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84–169 2003

SECOND IN A SERIES ON SOCIAL SECURITY

DISABILITY PROGRAMS’ CHALLENGES AND

OPPORTUNITIES

HEARINGS

BEFORE THE

SUBCOMMITTEE ON SOCIAL SECURITY

OF THE

COMMITTEE ON WAYS AND MEANS 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

JUNE 11 AND 20, 2002

Serial No. 107–86

Printed for the use of the Committee on Ways and Means

(

ii

COMMITTEE ON WAYS AND MEANS

BILL THOMAS, California, Chairman

PHILIP M. CRANE, Illinois 

E. CLAY SHAW, JR., Florida 

NANCY L. JOHNSON, Connecticut 

AMO HOUGHTON, New York 

WALLY HERGER, California 

JIM MCCRERY, Louisiana 

DAVE CAMP, Michigan 

JIM RAMSTAD, Minnesota 

JIM NUSSLE, Iowa 

SAM JOHNSON, Texas 

JENNIFER DUNN, Washington 

MAC COLLINS, Georgia 

ROB PORTMAN, Ohio 

PHIL ENGLISH, Pennsylvania 

WES WATKINS, Oklahoma 

J.D. HAYWORTH, Arizona 

JERRY WELLER, Illinois 

KENNY C. HULSHOF, Missouri 

SCOTT MCINNIS, Colorado 

RON LEWIS, Kentucky 

MARK FOLEY, Florida 

KEVIN BRADY, Texas 

PAUL RYAN, Wisconsin 

CHARLES B. RANGEL, New York 

FORTNEY PETE STARK, California 

ROBERT T. MATSUI, California 

WILLIAM J. COYNE, Pennsylvania 

SANDER M. LEVIN, Michigan 

BENJAMIN L. CARDIN, Maryland 

JIM MCDERMOTT, Washington 

GERALD D. KLECZKA, Wisconsin 

JOHN LEWIS, Georgia 

RICHARD E. NEAL, Massachusetts 

MICHAEL R. MCNULTY, New York 

WILLIAM J. JEFFERSON, Louisiana 

JOHN S. TANNER, Tennessee 

XAVIER BECERRA, California 

KAREN L. THURMAN, Florida 

LLOYD DOGGETT, Texas 

EARL POMEROY, North Dakota 

Allison Giles, Chief of Staff

Janice Mays, Minority Chief Counsel

SUBCOMMITTEE ON SOCIAL SECURITY

E. CLAY SHAW, Jr., Florida, Chairman

SAM JOHNSON, Texas 

MAC COLLINS, Georgia 

J.D. HAYWORTH, Arizona 

KENNY C. HULSHOF, Missouri 

RON LEWIS, Kentucky 

KEVIN BRADY, Texas 

PAUL RYAN, Wisconsin 

ROBERT T. MATSUI, California 

LLOYD DOGGETT, Texas 

BENJAMIN L. CARDIN, Maryland 

EARL POMEROY, North Dakota 

XAVIER BECERRA, California

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public hearing records 

of the Committee on Ways and Means are also published in electronic form. The printed 

hearing record remains the official version. Because electronic submissions are used to 

prepare both printed and electronic versions of the hearing record, the process of converting 

between various electronic formats may introduce unintentional errors or omissions. Such occurrences are inherent in the current publication process and should diminish as the process 

is further refined. 

iii

C O N T E N T S 

Page 

Advisories announcing the hearing ........................................................................ 2, 3, 4

WITNESSES 

Social Security Administration, Martin Gerry, Deputy Commissioner, Disability and Income Security Programs ............................................................... 6

U.S. General Accounting Office, Robert E. Robertson, Director, Education 

Workforce, and Income Security Issues ............................................................. 70

Social Security Advisory Board, Hon. Hal Daub, Chairman ................................ 79

American Bar Association, Commission on Legal Problems for the Elderly, 

John H. Pickering ................................................................................................ 199

American Federation of Government Employees, Social Security General 

Committee, AFL–CIO, and National Council of SSA Field Operations 

Locals, Witold Skwierczynski .............................................................................. 96

Association of Administrative Law Judges, and Social Security Administration, Office of Hearings and Appeals, Milwaukee, WI, Hon. Ronald G. 

Bernoski ................................................................................................................ 175

Consortium for Citizens with Disabilities, Social Security Task Force, Marty 

Ford ....................................................................................................................... 154

Federal Bar Association, Social Security Section, and Social Security Administration, Office of Hearings and Appeals, Atlanta, GA, Hon. Kathleen 

McGraw ................................................................................................................. 191

National Association of Disability Examiners, Jeffrey H. Price .......................... 112

National Council of Disability Determinations Directors, Linda Dorn ............... 121

National Council of Social Security Associations, Inc., and Social Security 

Administration District Office, Hackensack, NJ, Anthony T. Pezza ............... 107

National Organization of Social Security Claimants’ Representatives, Nancy 

G. Shor .................................................................................................................. 161

National Treasury Employees Union, Chapter 224, and Social Security Administration, Office of Hearings and Appeals, Cleveland Heights, OH, 

James A. Hill ........................................................................................................ 168

Stapleton, David C., Cornell Center for Policy Research ..................................... 126

Verkuil, Paul, Benjamin N. Cardozo School of Law, Yeshiva University, accompanied by Jeffrey Lubbers, Washington College of Law, American University ................................................................................................................... 203

SUBMISSIONS FOR THE RECORD 

Federal Managers Association, Alexandria, VA, statement ................................. 234

Public Employees Federation, New York, NY, Larry Jacks, statement .............. 239

Robinson, Philip A., Framingham, MA, statement ............................................... 240

(1)

SECOND IN A SERIES ON SOCIAL SECURITY 

DISABILITY PROGRAMS’ CHALLENGES AND 

OPPORTUNITIES 

TUESDAY, JUNE 11, 2002

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

The Subcommittee met, pursuant to notice, at 3:33 p.m., in room 

1100 Longworth House Office Building, Hon. Mac Collins presiding. 

[The advisory, revised advisory, and revised advisory #2, announcing the hearing follow:]

2

ADVISORY

FROM THE COMMITTEE ON WAYS AND MEANS

SUBCOMMITTEE ON SOCIAL SECURITY 

FOR IMMEDIATE RELEASE Contact: (202) 225–9263

June 4, 2002

No. SS–14

Shaw Announces Second in a Series of Hearings

on Social Security Disability Programs’

Challenges and Opportunities

Congressman E. Clay Shaw, Jr. (R–FL), Chairman, Subcommittee on Social Security of the Committee on Ways and Means, today announced that the Subcommittee 

will hold a hearing examining the Social Security Administration’s (SSA’s) disability 

determination and appeals processes. The hearing will take place on Tuesday, 

June 11, 2002, at 10:00 a.m., and will continue Tuesday, June 18, 2002, at 

2:00 p.m., in room B–318 Rayburn House Office Building.

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 Committee and for inclusion in the printed record of the hearing.

BACKGROUND:

Last year, the Subcommittee began a hearing series examining the challenges and 

opportunities facing Social Security’s disability programs. In the first hearing of the 

series, the Subcommittee heard an overview of these challenges from key stakeholders. Recommendations generally focused on how to decrease processing times at 

all levels of disability claims adjudication.

Consistently managing our Nation’s largest disability determination and appeals 

process and delivering timely, high-quality, and fair service to disability applicants 

has become one of the SSA’s greatest challenges. The process of applying for Social 

Security and Supplemental Security Income (SSI) disability benefits is complex and 

fragmented, involving multiple State and Federal officials, and consisting of an initial decision and up to three levels of administrative appeals within the agency. 

Upon exhausting these administrative remedies, the claimant may file an appeal in 

Federal court. In addition, each step within the agency involves detailed procedures 

for collecting and reviewing evidence and for decision-making. Last year, it required 

an average of about 106 days to process and issue a final decision for an initial 

claim for disability benefits and about 308 days to process an appeal before an Administrative Law Judge.

Moreover, due to the aging of the baby boomers, Social Security’s actuaries project 

that between now and 2010, the number of Social Security Disability Insurance 

beneficiaries will increase by nearly 50 percent and the number of SSI recipients 

who are disabled will increase by 15 percent. As a result, it is increasingly important for the agency to clearly identify the resources it needs to effectively serve the 

American people.

Aware of the long-standing problems within the disability determination and appeals process, SSA has spent more than $39 million attempting to develop and implement new initiatives to improve the timeliness, accuracy, and consistency of its 

disability decisions and spent an additional $71 million to develop an automated 

disability claims process. Many of these initiatives, however, have been ineffectual 

or have met with mixed results. Many reports, including those issued by the Social 

Security Advisory Board and the U.S. General Accounting Office, have outlined 

problems and provided recommendations for improving SSA’s disability determination and appeals process.

In announcing the hearing, Chairman Shaw stated: ‘‘Individuals with disabilities, 

already burdened by the challenges of their illness or injury, are often in desperate 

3

need of benefits to replace lost income. They deserve and should receive timely and 

accurate decisions through a fair and understandable process. Our challenge is to 

thoughtfully and carefully examine the disability determination and appeals process 

to ensure it meets the needs of individuals with disabilities and their families.’’

FOCUS OF THE HEARING:

The Subcommittee will examine the reasons for delays, complexities, and inconsistencies in the disability determination and appeals process and explore recommendations for change.

DETAILS FOR SUBMISSION OF WRITTEN COMMENTS:

Please Note: Due to the change in House mail policy, any person or organization 

wishing to submit a written statement for the printed record of the hearing should 

send it electronically to hearingclerks.waysandmeans@mail.house.gov, along with a 

fax copy to (202) 225–2610, by the close of business, Tuesday, June 25, 2002. Those 

filing written statements who wish to have their statements distributed to the press 

and interested public at the hearing should deliver their 200 copies to the Subcommittee on Social Security in room B–316 Rayburn House Office Building, in an 

open and searchable package 48 hours before the hearing. The U.S. Capitol Police 

will refuse sealed-packaged deliveries to all House Office Buildings.

FORMATTING REQUIREMENTS:

Each statement presented for printing to the Committee by a witness, any written statement 

or exhibit submitted for the printed record or any written comments in response to a request 

for written comments must conform to the guidelines listed below. Any statement or exhibit 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. Due to the change in House mail policy, all statements and any accompanying exhibits for 

printing must be submitted electronically to hearingclerks.waysandmeans@mail.house.gov, along 

with a fax copy to (202) 225–2610, in Word Perfect or MS Word format and MUST NOT exceed 

a total of 10 pages including attachments. Witnesses are advised that the Committee will rely 

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. Any statements must include a list of all clients, persons, or organizations on whose behalf 

the witness appears. A supplemental sheet must accompany each statement listing the name, 

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

Note: All Committee advisories and news releases are available on the World 

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

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.

***NOTICE—CHANGE IN TIME AND LOCATION***

f

ADVISORY

FROM THE COMMITTEE ON WAYS AND MEANS

SUBCOMMITTEE ON SOCIAL SECURITY

FOR IMMEDIATE RELEASE Contact: (202) 225–9263

June 6, 2002

No. SS–14–Revised

4

Change in Time and Location for Second in a

Series of Hearings on Social Security Disability

Programs’ Challenges and Opportunities

Congressman E. Clay Shaw, Jr. (R–FL), Chairman, Subcommittee on Social Security of the Committee on Ways and Means, today announced that the Subcommittee 

hearing on the Social Security Disability Programs’ Challenges scheduled for Tuesday, June 11, 2002, at 10:00 a.m., in room B–318 Rayburn House Office Building, 

will now be held at 3:30 p.m., in the main Committee hearing room, 1100 

Longworth House Office Building.

In addition, the continuation of the hearing scheduled for Tuesday, June 18, 2002, 

at 2:00 p.m., in room B–318 Rayburn House Office Building, will now be held at 

3:30 p.m.

All other details for the hearing remain the same. (See Subcommittee Advisory 

No. SS-14, dated June 4, 2002).

***NOTICE—CHANGE IN DATE AND TIME***

f ADVISORY

FROM THE COMMITTEE ON WAYS AND MEANS

SUBCOMMITTEE ON SOCIAL SECURITY

FOR IMMEDIATE RELEASE Contact: (202) 225–9263

June 14, 2002

No. SS–14–Revised #2

Change in Date and Time for Second in a Series

of Hearings on Social Security Disability

Programs’ Challenges and Opportunities

Congressman E. Clay Shaw, Jr. (R–FL), Chairman, Subcommittee on Social Security of the Committee on Ways and Means, today announced that the Subcommittee 

hearing on the Social Security Disability Programs’ Challenges and Opportunities, 

previously scheduled for Tuesday, June 18, 2002, will now take place on Thursday, June 20, at 10:00 a.m., in room B-318 Rayburn House Office Building.

DETAILS FOR SUBMISSION OF WRITTEN COMMENTS:

Please Note: Due to the change in House mail policy, any person or organization 

wishing to submit a written statement for the printed record of the hearing should 

send it electronically to hearingclerks.waysandmeans@mail.house.gov, along with a 

fax copy to (202) 225–2610, by the close of business, Friday, July 5, 2002. Those filing written statements who wish to have their statements distributed to the press 

and interested public at the hearing should deliver their 200 copies to the Subcommittee on Social Security in room B–316 Rayburn House Office Building, in an 

open and searchable package 48 hours before the hearing. The U.S. Capitol Police 

will refuse sealed-packaged deliveries to all House Office Buildings.

All other details for the hearing remain the same. (See Subcommittee Advisories 

No. SS-14, dated June 4, 2002, and No. SS–14–Revised, dated June 6, 2002.)

FORMATTING REQUIREMENTS:

Each statement presented for printing to the Committee by a witness, any written statement 

or exhibit submitted for the printed record or any written comments in response to a request 

for written comments must conform to the guidelines listed below. Any statement or exhibit 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. Due to the change in House mail policy, all statements and any accompanying exhibits for 

printing must be submitted electronically to hearingclerks.waysandmeans@mail.house.gov, along 

with a fax copy to (202) 225–2610, in Word Perfect or MS Word format and MUST NOT exceed 

5

a total of 10 pages including attachments. Witnesses are advised that the Committee will rely 

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. Any statements must include a list of all clients, persons, or organizations on whose behalf 

the witness appears. A supplemental sheet must accompany each statement listing the name, 

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

Note: All Committee advisories and news releases are available on the World 

Wide Web at 

Shaw is at the airport and is on his way into the Capitol now. So, 

Mr. COLLINS. The Subcommittee will come to order. Chairman 

http://waysandmeans.house.gov.

f he should be coming in most any time. We will enter his statement 

into the record, unless he just wants to go through it once he arrives. 

[The opening statement of Chairman Shaw follows:]

Statement of the Hon. E. Clay Shaw, Jr., a Representative in Congress from 

the State of Florida, and Chairman, Subcommittee on Social Security 

Today the Subcommittee will continue our in-depth examination of the challenges 

and opportunities faced by Social Security’s two disability programs—Disability Insurance and Supplemental Security Income. 

Americans should have a reasonable expectation that Social Security will fairly 

and efficiently process the more than three million applications for disability benefits each year. The problem: They don’t. 

In addition to hardships created by illness or injury, individuals with disabilities 

also face a long, complex, and confusing process in pursuing disability benefits for 

themselves and their families. 

Sadly, this is not new. The agency has been working to get it right since 1994, 

when they introduced plans to redesign the disability claims process. The situation 

is now approaching the breaking point: both disability and retirement claim workloads will grow dramatically as baby boomers age. At the same time the agency expects to lose about half of its experienced workforce to retirement. 

According to the bipartisan Social Security Advisory Board, ‘‘the projected growth 

in the number of disability claimants threatens to overwhelm a policy and administrative infrastructure that is already inadequate to meet the needs of the public.’’

An accurate and thorough analysis of how the disability programs are working is 

urgently needed so that we can consider effective changes in policy, resources, and 

administrative structure. 

In our hearing series, we will focus in-depth on the disability determinations and 

appeals decisions made by State disability examiners and federal Administrative 

Law Judges. We welcome, for the first time, the new Deputy Commissioner for Disability and Income Security Programs, Martin Gerry. We will also hear from the 

Chairman of the Social Security Advisory Board, the GAO, a researcher, and several 

employee groups serving those with disabilities on the front lines every day. 

Social Security Commissioner Jo Anne Barnhardt recently testified that the 

length of time it takes to process disability claims is unacceptable. We couldn’t agree 

more, and look forward to hearing more about measures she has initiated to reverse 

this time lag. 

If America’s disabled workers must negotiate a morass of inefficient, complex and 

confusing bureaucratic processes to obtain benefits, then the essential safety net Social Security’s disability programs offer has failed. Each of us has the opportunity 

and the responsibility to address existing problems within the disability determination and appeals processes so that individuals with disabilities and their families 

can receive the benefits so vital to their economic security.

words of wisdom for us. 

Mr. COLLINS. We will call on Mr. Matsui and see if he has any 

f Mr. MATSUI. I only have words of wisdom to thank you for holding this hearing. 

Mr. COLLINS. I like that. Short and sweet. 

6

Our first witness will be Mr. Martin Gerry, Deputy Commissioner for Disability and Income Security Programs. Welcome, Mr. 

Gerry, and we are glad you are here, appreciate your taking the 

time to come, and if you would like, your whole statement will be 

entered into the record, and if you would like to summarize your 

statement, we are ready. 

STATEMENT OF MARTIN GERRY, DEPUTY COMMISSIONER, 

DISABILITY AND INCOME SECURITY PROGRAMS, SOCIAL SECURITY ADMINISTRATION 

Mr. GERRY. Thank you very much, Mr. Chairman. 

Mr. Chairman and Members of the Subcommittee, thank you 

very much for inviting me to testify today before this Subcommittee 

regarding the Social Security Administration’s (SSA) efforts to improve the process used to determine eligibility for benefits under 

the Social Security Disability Insurance and Supplemental Security 

Income (SSI) programs. As you know, the monthly disability benefits provided through these programs represent an economic safety 

net for situations that any of us might find ourselves in at some 

point during our lifetime. 

As Commissioner Barnhart testified before the Subcommittee 

last month, the length of time that the disability claims process can 

take is wholly unacceptable. The numbers of claims do not simply 

represent case counts. They represent people who need access to 

that safety net and are counting on the Social Security Administration for help. 

We are committed to and actively engaged in improving the current disability determination process. To this end, my written testimony addresses our initial efforts to improve various aspects of 

that process. I would be pleased to elaborate on any of the initiatives described in that testimony and to answer any other questions, which you or other Members of the Subcommittee might 

have. 

[The prepared statement of Mr. Gerry follows:]

Statement of Martin Gerry, Deputy Commissioner, Disability and Income 

Security Programs, Social Security Administration 

Mr. Chairman and Members of the Subcommittee:

Thank you for inviting me today to discuss the Social Security Administration’s 

(SSA) efforts to improve the Social Security and Supplemental Security Income 

(SSI) disability process. As you know, the monthly disability benefits provided 

through these programs represent an economic safety net for situations that any of 

us might find ourselves in at some point during our lifetime. Few individuals have 

private or employer-provided long-term disability insurance. But nearly all American workers have Social Security. 

As Commissioner Barnhart testified before you last month, the length of time the 

disability claim process can take is unacceptable. The numbers of claims do not simply represent case counts, they represent people who need access to that safety net 

and also are counting on us for help. Today I will focus my testimony on a description of the disability determination process and our efforts to improve it. 

The Disability Determination Process

Most disability claims are initially processed through a network of local Social Security field offices and State agencies (usually called disability determination services or DDSs). Favorable determinations (allowances) in most instances lead quickly 

to the payment of benefits. Appeals of unfavorable determinations may be decided 

in the DDSs or by administrative law judges or administrative appeals judges in 

SSA’s Office of Hearings and Appeals. 

7

Social Security Field Offices

SSA representatives in the field offices usually obtain applications for disability 

benefits, either in person, by telephone, or by mail. The application and related 

forms ask for a description of the claimant’s impairment(s), names, addresses, and 

telephone numbers of treatment sources, and other information that relates to the 

alleged disability. (The ‘‘claimant’’ is the person who is requesting disability benefits.) 

The field office is responsible for verifying necessary non-medical information requirements, which may include age, employment, marital status, or Social Security 

coverage information. The field office sends the case to a DDS for evaluation of disability. 

State Disability Determination Services

The DDSs, which are fully funded by the Federal Government, are State agencies 

responsible for developing medical and other evidence and rendering the initial determination on whether the claimant is or is not disabled or blind under the law. 

The DDSs follow SSA rules on how to develop and evaluate medical and vocational evidence. Usually, the DDS tries to obtain evidence from the claimant’s own 

medical sources first. If that evidence is unavailable or insufficient to make a determination, the DDS will arrange for an independent medical examination, called a 

consultative examination (CE), at no cost to the claimant in order to obtain the additional information needed. The claimant’s treating source is the preferred source 

for the CE; however, the DDS may also obtain the CE from an independent source. 

After completing its case development, the DDS makes the initial disability determination. Generally, the determination is made by a two-person adjudicative team 

consisting of a medical or psychological consultant (who is usually a physician or 

psychologist) and a disability examiner. If the adjudicative team finds that additional evidence is still needed the consultant or examiner may recontact a medical 

source(s) and ask for supplemental information. 

The DDS also makes a determination whether the claimant is a candidate for vocational rehabilitation (VR). If so, the DDS makes a referral to the State VR agency. 

After the DDS makes the disability determination, it returns the case to the field 

office for appropriate action depending on whether the claim is allowed or denied. 

If the DDS finds the claimant disabled, SSA will complete any outstanding non-disability development, compute the benefit amount, and begin paying benefits. If the 

claimant is found not disabled, the file is retained in the field office in case the 

claimant decides to appeal the determination.

Appeals Process

A person who is dissatisfied with an initial determination may pursue an appeal 

through three administrative levels and the Federal courts. The Act requires the 

Commissioner to provide a claimant the opportunity for a hearing, and allows for 

filing of a civil action in Federal court after the Commissioner’s final decision. SSA’s 

regulations also provide a reconsideration review by the DDS prior to the hearing 

before the administrative law judge (ALJ) and an opportunity for final review by 

SSA’s Appeals Council. 

Generally, SSA’s first administrative review for claimants—the reconsideration—

involves a de novo, or fresh review of the claim (including any new evidence) by individuals who did not participate in the original determination. The reviewers consider all of the evidence and issue a reconsideration determination. There is no reconsideration step in the 10 States in which SSA still has in place the prototype 

of a revised disability process. 

The second level of administrative appeal is a de novo hearing before an ALJ who 

can call on medical or vocational experts, if needed, to help evaluate the evidence. 

Usually the claimant obtains legal representation at this point. Frequently, new evidence is introduced by the claimant and his or her representative, often at the hearing itself. Claimants are allowed to appear before the ALJ and to call witnesses. 

The final administrative appeal level is the Appeals Council, which may grant, 

deny, or dismiss a request for review of the ALJ decision. It will grant review if 

the ALJ decision contains an error of law, is not supported by substantial evidence, 

involves a broad policy issue, or if there appears to be an abuse of discretion by the 

ALJ. After an Appeals Council action, if the claimant is still dissatisfied, the next 

step is filing a civil action in Federal court. 

Uniform Application of Policy

SSA strives to maintain and apply uniform standards at all levels of administrative adjudication and review. SSA takes every opportunity to emphasize to disability 

adjudicators in all locations and at all levels the importance of following SSA rules 

8

to ensure that similar cases are decided in a similar manner throughout the country. The result of this program-wide emphasis has been, and continues to be, more 

consistent application of Agency policy throughout the nation. Without reservation, 

SSA remains committed to providing a fair and consistent disability determination 

process throughout the United States.

