lost and the 

administrative record cannot be completed. Or, SSA may reconsider its position on the 

merits of the case, realizing that the Commissioner's final administrative decision is not 

defensible in court. 

to, What more can be done to ensure deserving claims are awarded as early in 

the process as possible, specil1cally at the State Disability Determination Services 

level? 

Ask discussed in our response to question 2, CCD SUppOlts initiatives to improve the 

process at the initial levels so tbat the correct decision can be made at the earliest point 

possible and unnecessary appeals can be avoided. improvements at tbe front end of the 

process can have a significant beneficial impact on preventing the backlog and delays later 

in the appeals process. 

Screening Initiatives, We support SSA's etIOl1s to accelerate decisions and develop new 

mechanisms for expedited eligibility throughout the application and review process. We 

encourage the lIse of ongoing screening as claimants obtain more documentation to 

support their applications. However, SSA must work to ensure that there is no negative 

inference when a claim is not selected by the screening tool or allowed at that initial 

evaluation. Initiatives include: 

"42 lJ.S.c. § 405(g). 

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Quick Disability Determinations. We have supported the Quick Disability 

Detemlinalion (QDD) process since it flrst began in SSA Region I states in August 2006 

and was expanded nationwide by Commissioner Astrue in September 2007. The QDD 

process has the potential of providing a prompt disability decision to those claimants who 

are the most severely disabled. Since its inception, the vast majority of QDD cases have 

been decided favorably in less than 20 days, and sometimes in just a tew days. 

Compassionate Allowances. This initiative allows SSA to create "an extensive 

list of impairments that we r.SSA] can allow quickly with minimal objective medical 

evidence that is based on clinical signs or laboratory findings or a combination or 

both .... " SSA published an initial list of 50 conditions on its website. There are currently 

113 conditions on the list, with 52 to be added in August 2012. Unlike the QDD 

screening, \vhich occurs only when an application is filed, screening for compassionate 

allowances can occur at any level of the administrative appeals process. SSA has held 

seven Compassionate Allowance outreach hearings with expctt panels to consider 

additional impairments including autoimmune disorders, schizophrenia, early onset 

Alzheimer's Disease, and cardiovascular disorders. 

Improve development of evidence earlier in the process. ln testimony for this hearing 

and many previous hearings, CCD has made a number of recommendations to ensure that 

disability claims are properly developed at the beginning of the process. Claimants' 

representatives are often able to provide evidence that we believe conld have been 

obtained by the DOSs earlier in the process. Our recommendations include: 

Provide more assistance to claimants at the application level. At the beginning 

ofthe process, SSA should explain to the claimant what evidence is important and 

necessary. SSA should also provide applicants with more help completing thc 

application, particularly in light of electronic filings, so that allil1lpairments and sources 

of information are identified, including non-physician and other professional sources. 

ODSs need to obtain necessary and relevant evidence. Representatives often 

are able to obtain better medical infomlation because they use letters and fonns that ask 

questions relevant to the disability determination process. However, DDS fomls usually 

ask for general medical information (diagnoses, tindings~ etc.) without tailoring questions 

to the Social Security disability standard. One way to address this would be for SSA to 

encourage DDSs to send Medical Source Statement forms to treating and examining 

doctors. These simple forms translate complex, detailed medical source opinions into 

practical functional terms useful to the vocational professionals at DOSs and hearing 

offices. 

Increase reimbursement rates for providers. To improve provider response 10 requests 

for records, appropriate reimbursement rates for medical records and reports need to be 

established. Appropriate rates should also be paid for consultative examinations and for 

medical experts. 

Provide better explanations to medical providers. SSA and DDSs should provide 

better explanations to all providers, in particular to physician and non-physician treating 

sources, about the disability standard and ask for evidence relevant to the standard. 

16 
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Ethel Zelenske 2 


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July 30, 2012 

CONSORTIUM FOR CITIZENS 

WITH DISASlLITIES 

The Honorable Xavier Becerra 

Ranking Member 

Subcommittee on Social Security 

Committee on Ways and Means 

lJ. S. House of Representatives 

Washington, DC 20515 

Dear Ranking l'vlember Becerra: 

Thank for your Question for the Record in fi:)llow-up to the Subcommittee's June 27, 2012, 

hearing on "The Social Security Di~ability Appeals Process." 

"'hat is your perspective on some of the proposals made by Professor Pierce in his 

testimony - such as revising the ALJ discipline process, eliminating non-exertional 

impairments as a basis for qualifying for benefits, and eliminating appeals before an 

ALJ? Would these require statutory changes'! 

As discussed below, we do not agree with Professor Pierce's proposals. In addition, we do 

believe thJt each of these proposals would require statutOl)' changes. 

-W'e also would like to point out that most of the proposals in Professor Pierce's testimony 

previously appeared in a recent article he wrote in the FaIl20ll issue ofthc Cato Institutes 

Regulation magazine, I An Issue Brief: written in response to Professor Pit:rce's article by 

two Professors of Law, responds to hi~ propoSJls and explains how his sol utions arc 

misguided,2 

I. The ALJ discipline process should not be re\·ised. We believe that AUs and their 

decisional independence playa critical role in protecLing the rights or claimants. A claimant's 

right to a de 110m hearing before an ALJ is central to the fnimess of the SSA adjudication 

process. 

1825 K Sli'e,~t, NW Sl.liti~ 1200· \N:a~;hing:on, DC .20006· PH 202/7$3·2229· FAX 783·8250' kl1c@c·(;·d OI"~J. WWW.c··c··d org 
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AUs employed by SSA should continue to be appointed under the Administrative Procedure 

Act (APA). like other federal agency ALls, which guarantees their independence !fom undue 

agency influence: (1) The Office of Personnel Management (OPM) - not SSA - conducts 

the competitive AU selection process, with SSA able to appoint ALis from a list of eligible 

candidates created by OPM (2)ALls can be removed only for "good cause"; (3) Most 

disciplinary actions may be taken only according to standards and procedures established by 

the Merit Systems Protection Board (MSPB); and (4) The pay classilication system for ALis 

is set by OPM, not by SSA, and is separate from the agency's performance rating process. 

We believe that adopting a proposal that allows SSA to have a separate register or that 

eliminates the use of ALJs poses the most danger to lnfringing, or being perceived as 

infringing, ALl independence and impairing the fairness of the process. 

2. Non-exertional impairments should not be eliminated as a basis for qualifying for 

benefits. The Social Security Act and SSA regulations require that all impairments, both 

physical and mental, be considered in determining disability3 All impairments must be 

supported by clinical and objective medical evidence, 

In his testimony, Professor Pierce mistakenly states that a mere diagnosis of mental illness 

and/or pain is sufficient to support a claim for disability. Any medically detelminable 

impainnent, whether physical or menta!, must be of the requisite severity to meet the 

disability standard. As noted in the Issue Brief\vritten in response to Professor Pierce's 

proposal, which appeared previous1y in Regulation magazine: 

The Social Security Act and agency regulations require that all impairments be supported by 

appropriate clinical and objective methodologies. [Professor] Pierce confuses and mislabels 

T1uIlt::xt::rlionai !imiLalion~ and impairm~TlLs a~ t:ntin::!y ~ubje\;li\'t:: cmu unuOl:umenlabk in 

contrast to exertional conditions. This contrast is falsely drawn. NonexertionallimitatioTls can 

he objectively and clinica!!y evaluated; exertionallimitations and impainnents can be 

supported by subjective symptomatology.'" 