Efforts to Improve the Process

One of the first things that Commissioner Barnhart did after assuming office was 

to form a group to develop a service delivery budget to match up resource needs 

against the level of service we would like to deliver. The group mapped the disability determination process from the time a claimant first contacts SSA through 

the initial determination and all levels of appeal. 

Our preliminary analysis shows us that there is no one way to make the disability 

determination process faster and better. It’s going to take many improvements—

some large, some small—to take us where we need to be. As the Commissioner testified last month, we have already announced a number of steps to address the causes 

of delay in the disability process.

Initial Determination Initiatives

As you are all well aware, SSA has engaged in a number of efforts to redesign 

and improve the disability determination process by testing a number of initiatives 

over the past several years. We carefully reviewed the results of these initiatives 

to identify the elements that show the most promise. Based on this review, we have 

decided to:

• Grant greater decision making authority to DDS disability examiners by extending single decisionmaker authority nationwide to all DDSs; • Eliminate the formal claimant conference that was tested as part of the disability Prototype; and • Extend elimination of the reconsideration step in the States that have been 

doing the Prototype, while SSA gathers additional information and considers 

alternative approaches to a second-level appeal step.

Appeals Initiatives

The amount of time it takes for an individual to make his or her way through 

SSA’s appeals process has been a perennial concern. In an effort to address this concern, the Office of Hearings and Appeals (OHA) implemented a new workload process commonly referred to as the Hearings Process Improvement initiative or HPI 

about two years ago. Implementation of this initiative involved significant changes 

to the way SSA processed the hearings workload, and the organizational structure 

of our hearing offices. The initiative was intended to reduce case processing times, 

improve productivity, and enhance the quality of service to claimants. 

However, while well intentioned, the initiative did not work. There have been concerns that the HPI project has created even more bottlenecks in the process that 

it was intended to fix. Simultaneously, SSA’s past inability to hire ALJs to make 

decisions at the hearing level of the disability process compounded the unintended 

adverse impact that HPI had on our ability to provide timely service. 

Last year, former Acting Commissioner Larry Massanari formed a group to look 

at the hearing process. Thanks to this timely analysis, this spring the Commissioner 

announced decisions on short- and near-term changes to the hearings process. We 

are required to bargain with employee unions before we can implement some of 

these changes. We certainly intend to meet that obligation in good faith and are 

working to implement these important changes as soon as possible. On a short-term basis, the Commissioner immediately set aside $6 million in overtime and other costs to help expedite the processing of 30,000 to 35,000 backlogged 

cases in OHA. In addition to expediting the processing of these cases, this action 

signaled the importance the Commissioner was placing on making program improvements. 

In the near term, the Commissioner announced decisions to make changes to the 

hearing process. The decisions include:

• Including ALJs in early screening for on-the-record decisions; • Developing a short form for fully favorable decisions; • Allowing ALJs to issue fully favorable decisions from the bench immediately 

after a hearing; • Creating a law clerk position; and • Expanding the use of technology in the OHA, including the use of video teleconferencing, speech recognition and digital recording of hearings.

9

Be assured, these are just the first steps that SSA will take to meet the challenge 

of providing a timely, efficient, and high quality hearing process. 

Azdell Case

In regard to the hearing process it is important to remember that since April 

1999, due to litigation pending before the Merit Systems Protection Board, (MSPB) 

SSA, with one special exception, has been unable to hire new ALJs to replace those 

who have retired. 

The name of the case is Azdell v. OPM. It was brought by a class of individuals 

who have challenged the method that the Office of Personnel Management (OPM) 

used to compute the veterans’ preference in the ranking of ALJ candidates. The 

MSPB has ruled in favor of the plaintiffs in the case and against OPM. The MSPB 

ordered OPM to revise the rankings. 

With the interest of this subcommittee, we were able to bring on board 126 new 

ALJs last October from a list of candidates that has been (and continues to be) the 

subject of litigation. While these additional ALJs will certainly help in addressing 

the backlogs, the continued inability to replace ALJs who retire or leave has the potential to seriously affect our ability to decide cases in the hearing offices.

e-DIB

Before I close, I would like to note one final initiative that will improve the efficiency of both the initial determination and subsequent appeals process. Simply put, 

SSA must accelerate its transition to an electronic disability process (e-Dib), not just 

for the State Disability Determination Services but also for the appeals offices. As 

she stated here last month, Commissioner Barnhart is committed to the creation of 

an electronic system to support the disability determination and appeals process. I 

assure you that I share her commitment to bring the process into the 21st Century. 

Accelerated e-Dib is a major Agency initiative that will move all components involved in disability claims adjudication/review to an electronic business process 

through the use of an electronic disability folder. When the process is fully implemented, the Agency will no longer create, mail and store paper disability folders. 

Through interfaces with their existing case processing systems, components will be 

able to work claims by electronically accessing and retrieving information that is 

collected, produced and stored as part of the electronic disability folder. Accelerated 

e-Dib will significantly change the business process and the ways that components 

interact with disability claims and will ensure that SSA has a robust platform to 

manage and control increasing disability workloads. 

Conclusion

Finally, I thank you, Mr. Chairman, Mr. Matsui, and all the members of the Subcommittee, for your interest and offers to help as we move to meet the challenges 

facing the Social Security Administration. We are all aware that these go beyond 

our efforts to improve disability to providing the service that Americans deserve as 

the baby boomers age; ensuring the program’s solvency; improving program integrity; and accomplishing all these goals with the quality staff we will need. 

shorter and sweeter than I thought it was going to be. 

I look forward to working with you all in the future.

Mr. COLLINS. I like them short and sweet, but that was a little 

f In your opening statement, your remarks, Mr. Gerry, you elaborate on the State Disability Determination Services (DDS). We noticed that there is quite a variation from State to State across the 

country in approvals for disability. Can you elaborate on that 

some? I know they go from 31 percent in some States, as high as 

65 percent in others. There is quite a variance. Can you elaborate 

on that some for us? 

Mr. GERRY. Yes, Mr. Chairman. That is true. The current fluctuation actually runs from about 27 percent in the low State, which 

is Tennessee, to 61.3 percent, in the highest State, which is New 

Hampshire. The average is about 38.7 percent. So, you are absolutely right. There is a significant variation. This has been true for 

a substantially long period of time. I served on the Disability Advisory Council 15 years ago, and this issue was around at that point. 

10

These variations have been with us for quite a few years in terms 

of the programs. 

Part of the answer—and I want to stress part—has to do with 

the way in which we calculate these rates. Obviously the total 

number of people who apply has something to do with the total 

number of people who are allowed or disallowed. In some States, 

the percentage of people in the State that apply for benefits is quite 

a bit higher than it is in other States. That accounts for some of 

the difference in rates. 

In other words, if you start with the assumption that for the 

most part disability is distributed evenly throughout the American 

population, you would assume the rates would be similar in every 

State. If, for example, twice as many people per thousand in a 

State apply for benefits, then it wouldn’t be surprising that the 

rate of allowances might be lower in a State where more people 

apply. 

Now, that accounts for some of the difference, but we are actively 

engaged. As the Commissioner testified last month, we are still engaged in analyzing these variations. I think she expressed some 

concern that the application rate won’t explain all of the variations. 

Working with our quality analysis process and looking at the statistics we have—we are trying to isolate other factors, if there are 

other factors that account for these variations. 

I can tell you from my own personal experience that some States 

have actually gotten into the habit of sending people to our offices 

for eligibility determinations as part of another eligibility process. 

That tends to, of course, artificially increase or decrease the rate 

of allowances by running people through our process just in case 

they might be eligible for benefits. 

Again, I don’t think that accounts for all the differences, but the 

numbers are not quite as obvious. They don’t tell the whole story. 

The other thing that is important, I think, is that accuracy affects allowance rates. The real issue is how accurate are the allowances made in different States? So really, in terms of what we 

would be looking at, it is the accurate allowance rate that we would 

want to explain any differences in. Sometimes if you have significant numbers of people who are being allowed or denied, and our 

review suggests that these are not proper decisions, then that 

would tend to influence data. 

Mr. COLLINS. The States themselves are responsible for developing the medical and other evidence dealing with disability. 

Mr. GERRY. Well, the States——

Mr. COLLINS. They draft their own guidelines, the States? 

Mr. GERRY. No. We set forth the basic requirements for making 

the disability determinations through a series of documents, called 

the medical listings. There are other documents that provide instructions to the States on how to go about that. We do review the 

work of the States through our quality assurance (QA) process. 

So, it is true that the day-to-day routine in State Disability Determination Services may vary somewhat, but it is a Federal process. The basic rules are set by the Social Security Administration. 

So, we should expect the process to be applied generally uniformly 

throughout the country. If it isn’t, it is not because the States have 

separate rules for making disability determinations. 

11

Mr. COLLINS. Okay. Well, that was the next point. There should 

be uniform standards. 

Mr. GERRY. There should be and there are. Now, one of the 

things that Commissioner Barnhart has done—and I think it has 

been an important move in the right direction—is to change organizationally how we develop our disability policy. 

Historically, we have collocated in the Office of Disability the 

rulemaking capability to develop the listings and the various rules 

that apply to the program. While that has had some direct linkage 

to the Disability Determination Services, it has been quite removed 

from the Office of Hearings and Appeals (OHA). 

Over the last few years, under a title that I found particularly 

mysterious called ‘‘Process Unification,’’ the Agency has been trying 

to make much more compatible and consistent the rules that are 

applied in the hearing and appeals process with the rules that are 

applied in the Disability Determination Service. They should be applying the same rules. It is the same law. 

We are setting up a new unit. This unit will be part of the Agency component that I head, and that will set disability policy across 

the Agency. So, it would apply equally to the Office of Hearings 

and Appeals and to the DDSs. That is an effort to try to be sure 

that the rules are consistent. We shouldn’t have to create a label, 

process unification, to describe implementing the law fairly and 

consistently. That is all it really means. 

Mr. COLLINS. Moving on to another area, which I have had a 

lot of correspondence and input from people involved in this area 

in my district, or in Georgia, in particular. That is the administrative law judges (ALJ). How are we coming with giving them some 

assistance and helping with their processing of these cases? 

Mr. GERRY. Well, we have a substantial amount of work for the 

administrative law judges, Mr. Chairman. We are providing training for the new administrative law judges, the 126 that we have 

hired. For the most part, we have an enormous amount of work to 

do, and we are under a lot of strain. The backlogs have grown, and 

productivity has not kept pace. I am not sure that it could fully 

have kept pace, although we have been making efforts to try to improve it. All in all, we are committed to making the system work 

and doing whatever we need to do to provide the resources that we 

can to support the process. The workload of the Office of Hearings 

and Appeals is growing, and because of the Azdell decision, we 

have had historically some significant constraints on hiring new 

administrative law judges. 

We did have an initiative underway, covered in my testimony, 

called the Hearings Process Improvement (HPI) initiative. This initiative was an effort to try to speed up and improve the outcomes 

of the process. The Commissioner went through and reviewed a 

very careful analysis that was done by a group appointed by Acting 

Commissioner Massanari. We have made some major decisions to 

continue some portions of that initiative, to discontinue others, and 

to introduce some new elements to try to improve the hearing process. 

We are now going through the process of meeting with the 

unions to discuss these changes, and we are hoping to implement 

12

these initiatives this summer. I would be happy to discuss any of 

them, but they are pretty much outlined in my written testimony. 

Mr. COLLINS. Well, I was going to get to and ask the question 

about the unions and how you are progressing with that—so we appreciate that volunteer comment and testimony. I think that shows 

some of the problems that the administrative law judges have had 

in the past and some of their concerns. Last year they moved toward organization. So, they need help. We are glad that the Commissioner and you are looking at helping those law judges. Mr. 

Matsui? 

Mr. MATSUI. Thank you, Mr. Chairman. 

Mr. Gerry, I want to thank you for taking this very difficult job 

that you have. I know your background is one in which you have 

been very involved with disability issues, almost your entire professional career. So, we appreciate the fact that you are there, and 

Commissioner Barnhart is where she is as well. I think both of you 

working as a team will hopefully solve this backlog of disability 

claims, and second, streamline the process. 

Last month the Commissioner came before us, as you mentioned. 

She pretty much outlined her proposal. She wants to make this a 

major priority in her tenure as the Commissioner. You have outlined some of the recommendations that she intends to deal with 

in your written testimony. So, can you give me an idea of the 

timeline we are talking about—when she might be ready or you 

might both be ready to submit to us some legislative changes that 

you might think would be required in order to implement your proposals? 

Secondly, in reference to the timeline, if it is within the next fiscal year, from October 1 on, would you be able to give us an idea 

what we are looking at in terms of additional dollars for both the 

transition and implementation? Then, lastly, in terms of the overall 

cost of this? If you are not prepared to do this, that is fine. Then 

obviously when you are, we would want to get that information 

from you. I don’t want to have you make any recommendations or 

comments that are premature because obviously this is a subject 

that we are all concerned about. We are all interested in on the 

basis of doing this right. 

Mr. GERRY. Well, thank you, and thank you for your kind comments, Mr. Matsui. 

At this point, we don’t have any specific legislative proposals. 

The Commissioner set a timeframe and has asked me to recommend changes that wouldn’t necessarily involve legislation, but 

it might. The timeline is late fall, so I would expect that we will 

have something by December. 

If at that point in time the Commissioner believes that we should 

go ahead with legislative proposals, then we would communicate 

those first, of course, to the Office of Management and Budget as 

part of our usual process. We then would try to move toward the 

Committee. 

Of course, we don’t have the details or any estimate of cost, but 

the Commissioner wants recommendations by late fall. 

Mr. MATSUI. Okay. I would imagine if it requires additional 

sums of money, you probably would have to seek it in a suppleVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00016 Fmt 6633 Sfmt 6602 E:\HR\OC\A169.XXX A169
13

mental. It could be very difficult as we are experiencing now, even 

with the current supplemental bill. 

If you have any idea prior to that time before, obviously, we are 

completed with the appropriations process, it would help. Again, 

this is not to put you on the spot or anything of that nature. It is 

really in order to make sure everybody’s job is easier, and we deal 

with these disability issues in the way that I think all of us want 

to. So, if you could look at that, and if it does make some sense 

that you can give us a better idea before the fiscal year begins and 

before the appropriations process is completed, it would be helpful. 

Mr. GERRY. I would be happy to do that, Mr. Matsui. Again, we 

would very much like to work with the Committee and the staff on 

any proposals that we come up with. At this point, the fairly major 

task we have is to come up with the recommendations themselves. 

Mr. MATSUI. Right. Thank you very much. 

Mr. COLLINS. Thank you, Mr. Matsui. 

You know, it is pleasing to hear that you are trying to come up 

with ways to better the process without doing it through legislation. I have often said that when you have to go through the legislative process, Congress has a tendency to mess up a two-car funeral. So, I know that it could probably make a real mess out of 

some legislative action. A little piece of advice: Do it within the 

budget that you already have funded and appropriated for you. We 

have no more money for additional funding. If you can’t do it that 

way, do some rescissions and make your numbers work. Mr. Ryan? 

Ms. RYAN. Well, thank you. 

Mr. Gerry, I just have two quick questions. One, in the March 

2002 Advisory Board Report, they stated that appealing decisions 

is very costly to claimants, the Agency, and ultimately to the taxpayer. In fact, their report states that in 2001 a decision made at 

the ALJ level costs $2,157, but the cost of an initial decision at a 

State Agency is about $583. 

Many stakeholders have suggested closing the record at various 

stages, so that the case does not change at every level of appeal 

to save some dollars. I would just like your reaction to that proposal? What are your thoughts on that? 

Mr. GERRY. Well, thank you, Mr. Ryan. For me it is not a new 

proposal. It has probably been around as long as the discussion of 

this program. It is one that I think has pluses and minuses, and 

that is what makes it difficult to answer. 

There are a lot of advantages to closing the record, as you point 

out, in terms of getting a common set of facts where you could then 

get a more rapid decision about eligibility without the facts changing. 

On the other hand, the question is to what extent would closing 

the record unfairly disadvantage an individual whose condition is 

changing, and in some cases changing fairly rapidly. That is the 

tradeoff. 

In one sense, the record is closed probably now at the U.S. district court level in many cases. Even though in theory it might be 

closed at the administrative level, the district courts tend to reopen 

a lot of these cases. That is an awfully long time for the situation 

to continue without the record being closed, so I think it is logical 

14

to try to close the record earlier. We are certainly looking at this 

issue as a major part of whatever we are going to recommend. 

I just want to respond that if it were easy, I suppose other people—there have been many other people who have tried to solve 

these problems in the last 25 years—would have come up with an 

easy solution. It is a tradeoff. People can file separate claims. The 

other side of the closing-the-record issue is that if you go ahead and 

close the record, it doesn’t preclude someone whose situation then 

changes fairly abruptly from filing a separate claim. I think the 

question is really how to do that? It is part of the larger question, 

I think, rather than a separate question. 

Once you figure out how you want to streamline the process of 

reaching a decision, then maybe it is easier to discuss where and 

how you would close the record. We are very much aware that it 

has been studied not only by the Advisory Committee I was on, but 

by many others. It will have to be part of whatever we ultimately 

recommend to the Commissioner. 

Ms. RYAN. Will you be recommending some changes to the Commissioner soon? 

Mr. GERRY. I think, as I responded to Mr. Matsui, our plan is 

to have recommendations by late fall, so I would say by the end 

of November, early December. 

Ms. RYAN. One other issue that I hope that you respond to is 

processing times. Claims to process, disability insurance (DI) 

claims, I believe, in 2000 took over 100 days to process, about 120 

days for SSI claims. They have been going up since 1996. Those are 

the last data we have. 

What are the processing times right now? How many applications are pending at this time? Do you think you are going to get 

these processing times down? Where are we right now vis-a-vis 

where we just were in 2000? 

Mr. GERRY. Well, I am happy to say the processing time right 

now is 102.5 days, or lower than——

Ms. RYAN. On DI claims? 

Mr. GERRY. That is right. The pending cases, 582,334. At least 

it was—it can’t be quite 34 right now. It must be 35 or 33, depending on something in the last 15 minutes. But that is pretty close. 

Ms. RYAN. Okay. 

Mr. GERRY. I think we are doing better on processing times. As 

the Commissioner pointed out—and I know she presented the Subcommittee with that long chart showing all of the steps in the process. Without making any structural changes, there is only so much 

we can do on the processing times. I think we are getting closer 

to what we can do without changing the process itself. As she 

pointed out in her testimony, there are the larger changes. There 

are also a series of small changes that we are proceeding on that 

we think can get some of those days reduced. We are going to reach 

a natural limit that is imposed by the separate number of activities 

that are currently described in that chart. 

Ms. RYAN. One-hundred days to 102 days is about the same. 

Clearly, the statute underlying requires you have so many stages 

to go through. Will you be bringing forward more of a comprehensive set of recommendations to get to both of these issues, which 

are obviously related, so we can streamline these things and save 

15

a little money in the process? Do you think that within the existing 

statute you can come to us with some recommendations on how to 

accomplish those things? 

Mr. GERRY. I think the Commissioner has made it clear that a 

major part of her mission and a major reason that she took the job 

was to do that. My job, of course, is to recommend some things to 

her, and what she ultimately goes forward with may be different 

than what I recommend. I am committed, as she is, to that process. 

That is why I took my job, the opportunity to work with her on this 

effort. So, I am hoping that by late fall we will have a set of recommendations for her. I am convinced that she will act on them 

as quickly as she feels is appropriate. I know it is a high priority 

for her. 

Ms. RYAN. That is the point I am trying to make. We are eager 

to see what you have to recommend. We want to see progress made 

on these issues, and we are very much paying attention to these. 

I yield. 

Chairman SHAW. [Presiding.] Thank you. Mr. Doggett? 

Mr. DOGGETT. Thank you, Mr. Chairman, and I would just kind 

of continue the same line of questioning trying to understand the 

timetable. We appreciated the testimony of the Commissioner when 

she was here before previously. Of course, we are impressed by the 

very long delays that are occurring, recognizing that she has only 

been on that job for a relatively short period of time, and yourself 

also, but trying to get an idea of the timetable. 

You are saying your recommendations on the short-term changes 

to address these lengthy delays will go from you to her by the fall? 

Mr. GERRY. No. It wouldn’t be the short-term changes. It would 

be the major changes. Those recommendations would be completed 

by the end of the fall. When she first took office, she mentioned 

short-term initiatives. 

Mr. DOGGETT. I see. 

Mr. GERRY. Those are the ones that are outlined in my testimony, so we are talking about the more significant, larger changes 

in the process. 

Mr. DOGGETT. By what point do you think you will have determined whether significant additional moneys are necessary to reduce the delay? 

Mr. GERRY. It would have to be after she reviews the options 

that are presented to her, and I know she will do that as expeditiously as possible. What is a little hard for me to at this point predict is how complex those will be. 

Mr. DOGGETT. All right. Are you saying that you won’t have 

any request for additional resources on your short-term solutions 

until she has reviewed all of your long-term solutions? 

Mr. GERRY. No. Our plan is to implement the short-term initiatives that are outlined in the testimony as quickly as possible. We 

are meeting with union representatives right now to discuss implementation this summer. We are in the process—and I would be 

happy to provide sort of a status on each of them—of implementing 

each one of these changes. We have incorporated the resources that 

we need to implement all of those changes. They are part of the 

2004 budget process, which is underway in the Agency, or we have 

already accounted for the resources for 2003. 

16

So, we are not delaying any of the short-term changes. The only 

thing we are not in a position to do at this point, of course, is to 

look at the budgetary implications of recommendations for the larger changes, which the Commissioner hasn’t seen yet. 

Mr. DOGGETT. Do you believe any additional moneys will be 

necessary to meet your short-term concerns in this appropriation 

cycle? 

Mr. GERRY. I don’t believe so. I think we have certainly included in the budget documents that have gone forward, to my best 

knowledge, the resources that we need. I don’t know of any unmet 

needs for the changes outlined in the testimony. 

Mr. DOGGETT. So, you are not seeking any appropriations to 

address the delays that are occurring? You propose to deal with 

those in other long-range proposals that you will have? 

Mr. GERRY. Well, of course, we are going through the process 

of submitting documents for the President’s 2004 budget. In that 

budget we will reflect the resources that we need for that fiscal 

year. I mentioned in my testimony resource decisions and commitments that the Commissioner has already made. Those decisions 

are coming out of funds that are already available to us or that are 

part of the President’s 2003 budget. 

Mr. DOGGETT. Your best estimate at this point is that no further dollars will be requested for the next fiscal year, the one we 

are working on in the appropriations process? 

Mr. GERRY. That is my best testimony at this point in time. 

Mr. DOGGETT. Okay. With reference to other witnesses that 

will be testifying at this hearing and next week, is the Commissioner considering any of the proposals that they are advancing? 

Mr. GERRY. Well, yes. The Commissioner is considering proposals from all sources. We are looking at recommendations that 

are being made from a variety of sources. 

She hasn’t ruled out any source of recommendations. I think she 

has laid out the general goals that she wants to accomplish in 

terms of expediting the process. The mission of the Agency historically has been characterized as getting the right amount of money 

to the right people as early as possible in the process. Obviously, 

we are not doing a very good job of getting that money to those 

people very quickly in the process that we currently have. So, the 

time delays are certainly a very high priority. The accuracy and 

quality of the decisions is an equal priority, and the Commissioner 

has various activities underway to be sure that we improve that as 

well. 

Mr. DOGGETT. I would just ask, as you go through that process—that you continue in the coming months to consult with and 

keep advised some of those organizations that represent individuals with disabilities, as well as both majority and minority staff 

on this Subcommittee. 

Mr. GERRY. I would be happy to do so. 

Mr. DOGGETT. Thank you very much. 

Chairman SHAW. I would point out, in furtherance of Mr. 

Doggett’s questioning, that this appropriation process that we are 

about to go through is going to be long and painful. So, there may 

be some opportunities during the conference that, if there are some 

17

immediate needs, there may be some tweaking that we are able to 

do for you. Mr. Brady? 

Mr. BRADY. Thank you, Mr. Chairman, and thank you for holding the hearing on this very important issue. 

The more I study disability, the more I am convinced that for us 

to have a fair and timely process, and to work off this growing 

backlog, it is going to take new reforms and new resources with a 

healthy dose of new technology in the middle of all that to bring 

this process into the 21st century. It is going to take a lot of work 

in a number of different areas to make this right. 

One of those areas, just in the brief time we have, let’s go back 

for a minute to the Azdell case. We all worked together to bring 

a special exemption that would allow us to hire 126 new administrative law judges. Hiring new ones alone won’t solve this whole 

problem, but working off the backlog is critical. 

The questions I have for you are: What is the status of this case? 

Are we making progress in resolving it? If not, at what point do 

you see Congress taking some legislative action to try to ensure 

this backlog and freeze on judges doesn’t continue? It has really 

hurt the process terribly and needs to be resolved. If we can’t resolve it through the courts, we may need to resolve it legislatively. 

What are your thoughts? 

Mr. GERRY. First, I agree with your point about the importance 

of the case and the impact on the Agency. It has a substantial adverse impact on our ability to respond as we would like to. 

My best understanding is that the case is on appeal to the Federal circuit. There is a stay currently in place from the Merit Systems Protection Board, which, of course, affects us directly. That 

hasn’t changed as a result of the appellate status. 

I don’t have a very reliable estimate of how quickly the court will 

act on the case, unfortunately. I do agree with you that we need 

to get to a point where this case doesn’t hinder us. We are very appreciative, by the way, of the assistance the Subcommittee has provided in the past in trying to help relieve the stresses that this has 

created. 

I know that is probably not a very satisfactory answer, but it is 

the best one I have at this point. It is one of the factors contributing to the growing backlog of cases. 

I wish I could say that even if we solved the staffing problem, 

which would be of great help, that the problem wouldn’t continue 

to grow. As you pointed out, we have an increased rate of claims; 

we have an increased rate of appeals. Unless we make some more 

significant changes in the overall process, even if we were to solve 

the immediate problem, that isn’t necessarily going to guarantee 

that we are not going to need to hire yet more administrative law 

judges. I think we have to do both, and we have to do them at the 

same time. We have to try to respond to the backlog and eliminate 

it, and solve the current problem. We also have to make some 

longer term systems changes that we can’t just keep postponing 

that. 

Mr. BRADY. It seems like even with the exemption to hire the 

new judges, if we were to double that and hire 120 more, we would 

still just be back up to where we were back in 1997 or 1998. Yet 

the growing number of cases, it just seems to me pretty obvious 

18

that we just don’t have enough trained up and running along with 

the other changes in the process that need to be made for us to be 

able to both work off that backlog and to handle the new cases that 

are being. A funnel is being created that is nearly impossible to 

avoid, although reforms earlier in the process could help that, no 

doubt. We still have a funnel that at some point just can’t continue 

as it is today. 

Mr. GERRY. I think you are right. 

Mr. BRADY. I didn’t expect that answer. I will take that while 

I have it. Thank you, Mr. Chairman. 

Chairman SHAW. I have just one question. You state in your testimony that the SSA is striving for uniform policy and consistent 

application of policy throughout the Nation. Since 1994, the Agency 

has been talking about revamping its quality system, which is so 

critical in ensuring national consistency within and across disability decision makers both within and across States. It simply 

isn’t fair when a decision can depend upon who makes the decision 

or which office processes the application. 

What precisely is being done? Do you have a timetable that you 

might be able to share with us for taking action in this particular 

area? 

Mr. GERRY. Well, the Commissioner has taken some pretty bold 

action on that by designating the former Regional Commissioner in 

Atlanta to head up the new quality work group. She is currently 

putting that work group together and will be preparing a report for 

the Commissioner. This is very high on the Commissioner’s set of 

priorities, and it is on mine, too, Mr. Chairman. I have had a major 

concern. For one thing, we have had a process that has relied on 

appeals to protect people from erroneous decisions. Many people 

who I have worked with over the years—and I have been a pro 

bono lawyer for many people with disabilities—and others who 

have been around the program—agree that often the people who 

ought to appeal, don’t appeal. We very much need the quality process to protect the entire program from becoming too much of a litigation-driven model. I think the Commissioner is very concerned 

about not losing that focus on quality. 

I can tell you that the person she has appointed to this work 

group is a high-energy person who is very focused on producing a 

report. As I am sure you know, we had a study done by an outside 

contractor that made some fairly sweeping recommendations in 

changing the whole quality environment of the Agency. I know the 

Commissioner has read that report carefully and has paid a lot of 

attention to it. So, now we are into the process of trying to figure 

out what those changes should actually mean. 

One of the recommendations of the report is that we institutionalize a quality environment at all stages of the process. That 

is a fine concept, but what this work group needs to do is to talk 

about how would we really do that. How would we go about providing the kind of management oversight that will be necessary to 

identify problems and solve them before they end up becoming 

backlogs or workloads? That is what the Commissioner wants to 

do. 

So, that is going on right now. Along with the other Deputy Commissioners, I will be supporting that process. It is being spearVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00022 Fmt 6633 Sfmt 6602 E:\HR\OC\A169.XXX A169
19

headed by Myrtle Haberham, who was the Regional Commissioner 

in Atlanta. She understands our process from the field level and is 

probably the best person to lead that effort right now. 

Chairman SHAW. Okay. Well, we thank you for your testimony—oh, Mr. Matsui has a question. 

Mr. MATSUI. Thank you, Mr. Chairman. I appreciate your giving me one more opportunity. 

Mr. Gerry, you were saying the recommendations would be made 

in the fall of this year. If at all possible—you know, I don’t know 

when we are going to recess, probably around the second week of 

October, the first or second week of October, I would imagine. It 

would really be helpful if your recommendations and the Commissioner’s recommendations came to us so that we would at least 

have a chance to review it before we adjourn for the year. Otherwise, it won’t be until February or so that we would have that opportunity. I think given the backlog and given the number of people we are talking about, it would really be helpful if we had an 

opportunity to comment on it, work with you on it, during the regular calendar year. That is, in September, early October at the latest, assuming we are still in session. If, in fact, there is a shortterm CR, continuing resolution, there may be an opportunity to 

help then with some of the funding requirements that may be necessary that Mr. Shaw had referred to. That to me would be at least 

a recommendation so that we would have a chance to vet it with 

you, obviously, before we adjourn. 

Mr. GERRY. Well, thank you, Mr. Matsui. I will convey those 

sentiments to the Commissioner. What I know is that there will be 

a two-step process. What you would really want to see is what her 

recommendations would be. What we are doing is an internal process. I will certainly make her aware of that timetable and convey 

to her the important point you made about the involvement of the 

staff and the Committee. 

Chairman SHAW. Well, I think an interim report would be welcomed if the Commissioner and you are comfortable in sharing 

them at any particular point. 

Well, we thank you. I was reading your background. It is very 

impressive. We are delighted to have you, and thank you for appearing before our Committee. 

Mr. GERRY. Thank you, Mr. Chairman. 

[Questions submitted by Chairman Shaw to Mr. Gerry, and his 

responses follow:]

Social Security Administration 

Baltimore, Maryland 21235

November 15, 2002

The Honorable E. Clay Shaw, Jr. 

Chairman, Subcommittee on Social Security 

Committee on Ways and Means 

House of Representatives 

Washington, D.C. 20515

Dear Mr. Chairman:

This is in response to your letter of July 24, 2002, which transmitted questions 

for the record from the June 11, 2002, hearing on the Social Security Disability Program’s Challenges and Opportunities. Enclosed you will find the answer to your specific questions. I hope this information is helpful. If I may be of further assistance, 

please do not hesitate to contact me. 

Enclosures

20

1Strand, Alexander, 2002, ‘‘Social Security Disability Programs: Assessing the Variation in Allowance Rates,’’ ORES Working Paper No. 98, Social Security Administration, Office of Policy. 

1. Judge Kathleen McGraw stated in her testimony that there are no performance standards for employees at the Office of Hearings and Appeals 

(OHA), except for the judges. Is this true? If so, why? How exactly is the 

performance of OHA employees assessed? Are there no performance standards beyond a ‘‘pass/fail’’ rating? Do you have plans to change this system? 

Why or why not?

Answer:

SSA employees, including those at OHA and those at the Office of Appellate Operations (OAO) with the exception of ALJs, have performance standards which are negotiated with SSA management and the unions which represent SSA employees. 

Each standard requires the successful performance of critical elements of the job. 

Employees are rated as performing at a ‘‘successful level’’ or as performing at an 

‘‘unacceptable level.’’ However, the standards do not include numerical requirements 

for critical or other elements and the appraisal system is based on a ‘‘pass/fail’’ rating. 

Commissioner Barnhart has expanded the performance standards for members of 

the Senior Executive Service and is considering this change for other non-bargaining 

unit employees. The issue of returning to numerical requirements in the performance standards is under consideration for possible inclusion in SSA contract negotiations in 2004 for bargaining unit employees. 

With respect to ALJs as independent decisionmakers, they are not rated in the 

same manner as other SSA employees. However, their decisions are still subject to 

the review of other ALJs (the peer review) and, if SSA becomes aware of a potential 

problem with a particular judge, it may refer the matter to the Merit Systems Protection Board to be investigated.

2. Several witnesses suggested improving the appeals process by allowing 

judges to manage their own offices, and to hold them accountable. What 

has been your experience with this management approach in OHA? Would 

you consider allowing judges to manage the personnel in their offices and 

hold them accountable? Why or why not?

Answer:

We have not tried this approach in the past because, with the exception of the 

Hearing Office Chief administrative law judge (HOCALJ), ALJs do not manage employees. They are part of a collective bargaining unit and, according to OPM’s regulations, may not manage personnel in their offices. However, SSA may explore this 

concept as part of an overall initiative to improve the hearing process.

3. Much has been reported in the media and by the Advisory Board about 

the varying allowances rates across and within the States at the disability 

determination services (DDSs) and OHA offices. Can you provide more detail as to why these allowance rates vary? What is being done to address 

variances of allowance rates, including action taken, action planned, and 

the timeframe for completion of these actions?

Answer:

Variations in Initial Allowance Rates Among States 

The variation in allowance rates among states and regions has been viewed by 

some as an indication that there may be a lack of uniformity in disability decisionmaking, but that greatly oversimplifies the issue. Enclosed is a study released in 

August 1 that helps to explain some of the variation in initial level allowance rates 

across states for adult disability applicants. 

This study, like prior studies, will show that much of the variation in allowance 

rates can be explained by a number of socioeconomic and demographic differences 

among states. Using a regression analysis that predicts allowance rates based on 

the economic, demographic and health characteristics of states, the study estimates 

the portion of variation that can be explained by these differences. For example, 

states have different economic conditions, and economic conditions are correlated 

with the tendency to apply for benefits. When there are larger numbers of applications in a state, the rate at which those applications are allowed may be lower than 

the rate of allowance in a state that receive proportionately fewer applications. 

States also differ in their age and gender composition, and these groups have different tendencies to apply for benefits. For these reasons and others that are addressed in the study report, the composition and characteristics of the applicant pool 

21

differ across states so that, even with no inconsistency in disability adjudication, allowance rates would properly be expected to vary among states and regions. 

In view of the study results and our extensive experience with Federal consistency 

and quality assurance reviews of initial level determinations, we believe that most 

of the differences in initial allowance rates are not due to inconsistency in applying 

policy. The initial accuracy rate for the Nation through July 2002 is 94.6 percent. 

However, the study does show some differences among states that cannot be explained by the regression analysis (although these differences are much smaller 

than the simple allowance rates themselves suggest) and we will need to keep working to minimize them.

Variations in Administrative Law Judge Allowance Rates Among States:

We are not aware of any statistical studies that specifically address possible variations in state allowance rates based on decisions made at the administrative law 

judge (ALJ) level. Our Office of Quality Assurance monitors the quality of ALJ decisions and provides reports about quality at the regional and national levels, not for 

particular states or hearing offices. Hearing offices are not organized along state 

lines (e.g., the Evansville, Indiana hearing office handles claims from parts of Kentucky, Illinois and Indiana) and ALJs have decisional independence.

4. You stated in your testimony that implementation of the Hearings 

Process Improvement (HPI) initiative created bottlenecks in processing 

cases at OHA and in light of the initiative’s failure, would not be continued 

in its current form. Commissioner Barnhart has announced short and nearterm changes to the hearing process, but that SSA will need to bargain 

with employee groups before any changes are implemented. Please provide 

a status of the union negotiations relative to these changes.

Answer:

In March 2002, SSA Commissioner Barnhart announced a number of changes to 

the hearings process to remedy weaknesses in the HPI design in the short term and 

to promote greater efficiency in hearing office operations and better use of time and 

talents to reduce pending workloads. 

OHA has begun to award folder assembly contracts to assist in eliminating the 

pending inventory of cases awaiting folder preparation. The contractors will perform 

the routine clerical tasks of numbering exhibits and pages, removing duplicate reports, and preparing exhibit lists. In May 2002, OHA and two employee unions, 

AFGE and NTEU, entered into memoranda of understanding regarding the impact 

and implementation of this initiative on bargaining unit employees. Despite assurances to the International Federation of Professional and Technical Engineers 

(IFPTE)/Association of administrative law judges (AALJ) that OHA would implement the folder assembly contracts in a way as to not directly or materially affect 

the conditions of employment of any judge, OHA’s negotiations with IFPTE/AALJ 

did not culminate in a signed agreement. IFPTE/AALJ filed an unfair labor practice 

complaint on this issue. 

In June 2002, OHA notified AFGE, IFPTE/AALJ, and NTEU of its intent to implement additional proposed initiatives for changes in the HPI design and afforded 

the employee unions the opportunity to discuss the impact and implementation of 

the initiatives on workers’ conditions of employment. The initiatives were to:

• End the requirement that cases be certified as ready to hear; 

• End rotational assignments for case technicians and senior case technicians; 

• Extend early case screening and analysis to administrative law judges; 

• Introduce a short form favorable decision format; and 

• Promote the issuance of bench decisions by administrative law judges.

OHA and NTEU entered into a memorandum of agreement on these initiatives. 

Talks with AFGE and IFPTE/AALJ terminated without reaching agreement. AFGE 

negotiations stalled chiefly due to AFGE insistence on issues that are either nonnegotiable or beyond the scope of the national collective bargaining agreement. 

AFGE required incorporation of previous ‘‘partnership’’ agreements and partnering 

rights in any new memorandum of understanding with OHA, contrary to the rescission of the Executive Order on partnering that was executed early in the current 

Administration. OHA adhered to the provisions of Articles 26 and 27 of the national 

agreement in effectuating the initiatives; however, AFGE insisted upon an expansion of the terms of the contract. AFGE grieved OHA implementation of the initiatives prior to reaching agreement. Discussions between OHA and IFPTE/AALJ also 

terminated without agreement. IFPTE/AALJ failed to recognize management’s statutory right to assign work to employees. 

22

Because of the importance of the initiatives to improve OHA’s service for the 

American public, the initiatives were implemented in July 2002 despite the lack of 

agreement with AFGE and IFPTE/AALJ. Mindful of its labor management obligations, as well as the importance of the support of the employee groups in the success 

of any initiative, OHA invited both employee groups to return to negotiations in August 2002. Despite preliminary indications from the groups that they were amenable 

to continuing the discussion, neither AFGE nor IFPTE/AALJ returned to the bargaining table. 

OHA has notified the unions of its proposal for video-teleconferencing of hearings. 

OHA will soon notify the unions of its proposals for expansion of speech recognition 

technology. The unions will be afforded the opportunity to discuss the impact and 

implementation of these initiatives. OHA will continue to bargain in good faith with 

the employee groups to ensure that the initiatives to improve the hearings process 

do not adversely affect the conditions of employment of any worker.

5. A number of changes to the disability appeals process were suggested 

at the hearing. Please provide your views as to the merits of each of the 

following and related issues the Subcommittee should consider as we examine each of these proposals:

• Limiting the review of the Appeals Council to clear error of law or lack of substantial evidence, as recommended by the American Bar Association. 

• Following the current system of administrative hearings by review by an Article I Social Security Court, with a right of appeal on questions of law in the 

regular courts of appeals (as with the current Tax Court). 

• Agency representation at ALJ hearings. 

• Closing the record either after reconsideration or after an ALJ hearing.

Answer:

We believe it would be premature to advance an Agency view regarding any of 

these proposed changes. Commissioner Barnhart is committed to improving the disability process but the work is just beginning. In her testimony of May 2 before the 

Subcommittee on Social Security, Commissioner Barnhart announced decisions on 

a number of short or near-term improvements in the disability claims process but 

also indicated that mid- and longer-term improvements would be developed to improve the process. In her testimony Commissioner Barnhart emphasized that she 

‘‘did not assume [her] duties as Commissioner to manage the status quo.’’

In his testimony of June 11 before that subcommittee, Martin H. Gerry, Deputy 

Commissioner, Office of Disability and Income Security Programs, reported that the 

Agency had determined that no single change would suffice to improve the process 

as needed and that many improvements (some large and some small) would be 

needed. The already announced steps were ‘‘just the first steps’’ that SSA would 

take to meet the challenge of providing an improved process. 

Similarly, in his August 1 response letter to Ron Bernoski, IFPTE/AALJ President, Deputy Commissioner Gerry noted that the Commissioner had announced several improvements that were already being implemented, expressed no judgment regarding particular process changes that Judge Bernoski mentioned, and stated ‘‘our 

work on additional program improvements, however, is just beginning.’’

The above remarks of Commissioner Barnhart and Deputy Commissioner Gerry 

reflect a commitment to improving the process through mid- and longer-term 

changes, but this work on developing such changes is just beginning. 

We agree with the comment in the Social Security Advisory Board’s Report ‘‘SSA’s 

Obligation to Ensure that the Public’s Funds are Responsibly Collected and Expended’’, that there is no simple fix to the challenges facing the disability program.

6. You mentioned in your testimony that SSA has been hampered in hiring much-needed additional ALJs because of the Azdell v. OPM case challenging the method used to compute veterans’ preferences in the ranking of ALJ 

candidates. What is the status of this case? Are there legislative changes the Subcommittee should be considering to provide the agency needed relief?

Answer:

The Azdell case is currently pending before the Federal Circuit. Oral argument 

was heard by a three-member panel on October 10, 2002. It is not clear at this time 

that legislative intervention is necessary.

7. You stated in your testimony that Commissioner Barnhart appointed 

a former Regional Commissioner to head up a work group to review SSA’s 

quality assurance program and to prepare a report of their recommendations. Can you provide more detail about this group, including: who serves, 

the workgroup’s mission, goals and objectives, and the timeframe for the 

23

completion of its report. We would also appreciate a staff briefing as to the 

group’s findings and recommendations, when ready.

Answer:

Commissioner Barnhart appointed the former Regional Commissioner for the Atlanta and Chicago Regions, Myrtle S. Habersham, as the Senior Advisor for Quality 

Management. A workgroup was established with 8 Members representing years of 

operational and administrative experience. The Members came from the following 

major components: the Office of Disability and Income Security Programs, the Office 

of Finance, Assessment and Management, the Office of Operations, and the Office 

for Human Resources. Permanent staffing plans are being finalized. Additionally the 

group has utilized a senior level Steering Committee composed of representatives 

from every component and members from SSA management and Disability Determination Services (DDS) administrators’ organizations. 

The group was tasked with developing a proposal on what quality should look like 

for each of the Agency’s business processes (claims, post-entitlement actions, informing the public, enumeration, earnings) and all supporting activities. The proposal 

was presented to the Commissioner with initial implementation beginning in August 2002. 

Initially, the workgroup was tasked with completing extensive research and fact 

finding for the necessary background on their assignment. They looked at five key 

areas: definition of quality, who is responsible for ensuring its presence, the identification of quality models, challenges that impede progress and solutions for those 

impediments. The following recurring themes emerged from this fact-finding and research process. 

For SSA to improve its performance in this area, our Agency needs:

• leadership to drive the change; 

• quantifiable measures where appropriate and sufficient resources for employees to provide services to the American public; 

• identification of initiatives that are currently underway to improve processes; 

• incentives to encourage ongoing identification of quality solutions; 

• an evaluative tool for use at the start of every major initiative ensuring full 

consideration of quality; and 

• more investment in leadership training that enhances the skills necessary to 

reinforce this quality environment.

To address the Agency’s needs, the workgroup’s proposal contains four phases 

that are running concurrently. The focus of the first phase was to re-emphasize the 

Agency’s commitment to quality and increase visibility of quality issues. Many of 

the activities in Phase I such as a new Commissioner-level quality award and a 

Quality Matters website have already been completed. The website currently features initiatives that provide solutions to quality issues, i.e., changes in systems, 

policies, and processes. Phase II of the proposal involves defining quality for the disability claims process. The workgroup is continuing the research and fact finding 

needed to identify a quantifiable definition of quality. Beginning with Phase III, the 

workgroup has started to identify process changes that will streamline processes 

and procedures in order to free resources to focus on other priority workloads. Phase 

IV looks at how to build quality into new processes, i.e., the accelerated electronic 

disability process, online medical report for disability claims, online policy/procedures, etc. As new processes are developed, the workgroup will work with other 

components to identify up front needed policies, systems, and management information to ensure quality. 

The above outlines the steps the Agency is taking to reinforce the expectation of 

quality in everything it does. However, fully integrating quality into each of the 

business processes that serve the needs of more than 40 million beneficiaries is both 

a lengthy and complex challenge. The Agency will continue to research, coordinate, 

and develop a quality process to meet that challenge.

8. GAO states in their testimony that SSA hired a contractor to evaluate 

their electronic disability strategy and make recommendations for options 

to ensure that all the business and technical issues are addressed to meet 

SSA’s mission of moving the agency toward a totally paperless disability 

claims process. Has the contractor submitted their recommendations? If so, 

please provide a summary of the contractor’s report and a copy of the report to the Subcommittee staff. If not, what is the timeframe for completion? What is the timeframe for implementation of e-dib? Once the contractor review is completed, we would appreciate a staff briefing as to the 

contractor’s findings. 

Answer:

24

SSA has contracted with Booz-Allen and Hamilton to support the overall eDib 

project. Rather than simply reviewing and reacting to SSA proposals, the contractor 

is helping us to formulate a strategy, define an architecture and refine implementation options. 

Since that time, Commissioner Barnhart challenged the Agency to accelerate the 

eDib project. She directed SSA to be ready to start implementation of a ‘‘folderless’’ 

disability business process by January 2004. We have revised the eDib Project Management Plan to reflect the Accelerated eDib (AeDib) project.

9. GAO commented that, in the past, SSA has had mixed results implementing their information technology initiatives and that SSA must review 

the pros and cons of past efforts before they undertake new efforts. GAO 

also stated that SSA must identify, track, and manage the costs, benefits, 

schedule, and risks associated with the system’s full development and implementation. In addition, they stated SSA must ensure that it has the appropriate ratio of skills and capabilities to achieve the desired results. Has 

the agency addressed these recommendations? How can the Subcommittee 

be assured that e-dib will succeed where other technology initiatives have 

not?

Answer:

SSA recognizes the inherent risks of any large-scale technology initiative such as 

eDib, whether at SSA or any other public or private organization. The success of 

the implementation of eDib is being managed on a twofold front at SSA: via the SSA 

institutional information technology (IT) management processes, and via process 

and architectural approaches unique to the eDib application. 