After discussing how hoth exertional and nonexertional impairments and limitations are 

documented under current law and agency policy, the authors conclude: "In short [rrofessorl 

Pierce's assertion that a claim for disability benefits for claimants with mental impairments or 

pain may neither be refuted nor supported through accepted diagnostic criteria and professional 

evaluation i:) erronl':Olls.,,5 

3. Appeals before ALJs should be retained. We disagree \.\'illl Professor Pierce's 

recommendation to "eliminate the role of ALJs in the disability decision making process." 

As discussed above. AL.ls playa critical role in protecting the rights of claimants. /\. claimant's 

right to a de novo hearing before an ALI is central to the fairness of the SSA adjudication 

process. This right guarantees that indiyiduals \vith disabilities have a full and fair administrative 

hearing by an independent decision-maker who provides impartial fact-finding and adjudication. 

free from agency coercion or influence. The A LJ questions and takes testimony fi'om the 

; 42 U,S.c. § 423(d)(II(A); 20 ('FR. § 404. 1 505(a)("" 

by reason of any medically detel111inahlc physical 

~ Dubin an,d Rains, SllJ~n7 note 2, at 7 (footnote ()!1littcd) 

Jd al9 (Ioolnote omlUed). 

2 

in any substantial gainful actiyily 
201 

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202 

The Honorable D. Randall Frye 


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MLJ A$S(lC1ATlON 01' 

ADM1NlSTMTlVI 

LAW)U .' 

July 30, 2012 

The Honorable Sam Johnson, Chair 

Subcommittee on Social Security 

U.S, House of Representatives 

Longworth House Orrice Building 

Washington, D.C. 20515 

Dear Congressman Johnson, 

624 Chestnut Ridge Road 

Kings Mountain, ~C 28086 

rry~ly{q}1iol.com 

This is in response to your July 17, 2012 letter in which you request that the Association of 

Administrative Law Judges respond to various issues regarding the disability adjudicatory system at 

the Social Security Administration. The role orthe federal administrative judiciary to insure due 

process to litigants and to bring justice to the American people is as vital and impOIiant today as it was 

when these administrative judicial positions were created with the enactment of the Administrative 

Procedure Act in 1946. Please accept ollr appreciation for the OPP0l1unity to address the questions 

you raise. 

The responses set fOith belo" are in the nLlmerical order as presented in your July 17 letter. Please 

note, however, that there are two "'number live" questions in your letter; thus, our rcply includes two 

"number five" responses. 

Your questions reflect the fundamental impoltance of evaluating whether a new direction for disability 

adjudication is warranted. The members of the Association of Administrative Law Judges (AA.LJ) are 

keenly aware of the critical nature of your inquiry on behalf of the Social Security SuhcommiHcc as 

atfecting the potential course of such adjudications. My responses, made after deliberation \vith my 

colleagues ~ who arc learned jurists with long and distinguished careers, as federal administrative law 

judges. f()fmer state judges, and in some cases. former federal judges as well as former attomcys with 

exemplary careers in private and corporate practice as well as government and military service - are 

intended as objective responses to your questions. We do not seek to fUlther our own interests to the 

exclusion of what the "right" thing is that \\ie must do. Our response to these critical questions focuses 

on what we believe is required to insure justice and due process for the American people. We 

recognize that good people - people who have the best interests of the American p(Oople in their hearts 

- who work in many different positions, v-.'hether they be legislators, judges, administrators, lawyers 

and representatives in private practice or govemment service. must all come together as a 'brain trust' 

of invaluable experience and insight, and in so doing, strive to achieve a lasting solution to the issues 

before us, as did the framers of the Administrative Procedure Act. 
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OUf responscs~ which follo\\ in dctail bclow~ arl: not intended to stake out political positions or stand 

as challenges. Instead, we offer what we hope are answers which shed light on the pathway before us 

and that will provoke meaningful discussion. 

We ask that you consider our responses in the spidt in which they are offered. This is not a contest 

bet\veen 'bureaucrats' and judges and should not be a question of control or even of political 

persuasion, but of what is 'right' in contemplation of aUf collective history and our ideals as 

Americans. In responding, ,ve invoke this high standard. The Constitution yet stands as our guiding 

light~ a shining beacon once thought shrouded in the days before the passage of the Administrative 

Procedure Act. We are all in this together; and nothing less than the hopes, dreams and ideals of the 

American people are at stake. 

Question One. 

1. One suggested solution to improve the disability process is to hire Social Security Judges who 

are Administrative Judges, like those on the Appeals Council, at the Veterans Administration 

and at the Merit System Protection Board. Another solution is to change the Social Security Act 

so that the Social Security Administration (SSA) can hire Administrative Law Judges directly, 

with term limits and then give the Social Security Administration the authority to discipline 

them. What do you think about these options and are there any other options you would 

suggest? 

Response 

Reading this question, one might reasonably infer that a question is being raised as to whl!ther the 

administrative Jaw judges are the problem. If so, then we must proceed to identify the nature of 'the 

problem' and ask whether the alternatives posed in your question as potential solutions effectively 

address the true nature of 'the problem.' Your question squarely assumes that the current adjudicatory 

system has at its core a personnel problem as opposed to a problem of entitlement standards, civil 

procedure or a problem in the underlying jurisprudence. 

In our view, 'the problem' is not one of judicial personnel. As you recognized in your opening 

statement at the hearing on July 11,2011 on the "Role of Social Security Administrative Law Judges" 

"many~ if not most ALJs arc conscientious, hard\\'orking people \vho process their dockets clTicicnlly 

while giving each claimant the full attention he or she deserves." r would add this further caveat. for it 

is not simply "ll1uny judges" who so act, but the overwhelming majority of all administrative law 

judges appointed to the Social Security Administration are "eonscicntiou~~ hardworking people" and 

history has shown this to be case for literally decades. For example, the GAO Report of April 27, 

2010, entitled, "A1anagement (?f DisahWty Claims Workload Will Require Comprehensive Planning" 

the statement to this Subcommittee is that the Social Security Administration's planned "productivity" 

goals for administrative 1mv judges stood at 570 case decisions per year. These goals were prefaced by 

the following statistics: In tiscal year 2008 the number of pending claims stood at some 760,000 

nationally. The stated goal was to reduce that number to 446,000 "by the end of fiscal year 2013." 

Despite the widespread economic downturn beginning in 2008, which led to a significant increase in 

disability tilings, the Social Security Administration announced in a March 2010 news release "that it 

hod reduced the Humber afpending hcorings-leve/ cases to 697.437 - the /o\lrest number since June 

2005 . .. 

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Interestingly, the increase in dispositions of cases did not wholly or even in any significant measure 

depend upon a simple increase in the number of judges; for even the appointment of an increased 

number of judges in 2009 did not see these new judges come to full productivity for many months after 

their training; and certainly not in sufficient time to affect statistics in March 2010. The import of this 

is a straigbtfonvard realization that the March 2010 announcement reflects a shouldering of the burden 

by the then-existing cadre of administrative law judges, who responded to the mandate for increased 

numerical production. And, while serious legal questions remain as to \vhether such a pace can or 

should be sustained; and whether, as the GAO Report of April 27, 2010 points out, there would be an 

adverse effect on "the accuracy and quality of ALJ decisions themselves;' the fact is, the cadre of 

administrative law judges did respond, and have continued to respond, with increased productivity. 

Given sustained productivity increases there does not appear to be a widespread systemic 'problem' 

regarding judicial personnel and productivity such that there should be a change in the type of decision 

maker. Ind~ed, as noted, the Social Security Administration has regularly increased the number of 

administrati\e la\v judges over time - a simple fact which is in stark opposition to eliminating judges 

and the call for their replacement with a different type of decision maker. 