SSA has already addressed recommendations made by GAO concerning reviews 

of past IT initiatives; including identifying the tracking and managing costs, benefits, schedules and risks associated with full system implementation and ensuring 

the availability of the appropriate human capital IT skills and capabilities. Some 

of the means addressing these various GAO recommendations are: 

IT Capital Planning and Investment Control (CPIC) 

SSA has had a documented and successful IT CPIC process in place for many 

years. The SSA Acting Chief Information Officer (CIO) is currently testing and evaluating promising changes to the already successful process. The process change recommendations being tested and evaluated address areas such as IT planning, value 

measurement for e-services, as well as IT cost allocation methodologies for IT security and other IT infrastructure costs. New guidance from the Office of Management 

and Budget, along with ongoing evaluations of new tools and recommendations for 

other process improvements from higher monitoring authorities and consultants, 

will be included in the final model of a new CPIC process guide. The anticipated 

process plus use of the Information Technology Investment Portfolio System (I–

TIPS) as a repository for selection criteria as well as SSA’s IT portfolios will facilitate objective analysis, comparison, prioritizations and selection of IT investments. 

SSA is also developing procedures to guide future post-implementation reviews 

(PIR) that include criteria for designated projects for PIR. Standardized input to 

SSA’s review process will probably be through I–TIPS. 

Information Technology Advisory Board (ITAB) 

SSA is adopting an IT planning and portfolio selection process that includes 

predefined selection criteria. This new process includes the development of a documented prioritized IT plan based on predefined selection criteria. These plans will 

be provided to the CIO-chaired Executive-level Information Technology Advisory 

Board (ITAB). That board will perform enterprise-wide IT planning and 

prioritization using the established evaluation criteria to produce and regularly 

evaluate a single, integrated Agency IT project portfolio. The criteria will include 

qualitative and quantitative factors including strategic alignment, mission effectiveness, organization impact, risk and return on investment. ITAB and senior Systems 

managers will provide oversight of IT projects, comparing actual cost, schedule, and 

risk data with original estimates. 

Information Technology Architecture Plan (ITAP) 

The ITAP continues to be a core management tool within SSA to document and 

manage the existent IT portfolio and to ensure that IT assets will be well positioned 

to support the evolving future service delivery requirements of the agency, of which 

one example is eDib. The ITAP is used to manage the current and target physical 

and application architectures; link IT investments to essential operational requirements; ensure that the IT architecture will support the SSA vision of the future; 

ensure continually refined process management of application development and 

25

operational IT management; ensure that security requirements are an integral part 

of all IT planning; and ensure the integration of IT capacity planning as part of the 

ongoing and future IT asset portfolio management. 

Software Process Improvement (SPI) Program 

SSA Systems has heavily invested in the IT SPI program. SSA has selected the 

Carnegie Mellon’s Software Engineering Institute (SEI) Capability Maturity Model 

(CMM) as the methodology for conducting the SPI program. CMM is in wide use 

throughout the software industry and is well respected as a standard benchmark. 

In 2001, SSA was certified by the SEI as being at CMM level 2. Level 2 specifies 

that the management processes are in place and in use to track cost, schedule and 

functionality on a repeatable basis. In the history of evaluations of non-military 

public sector organizations conducted by the SEI, 33 have been evaluated. Of the 

33, 29 are at level 1 and 4 are at level 2, including SSA. The SEI has not evaluated 

any organizations in either the state or Federal sector that have achieved level 3 

or above. In June of this year, Bill Gray, Deputy Commissioner for Systems, set a 

goal for Systems to be level 3 compliant by the end of calendar year 2003. 

Information Technology Human Capital Plan 

SSA is currently in the process of developing a human capital plan for the agency, 

including the human capital requirements to support current and foreseeable IT requirements. Initial work has already been completed to identify current IT skills 

using the Skills Inventory Planning System (SIPS). SIPS information is being analyzed to assess the usability of the data collected to support a gap analysis. SIPS 

will be repeated once the Systems reorganization has fully stabilized. SIPS will ensure the data is available to link current competencies and requirements and future 

staff needs. Additional work is being undertaken to develop a human capital plan 

based upon the difference between foreseeable IT requirements, and the current and 

projected IT workforce structure. In the meantime in recognition of the substantial 

retirement wave over the next five to ten years, priority is being given to future 

needs by setting aside a percentage of all full-time equivalents for entry-level hiring. 

eDib Specific Success Enablers 

eDib is defined as a flexible IT framework to serve the complex SSA disability 

business process. A key tenant of eDib is that eDib is not viewed as just a successful 

demonstration of technology implementation, but rather as technology implemented 

in such as way as to clearly provide ongoing and increasing support for both the 

current and future disability business processes. eDib planning and implementation 

revolves around determining where automation might best make a contribution to 

significant operational needs in a cost effective manner. eDib IT development adheres to all of the SSA institutional IT management processes (some of which are 

described above) in order to ensure this rigorous connection between IT investment, 

IT development, and desired business outcomes. Business case documentation under 

development within SSA and with Booz-Allen & Hamilton is providing a foundation 

for ensuring linkage between the business case for disability processing improvements and the eDib IT structure to support the business case. 

eDib has ongoing and regular review at the highest levels of the agency. A Deputy 

Commissioner workgroup has already been formed to review and guide project performance on a regular basis. The participants are the Deputy Commissioners from 

Systems, Disability and Income Security Programs, and Operations. Management 

decisions requiring prompt reconciliation and resolution are escalated to the Deputy 

Commissioner workgroup. The Deputy Commissioner for Systems meets weekly 

with senior Systems staff to review the progress of eDib on all fronts, be they organizational, resource, business process, or technical design and implementation. 

Users and DCS are jointly framing requirements and implementation plans so 

that the functionality to be delivered is commensurate with available resources and 

timeframes. Extensive business process analysis, adherence to the systems development life-cycle, and use of CMM principles help ensure that the IT assets being developed in support of eDib clearly support the business process, and that system 

users and developers agree on clearly defined IT goals to support specific business 

process requirements. 

eDib is not a monolithic single application. Rather, eDib is being architected to 

consist of a number of discrete components, many of which can be implemented 

independently of one another. With the individual eDib building blocks being for the 

most part loosely tied to one another, success can be achieved incrementally within 

and between separate eDib projects and without being hostage to a tightly integrated ‘‘grand design.’’ Where eDib does introduce new IT components and architectures to SSA, these items are being positioned as core architectural components 

which will be used as part of the ongoing common IT architecture development. 

26

eDib is being designed to make the best use of projects, analyses, and architectural components already in use or under development, to maximize the use of commercial products, and to use external consultative expertise where appropriate. For 

example, eDib is being built to leverage and enhance the capabilities of existing disability case development and management systems, such as those in the state Disability Determination Services and the SSA Office of Quality Assurance. eDib will 

not replace any of these systems, but will instead provide additional services working in conjunction with these systems to enhance the capabilities of these systems 

and improve the business process already in place, while simultaneously setting the 

stage for future business process enhancements. 

As part of eDib planning SSA is making use of premier external consults such 

as Booz-Allen and Hamilton, Gartner, the Giga Information Group, Lockheed-Martin, and other select IT consultant and services groups. External professional services will also play an important part in eDib implementation in all areas, including 

design, development and implementation activities where necessary to provide expertise and to supplement the SSA IT workforce. Particular attention is being paid 

at both the design and systems operational levels to developing monitoring and 

modeling methodologies to proactively avoid potential performance issues both during design and upon implementation. A separate capacity planning and modeling activity is being undertaken to ensure that an appropriate physical architecture is 

procured and implemented which can support the operational business process and 

service level requirements. SSA will be making extensive use of prototyping, piloting, training, and phased and iterative deployment in order to introduce the various 

eDib IT components into the production environment in a carefully controlled fashion. This introduction will be quite granular permitting introduction by eDib component, SSA organizational entity type, and geographic location.

10. The Advisory Board has recommended strengthening the current Federal-State relationship. Their suggestions for doing that include requiring 

States to adhere to specific guidelines for educational, salaries for staff, 

training, carryout procedures for quality assurance, and other areas having a direct impact on the quality of States’ employees and their ability to 

make quality and timely decisions. Do you agree with these recommendations? Are you pursuing any of these suggested changes?

Answer:

SSA considered the establishment of a standard for adjudicators along with a 

standardized test to establish a certain level of proficiency. However, some States 

did not want SSA involved in what they viewed as State personnel matters. Some 

States were also concerned such educational requirements would result in higher 

salary levels that would have a ripple effect on other positions in the State that 

were not fully federally funded. 

In addition we have taken action to:

1. Increase the disability policy component’s staff responsible for managing disability training to strengthen SSA’s ability to deliver high quality and consistent program training to all adjudicators. 

2. Focus user input regarding training needs and delivery through the Disability Training Steering Committee (DTSC), which has been operating for 

the last several years. The DTSC includes representatives from the DDSs, 

OHA, the Office of Quality Assurance, and Operations. Its primary role is 

to ensure that appropriate training is made available for all disability adjudicators. 

3. Embark on mandatory national training on selected topics in which it is essential that every adjudicator, regardless of component, have the same understanding to promote consistency in decisionmaking. Training will be directed toward experienced adjudicators. As we start the process, we envision 

providing 3 to 4 mandatory training programs in the 1st year, with the first 

program in early mid FY 2003.

11. The Advisory Board also recommends establishing a system of certification for claimant representatives and establishing uniform procedures 

for them to follow. Do you agree with this recommendation? If so, what action has been taken or is planned? If not, why?

Answer:

We view the issue of establishing a system of certification and uniform procedures 

for claimant representatives as another possible structural change to the claims 

process. As we consider options and develop proposals for changes in the disability 

process, we will keep the Advisory Board’s recommendation in mind.

27

12. Our hearings have reinforced the need for disability research in general, but specifically for comprehensive research in the area of return to 

work. Please provide a summary of related research that has been conducted in recent years, research underway, and research planned, including expected completion dates.

Answer:

Overview 

SSA has conducted research in effective and efficient approaches to returning disability beneficiaries to work since the mid-eighties. Starting with the grants under 

the Research Demonstration Program and the Transitional Employment Training 

Demonstration, through Project NetWork, and continuing today with the State Partnership Initiatives (SPI), SSA has tested a wide range of work incentives, service 

provision techniques, and systems changes, designed to promote the employment of 

Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) 

beneficiaries. In addition, over the next few years, SSA plans to conduct several new 

demonstrations, including an early intervention demonstration and several projects 

under a Youth Employment Strategy. 

Previously Completed Research 

Research completed since the mid-eighties includes:

• Transitional Employment Training Demonstration: A randomized field experiment providing skills training and work experience to adolescents with mental retardation in the SSI Program. Participants in 8 sites nationwide were 

given up to 2 years of services. Program waivers were used to encourage participation. 

• Research Demonstration Program: Three rounds of research grants and cooperative agreements to State agencies and private providers of vocational rehabilitation (VR) services to SSDI and SSI beneficiaries. Some projects included 

the use of program waivers to provide additional encouragement to disability 

beneficiaries who wanted to work. 

• Project NetWork: A randomized field test of four models of case management 

for providing return-to-work (RTW) services to SSI and SSDI disability beneficiaries. This project included 2–3 years of services in 9 States and pre- and 

post-service interviews with participants to measure differences in outcomes 

between treatment and control groups. 

Current Return to Work (RTW) Research 

RTW research currently in progress includes:

• State Partnership Initiatives: A set of 12 projects (cooperative agreements), 

sponsored by SSA, and 6 projects, sponsored by the Department of Education. 

For the SSA-sponsored projects, awards were made for 5 years to State agencies, which proposed the most innovative consortia of State programs, designed to encourage SSDI and SSI disability adult beneficiaries and youth to 

attempt to work. Four of the projects are also testing waivers of SSI Program 

features, such as $1-for-$4 benefit offsets for earnings and suspensions of 

Continuing Disability Reviews during participation in the projects.

Expected completion date: September 2003 for the eight non-waiver projects; September 2005 for the four waiver projects.

• Adolescents with Special Health Care Needs Project: This cooperative agreement with Children’s Research Institute is located in Washington, DC. It is 

a collaborative partnership between the Adolescent Employment Readiness 

Center, a model transition program; Health Services for Children with Special 

Needs, Inc., a managed care organization for SSI recipients; and the American Academy of Pediatrics, the nation’s largest organization for pediatricians. 

The purpose of the project is to prepare transition age SSI youth with severe, 

chronic disabilities for post-high school employment by establishing, in an 

urban setting, an uninterrupted, coordinated, developmentally appropriate, 

psychologically sound and comprehensive model of transition services for SSI 

youth. This project is part of SSA’s Youth Employment Strategy.

Expected Completion Date: September 2004. 

Planned RTW Research 

SSA has several RTW research projects planned to begin in FY 2003, spanning 

a broad range of topics.

28

• Youth Employment Strategy: Designed to assist individuals with disabilities 

between 11 and 30 years of age transition to the work force, this initiative 

will consist of several projects related to the delivery of services needed to assist these individuals in achieving independence. States and local communities will be awarded contracts, grants, and cooperative agreements for testing and delivering needed transition services to young SSDI and SSI beneficiaries with disabilities. Cooperative agreements will test integrated schoolfamily community-agency models of transition planning, aided by assessments 

of employment potential and Vocational Rehabilitation services. SSA will be 

pursuing interagency youth transition projects with the Department of Education, the Department of Labor (DOL), and other interested Federal partners. Waivers of SSI and/or SSDI program features to support youth beneficiaries’ transition to adult life will also be considered.

Expected Completion Date: September 2008.

• Mental Illness Treatment Demonstration: SSA will test models of services 

and treatment for SSDI and SSI beneficiaries with diagnoses of mental illness, such as, mood disorders or anxiety disorders and related co-morbid conditions. The objective of the tests will be to return these beneficiaries to productive activity and reduce program costs. Sites will be chosen scientifically 

in several States where the State and local mental health service system is 

interested in participating and wins a competitive cooperative agreement 

award. Participants will be randomly assigned to treatment or control groups. 

Program waivers will be considered if they are felt to be essential to supporting the work attempts of demonstration participants. Funding is initially 

scheduled for 5 years with the first year for setup and testing of procedures, 

followed by 4 years of enrollment of cases and service delivery.

Expected Completion Date: September 2008.

• Early Intervention Demonstration: The objective of the Early Intervention 

Demonstration is to assist title II (and concurrent title XVI disability) applicants, who have impairments reasonably presumed to be disabling, to secure 

the necessary support services that will help them to return to work. Applicants for disability benefits will be given the opportunity to put their applications ‘‘on hold’’ and participate in the demonstration. Providing the necessary 

support services before a benefit award is made may improve the applicant’s 

chances of a successful return to work and possibly eliminate the need for disability benefits. Alternate models of service delivery will be tested to determine the interventions that will most likely encourage employers to hire and 

retain participants. Participants will be given a stipend to support them during the intervention as well as health care benefits. The demonstration will 

be conducted as a randomized experiment in several States nationwide.

Expected Completion Date: Sept. 2009.

• Comprehensive Employment Opportunities Demonstration: The Centers for 

Medicare & Medicaid Services (CMS) and SSA will solicit interested States 

for a demonstration entitled the ‘‘Comprehensive Employment Opportunities 

(chief executive officer)’’ demonstration that would combine resources and incentives from both Federal agencies and the States to promote the employment of people with disabilities. States will participate in this demonstration 

through cooperative agreements that would include pre-approved Federal 

waivers. Through this project, the Center for Medicare and Medicaid Services 

and SSA are promoting the ability of States to offer a coherent, comprehensive employment initiative. States will extend health coverage via the Medicaid Buy-In and related programs, and will bring State programs together 

to address all major barriers to employment— including health care, income 

support, housing, employer access, and transportation. As part of this demonstration, SSA will provide pre-approved waivers under the SSI and SSDI 

programs to successful applicants. These pre-approved waivers include additional disregards of income and assets/resources, as well as ‘‘hold harmless’’ 

provisions to ensure that an individual in the demonstration will not be worse 

off as a result of participation. The pre-approved waivers will be subject to 

State conformance with all applicable terms and conditions, operational protocols, and the cooperative agreement itself.

Expected Completion Date: September 2008.

• Benefit Offset Demonstration: SSA will test the impact on SSDI beneficiary 

employment through implementation of a $1-for-$2 benefit offset. This demonstration was mandated by section 302 of the Ticket to Work and Work InVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
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centives Improvement Act 1999. SSA will solicit the interest of States that 

wish to participate in this test. Sites will be selected to provide a diversity 

of settings nationwide. Participants in the demonstrations who work will have 

disability benefits reduced $1 for every $2 of earnings above a certain threshold, instead of having benefits eliminated completely, as in the current SSDI 

program. The extent of greater rates of employment and higher earnings of 

participants will be assessed relative to a control group.

Expected Completion Date: September 2008.

• Evaluation of the Ticket to Work Program: As mandated by section 1148 of 

the Social Security Act, SSA must evaluate the size and nature of the impact 

of the Ticket to Work and Self-Sufficiency Program on the employment and 

earnings of SSI and SSDI beneficiaries and on the payment of Employment 

Networks which provide services to those beneficiaries. SSA has awarded a 

contract to design the evaluation. SSA will award a competitive contract to 

a research firm to implement the research design during FY 2003.

Expected Completion Date: September 2007 with interim reports in FY 2003 and 

2005.

• Benefits Navigator Demonstration: SSA is partnering with DOL on a test of 

a Disability Benefits Navigator in the nationwide network of One-Stop Centers. The Navigator will be an expert in SSA’s disability program work incentives, the Ticket to Work program, and all SSA and non-SSA programs and 

benefits that could assist a beneficiary or non-beneficiary to start or return 

to work. SSA and DOL will test the efficacy of this new position in One-Stops 

in 6–8 States for 2 years and, based on the evaluation results, decide if this 

position should be made a permanent part of the One-Stop system nationwide.

Expected Completion Date: September 2004.

13. SSA created the Employment Support Representative (ESR) position 

to provide a specialist for work incentives. ERSs served as a single point 

of contact with beneficiaries, monitored beneficiaries’ work progress, and 

processed work reports and work-issue continuing disability reviews. A 

final evaluation report on the ESR position was completed in November 

2001 and recommended that SSA make the position permanent. SSA decided not to make the position permanent due to staff shortages and resources issues. Can you tell us what are SSA’s plans for proceeding? Please 

provide a copy of the evaluation report to my Subcommittee staff. Additionally, we would appreciate SSA briefing Subcommittee Staff on this 

issue.

Answer:

SSA piloted the temporary Employment Support Representative (ESR) position in 

SSA’s field operations structure consistent with the requirement of section 121 of 

the Ticket to Work legislation that SSA establish a corps of work incentives specialists within SSA. The ESR pilot began in late July 2000 and ended in September 

2001. In late November 2001, the SSA ESR Pilot Evaluation Team presented its 

final report recommending adoption of the ESR position. SSA is concerned that all 

our beneficiaries receive the very best service that we can provide, and we are currently deliberating on how best to provide employment support programs-related information and services to our beneficiaries with disabilities nationally with our 

present resources. We provided Subcommittee staff with a briefing on this subject.

14. The National Council of SS Management Associations recommends 

that a Technical Expert for Disability (TED) position be created in field offices to focus on processing disability claims. Please comment as to your 

views regarding this proposal.

Answer:

The Technical Expert (TE) position was established to handle a broad range of 

complicated work in field offices. Managers in local offices have the flexibility to assign technical disability work to their TEs, and many do so. We feel that requiring 

all offices to have a TE dedicated to disability claims would limit our flexibility to 

keep all workloads in balance.

15. The National Association of Disability Examiners has proposed placing greater emphasis on claimant responsibility, expanding the single decisionmaker in DDS, providing for a due process hearing for the claimant in 

the reconsideration, closing the record after the reconsideration decision, 

eliminating the Appeals Council, and establishing a Social Security Court 

30

to hear appeals of the ALJ decisions. Please comment as to your views regarding this proposal.

Answer:

We believe it would be premature to advance an Agency view regarding any of 

these changes.

16. The National Council of Disability Determination Directors provided 

recommendations for change in their testimony, including; providing adequate resources to handle the current and pending caseloads at the DDSs, 

improving policy and training to produce more consistent and accurate decisionmaking, making revisions of SSA’s quality assurance system a high 

priority to unify the application of policy among all components, enhancing performance of electronic systems, strengthening the reconsideration 

phase to provide for a face-to-face de novo hearing between claimant and 

DDS reviewer, and establishing uniform quality assurance and case review 

systems to bring the DDS and OHA closer together in the determination 

process. Please comment as to your views regarding this proposal.

Answer:

SSA is actively considering broad changes to the disability claim process to improve service and efficiency, and we are moving forward with some process changes. 

Commissioner Barnhart has announced her intention to move aggressively to implement electronic disability processing (eDib) by January 2004. We have received suggestions regarding other changes from the public, Federal and State employees, and 

employee groups, such as the National Association of Disability Examiners and the 

National Council of Disability Determination Directors. It would be premature to 

react to specific aspects of these recommendations at this time. As we consider options and develop proposals for change, we will continue to work with interested 

groups and the Congress as we all strive to provide the best possible service in an 

efficient manner.

17. What is the average number of cases an ALJ hears per day?

Answer:

According to the FY 2002 Caseload Analysis Report, the national average number 

of hearings scheduled per ALJ per day was 2.32 through July 2002 and the national 

average of hearings held per day per available ALJ through July 2002 was 1.66. 

This latter statistic reflects postponements, continuances and no-shows.

18. To help us better understand how the process of disability determinations works at the OHA level, can you provide us with a step-by-step process of what happens to a case beginning when it is received in an OHA office until a decision is made? For each step, please include when evidence 

is requested and by whom, and how evidence is presented.

Answer:

The following is an outline of the step-by-step case processing at the Hearings 

level of administrative appeal:

• Case intake begins at the Master Docket level. The folder is stamped-in to 

acknowledge the receipt of the file. • The case is screened to determine whether the claimant has had a prior 

claim(s) at the OHA level. • The case is also screened through the Hearing Office Tracking System 

(HOTS) to determine whether or not the folder should be associated with a 

claim already pending at the hearing level or if it is a new claim. • The case is the screened to determine if it is properly at the hearing level 

and whether the Request for Hearing is timely filed. Master Docket then enters the case into the HOTS tracking system, identifying the parties to the 

claim, the hearing type and the claim type. Master Docket also verifies the 

service area and the correct spellings of names and addresses. 

• Following established guidelines, Master Docket screens cases for possible 

early dispositions. If the Request for Hearing is not timely filed or the claim 

is not properly at the hearing level, the case is referred to an administrative 

law judge (ALJ) for possible dismissal. Possible on-the-record decisions are referred to Senior Attorney Advisors for further review. 

• If the case is properly at the hearing level, Master Docket then prepares an 

acknowledgement letter to the claimant and representative. Along with the 

acknowledgement letter, Master Docket sends the claimant hearing office 

worksheets requesting information regarding any recent treatment since the 

Reconsideration determination, medications and any updated work background information. Often the claimant will have submitted additional eviVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00034 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
31

dence in connection with the request for a hearing. The case is then assigned 

to a Group within the hearing office. Within the Group, the case is first assigned to a Senior Case Technician (SCT). • The SCT does a pre-hearing screening, including verification of claim type, 

hearing type, names, SSN and addresses. • Proposed exhibits are selected in the case work-up process and the documents 

are stamped and numbered. • The SCT reviews the file to determine the need to request updated medical 

information and information regarding work and earnings. If additional information is needed, the SCT requests this information from treating sources 

and employers or requests the claimant’s representative obtain this information and submit it to the hearing office within a specified timeframe. At this 

point, the SCT may also suggest the need for medical or vocational expert testimony. • The case is then assigned to an ALJ for his/her pre-hearing review. The ALJ 

will determine if further development is needed or whether the case is ready 

to schedule for hearing. The ALJ will also determine whether medical and/

or vocational expert testimony will be required at the hearing. • When a claim is scheduled for hearing, a notice of hearing is sent which requests the claimant/representative to send any and all additional evidence to 

the hearing office prior to the hearing. The acknowledgement letter to the 

claimant/representative explains that any additional evidence they wish to 

submit must be sent as soon as possible. Also, if they need help in obtaining 

evidence they should contact the hearing office for assistance. 