I have, h()\vever, answered only part of your question. I agree with your observation in July 2011 that 

the judicial conduct evinced by the circwnstances in the Huntington, \Vest Virginia, Hearing Office 

reasonably give;.; one pause l()r thought. However, as is evident from my foregoing response, this 

circumstance in not the norm and in no way renects the ideals, commitment and professionalism of the 

cadre of administrative la\\I judges who servc within the Social Security Administration. To 

paraphrase an old saying, "one bad apple should not ;poil the barrel," 

The Hlmtington scenario was limih:d to one judge and retlects a failure on several levels. While it may 

posit the 'hard case' because it arguably demonstrates a lack of accountability by an administrative Imv 

judge, such is not and cannot be the \vholc story. No judge [unctions in a vacuum despite the 

assertions that administrative law judges are ""unaccountable." The Huntington example is not, nor, if 

history is any teacher, \vill it be the noml for judicial decision making in Social Security's cadre of 

administrative law judges. If anything, it appears from \vhat we know that case assignment 

procedures, among other things, were potentially compromi;ed in that instance a procedural deficit 

which arguably should have been addressed by management in that office. Further, the administrative 

la"v judges in that onice brought the facts of this unfi)ftunate situation to the attention of the highe~t 

levels of the agency, yet nothing was done until years later when the story appeared on the Iront page 

of a national nc\vspaper. Thus, it is not the administrative law judges who are unaccountable. 

Overwhelming decisional data sincc the inception of the disability program reneet even-handed 

decision making by Social Security administrative la\\' judges. Indeed, the United States Supreme 

Conrt in Richard""n v. Perales, 402 U.S. 389,410: 91 S. Ct. 1420; 28 L. Ed. 2d 842 (1971) concluded 

that the disability adjudicatory system was fair and then \vorking \vell, noting "ft]he 44.2%1 reversal 

rate for all federal d1sability hearings in cases ... vhere the state agency does not grant benefits" and 

concluding that such data reflected a fundamentally fair adjudicato(y process. That this number has 

crept up\vards ... in the claimant's favor ... in the ensuing three decades is not an indication of any 

change in due process so much as it is a reflection that unlike in 197 L where only 19% of all claimants 

were represented by counsel, now more than 80% are so represented. The Social Security 

administrative law judge remains no\\', as then. a fundamentally luir decision-maker. So. \vhile an 

established mechanism for judicial discipline stands ready if needed, sllch that the agency may proceed 

with discipline through the Merit System Protection Board, history has shown that there has been little 
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call for such action as the vast majority of administrative law judgc~ have shown themselves to be 

dedicated, hardworking persons of integrity, 

Should We Amend the Social SecurifY and Administrative Procedure Acts? 

The imposition oftenn limits is consistent with appointment of various Article I judges in the federal 

courts. Magistrate Judges serve an 8-year term; while Bankruptcy Judges serve a 14-year term. Other 

Article] special courts are also term limited. However, amendment of the Social Security and 

Administrative Procedure Acts to impose tcnn limits and direct discipline raises two distinct issues. 

First, the Article I judges in the rederal court system \~/ho serve under term limits also receive 

enhanced pension benefits. These benefits are the trade off for term limits. Therefore, these Article 1 

judges are not similarly situated with federal administrative law judges who receive no special pension 

benefits. Further, the reappointment of an Al1icle I judge is subject to approval by the federal 

judiciary, not by Agency bureaucrats \\·ho may wish to influence the decisional outcome of judges who 

are subject to their pO\ver of reappointment. This evil was a significant factor \vhich led the visionary 

Congress in 1946 to pass the Administrative Procedure Act. However, before the AALJ could take a 

position on term appointments \'ve \vould have to knO\v and understand the details of any proposed 

legislation. For example, \ve \vould likely oppose appointments which place judges under the control 

of bureaucrat~ and \ve are convinced thaL an oYcrn'helming majority of Americans \'v'ouJd also oppose 

sllch a system. 

Second. amendment o( either the Social Securitv Act or Administrative Procedure Act to allow the 

agency to engage in ~tirect discipline of admini~trative law judges undermines th~ legislative intent 

inherent in the creation of the Hearing Examiner, now Administrative Law Judge. See, e.g., 

"ADMlN1STRATlVE PROCEDURE ACT. Proceedings in the House of Representatives May 24 and 

25, 1946 and Proceedings in the Senate of the United States March 12 and May 27, 1946." 

b!tP:!!~\:0'j'lsti.,,e·gQyljl]1g;ls1kg\,lllJjye~hiel9rj,e!PI1904.Q4!p.t:Qg"Qil]g~,()~oJ94§.J)(jf. 

The Administrative Law Judge position was created as a semi-independent actor to assure the 

American people of a full, fair and complete hearing when challenging Executive branch agency 

action. Even-handed treatment by an impartial, independent decision maker 1S a critical and inviolahle 

hallmark orlhe Administrative Procedure Act. 

As discussed below, amendment of the Social Security or Administrative Procedure Act to allow 

imposition of discipline hy the agency tied to productivity, qllotas or even decisiona1 outcomes, erodes 

fundamental dictates of due process. We stand opposed to such amendments as due process and 

justice cannot be achieved 'without an independent administrative judiciary as provided for in the 

Administrative Procedure Act. Moreover, as recounted above, the issue at the heart of the question 

now before us is the disability process and not whether there should be a change in judicial personnel. 

Disability claimants should not have their cases heard by inferior hearing officers in a decidedly 

inferior system controlled by bureaucrats and political appointees. That is not justice and that is not 

the American 'vvay. 

Administrative Judges 

You ask \vhether the suggested solution "to improve the disability process" is to hire Socia! Security 

Judges who are administrative judges. Administrative judges are not appointed under the aegis of the 

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Administrative Procedure Act, but are, instead, directly hired by the agency, and arc, therefore, subject 

to performance evaluations, to the imposition of performance quotas, to the imposition of decisional 

outcome and discipline at the whim of the agency. Would ado~'tion of these measures <'improve the 

disability process?" We submit that it \vouid not. 

First, there is no inherent improvement of the disability PIQ.~.~.~.~ per se by employing administrative 

judges, as opposed to appointing, judges. The ability to more quickly discipline judges, to impose 

quotas or otherwise evaluate performance does not correlate with an increase in case dispositions. The 

high profile "outlier" at the far ends of the bell curve whose actions unfortunately gamer significant 

public scrutiny, does not denne the work standard of the vast majority of administrative law judges 

who now serve the American people. Again, the core issue here is the pl'ocess~ not the personnel. 

The question, therefore, is what measures should be taken to update, revise and replace a 1950's nonadversarlal disability appeals process, ofit!l1 termed the ;<Three Hat" jurisprudence, with a 21 5{ century 

jurisprudence designed to address the realities of modern disability proceedings? The single most 

radical change between then and now is the presence, in more than 80% of all hearings, ora claimant's 

lawyer or representative. 

Second, imposing quotas ignores the varied complexity of the claims being adjudicated and would 

clearly Ylolate the Administrative Procedure Act. In Social Securi~v Administration v. Goodmun, 19 

M.S.P.R. 321 (1984), the Social Security Administration sought to remove a judge \\.those dispositions 

\vere Jess than half the national average, cllcctivcJy attempting to ~n1orc~ a quota. Th~ Merit Systems 

Protection Board found that "the SSA's evidence that the ALJ's case dispositions were half the national 

average was not enough to show unacceptably low productivity "[i]n the absence of evidence 

demonstrating the validity of using its statistics to measure comparative productivity." Th~ board 

reasoned that "SSA cases were not fungible and that SSA's comparable statistics did not take into 

sutlicicnt account the diJTerence~ among the diflcrcnt types of cases." hI. at p. 331. An unanswered 

question is to what extent has there been damage to justice and due process by the arbitrary imposition 

of apparent quotas on judges by the current SSA bureaucracy. 