• New evidence received prior to the hearing date is added to the case file by 

the SCT or Case Technician (CT) and the case is given back to the ALJ for 

review. The ALJ may decide that a hearing is not necessary because a fully 

favorable decision can be issued based on this additional evidence. 

• The claimant/representative may submit written evidence on the day of the 

hearing. If this occurs, the ALJ may decide to reschedule the hearing for a 

later date if he/she needs additional time to re-review the file with the new 

evidence received at the hearing. 

• There are times when the ALJ will need to request medical/vocational evidence subsequent to the hearing. This may include additional development 

from the treating source, a request for a consultative examination (CE), and/

or a supplemental hearing. 

• After the additional development/testimony is received, the ALJ will make a 

decision and complete the instruction sheet for the Attorney Advisor (AA) or 

Paralegal Analyst (PA) assigned to write the decision. 

• The AA/PA prepares the draft decision. 

• The ALJ is given the draft decision for review and edit. 

• A Notice of Decision with appeal rights and a copy of the ALJ’s decision are 

mailed to the claimant and representative. 

• The claim file, containing the exhibits, audiotape of the hearing, Notice of Decision, and the ALJ Decision are mailed to the appropriate processing component of SSA.

The following is an outline of the step-by-step case processing at the Office of Appellate Operations (OAO) level of administrative appeal:

• When an unfavorable decision or dismissal is issued by an ALJ, the hearing 

office sends the claim file to the OAO Mega Site processing center for holding 

in the event the claimant or representative files a Request for Review of the 

ALJ decision or dismissal. 

• When either a claimant or representative files a Request for Review it goes 

directly to an OAO Branch where receipt is documented by input into the 

case tracking systems. Branch staff requests the file from the Mega Site in 

order to process the claim. Often a claimant/representative will submit additional evidence in connection with the Request for Review or will request an 

extension of time in which to submit additional evidence or present statements or arguments in support of the claim. 

• OAO does not routinely request evidence. However, in situations where a 

claimant/representative references additional evidence in connection with the 

Request for Review, the Council will routinely grant an extension of time to 

submit the evidence. Evidence of this nature is generally medical reports from 

treating sources, hospitals, examining sources, etc. 

• Other pre-development activities may include obtaining all pertinent files; obtaining the audiotape hearing cassette, if missing; providing the claimant/representative with copies of exhibits and/or audiotapes; and time to submit eviVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
32

dence and/or statements or arguments, and so forth. Once all pre-development activities are completed, an Analyst reviews the case and makes a recommendation to the Administrative Appeals Judge or Appeals Officer (signatory authority for denials only) for his/her action, i.e., deny the Request for 

Review; grant the Request for Review, vacate the ALJ decision and Remand 

to ALJ for further processing; grant the Request for Review, vacate the ALJ 

decision and issue an Appeals Council decision; or Dismiss the Request for 

Review. 

• The Administrative Appeals Judge or Appeals Officer (denials only) review 

the Analyst’s recommendation and sign the action documents, if he/she is in 

agreement with the recommendation. If there is no such agreement, the case 

is returned to the Analyst for further review, revision, etc.

19. Witold Skwierczynski’s testimony focused on issues related to the 

Title II special disability workload. Please provide your comments regarding this testimony.

Answer:

We agree that the Special Disability Workload is complex and difficult. For that 

reason, SSA established cadres of specially trained employees to process the cases. 

The specially trained cadres will screen and ‘‘map’’ each case. (‘‘Map’’ means that 

they identify the key issues to be covered during the interview and development of 

the claim.) They began processing cases in June 2002. 

The cadres will send case-specific instructions, i.e., the ‘‘mapping’’ material, to the 

local field office that will obtain the application and develop the entitlement factors. 

Cases requiring medical determinations will then be sent to the disability determination services (DDSs). After all these steps have been finished, the field office 

will send the cases back to the cadres for quality review. Upon completion of the 

quality review, cases will be sent to the processing centers for payment. 

In addition, SSA’s Office of Quality Assurance will conduct independent quality 

reviews. They will conduct ‘‘early information’’ reviews at various steps in the process to ensure accuracy. 

Due to much longer retroactive benefit periods than normal title II cases, the 

DDSs will need to develop much older medical evidence and it is estimated the special disability workload will take approximately 11⁄2 times longer to adjudicate than 

regular cases. The disability determination services (DDSs) are not funded to do all 

initial receipts in FY 2003. Absent additional funding, the special disability workload will be worked along with other disability claims and add to the backlog. 

20. In what percent of ALJ hearings is a medical or vocational expert 

present? Please provide this data totaled by year for the past 3 years.

Answer:

National data for Participants per Hearing Held is as follows:

Fiscal

Year 

Vocational

Expert 

Medical

Expert 

1999 47.4% 16.3%

2000 49.6% 17.8%

2001 51.2% 17.5%

21. Dr. Stapleton stated in his testimony that he arrived at a different 

conclusion regarding the findings of the Disability Claims Manager 

(DCM)—‘‘SSA’s evaluation of the DCM test concluded that it substantially 

reduced processing time, increased claimant satisfaction, and improved 

employee satisfaction, but at a somewhat greater cost than the current 

process. My interpretation of the evidence from that evaluation is more 

positive than SSA’s; it appears to me that the DCM is cost neutral, and that 

it reduced processing time by more than the report indicates.’’ Please provide your comments relative to Dr. Stapleton’s conclusions.

Answer:

As Dr. Stapleton testified, SSA contracted the company he worked for (The Lewin 

Group) as consultants for the DCM evaluation. Based on the Lewin Group’s recommendation, median processing-time was used as the assessment tool for the final 

report. The report recognized that the DCM cases had significantly faster median 

processing times for both Title II and Title XVI claims than the control group (on 

average 10 days faster for Title II and 6 days faster for Title XVI). 

The DCM cost assessment considered the volume of cases processed, staff salaries 

including support staff and supervisors, medical development/evidence costs and 

33

overhead. This analysis indicated that the DCM model cost at least 7% more to 

process an initial claim than the current process. The assessment did not factor in 

costs associated with creating an infrastructure to support the DCM process, extensive training and mentoring or productivity losses over the long learning curve. 

Although there were some positive outcomes in the DCM test, the agency concluded that there was not a compelling business case for making resource commitments necessary to implement the process. The agency issued a decision not to pursue further testing or implementation of the Disability Claim Manager position, but 

to consider the valuable insights and experiences learned from this test in its 

longer-term planning efforts.

22. Please summarize the procedures requiring field office and DDS employees to instruct claimants and/or their representatives about how the 

process works and what information they need to provide to substantiate 

the claim. What quality review procedures are in place to ensure these procedures are followed? Do such quality reviews illustrate that these procedures are being followed?

Answer:

Field Office (FO) Responsibilities 

• When a disability claim is taken, field offices explain to claimants and/or 

their representatives: 

• That SSA will need to obtain medical evidence to support the claim; 

• That timely and accurate identification of medical sources will assist the DDS 

in processing the case; 

• That SSA will pay for the medical evidence of record; 

• That the claimant will need to fully cooperate if a special examination is necessary; 

• The estimated time it takes to get a determination; 

• Available work incentive provisions; 

• Available Vocational Rehabilitation Services; and 

• Mandatory continuing disability review requirements.

Claimants are given the booklet ‘‘Disability Benefits’’. This booklet provides information on the definition of disability, how to apply for benefits and the role of the 

DDS. This pamphlet is available online at http://mwww.ba.ssa.gov/pubs/10029.html 

Field office cases are reviewed for accuracy after they are worked. This is done 

by a quality review component located in the Regional Offices. Feedback is provided 

to the field offices on all cases found to be inaccurate, and these cases are sent back 

to the claims representative for correction. 

Teleservice Center (TSC) Responsibilities 

When a claimant calls one of our teleservice centers (TSCs) via our 800 number 

about applying for disability benefits, the TSC interviewer screens the caller for selfhelp and, if screened in, sends the caller a Disability Report form (SSA–3368–BK) 

and advises the caller that the:

• FO interviewer will provide any needed assistance to finish completing the 

form at the time of the interview, and 

• Claimant should return the form along with any medical evidence (including 

prescription information) already in his/her possession:

1. when requested by the FO, or 

2. in person at the time of the in-office appointment, or 

3. by mail after the FO telephone interview.

The TSC interviewer also informs the claimant of the location of the SSA website, 

which explains each item on the Disability Report form. 

The TSC interviewers receive quality review two ways. Their calls are monitored 

by management and/or technical staff onsite. Calls are also remotely observed by 

a quality component in the Office of Quality Assessment (OQA). Both service observation reviews look at the quality of service provided by the interviewer as well as 

the interviewer’s accuracy of information provided to the caller. When needed, feedback is provided to the interviewer from their supervisors and/or technicians to ensure that correct information is given to the callers. The OQA provides feedback of 

their evaluations on a monthly and quarterly basis. 

Disability Determination Services (DDS) 

Many DDSs, as part of their initial development of every new claim, also mail the 

claimant an explanation of the disability process. This is in addition to the information provided by the FO and TSC. In addition, letters sent to the claimant by the 

34

DDS for additional information, such as work history, consultative examinations, 

and activities of daily living, contain general information about why the DDS needs 

this information and how it relates to the disability process. 

DDS Quality Specialists and frontline supervisors on an ongoing basis conduct 

quality reviews. Cases are reviewed at various stages of development to ensure that 

appropriate developmental practices and procedures are abided by. Worksheets are 

maintained on each case to verify that correct actions are being taken in a timely 

fashion. Recommendations are made to Disability Examiners if the reviewer feels 

that a more appropriate course of development should be pursued. A record is maintained of all case reviews for training purposes. 

All quality review information for the FO/DDS/TSC is evaluated and, if it illustrates that procedures are not being followed, the necessary training is provided. All 

components provide ongoing training of new ad/or problematic procedures to insure 

that a high level of quality is maintained.

23. Judge Bernoski testified on June 20 that improving the quality of disability determination services (DDS) decisionmaking would improve the 

overall determination process. He stated (page 4 of his testimony), ‘‘rather 

than carefully develop and examine the claimants’ case once, DDS often is 

making its initial determinations based on incomplete records and, upon 

reconsideration, rarely obtains significant additional medical evidence or 

changes the outcome of the case.’’ What are your comments on this statement? [What] are the procedures for developing a case? Would you explain 

the process for reviewing a case for reconsideration, including under what 

circumstances a disability examiner obtains additional information? Are 

such processes checked and documented via DDS or Federal quality review?

Answer:

We believe that DDSs do carefully develop and examine cases. 

A DDS is required by regulations to make every reasonable effort to develop an 

individual’s complete medical history for the 12-month period preceding the month 

of filing before making any adverse determination (20 CFR 404.1512(d) and 

416.912(d)). ‘‘Every reasonable effort,’’ means an initial request for the evidence and, 

if not received one follow-up. (20 CFR 404.1512(d)(1) and 416.912(d)(1)). As part of 

the initial development of every new case, the DDS routinely requests evidence from 

medical sources identified by the applicant or discovered during development. The 

DDS may also develop medical evidence outside of the required 12-month period, 

if necessary. 

If the DDS knows from past experience that a particular source either cannot or 

will not provide the necessary evidence, they will not request evidence from that 

source but will instead note this on the case development worksheet, which is part 

of the case file. Otherwise, the DDS develops evidence from all known sources. 

However, that does not mean that the DDS receives responses from every source. 

It is common for some medical sources not to respond to the DDS’s requests and 

follow-ups. Consequently, a case file can appear to be incomplete because of ‘‘missing’’ evidence, even though the DDS carefully developed the case by making every 

reasonable effort to obtain available evidence. 

If a DDS is not successful in obtaining needed evidence from the individual’s medical sources, then the DDS will ask the individual to go to one or more special examinations, called consultative examinations. 

During the reconsideration process, the claimant has the opportunity to present 

additional evidence. The DDS makes a new determination considering all available 

evidence, including evidence considered at the initial determination and any new 

evidence. An adjudicator other than the one who made the initial determination 

makes this new determination. 

Development and documentation requirements for reconsiderations are the same 

as for initial cases. At reconsideration, the DDS will request any new evidence since 

the initial determination, as well as any earlier evidence that is necessary. 

Because reconsideration determinations are generally made soon after the initial 

determination, there is often no significant additional evidence available, and no 

reason to develop additional new evidence. This can contribute to a misperception 

that the DDS is not undertaking needed development at reconsideration. It also contributes to the comparatively low (but still significant) allowance rates at reconsideration of about 15%. 

We continue to monitor DDS adherence to our development policies at both the 

initial and reconsideration steps through our quality assurance process.

24. Kathleen McGraw, the Chair of the Social Security section of the Federal Bar Association, testified on June 20 that State Disability Examiners 

35

do not assess claimants’ subjective complaints. She stated (page 2 of her 

testimony), ‘‘They were confounded by the task of assessing a claimant’s 

credibility and subjective allegations and articulating a reasoned basis for 

their conclusion. Notwithstanding the clear message from the Process Unification Training that State Agency Examiners were expected to perform 

individualized assessments and rationalize their determinations, they have 

failed to do so. State agencies have balked at this requirement, and examiners’ determinations continue to be devoid of rationale and are driven almost exclusively by objective medical findings.’’ What are your comments 

on these statements? Would you explain what factors and criteria State disability examiner use to assess an individual’s claim? Are such processes 

checked and documented via DDS or Federal quality review?

Answer:

Assessing subjective allegations and credibility is one of the most complicated and 

difficult parts of disability claims adjudication. This is true at all levels of adjudication—not just at the State agency (i.e., DDS) level. And dealing with these complex 

issues can confound not only DDS disability examiners, but also medical consultants, administrative law judges, and others involved in disability claim evaluation. 

These issues present several particular difficulties for DDSs, even though DDSs 

consider the same factors and criteria as administrative law judges and other adjudicators. First, the volume of cases DDSs must deal with makes individualized assessment a significant challenge. However, our experience shows that the DDSs universally strive for, and for the most part, achieve, a very respectable level of performance. They provide individualized assessments and correctly apply our rules for 

evaluating subjective complaints and credibility, as shown in our quality review 

findings. However, their workloads make it increasingly difficult for them to document, through comprehensive and detailed rationales, how they have done so. 

Despite these demands, however, we do not believe that DDSs have ‘‘balked’’ at 

the requirement to make proper assessments of disability claims. Indeed, DDSs 

have done the best job we could expect of them, while balancing enormous workloads with the need for comprehensive documentation. 

We have been testing a different process in ten States, which includes the elimination of the reconsideration step from the appeals process, and DDS examiners 

making some disability determinations independent of medical and psychological 

consultants. Also included in this process is an enhanced rationale process that requires clear documentation of development actions as well as a clear explanation of 

the examiner’s thought processes. Without the savings from the elimination of the 

reconsideration, however, the remaining States do not have the necessary resources 

to provide these more detailed explanations. This different approach among the 

States will be addressed as we consider longer term, broader changes to the claims 

process. 

This new process was intended, in part, to help DDSs better meet workload demands, while providing the comprehensive decision rationales that we would prefer. 

Consequently, the rationales we have seen in these States are more extensive than 

those in other States in which the process was not tested. But, the same workload 

pressures exist in every State across the country. 

Although DDS rationales are often less detailed than what we would like, it 

doesn’t mean that DDSs aren’t correctly applying our policies, including those we 

refer to as ‘‘Process Unification,’’ such as policies related to medical source opinions, 

symptoms and credibility, and residual functional capacity. We believe that DDSs 

are doing so within the constraints imposed by budgets and workloads. Because 

their decisions are not always rationalized to the same extent as an administrative 

law judge’s decision, it is a common misconception that that they consider only the 

‘‘objective’’ medical evidence. That is because the evaluation forms and medical consultant analyses tend to reference readily available clinical information, and to give 

less emphasis to any complex discussion of the individual’s complaints and credibility. But that doesn’t mean the adjudicator did not consider those factors. It only 

means he or she didn’t spend a great deal of time explaining them. 

We continue to monitor and document DDS adherence to our disability adjudication policies through our quality assurance process. All DDSs are held to the same, 

strict quality standards, regardless of the level of explanation provided in their determinations.

25. James Hill made the following recommendations in his testimony. ‘‘1. 

All qualified OHA Attorney Advisers should be converted to Senior Attorney decisionmakers and given the authority to issue fully favorable on-therecord decisions. These Senior Attorney decisionmakers would review all 

cases coming into the hearing office. 2. SSA should establish a workgroup 

36

to examine the implementation of additional attorney decisionmakers, such 

as Hearing Officers, in the OHA hearing offices to work in conjunction with 

the ALJs in processing the ever-growing workload that faces SSA. 3. SSA 

should establish a workgroup to examine the issue of introducing an Agency representative into the adjudication process.’’ Please provide your comments as to these recommendations.

Answer:

See the response to question 5. Additionally, there is a proposal under development to establish an attorney decisionmaker position in OHA to help address the 

growing backlog of cases.

26. The Commissioner has stated she will implement reforms to the disability process this fall. Judge Bernoski indicated that SSA has not asked 

either he or his association, the Association of administrative law judges, 

to participate in identifying solutions to the problems associated with the 

disability determination process. Is this true? If so, why?

Answer:

Commissioner Barnhart has asked Martin H. Gerry, Deputy Commissioner, Office 

of Disability and Income Security Programs, to present suggestions for improvements in the disability process to her this fall. As Deputy Commissioner Gerry stated in his August 1, 2002 message to all hearing office employees, he plans to meet 

with Judge Bernoski as well as with representatives of OHA’s other unions to solicit 

ideas for improvement. Deputy Commissioner Gerry is also looking into the possibility of obtaining input and feedback from other interested parties such as the 

Hearing Office Chief administrative law judge (HOCALJ) Association and the Federal Managers Association, and outside organizations such as NADE, NOSSCR, 

NCDDD and NCSSMA.

27. Judge McGraw believes a major failing of HPI was the promotion of 

clerical employees to the ranks of paralegals, who she states were promoted without having any legal training or demonstrating ability to write 

and communicate effectively. Their promotion reduced the number of employees trained in ‘‘pulling cases’’ in preparation for adjudication by ALJs, 

thus creating fewer cases ready for judges to hear. Compounding the problem is that the promoted employees are paid at the same grade and pay 

level as attorneys. Will you please comment as to Judge McGraw’s concerns?

Answer:

The Memorandum of Understanding signed by management and AFGE on the implementation of HPI required the Agency to fill a large number of paralegal analyst 

positions, primarily through internal promotion of current OHA employees. The 

AFGE Partnership Agreement for HPI Phases II and III specified 350 paralegal analyst positions would be announced in July 2000 and filled before November 20, 

2000. No one in a clerical position was promoted to the paralegal analyst position; 

however, the majority of the promotions were from the ranks of our technical positions, in particular the Senior Case Technician position. 

All of the employees who were promoted met the basic qualifications of the position. However, as a result of the requirement to promote such a large number of 

employees in a relatively short time, there was a higher than usual incidence of employees requiring new skills training. Moreover, this occurred during a period when 

many of the employees supervising the new paralegal analysts were, themselves, 

also new to their positions, and all office staff was learning a new process. 

Sincerely, 

Martin H. Gerry 

Deputy Commissioner for 

Disability and Income Security Programs

Attachment: 

37

* Social Security Administration, Office of Policy

ORES Working Paper Series

Number 98

Social Security Disability Programs:

Assessing the Variation in Allowance Rates

Alexander Strand * 

Division of Policy Evaluation

August 2002

Social Security Administration

Office of Policy

Office of Research, Evaluation, and Statistics 

8th Floor, ITC Building, 500 E Street SW, Washington, DC 20254–0001

Working Papers in this series are preliminary materials circulated for review and 

comment. The views expressed are the author’s and do not necessarily represent the 

position of the Social Security Administration. 

Summary

The Social Security Administration (SSA) operates two programs that provide disability benefits: Social Security Disability Insurance (DI) and Supplemental Security 

Income (SSI). The Social Security Act and the regulations that implement it establish uniform national criteria for determining whether someone who applies for disability benefits under either of these programs is disabled. However, an agency of 

the state in which the claimant lives makes the initial determination under contract 

to SSA and using SSA guidelines. 

Historically, states have allowed initial disability claims at rates that vary from 

one state to another, in some cases widely. On the surface, this variation seems to 

indicate that states apply the national disability criteria differently from one another. Over the years, this concern has prompted several congressional hearings and 

numerous analyses and reports. For example, the Senate Finance Committee report 

on the Disability amendments 1979 commented: ‘‘The assumption is that it is easier 

(or more difficult) to meet the disability definition depending on where you live’’ 

(Senate Committee on Finance 1979). Most recently, a report by the Social Security 

Advisory Board (2001a and b) showed geographic patterns of variation in allowance 

rates and expressed concern about SSA’s ability to assess whether there is inconsistency and unfairness in disability decisionmaking. 

Equity demands that claimants receive the same consideration regardless of their 

state of residence, but it does not require that states have the same or even similar 

allowance rates. Allowance rates depend in part on the economic and demographic 

characteristics of those who apply, which vary among states. For example, a state 

with an older population is likely to have a higher allowance rate because older 

claimants are more likely to meet disability criteria, on average. 

This study estimates the amount of variation in allowance rates that is related 

to certain economic and demographic differences among states. The major findings 

include the following: 

In 1997–1999, states with the highest and lowest allowance rates for DI, SSI, and 

concurrent applicationsdiffered by about 30 percentage points.

• States that have the highest and lowest allowance rates for DI or SSI tend 

to retain that status over time, although some changes in ranking do occur. 

• States with high filing rates tend to have low allowance rates, and vice versa. 

• Adjusting for economic, demographic, and health factors cuts the variation in 

allowance rates among states in half. 

• The variation in the prevalence of disability beneficiaries in the population 

has only a minimal ability to explain allowance rates. 

• The allowance rates in most states are relatively close to the rates predicted 

by demographic and socioeconomic factors. 

• States that deviate from their predicted rates tend not to do so consistently.

38

1These allowance rates reflect initial decisions only (including pre-effectuation review) and exclude SSI applicants who are minors. The states with the five highest and lowest allowance 

rates for 1997 to 1999 are listed in Appendix A. 2The correlation of the rankings of allowance rates is around 0.7 for both DI and SSI between 

1991 and 1999. It is somewhat lower for concurrent applicants.

Concern about Variation in Allowance Rates

The variation in DI and SSI allowance rates across states has been substantial 

and persistent. Recently, the range between the states with the highest allowance 

rates and the ones with the lowest was around 30 percentage points.1 In addition, 

the states with the lowest allowance rates tend to remain in this category in adjacent years. Over longer periods of time, the ranking of allowance rates remains fairly stable. For example, Chart 1 plots DI allowance rates that are 8 years apart. 

States tend to keep their position relative to the other states, as shown by the proximity of the data points to the diagonal line.2


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3For a review of these studies, see Rupp and Stapleton (1995, 1998). 

Even though the differences between allowance rates are large and persistent, an 

internal Social Security Administration study (1988) showed that much of the variation is associated with economic and demographic differences in state populations. 