In testimony before the Subcommittee for Consumers of the Committee on Commerce. Science, and 

Transp011ation in 1980, Reuben Lower, an ALJ with the Federal Communications Commission, 

foretold the later MSPB finding. He testified that statistical studics have little or no value in analyzing 

judges' productivity. "He reasoned that unless a study accounts for factors such as the nature of the 

case. the number and complexity of the issues involved, the length or prchearing proceedings, 

evidentiary and post hearing proceedings, and the problems encountered in writing the decision, the 

study arguably has little meaning as a real measure of a judge's \vorkload." See, Administrative Law 

Judge System: Hearings Before the Subcommittee For Consumers of the Committee On Commerce, 

Science, and Tramp., 96th Cong., 2nd Sess, 67 (19g0) (statement of Judge Reuben LOLner, AU, FCC). 

as cited by L. Hope O'Keeffe, Note, "Administrative La\v Judges, Perfonnance Evaluations, and 

Production Standards: Judicial Independence Versus Employee Accountability," 54 GEO. WASH. L. 

REV. 591,592 (1986). 

This same reasoning would apply whether the judge is appointed under the Administrative Procedure 

Act or serves as an employee of the agency. The critical difference is, in the latter case, the judge who 

tails to meet his or her quota because he or she has devoted the time necessary to properly adjudicate 

more complex claims, would be penalized, potentially receiving poor perionnance revle\vs. 

Successful imposition of such penalties would eventually result in an erosion of due process as judges 
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consider the fate of colleagues and in an effort to avoid a similar fate, devote less than the time 

required to properly address more complex cases. The result would be inadequate, incorrect and 

potentially unfair decisions issued to accommodate a quota or a poor performance review or adverse 

discipline. 

Tying a judge's compensation to performance revic\vs and quotas can only lead to an erosion of due 

process. For example, consider the case of an individual \vho claims to be disabled beginning at a 

remote point in time, perhaps a decade or more in the past. Such cases often involve testimony of a 

medical doctor or a psychologist or both, as well as a vocational expert. Social Security Ruling 83-20 

contemplates just such an undertaking. Common sense, however, dictates that such proceedings will -

by definition - require more time, effort and thought than a simpler case and which would not require 

the use of such expelts. If an administrative judge were to fail to employ such experls in an efforl to 

avoid a time-consuming hearing, and thus allmving him or her to meet the quota, who suffers? 

j am not in a position to evaluate the use of administrative judges at the MSP13 and at the Veterans 

Administration, except to note that the claims in each of these agencies involve those who have been or 

who are presently in government service. By definition, the scope of the claims is restricted, based in 

some measure on the claimant's status either as a civilian government employee or military member. 

Social Security benefits, whether they are retirement or disability beneEts, potentially atTeet every 

American, regardless of their status. As such, a fundamental question must be asked, independent of 

the consideration of quotas - what defines 'due process?' Is due process a fungible. tangible clemcnt 

able to be negotiated as part of a quota? We respectfully submit that it is not and that it must be 

assessed independently, on a case-by-case basis by an impartial decision maker \vho is able to address 

the issues raised by complex claims ,..vithout lear ofloss of income or even his or her job? 

In summary, the real issue in yoW" firsl question is not whether the right personnel are present - for that 

is a given at this point, but whether the underlying jurisprudence, and by extension the processes 

flowing from sllchjurisprudence is tailored to med the demands of the current disability eascload. As 

discussed in response to your second question, we believe a fundamental change in jurisprudence 

should bc considered, transforming the 1950's decisional model li·om "the judge wears-three-hats" 

non-advcrsarial undeliaking, to an adversarial model, in recognition of the overwhelming percentage 

of claimants who are nO\\I represented by attorneys or specialized representati ves. 

Finally, it may be appropriate to consider changes in the definition of disability. Various suggestions 

have been made v .. 'hen exploring the definition of disability, but no one can ignore the fact that the 

definition of Social Security disability has been markedly expanded over the pastlifty-eight (58) years 

since the inception of the program. Careful, creative alternatives could be explored as p31i of any topto-bottom review of the disability detel111ina!ion and appeals process. 

Some of the ideas that have been publicly debated include the following: 

• Childhood disability awards witllout a concomitant monetary benefit; 

• Fundamentally changing adult disability, such that adults under age 50 mllst demonstrate 

entitkment based only on the Lislings; 

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Phased or partial disability awards for adults which provide only an insurance benefit during 

the first two years, followed by an application for lull disability provided the individual has 

shown compliance with medical or other prescribed tTeatment; and 

• Givingjudges the authority 10 award term benefits for a set duration. 

Question Two. 

2. In your testimony you discussed your proposal for adversarial hearings. Please provide a cost 

estimate. 

Response 

The AALJ does n01 have access 10 budgetary infomlation. HO\\'cvcr, we belic\'c that significant 

funding should come fTom redirecting resources from the ODAR regional offices. The ODAR 

regional offices arc redundant as SSA already has regional offices across the country. 

To be sure. there has been criticism of fundamentally changing the jurisprudence underlying the 

disability appeals process by balancing the presence of claimant's counsel with govcnunent 

representation, primarily because of cost. Those who question such a change estimate that the cost of 

doing so would be "fatal." See. "Reply" by Professor Richard Pierce, "What We Should Do About 

Social Security Disability," .leftrey S. Wolfe, Uale D. Glendenning, Regulation, Spring 2012. 

In this I suggest they are wrong. There has been a mirror image reversal in the percentage of claimants 

\vho are now represented in appeals before administrative law judges. Between 1966 and 1968 only 

19% of claimants were represented. See, Robert M. Viles. "The Social Security Administration versus 

the Lawyers ... and Poor People Too, Part II." 40 Miss. L. J. 25, 75 (1968). So. in the slightly more 

than 80% of hearings held then, no lawyer appeared ~ either for the claimant or for the govemment. 

This was in keeping with the dratlers' original expectations in the 1935 Social Security Act, which was 

entirely silent on the question of representation. [d. Put simply. the 1935 jurisprudence did not 

envision any lav"yers in Social Security proceedings. Is it any wonder that this jurisprudence is now so 

ditferent trom that which guides hearings of every other sort in American legal proceedings? Even 

\vhen representation \vas acknowledged in the 1939 amendments to the Social Security Act, the 

expectation \vas as before: 'While it is not contemplated that the services (~lan agent or alforne.-v will 

he necessary ill presenting the vast mqjority of claims. the experie'J1ce %ther agencies It'ould iHdicate 

that where sllch services are pelformed the fees charged therefore should be subject to regulation b~v 

the [S'ocia/ Securi~)'J Board [llOW, Administratiun). and it is so prm:ided ,,' .!.4.. No change ,vas tlladc 

in the underlying jurisprudence and this same 193Ws mindset pervades a 21 ,t century system in \vhich 

the overwhelming numbers of claimants are no\v, in fact, represented. 

or approximately 560.000 appeals hearings in 2006, 439.000 claimants were represented by all 

attorney or a specialized non-attorney '"representative." See, Social Security Administration \vebsite: 

www.socialsecurity.govioig/ADOBEPDF/A-12-07-17057.pdf.This means that in approximately 80% 

of administrative appeals hearings an attorney or non-attorney representative appeared, advocating for 

the claimant. No government la\vycr or representative \vas present. Now, more than 700,000 

administrative appeals are pending before federal administrative lavv' judges. See Eliminating the Social 

Security DisahiN(v Backlog: Joint Hearing Bejhre the Subcommittee on ,)~ocial Securi(v and 
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Sllhcommiltee on income Secffrirr iJlld Fami(v Support q/ the If. Comm. OJ1 rVays and Means, III th 

Cong, I 34(2009),hllp:!!www ,gpo,gov/fusys!pkg/CHRG-1 I 1 hhrg50764/pdllCHRG 

IIlhhrg50764,pdf (statement of the Honorable Ronald G. Bernoski, President of the Association of 

Administrative La" Judges) ("Towering over SSA is a backlog of over 765,000 cases claiming 

disability bcnclits under Title II and Title XVI of the Social Security Act.") Still, no lawyer or 

representative appcan.;. for the Government. 