The analysis also concluded that more variation could have been accounted for had 

data on additional factors (such as health) been available. Numerous other studies 

have analyzed the relationship between allowance rates and economic and demographic factors.3

This study expands on the 1988 analysis by considering a wider range of possible 

explanatory variables. It differs from previous studies by analyzing 3 years of data 

and by conducting separate analyses for the DI and SSI Programs and for concurrent claims under both programs. It responds to concerns about differing allowance 

rates by reexamining the portion that is associated with external factors and, by extension, the portion that could be attributable to inconsistency. The analysis addresses the issue of whether a claimant in one state is less likely to be allowed than 

a claimant in another state, all other things being equal. By adjusting the allowance 

rates to account for demographic and economic conditions, this analysis moves toward making at least some important ‘‘other things’’ equal. 

This study pertains to the average initial allowance rate for each state across all 

cases. Therefore, it does not reach any conclusions about the extent of variation 

across particular categories of disability or particular steps in the process. It also 

does not cover the important issue of possible inconsistency among decisionmakers 

within a state. 

Factors Influencing Allowance Rates

This study aims to account for state-to-state differences in allowance rates using 

variables that are clearly external to the administration of the disability program. 


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4 It is important to note that while the degree of variation between states is less than it appears, that finding does not imply that inconsistency across adjudicators is not a concern. An 

earlier SSA study (Gallicchio and Bye 1980) found inconsistency in adjudicating sample cases. 5 Concurrent applications are excluded from the DI and SSI equations. 

Variables that measure aspects of the economy or the population are in this category. An example is the age of the population; it is logical to expect higher allowance rates with an older population. The only variable used in the analysis that 

could be considered partially internal to the program is the percentage of applications based on physical (as opposed to mental) impairments. It is internal in the 

sense that it refers to a characteristic of the claimant rather than of the population. 

Although this variable is largely independent of the claims process, an element of 

subjective judgment exists in the classifying of disability cases. The analysis nevertheless uses this variable because there is no corresponding characteristic that can 

be measured in the state population. 

One of the goals of this analysis is to separate the variation that can be influenced by administrative factors or policy from that which is attributable to external 

differences between states. Through controlling for the external factors for which 

data are available, the analysis can focus on the remaining differences in allowance 

rates.4

This study uses data for calendar years 1997, 1998, and 1999 to explain differences in allowance rates. It combines 3 years of data into a single analysis. In 

addition to allowing for greater statistical precision, combining the data permits an 

examination of whether anomalies recur in different years. Separate analysis is conducted for three different groups: DI claims, SSI claims, and concurrent claims 

under both programs.5 DI and SSI allowance rates can differ greatly in a particular 

state. The states with the lowest DI allowance rates do not necessarily have the lowest SSI allowance rates. Furthermore, DI and SSI filing rates are correlated with 

different external variables. Concurrent applicants represent a unique population 

with labor force experience but little financial success. This group has enough work 

experience to be insured for DI but has meager enough assets and income to qualify 

for SSI. Because of these differences, we separated the programs for the purpose of 

this analysis. 

Candidate Explanatory Variables

This section discusses the variables that were considered for inclusion in the analysis based on prior expectations about what variables might be important. Some 

variables that would be expected to be important are, nevertheless, not included in 

the analysis for reasons discussed below. 

Filing Rates. Filing rates are the number of initial applications expressed as a 

percentage of the working-age population. Filing rates are negatively correlated 

with allowance rates; that is, the states with higher filing rates tend to have lower 

allowance rates, although not in all cases. Charts 2 and 3 plot data points for filing 

rates and allowance rates. The lines show the general relationship between the two. 

It is not essential to include filing rates in equations explaining allowance rates 

because filing rates themselves are heavily influenced by economic and demographic 

factors. The influences on filing rates are shown by regression equations in Appendix B. Although these equations employ additional variables, they also use the same 

or similar economic and demographic variables as are used to predict allowance 

rates. Thus, the influence of filing rates on allowance rates is also captured by these 

other variables. Consequently, when predicting allowance rates, filing rates have 

only a marginal effect. Filing rates are rates on allowance rates is also captured by 

these other variables. Consequently, when predicting allowance rates, filing rates 

have only a marginal effect. Filing rates are, nevertheless, included in the equations 

explaining allowance rates because readers may be curious about their impact.

41

6 Retail or wholesale trade is used as a cyclical indicator by Stapleton and others (1999). 

Economic Indicators. Although filing rates are influenced by economic factors, 

the economic indicators have an independent effect on allowance rates even when 

controlling for filing rates. According to economic theory, deteriorating economic conditions influence some people to switch from the labor market to disability insurance 

for their primary means of support as their probability of success in the labor market declines. Thus, poorer economic conditions are associated both with higher filing 

rates on an aggregate level and with an applicant pool containing people with less 

severe impairments. If the medical judgments are consistent, one would expect that 

more people in this group would be denied benefits, resulting in lower allowance 

rates. Thus, economic conditions affect both allowance rates and filing rates. 

Different aspects of economic conditions can be captured by different variables. 

The available candidate variables are the unemployment rate, the labor force participation rate, the poverty rate, per capita income, and the proportion employed in 

retail or wholesale trade.6

Prevalence Rates. The proportions of DI and SSI beneficiaries in the population, 

known as prevalence rates, are related to the allowance rates for DI and SSI, as 

shown in Charts 4 and 5.


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42

Despite the apparent relationship, prevalence rates are not good explanatory variables for allowance rates when the other economic and demographic variables have 

been included. This is because both prevalence rates and allowance rates are influenced by economic and demographic factors. Also, the prevalence rate and the allowance rate are conceptually related measures. In an accounting sense, a prevalence 

rate is the sum of many years’ allowances and rates of leaving the programs. 

Demographic Indicators. Different demographic groups have different risks of 

disability. Demographic indicators include the median age, the proportion of the 

work force in ages most vulnerable to disability, the percentage of the work force 

that is male, and the percentage of the work force that has a high school education. 

Health Indicators. Previous reports, including one by the Social Security Administration (1988), referred to average health status by state as a crucial but, at the 

time, unavailable piece of data. Such data are now available through surveys measuring self-reported health and disability levels. Indeed, these indicators are important variables in predicting filing rates but are not essential for predicting allowance rates. Other health-related variables that are useful for explaining allowance 

rates include the proportion of workers with health insurance and the rate of 

nonfatal work-related injuries and illness. 


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43

Predictive Equations. The sets of variables described above are used in a regression analysis to examine the variation in allowance rates. Regression analysis 

is a statistical tool that divides the variation in a variable into explained and unexplained portions based on a set of predictor variables. A subset of the candidate 

variables described above was used in each equation. A combination of variables 

was selected based on the proportion of variation that was explained and the relevance of the variables to economic theory. The equations that were selected are not 

uniquely superior by any one criterion but are among a number of equations showing similar results. More information about the equations is given in Appendix B 

and Table B–3. 

The equation for allowance rates among DI applicants contains the following variables:

• the filing rate, • the percentage of applicants claiming physical disabilities, • the percentage of the work force with a high school education, • the percentage of the work force that is male, • the occupational illness and injury rate, • the median age of the population, • per capita disposable income, • the poverty rate, • variables capturing the percentage of employment in industries with high injury and illness rates, and • a variable capturing differences between years in the data.

The equation for allowance rates among SSI applicants contains the following 

variables:

• the filing rate, • the percentage of applicants claiming physical disabilities, • the percentage of the work force with a high school education, • the percentage of the work force that is male, • the median age of the population, • the unemployment rate, • the percentage of employment in retail trade, • per capita disposable income, • the percentage of workers with health insurance, • variables capturing the percentage of employment in industries with high injury and illness rates, and • two variables capturing differences between years in the data.

The equations for SSI and DI are similar. Both equations include the filing rate, 

the percentage of applicants claiming physical disabilities, the demographic variables, and the variables representing the composition of employment by industry. 

The equation for concurrent applicants is similar to the ones for DI and SSI and 

resembles a combination of the two. It contains the following variables:

• the filing rate, 

• the percentage of applicants claiming physical disabilities, 

• the percentage of the work force with a high school education, 

• the percentage of the work force that is male, 

• the median age of the population, 

• the percentage of workers with health insurance, 

• the unemployment rate, 

• the poverty rate, 

• the percentage of employment in retail trade, 

• variables capturing the percentage of employment in industries with high injury and illness rates, and 

• a variable capturing differences between years in the data.

In assessing studies such as this one, there is frequently concern that some of the 

explanatory variables are internal to the claims evaluation process. For example, although filing rates may be expected to influence allowance rates, the inverse may 

also be true. Allowance rates may influence filing rates if the population in particularly lenient or stringent states changes their filing behavior. Thus, it is uncertain 

whether a variable measuring the filing rate captures differences in a state’s population or differences in the application of the disability standards. Appendix B illustrates the impact of the variables to which this critique would most apply, presenting empirical analysis both including and excluding these variables. The primary result is that including variables such as the filing rate makes little difference 

in the explanatory power of the model equations and the overall conclusions of the 

report. However, the results for an individual state and the identification of an indiVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00047 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
44

7Some studies have tried to quantify the feedback of disability policy on some economic measures. For an example of how disability policy can influence the unemployment rate, see Autor 

and Duggan (2001). 8The standard deviation is a measure of random variability of actual observations from the 

value predicted by the regression model. In general, due solely to random variability, an actual 

observation will be 1.96 standard deviations from the predicted value 5 percent of the time and 

will be one standard deviation away about 32 percent of the time. Actual observations that are 

far from the predicted value have a low probability of occurrence due solely to random variability. Observations that are more than 1.96 (roughly two) standard deviations away from the 

predicted value are considered to be outliers at the 5 percent level of statistical significance. 

For the predictive allowance rate models for SSI, DI, and concurrent applicants, the standard 

deviations are respectively 3.90, 4.13, and 3.40 percentage points. Thus, for the SSI model, a 

state allowance rate that was more than 7.6 percentage points different from the predicted value 

would occur only about 5 percent of the time, due to random variability. 9These outliers are specific to a particular set of regression equations. Another set is shown 

in Appendix B, which produces a somewhat different set of outliers. Other variables that are 

not used here could explain a portion of the remaining variation.

vidual state as a statistical outlier are affected by changing the variables of analysis. 

The argument that certain variables measuring an aspect of the population may 

also capture variation in the claims evaluation process can potentially be extended 

to any of the explanatory variables. It is sometimes argued, for example, that adjudicators are more lenient during recessions. Following this logic, such variables as 

the unemployment rate or the poverty rate may capture an element of adjudicator 

judgment and may thus be internal to the claims evaluation process.7 It is beyond 

the scope of this paper to address the issue of whether adjudicators are more lenient 

during recessions. Variables such as the unemployment rate and the poverty rate 

remain in the analysis. Retaining these variables would create a problem in the 

analysis only if adjudicator leniency varies with economic conditions in a way that 

creates differences across states. There is no problem if leniency varies only with 

national economic trends rather than with state-level economic conditions. 

In summary, regression equations are used to divide the variation in allowance 

rates into the portion associated with external variables and a remaining portion. 

This remaining portion is the difference between the predicted allowance rates calculated from the equations and actual allowance rates. The remaining portion is examined in the next section. This remaining portion is of particular interest, since 

it represents the portion of variation that could contain the effects of inconsistency 

in evaluating claims. 

Actual and Predicted Allowance Rates

A predicted allowance rate was calculated for each year of analysis for SSI, DI, 

and concurrent applicants and is presented in Appendix C. This allowance rate reflects the rate that is expected given the demographic characteristics, economic indicators, and other variables used in each equation. The difference between the predicted allowance rate and the actual allowance rate represents the unexplained portion of the variation in allowance rates. 

States with the highest DI allowance rates in 1998 and their deviations are shown 

in the following tabulation:

Although these states all have high actual allowance rates, only some of them differ substantially from the predicted rate. These differences from predicted allowance 

rates were examined from the perspective of their likely occurrence due solely to 

random variability and analyzed in terms of the standard deviation of the predictive 

model.8 In Nevada, for example, there is a difference of 9.8 percentage points between the actual and predicted allowance rates for 1998. This difference exceeds two 

standard deviations (8.26 percentage points), so the Nevada allowance rate can be 

considered an outlier in 1998. The allowance rate for Iowa is also an outlier in 1998 

whereas the other states listed here are not.9


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Outlier Patterns

Three equations with 3 years of data for 50 states plus the District of Columbia 

provide 459 comparisons of actual and predicted allowance rates. Of these, 20 have 

differences from the predicted value in excess of two standard deviations, which is 

about 4.4 percent of observations; that is to be expected and is no cause for concern, 

in itself. 

We now look for patterns of outliers in individual states. About half the outliers 

are a single occurrence for that state. In other words, the state is an outlier in 1 

year of analysis but not in the other 2. A few states have more than one outlier. 

Out of a possible total of nine (three equations times 3 years), no state has more 

than four. The following tabulation shows states with more than one outlier:

Other Patterns of Differences

No individual state is an outlier for all 3 years of analysis for any one set of applicants (SSI, DI, or concurrent applicants). In some states, however, there appears to 

be a pattern in the differences between actual and predicted allowance rates, even 

though the differences are less than two standard deviations. These patterns emerge 

when examining states that differ from their predicted value by at least one standard deviation. 

The states that have differences that are greater than one standard deviation in 

all 3 years of analysis for one or more sets of applicants are listed in the tabulation 

below. A positive sign means the actual rate is higher than the predicted rate and 

vice versa. For example, the actual SSI allowance rate for Colorado is consistently 

lower than the predicted rate. The difference is 5.5, 6.5, and 11.0 percentage points 

for 1997, 1998, and 1999, respectively. Only the last figure is greater than two 

standard deviations, yet the available data consistently overpredict the SSI allowance rate for Colorado. States that differ from the predicted value by more than one 

standard deviation for one set of applicants for all 3 years of analysis are as follows:

Discussion

If all states were the same in terms of their population and economy, it might 

be appropriate to expect them to have allowance rates near the national allowance 

rate. In that case, a measure of the extent of inconsistency in the application of the 

national disability criteria would be the difference between state allowance rates 

and the national mean. 

Given economic and demographic differences among states, however, it is not appropriate to expect allowance rates to be the same. The difference between a state’s 


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46

actual and predicted allowance rates is a more appropriate measure of the extent 

to which the state might be applying national disability criteria differently than 

other states. Of course, this measure is dependent upon the quality of the available 

data as well as the choices made when constructing the regression equations. The 

measures are likely to capture the maximum difference that could be attributable 

to inconsistency since there are other aspects of the differences in caseloads that are 

not captured by the variables that were used. 

Comparisons between actual and predicted allowance rates are given for each 

state and year in Appendix C. The differences are presented visually in Charts 6, 

7, 8, and 9. The states are divided into categories, with darker shades representing 

categories with greater differences. Chart 6 shows the differences between allowance 

rates and the mean for DI. It shows a concentration of large differences in the 

South. By contrast, Chart 7 shows the differences between allowance rates and predicted allowance rates. When accounting for economic and demographic differences 

by using predicted allowance rates, the South no longer exhibits a concentration of 

large differences. Similarly, Charts 8 and 9 show the same information for SSI. For 

both SSI and DI, there are fewer states with the darkest shade representing differences greater than 10 percentage points when comparing allowance rates with 

predicted allowance rates. For example, 15 states fall into this category in Chart 6, 

while only 2 remain in Chart 7. The remaining states correspond in large part to 

the states that were described as statistical outliers in the previous section. Nevada, 

Wyoming, and Hawaii also appear in the category representing the largest differences for either DI or SSI.


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48

Because only a few states have large differences, a more representative picture 

of the magnitude of state variation emerges by examining differences for a typical 

state. The best way to show such differences is with the mean of the absolute differences. A typical state’s DI allowance rate differs from the mean in either direction by 6.7 percentage points on average. It differs from the predicted rate by less 

than half that amount, however, only 3.1 percentage points. The reductions in allowance rate differences are not as notable for SSI or for concurrent applicants. 

These differences, in percentage points, are shown in the tabulation below, and 

more information is given in Appendix B.

Conclusion

A major concern regarding the quality of disability adjudication has been the consistency of decisions. While no two cases are identical, SSA seeks to ensure that criteria are applied consistently and that like cases will have the same outcome. This 

study has focused on a subset of that issue—the variation in allowance rates across 

states. The difference between a typical state’s allowance rate and its predicted allowance rate (for example, adjusted for economic, demographic, and health factors) 

is estimated to be about half the difference between a typical state’s allowance rate 

and the national mean. Nonetheless, differences still exist, and a few states have 

DI or SSI allowance rates that are consistently above or below their predicted rates. 

By focusing on areas of real rather than apparent inconsistency, SSA can more effectively focus future examination of the issue of inconsistency.


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10Muller (1982) asserts that there is no additional relationship between aggregate economic 

indicators and individual outcomes beyond the incentives and constraints faced by the individual. The analysis uses economic indicators not to capture such an additional relationship but 

rather to proxy the composite of individual incentives in state-level equations. 

Appendix B: Technical Notes

This appendix presents the results of the regression analysis and discusses topics 

relevant to their interpretation. Interpretation of the influences on allowance rates 

is aided by discussion of the influences on filing rates; thus a discussion of filing 

behavior and an empirical analysis of filing rates is presented first. The analysis 

of allowance rates follows.

Filing Rates

Interpretation of the equations in this paper is aided by two assumptions about 

individual choice and the nature of disability. First, according to standard economic 

theory, people choose rationally between alternatives. In this case, the relevant alternatives are seeking work and filing for disability. It follows that the decision of 

those at the margin is affected by the return to each choice, in this case the size 

of the disability payment and the attainable wage from employment. Economic indicators serve as a proxy for the attainable wage, in aggregate.10 Second, the analysis 

assumes that disability status itself is not affected by economic conditions, at least 

in the short run. Poverty and unemployment may affect the onset of disability 

through nutrition, safety, and other influences; however, this presumably happens 

gradually. Taken together, these two points portray filing behavior as more responsive to economic conditions and disability itself as less responsive. Therefore, when 

analyzing allowance rates, the effect of changing economic conditions is largely 

through changes in filing behavior and, it follows, in the composition of the applicant pool. The composition of the applicant pool is hypothesized to be one of the determining factors for aggregate allowance rates. 

It follows that the interpretation of allowance rates rests in part on the interpretation of filing behavior. There is substantial empirical evidence that filing behavior 

changes in response to changing conditions. Leonard (1986) reviews the studies that 

examine whether changes in the DI benefit amounts affect the tendency to work. 

The consensus is that they do, although the magnitudes of the estimated effects 

vary widely. Conversely, various chapters in Rupp and Stapleton (1998) review and 

contribute to the literature on whether changes in the reward to work affect filing 

behavior. Again, the results point to substantial effects. 

The results of this paper agree with most previous studies. Table B–1 shows some 

simple evidence about the influences on filing rates. The regressions describe filing 

rates for DI and SSI and include concurrent applicants. All the independent variables described in the text were made available for these regressions. Around 80 

percent of the variation can be described with just a few variables, although different variables appear in the DI and SSI equations. Not surprisingly, the poverty 

rate appears only in the SSI equation since only that program has a means test. 

The DI equation uses the labor force participation rate. The negative sign is consistent with a discouraged worker effect; as labor force participation declines, DI filings increase. Demographic variables that capture some behavioral differences 

across age and educational attainment categories are also used, as are the self-reported health and disability averages from the Current Population Survey. Self-reported disability is strongly correlated with filing for DI. The industry variables that 

are included are also intended to measure an aspect of health. They capture the percentage of employment in various industries that have relatively high occupational 

injury and illness rates.

53

Allowance Rates

Given these effects on filing rates, the pool of DI and SSI applicants changes with 

the economy and with demographic and health trends. The regression coefficients 

in the allowance rate equations are interpreted in this light. A procyclical economic 

indicator, for example, would be expected to have a positive sign. If per capita income falls during a recession, one would expect more marginal applicants to file for 

benefits. With the applicant pool diluted by these marginal filers, one would expect 

the allowance rate to be lower. Similarly, employment in retail trade is sometimes 

a good procyclical indicator of the low-wage labor market, but that is not borne out 

in these data. Countercyclical indicators such as the unemployment rate and the 

poverty rate are expected to have a negative sign. 

The demographic variables have more straightforward interpretations. Disability 

is more prevalent at older ages and is associated with low educational achievement. 

The expected sign is thus positive for median age and negative for the percentage 

of the workforce that has completed high school. By contrast, there are no a priori 

expectations for the signs on the coefficients for percentage of the workforce that 

is male and percentage of applicants claiming a physical disability. 


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54

11 Variables indicating differences in state SSI supplements also fall into this category because 

state supplements are geographically concentrated.

The remaining variables are related to health or occupational illness and injury. 

In general, one would expect health to be negatively associated with allowance 

rates. The variables representing employment in various industries capture employment in industries with high risk; agriculture, construction, manufacturing, and 

transportation are the one-digit Standard Industrial Classification codes with the 

highest rates of occupational illness and injury. These variables and the rate of occupational illness and injury itself are expected to have positive signs. 

Tables B–2 and B–3 show two sets of regressions for the allowance rate equations. 

They differ primarily in terms of conceptual approach. The preliminary results 

shown in Table B–2 represent specifications reflecting a priori ideas about what 

variables should be included. By contrast, the final specifications in Table B–3 were 

chosen because they are among those that produce a good fit with just a few explanatory variables, within some limits. The fact that these two approaches produce 

quite similar results shows that the distinction between the two is not a crucial one. 

The regressions that are compatible with a priori ideas are close to the ones with 

a near-optimal fit. Similarly, the regressions with a near-optimal fit do not conflict 

with the a priori ideas. The results of the equations in Table B–3 were used for the 

analysis in the main text. 

There were several priori considerations in the variable selection for Table B–2. 

Variables were selected corresponding to the nature of the SSI and DI programs. 

The poverty rate was employed as a predictor for the SSI equation corresponding 

to the SSI means test, whereas the unemployment rate has a rough relation to the 

work history requirement for DI eligibility. 

Another consideration for Table B–2 was to exclude variables that contained possible endogeneity. As demonstrated above, most of the variation in filing rates corresponds to economic and demographic differences among states. However, it is possible that filing rates also respond to state differences in program administration. 

For example, states with more allowances could inspire additional people to file for 

benefits. It is also possible that some predictor variables are coincidentally correlated with adjudicative, administrative, or policy differences. Industry employment 

indicators, for example, could capture variations that correspond to such differences.11 Because of this, the filing rate was excluded, and industry variables were 

included only in aggregated form in Table B–2. 

55


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56

The variables in Table B–3, by contrast, were selected with less regard for these 

issues. These equations were selected on the basis that they explain a large amount 

of the variation with relatively few variables. Variables were generally excluded if 

they did not contribute to the overall fit. The selection does not represent a complete 

disregard for endogeneity issues, however. The variables that are most likely to be 

endogenous have been excluded. For example, the average levels of self-reported 

health and disability were categorically excluded from these equations. The evidence 

indicates that the remaining variables are primarily exogenous but could be contaminated by some endogeneity. 


Insert offset folio 84169s.001
57

The relevance of this issue is limited by the size of the differences between the 

two sets of equations. Given that the results are similar, including a few potentially 

marginally endogenous variables cannot undermine the results significantly. The results are similar in several ways. The signs and magnitudes of the coefficients that 

are included in both sets of equations are similar, with only one exception for both 

the sign (percentage completing high school) and the magnitude (percentage of employment in retail trade) in three equations. Also, the explained portion of the variation is similar, and the two sets of equations produce similar sets of outliers. The 

rank order correlations of the regression residuals are 0.83, 0.91, and 0.94 for DI, 

SSI, and concurrent applicants, respectively. 