The presence of claimant's counsel in more than 80% of all hearings introduces a fundamental change 

upon the underlyingjurisprudencc, The need for one o[thc "Three Hats" is minimized in the presence 

of claimanfs counsel as counsel should adequateJy prepare the claimant's case. Inclusion of a 

government rcprest?ntativt? \vould eliminate the need for the second "Hat", n::turning the judge to his or 

her traditional role as a neutral, impartial decision maker~ no longer charged with the primary 

responsibility of developing the evidence for either the government or the claimant. Indeed, the duty 

to develop the record would shift to the agency, now represented by counsel. This \\!ould reduce a 

signiticant pOliion of the cum:nt ODAR workload. as judges by and through ODAR personnel \vOlild 

have a far reduced need to ohtain documents or compilc records for the benefit of the claimant. Of 

course, in those cases where the claimant remains unrepresented, it is clear that the judge must 

discharge the responsibilities or each of the "Three Hats' jurisprudence model. 

Nevertheless, the presence of government counsel in an adversarial setting \vQuld immediately 

accomplish two critical things. First, claimant's counsel would have someone with whom they can 

speak in hopes of resolving the claim before a hearing. Second, as a result, the number of hearings 

actually held would drop dramatically, reducing the backlog as claims would be resolved by agreement 

with the claimant's attorney or representative. 

The presence of government counsel would enable claimant's counsel to address the question of 

potential resolution at the outset, thus reducing the time necessary for a judge to dispose of the matter, 

and which \vould potentially eliminate a vast number of pending claims \vell before judicial disposition 

under the current jurisprudence. Put simply, this means that a vast number of cases, given the cW'rent 

national reversal rate or approximately 60%, would never go to hearing, thus dramatically reducing the 

current caselond. This is consistent with the function of the adversarial system in the courts. where 

only 10 - 15% of all cases arc actually tried to conclusion, 1n the courts, R5 - 90% of all cases arc 

resolved betwecn counsel before trial. The presence of government representation \vould work a 

similar result in the disability appeals process, A fundamental change in jurisprudence would not 

necessarily require an overwhelming number of new lawyers, but could draw heavily upon the current 

cadre of attorneys and senior attorneys currently employed by the agency. 

Addressing the process through to conclusion, if a signiticant percentage of cases were resolved by 

agreement between counsel without hearing by submission of an agreed upon order to the 

administrative law judge for approval, the work 110\'" performed by attorneys and senior attorneys in 

the hearing office, would largely be done by claimant's counsel -- that is. preparation of the decision 

awarding benefits. The number of "decision-writers" needed in the hearing office would decline, with 

agreed upon orders. much as is no\v seen in many state Worker~s Compensation systems. The net 

effect \vould be that a number of cases, each of \",hich are nO\\" tried to conclusion in hearings, would 

be resolved without a hearing, by agreement, leaving only the most difficult or most highly contested 

cases [or resolution following a hearing by an administrative law judge, This is consistent with the 

adversarial system. In outlining slich a system, 1 am keenly aware of the duty of government counsel -
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not to win, but to do justice - to do the right thing, because he or she represents the pcopJc of the 

United States, and has as his or her primary calling. the duty to ensure that the right result is obtained. 

in summary, and as above noted, 1 cannot directly answer your question as to cost, as the AALJ does 

not have access to agency budgetary infonnatiol1. j have, however, sketched out the functional 

attributes of an adversarial system -" one in which govemmen! counsel serves in his or her traditional 

role, representing the interests of the people of the United States and working to ensure that justice is 

done. With the passage of enforceable rules of procedure, I anticipate far fewer hearings and more 

cases decided at the earliest stage with a concomitant reduction in the amount of time it takes for a 

claimant to receive a decision. 

As a result of this fundamental jurisprudential change, the pending backlog will drop and only those 

cases which are truly challenged will be tried in hearings. So, while I cannot provide exact numbers., it 

seems clear from our long experience \vith the Anglo-American system of adversarial jurisprudence 

that a signifi.cant number of cases that are now heard in a hearing will be decided instead by 

submission of an agreed order, reducing the number hearings., changing ODAR's fundamental role and 

concomitantly_ reducing costs. 

Question 3 

3. The Supreme Court has noted Congress's original intent to keep the Social Security disability 

process informal and "understandable to the layman claimant, not ... stiff and comfortable only 

for the trained attorney." The statute charges the Commissioner with making "findings of fact 

and a decision on evidence adduced at the hCl.ring" with A LJs in the role of making sure this 

statutory requirement is met (as did hearing examiners before tbem). In your testimony, you 

state that ALJs should playa different role and the hearing should adversarial. Please explain 

what concerns you have with ALJs helping claimant develop the record at the hearing. 

Response 

In the 1960's, only 19% of claimants were represented. 1 By 2006. claimants were represented in 

approxlInatcly 80% ofhearmgs before ALJs.~ Whlle the dlsab.ilty process may have started out as 

informal for the benefit of the unrepresented claimant, there is little need for such informality now. 

ALls arc willing to help claimants and their lawyers/representatives develop the record, although this 

takes time away from the judge and seems imprudent given that representatives collect a fee ifthe 

appeal is reversed by an AL.1. rhe problem is that under current law, claimants and their 

lm,vyersirepresentatives naturally are only interested in developing evidence favorable to the claimants' 

side or the case. They have no interest, nor any legal obligation, to fully and fairly develop all the 

evidence, including adverse evidence, because that will endanger claimants' interest in receiving 

benefits. In fact claimants and their lawyers/representatives hm·e every incenttve to try to prevent full 

development of all the evidence, including adverse evidence, because to do so would endanger their 

benefits/fees. Further, if the Judge attempts to fully and fairly develop all the evidence. the Judge's 

eff011s are often met \vith blistering objections and accusations that the Judge is biased, prejudiced, 

1 Robert M. Viles, "The Social Securfty Adminfstrotion Versus the Lawyers ... and Poor People Too, Part 11/' 40 Miss.U. 25, 

75 (19681. 

2 Sodal Security Office of Inspector General, Audit Report A-12-7-170S7; September 2007. 

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anti-c1aimant~ or "trying to find a way" to deny the claim. Clajmants and their la\vycrs have also fikd 

complaints in Federal Court and with the Commissioner claiming that some Judges do not reverse 

enough cases. Currently, our hearings are, to a great extent, adversarial and the American taxpayers 

deserve a government representative who will advocate for a full and fair hearing. Further~ as is true 

with civil and criminal1itigation, with full and fair development of the facts betore the hearing, the two 

sides may often be able to settle the case with no need for a hearing, thus resolving the case faster and 

conserving precious judicial resources. Given the volume of claims pending at the hearing level, 

judicial time and energy should not be spent developing the record. 

QIlestion4 

4. During calendar yea .. 2011, the SSA withheld over $1.4 billion from past due benefits to pay' 

representatives their fees. Beyond what ALJs are currently charged with doing, what other ways 

can Social Security employees help claimants more and minimize the need for representatives in 

the lirst place'! 