The outliers from the regressions in Table B–2 are shown in Charts 11 and 13. 

(To facilitate comparison, Charts 6 and 8 are repeated here as Charts 10 and 12.) 

In some cases, the two sets of equations produce different outliers. Thus, the results 

for any one particular state depend on the choice of specification; however, the overall results are independent of the choice of specification.


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58

The signs in Tables B–2 and B–3 are generally as expected. The coefficient on the 

percentage of filings that are physical is negative, indicating that physical claims 

have a lower allowance rate than mental claims. States with more males in the 

workforce and a higher median age have higher allowance rates. The coefficients for 

cyclical and health indicators have the signs discussed above. The coefficients for 

filing rates are negative but generally not statistically significant. It is not essential 

to include filing rates in the equation when the economic and health variables that 

are highly correlated with filing rates are included. Filing rates are included in 

Table B–3 because many readers may expect to see this effect. 

Some other potential weaknesses of these equations should also be mentioned. 

The inclusion of filing rates illustrates that multicollinearity is present in these 

equations. Multicollinearity is a general problem not isolated to this variable. All 


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59

the variables are related to deprivation of either health or income, and health and 

income are also correlated. Thus, the accuracy of the standard errors and tests of 

significance is affected. The worst cases of multicollinearity have been removed. For 

example, self-reported disability has a correlation with the DI filing rate of around 

0.8 and is thus excluded from the DI allowance rate equations. 

The predictive value of the equations is not affected, however. The predictions are 

the product of the data and the regression coefficients summed for each observation. 

Table B–4 shows the quantile distributions of the difference between actual allowance rates and the predictions (based on Table B–3), as well as the distribution of 

the differences from the mean. It shows that the variation in allowance rates by 

states is lower when accounting for the variation due to economic and demographic 

factors.

The figures give a sense of how much lower the variation is than when using the 

mean as a basis for comparison. The differences from the predicted rates have a 

smaller range and a more compressed distribution. At any point in the distribution 

(the 5th percentile, for example), the differences between allowance rates and predicted rates are smaller than the differences between allowance rates and the mean. 

This is a measure of the composite predictive power of the independent variables. 

Smaller average differences and a smaller variability of differences result from taking the independent variables into account. This result is robust with respect to 

choice of specification and the potential problems mentioned above. 

It is also possible that using aggregate state-level data rather than individuallevel data will introduce a bias in the estimates presented in this paper (see Robinson 1950 and Heckman 2001). Individuals within a state make the decision to apply 

for disability benefits, and individual adjudicators make a decision to award disability benefits. There is considerable within-state heterogeneity in economic and 

demographic factors. Aggregate-level data ignore this heterogeneity; thus the estimates presented in this paper may over—or underestimate the degree to which the 

variation is attributable to differences in environmental factors as opposed to the 

application of the SSA disability standard. Individual-level data may be examined 

in future work on this topic.


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References

Autor, David H., and Mark G. Dugan. 2001. The Rise in Disability Recipiency and 

the Decline in Unemployment. NBER Working Paper No. 8336. Cambridge, Mass.: 

National Bureau of Economic Research.

Gallicchio, Sal, and Barry Bye. 1980. Consistency of Initial Disability Decisions 

Among and Within States. Staff Paper No. 39. U.S. Department of Health and 

Human Services, Social Security Administration, Office of Policy.

Heckman, James J. 2001. ‘‘Micro Data, Heterogeneity, and the Evaluation of Public 

Policy: Nobel Lecture.’’ Journal of Political Economy 109(4): 673–748.

Leonard, Jonathan. 1986. ‘‘Labor Supply Incentive and Disincentives for Disabled 

Persons.’’ In Disability and the Labor Market: Economic Problems, Policies and Programs, edited by Monroe Berkowitz and M. Anne Hill. Ithaca, N.Y.: ILR Press, Cornell University.

Muller, Scott L. 1982. The Impact of Local Labor Market Characteristics on the Disability Process. ORS Working Paper No. 27. U.S. Department of Health and Human 

Services, Social Security Administration.

Robinson, W.S. 1950. ‘‘Ecological Correlations and the Behavior of Individuals.’’ 

American Sociological Review 15 (June): 351–357.

Rupp, Kalman, and David Stapleton. 1995. ‘‘Determinants of the Growth in the Social Security Administration’s Disability Programs—An Overview.’’ Social Security 

Bulletin 58(4): 43–70.

Rupp, Kalman, and David C. Stapleton, eds. 1998. Growth in Disability Benefits: Explanations and Policy Implications. Kalamazoo, Mich.: W.E. Upjohn Institute for 

Employment Research.

Senate Committee on Finance. 1979. Social Security Disability Amendments of 1979: 

Report of the Committee on Finance, U.S. Senate, on H.R. 3236. Report No. 96–408.


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Social Security Administration, Chief Financial Office, Office of Program and Integrity Reviews. 1988. Factors Influencing Disability Determination Services: Initial Allowance Rates. Washington, D.C.: Social Security Administration. July.

Social Security Advisory Board. 2001a. Charting the Future of Social Security’s Disability Programs: The Need for Fundamental Change. Washington, D.C.: Social Security Advisory Board. January.

llllllll. 2001b. Disability Decision Making: Data and Materials. Washington, D.C.: Social Security Advisory Board. January.

Stapleton, David C.; Michael E. Fishman; Gina A. Livermore; David Wittenburg; 

Adam Tucker; and Scott Scrivner. 1999. Policy Evaluation of the Overall Effects of 

Welfare Reform on SSA Programs. Social Security Administration Task Order No. 

0440–98–33244, The Lewin Group, Inc. 

Acknowledgments: The author wishes to thank Aditya Bamzai and Joanna Greenberg for valuable assistance. Steve Fear, Bob Weathers, Brian Greenberg, Charlie 

Scott, Susan Grad, Paul Van de Water, Howard Iams, Kalman Rupp, the staff of 

the Office of Disability, and the staff of the Office of Quality Assurance and Performance Assessment provided helpful comments. Mark Nadel initiated the project 

and provided guidance. 

sponses follow:]

[Attachment is being retained in the Committee files.]

[Questions submitted by Mr. Matsui to Mr. Gerry, and his refSocial Security Administration 

Baltimore, Maryland 21235

July 24, 2002

The Honorable Robert Matsui 

Ranking Member 

Subcommittee on Social Security 

Committee on Ways and Means 

House of Representatives 

Washington, D.C. 20515

Dear Mr. Matsui:

This is in response to your letter of June 27, 2002, which transmitted questions 

for the record from the June 11, 2002, hearing on the Social Security Disability Program’s Challenges and Opportunities. Enclosed you will find the answer to your specific questions. 

I hope this information is helpful. If I may be of further assistance, please do not 

hesitate to contact me.

1. What precisely are the consequences of filing a new application for 

benefits rather than appealing a denial—in terms of eligibility for past due 

benefits, maintaining insured status for Disability Insurance Benefits, and 

avoiding a denial on the second claim as a result of res judicata?

Answer:

The immediate consequence of filing a new application rather than appealing an 

unfavorable decision is the possible loss of past due benefits. A successful appeal 

would permit payment of retroactive benefits up to 12 months from the initial date 

of filing (starting with the date all eligibility factors are met). Conversely, a favorable determination on a subsequent application would have a maximum retroactivity to 12 months from the date the new claim is filed. Therefore, filing a new 

application instead of filing an appeal could reduce the amount of retroactive benefits payable. It is also possible for a person’s insured status to expire between the 

retroactive period for the initial claim and the retroactive period for the new subsequent claim. Such cases could result in the person’s new claim being denied for lack 

of insured status, while benefits would be payable upon a successful appeal of a 

medical denial. 

There is no retroactivity for title XVI claims. Benefits are limited to the month 

after the date the claim is filed. A successful appeal would allow for benefits to be 

paid beginning the month after the month in which the initial claim was filed while 

filing a new subsequent application would limit benefits to the month after the 

month the new claim is filed. Thus, filing a new claim in lieu of filing an appeal 

could result in loss of benefits for the period between the month after the initial 

claim was filed to the month after the new subsequent claim was filed. 

Administrative res judicata is a rule in civil law and an administrative policy. It 

means that SSA will not consider a claim again if it has already issued a determinaVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00070 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
67

tion based on the same facts, same issues, same parties, and same adjudicative period. In other words if a new application is filed with the same issue by the same 

party and no new facts or evidence is presented, the application may be denied on 

the basis of res judicata. (There are no appeal rights given in a notice determining 

res judicata.) However, if anything has changed, e.g., new evidence is presented, res 

judicata cannot be applied and a determination on the merits of the claim is made. 

SSA’s field office personnel explain the implications of res judicata to claimants 

who wish to file a new application rather than appealing a denied claim. However, 

if an individual insists on filing a new application, a new application must be taken. 

SSA has also revised its notices to inform claimants that filing a new application 

is not the same as requesting an appeal and that it could result in a loss of benefits.

2. What fraction of DI and SSI claimants have no treating physician, or 

no regular medical provider who can provide evidence of the claimant’s 

impairment on thorough knowledge of the claimant’s medical condition? 

Please provide separate estimates for DI and SSI claims.

Answer:

SSA has no records or data available on whether a claimant has a treating physician or regular medical provider.

3. Is the record ever closed during the agency’s adjudicative process? Can 

the Federal courts consider new evidence? If so, under what circumstances?

Answer:

The record is never completely closed during the agency’s entire adjudicative process. Claimants may submit additional evidence throughout the administrative review process including after the issuance of a decision by an administrative law 

judge (ALJ). However, the Appeals council considers new evidence submitted after 

the ALJ decision only if it is material and relates to the period on or before the date 

of the ALJ decision. 

A district court may at any time order SSA to take or obtain additional evidence 

if the claimant shows that there is new and material evidence and there is good 

cause for failure to have the evidence entered into the record during the administrative reviews.

4. Does SSA have standards for the conduct of claimant representatives? 

What tools does it have available to sanction misconduct?

Answer:

SSA has standards for the conduct of claimant representatives that are published 

in our regulations at 20 CFR 404.1740. These standards include that: 

The Representatives shall:

• Act with reasonable promptness to obtain the information and evidence that 

the claimant wants to submit in support of his or her claim, and forward it 

to SSA as soon as practicable; 

• Assist the claimant in complying, as soon as practicable, with SSA’s requests 

for information or evidence; and 

• Conduct their dealings in a manner that furthers the efficient, fair and orderly conduct of the administrative decisionmaking process.

The Representatives shall not:

• With intent to defraud, willfully and knowingly deceive, mislead or threaten 

any claimant or beneficiary with respect to his or her rights under the Social 

Security Act; 

• Knowingly charge or collect any fee not authorized by law; 

• Knowingly make or present any false statement, representation, or claim 

about a material fact or law concerning a matter within SSA’s jurisdiction; 

• Unlawfully disclose any information SSA has furnished relating to the claim 

of another person. 

• Through actions or omissions, unreasonably delay the processing of a claim. 

• Attempt to influence the outcome of a decision by offering a loan, gift, entertainment or anything of value to a presiding official, SSA employee or witness; or 

• Engage in actions or behavior prejudicial to the fair and orderly conduct of 

the administrative proceedings, including repeated absences or tardiness; 

willfully disrupting or obstructing hearings; and threatening or intimidating 

language, gestures or actions directed at a presiding official, SSA employee 

or witness.

68

If SSA finds that a representative has failed to comply with these standards, SSA 

may suspend the representative for a period of from one to 5 years, or disqualify 

the representative from further practice before the Agency. SSA will also notify an 

attorney’s State bar disciplinary authority of any final decision finding that the attorney has violated SSA’s law or regulations. Our rules for making decisions about 

violations of these standards are in our regulations at 20 CFR 404.1745–404.1795. 

Other sanctions include:

• If convicted of actions such as threatening a claimant or beneficiary with an 

intent to defraud or knowingly charging or collecting any fee in excess of the 

maximum fee prescribed by the Commissioner, a representative can be punished by a fine not to exceed $500 or imprisonment not to exceed 1 year or 

both. 

• Civil and monetary penalties can be assessed against any representative who 

makes or causes to be made false statements or representations, or omissions 

of material fact, for use in determining the right to or amount of social security or supplemental security income benefits. The penalties may not be more 

than $5000 for each false statement or representation. The representative 

could also be subject to an assessment of not more than twice the amount of 

benefits or payments paid as a result of the statement or representation that 

was the basis for the penalty. 

• A person can be excluded from representing claimants if they have been 

criminally convicted or determined to be civilly liable for committing fraud involving an SSA program. The minimum exclusion is for 5 years if the representative has no prior convictions, 10 years if the representative has one 

prior conviction, or permanently if the representative has two prior convictions.

The above listed sanctions are not mutually exclusive. Representatives may be 

subject to a misdemeanor prosecution, suspension or disqualification from practice 

before SSA and a civil monetary penalty. The components within SSA that have responsibility for each of the various types of sanctions coordinate their actions to ensure that all appropriate sanctions are imposed.

5. What fraction of cases are allowed at each level of the adjudicative 

process (at each level of agency decisionmaking and in the Federal court 

system)? What fraction of denied claimants appeal their denial at each 

level of the adjudicative process?

Answer:

The chart below, which is on SSA’s website, represents aggregate data showing 

the number of claims, per 100, that are allowed at each step of the adjudicative 

process through the Appeals Council, and the number of appeals at each step. Most 

allowances are made at the initial level (40 out of 57 that are allowed overall for 

every 100 cases). Only about 5 cases out of 100 go beyond the administrative hearings level. At the Appeals Council level, 1 case in 5 is either allowed or remanded 

for further action. Less than 1 per 100 enter Federal court. The available data on 

Federal court decisions combines initial claims and continuing disability reviews, 

and shows that about 6% of the cases that reach Federal court are allowed, and 58% 

are remanded for further action.

69

6. What is the responsibility of personnel at SSA field offices, state Disability Determination Services and SSA Offices of Hearings and Appeals to 

develop the evidentiary record? What policies does SSA have in place to assure that each claimant’s case if fully developed?

Answer:

Our policy for ensuring that each individual’s case is fully developed is contained 

in our regulations (20 CFR 404.1512 and 416.912). Before we make a determination 

that the individual is not disabled, we are responsible for developing the individual’s 

complete medical history for at least the 12-month period before the month in which 

application is filed, unless there is reason to believe that development of an earlier 

period is necessary or unless the individual says that his or her disability began less 

than 12 months earlier. 

We make every reasonable effort to help the individual get medical reports from 

his or her own medical source(s). We request evidence from this medical source(s) 

and follow up with the medical source(s) if the evidence is not received. 

When the evidence we receive from the individual’s medical source(s) is inadequate for us to make a determination, we re-contact the medical source(s) for the 

evidence. If the information we need is not readily available, or we are unable to 

seek clarification from the medical source, we ask the individual to attend one or 

more consultative examinations at our expense (20 CFR 404.1517–404.1519n and 

416.917–416.919n). 

These policies are reflected in our operating instructions to field offices, disability 

determination services (DDSs), and hearings offices.

FIELD OFFICE (FO)

The FO is responsible for conducting the disability interview and completing the 

appropriate disability report forms for adults and children. The information that is 

provided by the individual to the FO during the disability interview is critical to 

the DDS’s medical and vocational development. 

Although the DDS is primarily responsible for developing the medical evidence, 

the FO will assist the individual in requesting medical evidence in special arrangeVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00073 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169

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70

ment situations, or when asked to do so by the DDS or other Social Security Administration component. In addition, FOs are authorized to request medical evidence 

from medical sources in certain Supplemental Security Income cases involving 

human immunodeficiency virus infection for which there is a strong likelihood that 

the individual will be found disabled. After initiating a request for medical evidence, 

the FO sends the file to the DDS. The DDS follows up on the request if necessary.

DDS

DDS examiners are responsible for making every reasonable effort to help the individual get medical reports from his or her medical sources. The examiners develop 

evidence, including diagnostic tests, from all sources identified by the individual or 

discovered during development who have treated or evaluated the individual for the 

alleged or documented impairment(s) during the applicable 12-month period. Examiners must also determine whether developing medical evidence outside of the 12-

month period is necessary, based on the facts in each case. 

The DDS is also responsible for obtaining additional vocational evidence not contained in the disability report form when it is necessary to determine the individual’s ability do past relevant work or other work. The individual is the best source 

of information about past work. If this information is not sufficient, however, other 

possible sources of vocational information who the DDS may contact include family 

members, previous employers, authorized representatives, or anyone else with 

knowledge of the individual’s work history.

HEARING OFFICE (HO)

The administrative law judge (ALJ) or HO staff under the ALJ’s direction is responsible for reviewing the evidence before the hearing to determine whether it is 

sufficient for a full and fair inquiry in to the matters at issue. Development may 

be needed to:

• obtain additional medical evidence (for example, current evidence from a 

treating source); 

• obtain technical or specialized medical opinion; or 

• resolve conflicts or differences in the evidence. 

If the ALJ or the HO staff decides that additional evidence is needed, the ALJ 

or the HO staff will undertake appropriate development before the hearing and arrange for any necessary witnesses to be present at the hearing. 

If the ALJ obtains evidence after the hearing from a source other than the individual, the ALJ must provide the individual an opportunity to examine the evidence 

before entering it into the record as an exhibit.

APPEALS COUNCIL

The Appeals Council has responsibility for assessing whether the ALJ committed 

an error of law or abused his or her discretion with respect to the development of 

evidence or if the ALJ’s decision is not supported by substantial evidence. If the Appeals Council determines that additional development of evidence is required, it 

ertson, who is the Director of Education, Work force, and Income 

typically remands the case to the ALJ to obtain the additional evidence.

Chairman SHAW. The next panel is made up of Robert E. Robf Security Issues, U.S. General Accounting Office (GAO); and Mr. 

Hal Daub, who is the Chairman of the Social Security Advisory 

Board (SSAB), a former Member of Congress, and former Member 

of this Subcommittee. 

Welcome, gentlemen. We have your full testimony, which will be 

made a part of the record, and we invite both of you to proceed as 

you may see fit. 

STATEMENT OF ROBERT E. ROBERTSON, DIRECTOR, EDUCATION, WORKFORCE, AND INCOME SECURITY ISSUES, U.S. 

GENERAL ACCOUNTING OFFICE 

Mr. ROBERTSON. Mr. Chairman, Members of the Subcommittee, thanks for the opportunity to discuss the challenges 

71

that the Social Security Administration faces in improving its disability claims process. These challenges are among the more 

daunting that it faces. Before I go too much further, Mr. Chairman, 

I had better, as a concession to age, put on these glasses or who 

knows what words may come out of this mouth. 

The written statement that I have submitted for the record basically addresses three areas: one being the results and the status 

of the five initiatives included in SSA’s most recent plans to improve the disability process; another being SSA’s current plans for 

developing an electronic disability system; and the last being the 

implications of SSA’s past efforts for future success. What I would 

like to do this afternoon is concentrate pretty much on that last 

area because that gives a little bit more of a flavor of where do we 

go from here. 

Mr. Chairman, here is the bottom line. In spite of the significant 

resources that SSA has dedicated to improving the disability process, the overall results have been disappointing. Now, before I go 

any further, I just want to emphasize something that I think is extremely important, which is simply that implementing the types of 

sweeping changes that were envisioned with the five initiatives I 

am going to be talking about is no easy task. This is because there 

are a number of factors that tend to make this very, very difficult, 

which include: the complexity of the disability decisionmaking process, the Agency’s fragmented service delivery structure, and the 

challenge of overcoming an organization’s natural resistance to 

change, inertia. However, the situation that led SSA to attempt 

these redesign initiatives—increasing disability workloads in the 

face of resource constraints—continue to exist today and will likely 

worsen as more baby boomers reach their disability-prone years. 

This situation makes SSA’s decisions on where to go with its disability initiatives crucial. In that regard, we agree with SSA that, 

because of its high cost and other practical barriers to implementation, the Agency should not continue to implement the disability 

claims manager initiative. If you will recall, that initiative basically 

combined the responsibilities normally divided between SSA’s field 

representatives and the State DDS disability examiners under a 

newly created position of disability claims manager. 

We also agree with SSA that the appeals council process improvement initiative which resulted in modest reductions in the 

processing times for certain types of appealed claims should continue, but with increased commitment to achieving the initiative’s 

performance goals. 

Deciding the future course of action on each of the remaining 

three initiatives, however, presents a challenge to SSA. For example, SSA continues to face decisions on how to proceed with the 

prototype initiative, which, as you know, experimented with significant changes to the initial claim process at State DDSs. Interim results were mixed, making decisions on the continuation of the initiative problematic. The SSA has recently decided to revise some 

features of the prototype in the near term and has also been considering some longer term improvements. 

Of all the initiatives, we are most concerned about the failure of 

the hearing process improvement initiative to achieve its goals. 

Hearing office backlogs are fast approaching the crisis level of the 

72

1 U.S. General Accounting Office, Social Security Administration: Agency Must Position Itself 

Now to Meet Profound Challenges, GAO–02–289T (Washington, D.C.: May 2, 2002). 2The $39 million includes expenditures for contractor support, travel, transportation, equipment, supplies, services, and rent. It excludes personnel costs, most of which would have been 

incurred processing workloads regardless of redesign projects. it also excludes the costs incurred 

for all but one initiative tested or implemented after March 1999, when the commissioner ended 

disability process redesign as a separate agency project. 3 U.S. General Accounting Office, Social Security Disability: Disappointing Results From SSA’s 

Efforts to Improve the Disability Claims Process Warrant Immediate Attention, GAO–02–322, 

(Washington, D.C.: Feb. 27, 2002) and GAO–02–289T. 

mid-1990’s. We have recommended that the new Commissioner act 

quickly to implement short-term strategies to reduce the backlog 

and develop a longer term strategy for a more permanent solution 

to the problems. The new Commissioner has agreed with our recommendations and has announced her decisions on short-term actions. The challenge remains, however, to identify the longer term 

strategies to fix the longer term problems. 

Similarly, we are concerned about SSA’s lack of progress on its 

initiative for revamping its quality assurance system. Without such 

a system, it is difficult for SSA to ensure the integrity of its disability claims process. We are encouraged to see that the Commissioner has signaled the high priority she attaches to this effort by 

appointing a senior manager for quality who reports directly to her. 

I would like to conclude my remarks by noting that, in addition 

to the changes that the Agency is currently considering to improve 

its claims processing, now may be the time for the Agency to step 

back and reassess the nature and scope of its basic approach. To 

date, SSA has focused, with limited success, on changing the steps 

and procedures of the process and on adjusting the duties of its decisionmakers. A new analysis of the fundamental issues impeding 

progress may help SSA identify areas for future action. This could 

include examining the fragmentation and structural problems associated with SSA’s overall service delivery system. 

Mr. Chairman, that concludes my statement, and I will be happy 

to answer questions at the appropriate time. 

[The prepared statement of Mr. Robertson follows:]

Statement of Robert E. Robertson, Director, Education, Workforce, and 

Income Security Issues, U.S. General Accounting Office 

Mr. Chairman and Members of the Subcommittee: 

Thank you for inviting me here to discuss the challenges the Social Security Administration (SSA) faces in improving the claims process for its two disability programs, Disability Insurance (DI) and Supplemental Security Income (SSI). Managing its disability caseloads and delivering high-quality service to the public in the 

form of fair, consistent, and timely eligibility decisions in the face of resource constraints has become one of SSA’s most pressing management challenges.1 In the last 

7 years, SSA has spent more than $39 million in efforts to test and implement initiatives designed to improve the timeliness, accuracy, and consistency of its disability decisions and to make the process more efficient and easier for claimants to 

understand.2 These efforts have included initiatives to improve the initial claims 

process as well as the process for handling appeals of denied claims. In addition, 

the agency has spent at least $71 million in an attempt to develop an automated 

disability claims process intended to provide support for its redesign efforts. 