Response 

Social Security disability hearings are ditIerent from \\/hat \ve think of as "normal" courtroom 

litigation. The Social Security Administration's disability hearings are based on an inquisitorial 

model, \vhieh are non-adversarial meaning that the government is not represented. 3 At these hearings, 

as noted supra, claimants arc represented by attorneys and non-attorney represl:ntativl:s in 

approximately 80% of the hearings, \\·ith the remaining 20% of claimants appearing pro Sf? Because it 

is an inquisitorial system, attorney "advocacy" plays a much smaller role than it does in a traditional 

adversarial system, where competing parties arc attempting to influence the Judge or jury to rule in 

their respective favors. Instead, the representative's role at a Social Security disability hearing often 

focuses on two areas: ensuring that favorabk medical evidence is submitkd and explaining the 

disability process to the claimant. 

Perhaps the most important role for a claimant's representative in a Social Security disability hearing is 

to ensure that all medical evidence is submitted. As there is no attorney [or the Agency present at the 

hearing. there is no opposing party to introduce evidence contrary to the application for disability 

benefits. The Agency relies on the claimant and his or hl."'r representative for information from 

heallhcarc providers who111 the claimant has seen . ..) This disparity ofknow1edge could create a huge 

potential problem af, the claimant, and/or his or her representative, can be selective as to what medical 

or vocational evidence is submitted at the hearing.s As the average claimant's lifetime award is valued 

at ahout $300,000, with the representative being paid either twenty-five percent of the back benefits or 

$6,000, \vhichever is less,6 only if the claimant is awarded benefIts, there is a strong incentive for both 

'Robert E. Rains, Professional Responsibility and Social Security Representation: The Myth of the State-Bar Bar to 

Compliance with Federal Rules on Production of Adverse Evidence, 92 CORNELL L. REV. 363, 364 (2007) (citations omitted). 

4POMS, supro note 52, D! 2250.006, Requesting Evidence - General (l){a), (May 31, 2012) (discussing how that the Social 

Security Administration employees should develop the evidence in the case file from all sources identified by the claimant 

or that can be discovered from the records of the health care providers identified by the claimant). 

5Rains, supra note 1, at 363. 

674 Fed. Reg. 6080 (Feb. 4, 2009). 

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the representative and the claimant to not disclo~c adverse vocational or medical infonnation to the 

Social Security Administration.' 

One \-yay to increase the likelihood that all medical evidence has been submitted, is through the use of 

automated electronic systems such as MEGAHIT. Launched in August 23, 2008, the system allows 

for healthcare providers to electronically submit all medical records for an individual to the Social 

Security Administration electrically. These records, termed Health Infonnation Technology Medical 

Evidence of Record (HITMER), are then displayed in the Social Security's electronic claimant folder. 

Additionally, the Agency has a statutory requirement to ensure that the claimant's medical evidence is 

complete. \N'hen required, agency staff members would continue to request medical information on 

behalf of claimants to ensure this statutory requirement is mel. 

The second primary role of a claimant's representative, serving as a source of information regarding 

the Social Security disability programs, could be performed by an Agency "ombudsman." The Social 

Security Act already requires of its Medicare programs a "Medicare Beneficial), Ombudsman" to help 

individuals \vho are appealing decisions or detenninations with regard to Medicare benefits,S by 

providing information regarding the Medicare programs. Like\vise, Ombudsmen could be provided to 

assist Social Security disability claimants with infonnation and resources to assist \vith their claims. 

\\lhile the individual would not "represent" the claimant, they nevertheless could provide invaluable 

assistance in educating claimants about the Social Security disability programs. While there would be 

a cost attendant to providing such an ombudsman, the potential cost-sayings that could result in 

disability applications that fail to meet minimum statutory requirements (tilr example, a disability that 

lasts less than twelve months) not being liled could justify the expenditure. 

Question 5 

5. What ideas do you have for better development of the record? How will these ideas assist the 

claimants geUing the right decision as early in the process as possible'! 

Response 

Full development oCthe record, including consultative examinations, must occur at the initial stage of 

the application process. DDS should require claimants to submit a printollt from drug providers of all 

medications taken within two years of the date of the disability application is filed. With a complete 

record, the DDS can make a more informed decision at the earliest time in the process, oftentimes 

obviating the need for an appeal. 

The regulations should be changed to impose deadlines and consequences ielf [ailing to timely provide 

a complete list of treatment providers and signed authorizations for SSA/ODAR to obtain medical 

records from them. 

At the All level, a stalf member should conier with the claimant and representative to obtain updated 

medical authorizations. to obtain an updated list of medical treatment and to naITo\v the medical 

7Damian Paletta & Dion1e Searcey, Two Lawyers Strike Gold in U.S. Ofsability System, THE WALL ST. J., Dec. 22, 2011, 

available at http://online.wsj.com/article/SB10001424052970203518404577096632862007046.html .. 

242 U.s.c. 1395(c) (2012). 

II 
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conditions and issues, with binding stipulations entered into. Once thi~ is done, the staff can obtain 

updated medical records, unless the regulations can be changed so as to require the 

claimanlirepresentative to submit all medical records, including those adverse to the claimant's 

position. 

Psychological tests such as MMPT-TI and other commonly recognized tools should be used to fiilly 

assess a claimant's condition. Although the MMPI.-[[ was rccognized as an acceptable toolll)r 

personality assessment purposes, [Sec Listing 12.00 (D) (5), (6), (7), (8) and (9)], the Agency has 

recently prohibited sLlch testing. The reliability of these tools has been well established and they have 

been used in treatment cllvirolUllcnts as well as in the civil and criminal areas for decades. When one 

considers the fact that the value of each paid claim averages $300,000, the cost of$500 to administer 

an MMPI-II or other psychological test to obtain information to insure that a correct decision is made 

is v,-holly \varranted and financially justified. 

Question 5 

5. The structure of the Social Security hearing is fairly loose and designed to accommodate the 

claimant. What procedural challenges does this informal structure create for ALJs'? 

Response 

The lack of procedural rules and the fact that the government is not represented at the hearing, places 

the entire burden on the judge of ensuring that the record is complete and that the correct decision is 

rendered, who is deprived of the appropriate tools to perform thisjob. 

There are no consequences to the claimant/representative for failing to provide medical documentation, 

as it is the Judg~'s ultimate r~sponsibility to ensure the completeness of the record. 

There are no consequences to the claimant/representative for failing to provide adverse medical 

information with regard to the claim. 

Similarly, there are no consequences to the claimant/representative \vhen medical documentation is not 

provided in a timely manner. HWldreds of pages of records can be submitted at the hearing. 

necessitating a cursory review by the Judge prior to the hearing (with the possibility that some vital 

int()fmation may be missed) or, it'a more thorough review is needed, signiticantly delaying the rest of 

the day's hearings. In some inst~U1ces, a postponement may be necessary to pennit the judge to revie\v 

and evaluate the additional evidence, 

Given current regulations, the claimant/representative may submit documentary evidence at any stage 

of the process ~ before the hearing, on the day thereof, after the hearing, or after the Judge has issued a 

decision. In essence, the record can be developed throughout the process of the administrative 

adjudication. Because there is no incentive for the claimant/representative to submit evidence as carly 

in the process as possible, ne\v documents are continually added to the record at each stage, 

necessitating a new rcvic\v. This is not an eftlcient \vay to operate. 

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Every other Fcderal Agency with an adjudicatory component has rules for eonducling its business. 

Given the importance of the decisions and the cost involved, SSA should as welL 

Question 6 

6. When a claimant requests a ne,,, hearing date, what impact does that have on the ALJ's 

workload? Does the same ALJ preside over the new hearing? 

Response 

Having to reschedule hearings creates inefficiencies and delays, hoth for the Judge and the hearing 

staff. Scheduling a hearing is time consuming; it requires contacting representat.ives, experts and 

hearing monitors for availability and insuring that an appropriate hearing room is available. When a 

claimant cancels a hearing, the whole scheduling process must commence again. As important, the 

cancelled time slot is lost forever as is the staff time that was devoted to scheduling the case. The 

Judge, "vho has pr~pared for the hearing by reviewing the file and having the case fresh in his or her 

mind, must again review lhe tile prior to the rescheduled date as lhc rescheduled datc may well be 

months later. The same Judge presides over the new hearing. unless the hearing is part of a travel 

docket, in which case the claim may be transferred to the next Judge who travels to that location. 

Question 7 

7. Why do claimants need lour levels of appear? Why is the record not developed more fully 

earlier in the process? 

Response 

The four levels of appeal are: 

(I) Reconsideration [conducted by Disability Determination Services (DDS) staft]. a "paper" 

review of the evidence suppOiting the initial denial. 

(2) Administrative Law Judge (ALI) Hearing, the claimant's opportunity to appear before a Judge 

and plead his or her case. 

(3) Appeals Council (AC) Review, an intra-Agency "paper" review oflhe rccord, and 

(4) Federal District Court revie\v, judicial review of the documentary record. 

In our view, four levels of appeal arc unnecessary. Thc DDS Reconsideration level or appeal could be 

eliminated without gr~at harm to th~ system'>, although th1s would initially exacerbate the hcaring 

backlog by more quickly moving the cases to the hearing level. 

The Appeals Council (AC) level of appeal could also be c\iminated without destroying lhe system. as 

the AC is another "paper" reYlew of evidence, i.e., there is no in-person contact between the decision 

mak~r and the claimant. SSA could usc the significant amount of money savt:d by eliminating the AC, 

by transfelTing its personnel to ODAR to assist at the hearing leveL This assistance would allow 

Judges sufficient time and resources to issue correct decisions and provide for attorney advisers to 

9 The reconsideration step rarely results in the DDS determination being overruled. 

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defend ALI decisions in Federal District CourL Current procedure permits a claimant or 

representative to initiate a very costly administrative appellate review by the Appeals Council with a 

one-line sentence on a pr~-printed form. The number of claimant appeals to Federal District Court 

would likely be 1/20 of the number of Petitions for Review (PFR) submitted to the Appeals Council. 

As to the issue of early development of the case, under the present system the DDS is l.mder time 

constraints to move the casco They simply need more guidance on hmv to thoroughly develop a case 

and the time to follow that guidance. Further., claimants are not provided with access to the 

information collected by the DDS ~o that they do not know if some of their medical evidence has not 

been obtained. Representatives (both attorney and non-attorney) are generally not involved in the 

disability proc0ss until the claimant's appeal has been referred ror hearing. So, until the hearing stage, 

it is not always apparent that all medical documentation has not been obtained. 

Because of the lag between the times the DDS has made a decision and the case is scheduled for 

hearing before a Judge, the claimant is likely to have accrued additional medical evidence. All ofthis 

evidence must be obtained to complete the record. 

Question 8 

8. What are the pros and cons of closing the record either just before the hearing or at the close 

ofthe hearing before an ALJ issues a decision? 

Response 

The record (i.e .• all documentary evidence that an ALJ will consider in making a decision) should be 

closed before the hearing commences, and claimants and representatives should be required to submit 

all documentary evidence at least five (5) business days prior to the sl:hedulcd date of hearing. 

A Judge's ability to make a correct decision and prepare accurate decision writing instructions is at hs 

most effective when the documentary evidence is complete and the facts of the case are fresh and can 

bc recalled in detai1. When relevant documentary evidence is received within a reasonable time period 

prior to the hearing, a Judge will have the opportunity to revievv' and consider the same prior to the 

hearing. Ifthere are expert witnesses scheduled to testify, they, too, oHen must review thesc 

documents. When a Judge has an opportunity to revlew and consider all extant documentary evidence 

prior to conducting a hearing, examination orthe claimant and \vitnes8 will be informed and thus, more 

effective. Such a process \vould substantially enhance a Judge's ability to correctly decide the case. 

A.I1O\ving submission of additional documentary evidence at a hearing, as it is the case now, delays 

commencement ofthc hearing and may impede erfective examination of-witnesses because of 

inadequate time to review the same and an inability to ask pertinent questions or explore 

inconsistencies in the record. Routinely in most hearing offices, representatives and claimants submit 

records shortly (hours or minutes) before a hearing is to commence or at the hearing itself, despite the 

fact that ODAR is now scheduling cases between 30 to 90 days in advance of hearing; this is more 

than sufficient time for a representative or claimant to obtain and submit evidence well before the 

hearing date. 

Current regulations authorize submission of evidence at anytime during the pendency of the case. This 

includes submission before, during. and after a hearing; it also permits submission of evidence atter a 

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Judgc has rendered a decision. Documentary evidence with written argumcnts may be submitted Lo the 

Appeals Council (AC) post hearing; the AC has authority to return the case to a hearing office for 

another hearing based upon newly submitted evidence. While this practice may be consistent with thc 

"non-adversarial't concept of SSA disability adjudication~ it is at best ineffective if Judges are to issue 

final decisions after a hearing and at worst inefficient and uneconomical and delays the claimant's 

decision. 

The absence of procedural rules requiring claimants/representatives to submit documentary evidence 

witbin any specified time period prior to a hearing clearly impedes the timely proces~iTlg of cases, 

resulting in a waste of resources, time, material and money. Procedural rules should be adopted 

requiring, inter alia, (a) representatives, the vast majority of whol11 are licensed attorneys, and 

claimants to fully develop the record prior to a hearing; (b) certify that all relevant and material 

documentary evidence has heen submitted; and (c) celtify that the case is ready for hearing; and, (d) 

identify the impairm~nts alleged as severe and cite the evidence which supports a tinding of disability. 

With regard to (c). procedures should be changed to condition scheduling a hearing upon certification 

that the record is complete and the case is ready to be heard. Processing time should not be tabulated 

to include delays occasioned by the claimant or representative. 

Question 9 

9. You have testified that the '~grid" often forces an ALJ to award benefits even when there are 

jobs in tbe economy the claimant could perform. You also stated that using the "grid" to 

evaluate disability is out of date and should be revised or eliminated. Do you know how many 

claimant received benefits because of these outdated guidelines? 

Response 

The AALJ does not have access to infonnation regarding the number of claimants who have received 

benefits because ofth~ outdated grids; hmvever, the Social Security Administration docs have the 

requested data. 

The Congre"iona1 Budget Office (CBO) issued a report earlier this month that addressed this issue. It 

estimated the budgetary impact ofa modest shift (2 years) upwards in the age ranges for granting 

disability insurance benefits to tho~c with certain limitations, known as vocational factors, and the 

elimination of the vocational guidelines for those over 60 and under 47 years of age. The eBO 

determined that the number of disability insurance recipients would fall by about 50,000 in 2022, with 

expenditures falling by S I billion in that year. The CBO did not eSlimate the effect oflhis change on 

the Medicare, Medicaid or SSI programs. 'l1,e full discussion is found on page 14 of the CIlO 

publication. 1{) 

The issue of modernizing the SSA '5 disability programs is not limited to the grids. After a recent 

study. the u.s. Government Accountability Omce (GAO) found that six of the fourteen categories of 

medical conditions addressed in SSA medical Listings had not been revised by SSA in from 19 to 33 

10 U.S. Congressional Budget Office, "Policy Options for the Social Security Disability Insurance Program," 

rJtp:/ {"!'IVjW .Ct?9_.KOV /sJt~$1 def?_L! I~/fi le$19Pofite4~ttac.l}rD~ntsl :t_~421-P'i?!3_bilitY!D?!Jfan_c;~-print,g9f; July 16, 2017. 

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years, II Two of these Listing categories--mel1lal and musculoskeletal which account tor almost 65 

percent of individuals receiving disability bcncfits--havc not bc~n comprehensively revised for 27 

years. Listings retlecting the current state of medical knmvledge would be of immeasurable assistance 

to MEs, CEs and everyone else involved in the disability detennination process, 

Question 10 

10. One ofth. benefits the union has acquired for ALJs at the SSA is flexi-Place, which allows 

them to work at home. Under the Collective Bargaining Agreement, how many days a month 

are ALJs allo".d to work at home? When an ALJ is working at home, he or she isn't holding 

hearings. \Vhat kind of work can an ALJ do from home'! Does this work contribute to o\'erall 

productivity? Why is it important for ALJs to be able to work at home? 

Response 

Flexi-place is the Social Security Administration '8 name for telev,"'ork, In order to promote efficiency 

and reduce traffic congestion and pollution, the Federal Government has b~en encouraging initiatives 

for its employees to work at home for decades." In 2010. Congress passed the Telewark Enhancement 

Act to further these aims. 13 

Under our agreement with SSA, Judges have a right to work at home four days a month. Additional 

days may be granted at the discretion of the Hearing Omce Chief Administrative Law Judge. 

Most ofa Judge's work is not performed in the courtroom. Prior to the hearing, a Judge must read all 

of the evidence in th~ Jile, give dir~ctions to the staff to obtain additional infornlation and documents, 

determine if expert \\'itnesses arc needed, issue subpoenas when required, and draft interrogatories, if 

necessary, After the hearing, the Judge must hold the record open for any additional evidence, review 

that ~vidence \vhen it is submitted, determine if anything else is needed to complete the record 

(interrogatories or a supplemental hearing), draft decisional instructions covering all issues and all of 

the claimant's medical conditions for a decision ""riter, revie\\i and edit the dran decision when it has 

be~n prepared to insure that it is legally sufticien1. and revic\v and sign the final decision. The h~aring 

itself generally takes from 1 Y% to 35% of the time necessary to properly adjudicate a case. The rest 

o[the \vork on a case must all be done outside ofthe courtroom. This is \vork thal can be done 

efficiently and effectively from a telework location. 

In [act there are fewer distractions at home and more is accomplished there, as this is work that 

requirts uninterrupted concentration by the Judge. Moreover, om collective bargaining agreement 

requires that duties performed on teJework must be performed with the quality. consistency and in the 

same manner as in the office; this means that productivity must not tlll1. In this regard, the Judges havc 

increased their productivity in every year since having the option oftelework. In a November 2010 

11 u,s. Government Accountability Office, "Modernizing 55A Disability Programs: Progress Made, but Key Efforts Warrant 

More Management Focus") (GAO-12-420); http://www.gao.govjassetsj600j591701.pdf;June 19, 2012 

12 Wendell Joice, Ph.D., "The Evolution of Telework in the Federal Government", Office of Governmentwide Policy, U.S. 

General Services Administration; http://www.gsa.gov/graphlcs/ogp/Evolutiontelework.doc; February 2000. 

13 5 U.S.C Chapter 65; http://www.gpo.gov/fdsys/pkg/BILlS-ll1hrl722enr/pdf/B!lLS-l11hr1722enr.pdf 

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Richard J. Pierce, Jr. 


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Before the House Committee on Ways and Means 

Subcommittee on Social Security 

.June 27, 2012 Hearing 

"Securing the Future ofthe Disability Insurance Program" 

Responses to Questions for the Record 

by Richard J. Pierce, Jr. 

I was asked to respond to a series of questions related to my testimony before the 

subcommittee. The questions and responses follow. 

I. One suggested solution to improve the disability process is to hire social security 

judges who are Administrative Judges like those on the Appeals Council. at the Veterans 

Administration and at the Merit Systems Protection Board. Another solution is to change 

the Social Security Act so that the Social Security Administration (SSA) can hire 

Administrative Law Judges (AU) directly, with term limits, and then give the SSA the 

authority to discipline them. The AU union believes that these hearings should be 

adversaria!. What do you think about these options and are there other options you would 

suggest? 

Answer: 

The change suggested in the first sentence would have several advantages. First, it 

would reduce the costs of the decision making process, since Administrative Judges 

usually have significantly lower salaries (han AUs. Second, it would allow SSA (0 

evaluate the periormanee or thc decision makers and (0 implement quality control 

programs that are designed to ensure that decision~ are made in a reasonably consistent 

manner and in a manner that is consistent with the Social Security Act. 

The change suggested in the second sentence would have advantages similar to 

the advantages of the change suggested in the t1rst sentence except that it would not 

reduce the costs of the decision making process. To be effective, such a change would 

have to give SSA authority broader than the power to "discipline" AUs. Any such 

statutory amendment should confer on SSA the power to evaluate the performance of 

ALJs and to implement quality controls that are designed to ensure that decisions are 

made in a reasonably consistent manner and in a manner that is consistent with the 

statutory criteria. 

The change to adver~arial hearings suggested by the AL.l union would have 

severe adverse eflects. It \vould increase signiflcantly the length of the average hearing 

and increase significantly the cost of the decision making process by requiring SSA to 

hire a large number of staff trial attorneys and additional AUs. It is important to 

remember that any increase in decision making costs reduces the funds available to SSA 

to provide bene1its to disabled people. Thus, a change to adversarial hearings would 

constitute a transfer of funds from beneticiaries of the disability program to lawyers 

employed by SSA both as AUs and as staff trial attorneys. 

Other options that would yield major advantages include two I proposed in my 

testimony--eliminnte appeals to ALis and/or close the record at an earlier stage in the 

decision making process. 
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2. 1n your testimony. you refer to the incentive representatives may have to drag out cases 

since their fees are tied to the percentage ofthe claimant's past due benefits. What would 

happen if legal fees were fixed at some nominal amollnt? 

Answer: 

Such a change would reduce significantly the incentive to delay the decision 

making process and the incent1ve to sandbag by deferring submission of potentially 

impOItant evidence until1ate in the decision making process. If such a change in tile fees 

of representatives was coupled with a statutory amendment that authorizes SSA to close 

the record at an early point in the decision making process, as suggested in question 6, 

such a change \vould replace the incentive to delay and to sandbag with a pmverful 

incentive to obtain and to submit relevant evidence at an early stage in the decision 

making process. 

3. During calendar year 20 II, the SSA withheld over $1.4 billion from past due benelits 

to pay representatives their fees. What can Social Security employees do to help 

claimants minimize the need for representatives in the first place? 

Answer: 

Social Security employees can improve communication to claimants and 

prospective claimants of intbrmation about the kinds of evidence a claimant needs to 

produce to SUpp011 a claim of disability. In addition, Social Security employees and their 

counterparts who are involved in the decision making process at the state level can 

establish and/or improve the process through which they provide individualized ad\'iee 

and guidance to claimants and prospective claimants. 

4. Why do claimants need four levels of appeal? Why is the record not developed more 

fully earlier in the process? 

Ansv.:er: 

As I stated in my testimony. I do not believe that claimants need (,mr levels of 

appeal. The record is not developed more fully oarlier in the process partly because 

claimants and their representatives have no incentive to do so, as discussed in my 

answers to questions 2 and 6, and partly because claimants do not have enough 

information about the evidence they need to submit, as discussed in my answers to 

questions 3 and 7. 

5. What are your vlev·/s on t1le efficacy and fairness of video hearings? 

Answer: I believe thaI video hearings can be effective and fair if they are conducted in 

accordance with the recomm0ndations adopted by the Administrative Conference of the 

United States on Junc 17.2011. 

6. What are the pros cmd cons of closing the record either just before the hearing or at the 

close of the hearing before an ALI issues a decision? 
221 

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