Today, I will discuss the results and status of five initiatives included in SSA’s 

most recent plans to improve the process, SSA’s current plans to develop an electronic disability system, and the implications of SSA’s efforts to date for future success. The information I am providing is based primarily on recent work we did for 

this subcommittee.3 (Also see Related GAO Products at the end of this statement.) 

In summary, the results to date from SSA’s redesign initiatives have been disappointing. The agency’s two tests of initiatives to improve the initial claims process 

73

4The Social Security Act defines disability for adults as an inability to engage in any substantial gainful activity because of any medically determinable physical or mental impairment which 

can be expected to result in death or which has lasted or can be expected to last for a continuous 

period of not less than 12 months. 5Some DI beneficiaries have incomes low enough to qualify them for SSI; therefore, they receive benefits from both programs. 

produced some benefits; however, both initiatives as tested would have significantly 

raised costs, and one would have lengthened the wait for final decisions for many 

claimants. As a result, SSA is considering additional changes to one of these initiatives and has shelved the other. The situation is less favorable at the appeals level. 

One initiative to change the process for handling appealed claims in SSA’s hearing 

offices has resulted in even slower case processing and larger backlogs of pending 

claims. A second initiative has reduced the processing times for a separate group 

of appealed claims, though far less than expected. Moreover, a cross-cutting initiative to update the agency’s quality assurance program—a goal the agency has held 

since 1994—is still in the planning stage. Finally, SSA’s plans to improve its disability claims process relied in part upon hoped for technological improvements; 

however, SSA failed to design and develop a new computer software application to 

automate the disability claims process after a 7-year effort. 

On the basis of our recent work, we have recommended that SSA take immediate 

steps to reduce the backlog of appealed cases, develop a long-range strategy for a 

more permanent solution to the problems at its hearings offices, and develop an action plan for implementing a more comprehensive quality assurance program. SSA 

agreed with our recommendations and is beginning to make some short-term 

changes. In addition, SSA has recently announced plans to accelerate implementation of needed technological improvements. However, much work remains. The commissioner faces difficult decisions about long-term strategies for problems at the 

hearings offices and in the disability claims process as a whole. It will be important 

to both learn from the past and look to the future. 

Background

DI and SSI provide cash benefits to people with long-term disabilities. While the 

definition of disability and the process for determining disability are the same for 

both programs, the programs were initially designed to serve different populations.4

The DI program, enacted in 1954, provides monthly cash benefits to disabled workers—and their dependents or survivors—whose employment history qualifies them 

for disability insurance. These benefits are financed through payroll taxes paid by 

workers and their employers and by the self-employed. In fiscal year 2001, more 

than 6 million individuals received more than $59 billion in DI benefits. SSI, on the 

other hand, was enacted in 1972 as an income assistance program for aged, blind, 

or disabled individuals whose income and resources fall below a certain threshold. 

SSI payments are financed from general tax revenues, and SSI beneficiaries are 

usually poorer than DI beneficiaries. In 2001, more than 6 million individuals received almost $28 billion in SSI benefits.5

The process to obtain SSA disability benefits is complex and fragmented; multiple 

organizations are involved in determining whether a claimant is eligible for benefits. 

As shown in figure 1, the current process consists of an initial decision and up to 

three levels of administrative appeals if the claimant is dissatisfied with SSA’s decision. Each level of appeal involves multistep procedures for evidence collection, review, and decision-making. 

74

6DDSs are state agencies that contract with SSA to determine claimants’ medical eligibility 

for DI and SSI disability benefits. Although federally funded and guided by SSA in their decision making, the DDSs hire their own staff and retain a degree of independence in how they 

manage their offices and conduct disability determinations. 

Figure 1: SSA’s Disability Claims Process

Source: SSA Documents 

Generally, a claimant applies for disability benefits at one of SSA’s 1,300 field offices across the country, where a claims representative determines whether the 

claimant meets financial and other program eligibility criteria. If the claimant 

meets these eligibility criteria, the claims representative forwards the claim to the 

state disability determination service (DDS).6 DDS staff then obtain and review evidence about the claimant’s impairment to determine whether the claimant is disabled. Once the claimant is notified of the medical decision, the claim is returned 

to the field office for payment processing or file retention. This completes the initial 

claims process. 

Claimants who are initially denied benefits can ask to have the DDS reconsider 

its initial denial. If the decision at this reconsideration level remains unfavorable, 

the claimant can request a hearing before a federal administrative law judge (ALJ) 

at an SSA hearings office, and, if still dissatisfied, the claimant can request a review 

by SSA’s Appeals Council. Upon exhausting these administrative remedies, the individual may file a complaint in federal district court. 

Given its complexity, the disability claims process can be confusing, frustrating, 

and lengthy for claimants. Many individuals who appeal SSA’s initial decision will 

wait a year or longer for a final decision on their benefit claims. In fact, the commissioner recently testified that claimants can wait as long as 1,153 days from initial 


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7 U.S. General Accounting Office, SSA Disability Redesign: Focus Needed on Initiatives Most 

Crucial to Reducing Costs and Time, GAO/HEHS-97-20, (Washington, D.C.: Dec. 20, 1996); and 

SSA Disability Redesign: Actions Needed to Enhance Future Progress, GAO/HEHS-99-25, 

(Washington, D.C.: Mar. 12, 1999). 8The Disability Claim Manager initiative excluded claims for SSI children’s benefits.

claim through a decision from the Appeals Council. Moreover, the claims process can 

also result in inconsistent assessments of whether claimants are disabled; specifically, the DDS may deny a claim that is later allowed upon appeal. For example, 

in fiscal year 2000, about 40 percent of claimants denied at the initial level filed 

an appeal and about two-thirds were awarded benefits. This inconsistency calls into 

question the fairness, integrity and cost of SSA’s disability decisions. Program rules, 

such as claimants’ ability to submit additional evidence and to allege new impairments upon appeal, as well as the worsening of some claimants’ conditions over time 

can explain only some but not all of the overturned cases. Other overturned cases 

may be due to inaccurate decisions by the DDSs or ALJs or to other unexplained 

factors. 

In response to these problems, SSA first announced an ambitious plan to redesign 

the disability claims process in 1994, after a period of rapid growth in the number 

of people applying for disability benefits. This plan represented the agency’s first effort to significantly revise its procedures for deciding disability claims since the DI 

program began in the 1950’s. The overall purpose of the redesign was to

• ensure that decisions are made quickly, 

• ensure that the disability claims process is efficient, 

• award legitimate claims as early in the process as possible, 

• ensure that the process is user friendly for claimants and those who assist 

them, and 

• provide employees with a satisfying work environment.

The agency’s initial plan entailed a massive effort to redesign the way it made 

disability decisions. SSA had high expectations for its redesign effort. Among other 

things, SSA planned to develop a streamlined decision-making and appeals process, 

more consistent guidance and training for decision makers at all levels of the process, and an improved process for reviewing the quality of eligibility decisions. In our 

reviews of SSA’s efforts after 2 and 4 years, we found that the agency had accomplished little.7 In some cases, the plans were too large and too complex to keep on 

track. In addition, the results of many of the initiatives that were tested fell far 

short of expectations. Moreover, the agency was not able to garner consistent stakeholder support and cooperation for its proposed changes. 

In 1999, we recommended that SSA focus attention and resources on those initiatives that offer the greatest potential for achieving the most critical redesign objectives, such as quality assurance, computer support systems, and initiatives that improve consistency in decision-making. In addition, because implementing process 

changes can be even more difficult than testing them, we recommended that SSA 

develop a comprehensive and meaningful set of performance measures that help the 

agency assess and monitor the results of changes in the claims process on a timely 

basis. We have also pointed out the need for effective leadership and sustained management attention to maintain the momentum needed to effect change in such a 

large and complex system. 

SSA’s Recent Redesign Initiatives Have Had Limited Success

SSA’s five most recent initiatives were designed to improve claims processing at 

all levels of the service delivery system. These redesign initiatives continue to experience only limited success. A brief summary of the status, results and problems experienced in implementing each of the five initiatives follows.

• The Disability Claim Manager initiative, which began in November 1997 and 

ended in June 2001, was designed to make the claims process more user 

friendly and efficient by eliminating steps resulting from numerous employees 

handling discrete parts of the claim. It did so by having one person—the disability claim manager—serve as the primary point of contact for claimants 

until initial decisions were made on their claims.8 The managers assumed responsibilities normally divided between SSA’s field office claims representatives and state DDS disability examiners. After an initial training phase, SSA 

tested the concept in 36 locations in 15 states from November 1999 through 

November 2000. While the test resulted in several benefits, such as improved 

customer and employee satisfaction and quicker claims processing, the inVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00079 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
76

creased costs of the initiative and other concerns convinced SSA not to implement the initiative. 

• The Prototype changed the way state DDSs process initial claims, with the 

goal of ensuring that legitimate claims are awarded as early in the process 

as possible. This initiative makes substantial changes to the way the DDS 

processes initial claims. The Prototype requires disability examiners to more 

thoroughly document and explain the basis for their decisions and it gives 

them greater decisional authority for certain claims. The Prototype also eliminates the DDS reconsideration step. It has been operating in 10 states since 

October 1999 with mixed results. Interim results show that the DDSs operating under the Prototype are awarding a higher percentage of claims at the 

initial decision level without compromising accuracy, and that claims are 

reaching hearing offices faster because the Prototype eliminates DDS reconsideration as the first level of appeal. However, interim results also indicate 

that more denied claimants would appeal to administrative law judges (ALJ) 

at hearings offices, which would increase both administrative and program 

costs (benefit payments) and lengthen the wait for final agency decisions for 

many claimants. As a result, SSA decided that the Prototype would not continue in its current form. In April, the commissioner announced her ‘‘shortterm’’ decisions to revise certain features of the Prototype in order to reduce 

processing time while it continues to develop longer-term improvements. It remains to be seen whether these revisions will retain the positive results from 

the Prototype while also controlling administrative and program costs.

• The Hearings Process Improvement initiative is an effort to overhaul operations at hearings offices in order to reduce the time it takes to issue decisions on appealed claims. This was to be accomplished by increasing the level 

of analysis and screening done on a case before it is scheduled for a hearing 

with an ALJ; by reorganizing hearing office staff into small ‘‘processing 

groups’’ intended to enhance accountability and control in handling each 

claim; and by launching automated functions that would facilitate case monitoring. The initiative was implemented in phases without a test beginning in 

January 2000 and has been operating in all 138 hearings offices since November 2000. 

The initiative has not achieved its goals. In fact, decisions on appealed claims 

are taking longer to make, fewer decisions are being made, and the backlog 

of pending claims is growing and approaching crisis levels. The initiative’s 

failure can be attributed primarily to SSA’s decision to implement large-scale 

changes too quickly without resolving known problems. For example, problems with process delays, poorly timed and insufficient staff training, and the 

absence of the planned automated functions all surfaced during the first 

phase of implementation and were not resolved before the last two phases 

were implemented. Instead, the pace of implementation was accelerated when 

the decision was made to implement the second and third phases at the same 

time. Additional factors, such as a freeze on hiring ALJs and the ALJs’ mixed 

support for the initiative, may also have contributed to the initiative’s failure 

to achieve its intended results. 

SSA has recently made some decisions to implement changes that can be 

made relatively quickly in order to help reduce backlogs and to streamline the 

hearings process, and they are preparing to negotiate some of these changes 

with union officials before they can be implemented. These changes include 

creating a law clerk position and allowing ALJs to issue decisions from the 

bench immediately after a hearing and including them in the early screening 

of cases for on-the-record decisions. They also include decisions to enhance the 

use of technology in the hearings process, as well as other refinements.

• The Appeals Council Process Improvement initiative combined temporary 

staff support with permanent case processing changes in an effort to process 

cases faster and to reduce the backlog of pending cases. The initiative was 

implemented in fiscal year 2000 with somewhat positive results. The initiative has slightly reduced both case processing time and the backlog of pending 

cases, but the results fall significantly short of the initiative’s goals. The temporary addition of outside staff to help process cases did not fulfill expectations, and automation problems and changes in policy which made cases with 

certain characteristics more difficult to resolve hindered the initiative’s success. However, SSA officials believe that recent management actions to resolve these problems should enhance future progress. Improving or revamping 

its quality assurance system has been an agency goal since 1994, yet it has 

made very little progress in this area, in part because of disagreement among 

77

9GAO–02–322. 

10 U.S. General Accounting Office, Social Security Administration: Update on Year 2000 and 

Other Key Information Technology Initiatives, GAO/T–AIMD–99–259, (Washington, D.C.: July 

29, 1999). 

stakeholders on how to accomplish this difficult objective. In March 2001, a 

contractor issued a report assessing SSA’s existing quality assurance practices and recommended a significant overhaul to encompass a more comprehensive view of quality management. We agreed with this assessment and 

in our recent report to this subcommittee recommended that SSA develop an 

action plan for implementing a more comprehensive and sophisticated quality 

assurance program.9 Since then, the commissioner has signaled the high priority she attaches to this effort by appointing to her staff a senior manager 

for quality who reports directly to her. The senior manager, in place since 

mid-April, is responsible for developing a proposal to establish a quality-oriented approach to all SSA business processes. The manager is currently assembling a team to carry out this challenging undertaking. 

Problems Implementing Technological Improvements Have Long Undermined SSA’s Redesign Efforts

SSA’s slow progress in achieving technological improvements has contributed, at 

least in part, to SSA’s lack of progress in achieving results from its redesign initiatives. As originally envisioned, SSA’s plan to redesign its disability determination 

process was heavily dependent upon these improvements. The agency spent a number of years designing and developing a new computer software application to automate the disability claims process. However, SSA decided to discontinue the initiative in July 1999, after about 7 years, citing software performance problems and 

delays in developing the software.10

In August 2000, SSA issued a new management plan for the development of the 

agency’s electronic disability system. SSA expects this effort to move the agency toward a totally paperless disability claims process. The strategy consists of several 

key components, including (1) an electronic claims intake process for the field offices, (2) enhanced state DDS claims processing systems, and (3) technology to support the Office of Hearing and Appeals’ business processes. The components are to 

be linked to one another through the use of an electronic folder that is being designed to transmit data from one processing location to another and to serve as a 

data repository, storing documents that are keyed in, scanned, or faxed. SSA began 

piloting certain components of its electronic disability system in one state in May 

2000 and has expanded this pilot test to one more state since then. According to 

agency officials, SSA has taken various steps to increase the functionality of the system; however, the agency still has a number of remaining issues to address. For example, SSA’s system must comply with privacy and data protection standards required under the Health Information Portability and Accountability Act, and the 

agency will need to effectively integrate its existing legacy information systems with 

new technologies, including interactive Web-based applications. 

SSA is optimistic that it will achieve a paperless disability claims process. The 

agency has taken several actions to ensure that its efforts support the agency’s mission. For example, to better ensure that its business processes drive its information 

technology strategy, SSA has transferred management of the electronic disability 

strategy from the Office of Systems to the Office of Disability and Income Security 

Programs. In addition, SSA hired a contractor to independently evaluate the electronic disability strategy and recommend options for ensuring that the effort addresses all of the business and technical issues required to meet the agency’s mission. More recently, the commissioner announced plans to accelerate implementation of the electronic folder. 

Implications for Future Progress

In spite of the significant resources SSA has dedicated to improving the disability 

claims process since 1994, the overall results have been disappointing. We recognize 

that implementing sweeping changes such as those envisioned by these initiatives 

can be difficult to accomplish successfully, given the complexity of the decision-making process, the agency’s fragmented service delivery structure, and the challenge 

of overcoming an organization’s natural resistance to change. But the factors that 

led SSA to attempt the redesign—increasing disability workloads in the face of resource constraints—continue to exist today and will likely worsen when SSA experiences a surge in applications as more baby boomers reach their disability-prone 

years. 

78

11See Social Security Advisory Board, How SSA’s Disability Programs Can Be Improved 

(Washington, D.C.: SSAB, Aug. 1998); Selected Aspects of Disability Decision Making (Washington, D.C.: SSAB, Sept. 2001); and Charting the Future of Social Security’s Disability Programs: The Need for Fundamental Change (Washington, D.C.: SSAB, Jan. 2001). The Board is 

an independent, bipartisan Board created by the Congress and approved by the President and 

the Congress. Its purpose is to advise the President, the Congress, and the Commissioner of Social Security on matters related to SSA’s programs. 

Today, SSA management continues to face crucial decisions on its initiatives. We 

agree that SSA should not implement the Disability Claim Manager at this time, 

given its high costs and the other practical barriers to implementation at this time. 

We also agree that the Appeals Council Process Improvement initiative should continue, but with increased management focus and commitment to achieve the initiative’s performance goals. Deciding the future course of action on each of the remaining three initiatives presents a challenge to SSA. For example, SSA continues to 

face decisions on how to proceed with the Prototype initiative. Although SSA has 

recently decided to revise some features of the Prototype in the near term, it also 

is considering long-term improvements. As such, SSA continues to face the challenge 

of ensuring that the revisions it makes retain the Prototype’s most positive elements 

while also reducing its impact on costs. 

We are most concerned about the failure of the Hearings Process Improvement 

initiative to achieve its goals. Hearing office backlogs are fast approaching the crisis 

levels of the mid-1990’s. We have recommended that the new commissioner act 

quickly to implement short-term strategies to reduce the backlog and develop a 

long-term strategy for a more permanent solution to the backlog and efficiency problems at the Office of Hearings and Appeals. The new commissioner responded by 

announcing her decisions on short-term actions intended to reduce the backlogs, and 

the agency is preparing to negotiate with union officials on some of these planned 

changes. It is too early to tell if these decisions will have their intended effect, and 

the challenge to identify and implement a long-term strategy for a more permanent 

solution remains. It is especially crucial that the Office of Hearings and Appeals 

make significant headway in reducing its backlog quickly, as it faces in the next several months a potentially significant increase in Medicare appeals due to recent legislative changes in that program. 

In addition to the changes the agency is currently considering, it may be time for 

the agency to step back and reassess the nature and scope of its basic approach. 

SSA has focused significant energy and resources over the past 7 years on changing 

the steps and procedures of the process and adjusting the duties of its decision makers, yet this approach has not been effective to date. A new analysis of the fundamental issues impeding progress may help SSA identify areas for future action. Experts, such as members of the Social Security Advisory Board, have raised concerns 

about certain systemic problems that can undermine the overall effectiveness of 

SSA’s claims process, which in turn can also undermine the effectiveness of SSA’s 

redesign efforts.11 The Board found that SSA’s fragmented disability administrative 

structure, created nearly 50 years ago, is ill-equipped to handle today’s workload. 

Among other problems, it identified the lack of clarity in SSA’s relationship with 

the states and an outdated hearing process fraught with tension and poor communication. As the new commissioner charts the agency’s future course, she may need 

to consider measures to address these systemic problems as well. 

Regardless of the choices the agency makes about which particular reform initiatives to pursue, SSA’s experience over the past 7 years offers some important lessons. For example, sustained management oversight is critical, particularly in such 

a large agency and with such a complex process. We have found that perhaps the 

single most important element of successful management improvement initiatives is 

the demonstrated commitment of top leaders to change. In addition, some initiatives 

have not enjoyed stakeholder support or have contributed to poor morale in certain 

offices, both of which may undermine the chances for success. While it is probably 

not possible for the agency to fully please all of its stakeholders, it will be important 

for the agency to involve stakeholders in planning for change, where appropriate, 

and to communicate openly and often the need for change and the rationale for 

agency decisions. Moreover, because SSA has experienced problems implementing 

its process changes, the agency will need to continue to closely monitor the results 

of its decisions and watch for early signs of problems. An improved quality assurance process and a more comprehensive set of performance goals and measures can 

help the agency monitor its progress and hold different entities accountable for their 

part in implementing change and meeting agency goals. Thus, we are concerned 

about SSA’s lack of progress in revamping its quality assurance system. Without 

79

such as system, it is difficult for SSA to ensure the integrity of its disability claims 

process. 

Finally, because SSA has had mixed success in implementing information technology initiatives in the past, it is vital that the agency look back at its past problems and take the necessary steps to make sure its electronic disability system provides the needed supports to the disability claims process. It is imperative that the 

agency effectively identify, track, and manage the costs, benefits, schedule, and risks 

associated with the system’s full development and implementation. Moreover, SSA 

must ensure that it has the right mix of skills and capabilities to support this initiative and that desired end results are achieved. 

Mr. Chairman, this concludes my statement. I would be pleased to respond to any 

questions that you or other members of the subcommittee may have. 

Contacts and Acknowledgements

For further information regarding this testimony, please contact Robert E. Robertson, Director, or Kay E. Brown, Assistant Director, Education, Workforce, and Income Security at (202) 512–7215. Ellen Habenicht and Angela Miles made key contributions to this testimony on the status of the five initiatives, and Valerie Melvin 

was the key contributor to the section on information technology. 

Related GAO Products

Social Security Administration: Agency Must Position Itself Now to Meet Profound 

Challenges. GAO–02–289T. Washington, D.C.: May 2, 2002.

Social Security Disability: Disappointing Results From SSA’s Efforts to Improve the 

Disability Claims Process Warrant Immediate Attention. GAO–02–322. Washington, 

D.C.: February 27, 2002.

Information Technology Management: Social Security Administration Practices Can 

Be Improved. GAO–01–961. Washington, D.C.: August 21, 2001.

Social Security Disability: SSA Has Had Mixed Success in Efforts to Improve Caseload Management. GAO/T–HEHS–00–22. Washington, D.C.: October 21, 1999.

Social Security Administration: Update on Year 2000 and Other Key Information 

Technology Initiatives. GAO/T–AIMD–99–259. Washington, D.C.: July 29, 1999.

SSA Disability Redesign: Actions Needed to Enhance Future Progress. GAO/HEHS/

99–25. Washington, D.C.: March 12, 1999.

Social Security Disability: SSA Must Hold Itself Accountable for Continued Improvement in Decision-making. GAO/HEHS–97–102 Washington, D.C.: August 12, 1997.

SSA Disability Redesign: Focus Needed on Initiatives Most Crucial to Reducing 

Costs and Time. 

STATEMENT OF THE HON. HAL DAUB, CHAIRMAN, SOCIAL SEChairman SHAW. Thank you. Mr. Daub? 

GAO/HEHS–97–20. Washington, D.C.: December 20, 1996.

f CURITY ADVISORY BOARD, AND FORMER MEMBER OF CONGRESS 

Mr. DAUB. Mr. Chairman, nice to see you this afternoon. Mr. 

Matsui, thanks on behalf of the Social Security Advisory Board for 

continuing this very vital series of hearings on Social Security’s disability programs. They have serious problems today calling for fundamental changes. The hearings that you are holding are an important step toward the reform that needs to be in a timely and appropriate way. 

Over the past 5 years, the Board has spent a great deal of time 

studying the Social Security Administration’s disability programs 

on a nonpartisan basis. The Board has consulted with Agency leaders and with hundreds of managers and employees in the field. The 

Board has examined data and listened to the views of many individuals and organizations in the disability community. I have a 

longstanding personal interest in this subject as well, both as a 

former Member of this Committee and Subcommittee as well as before that, well before that, an attorney representing claimants. 

80

In my oral testimony today, I would like to focus on the issue of 

the quality of the decisions that are being made in the initial disability determination process. In my written statement, which I 

ask to be included in the record, I take a broader look at the process. 

There are two items in the written statement which I would like 

to draw to your attention, and they allude a bit to what Mr. Ryan 

was saying in his questions a moment ago. They deal with the 

hearing level, but they have a definite impact on the initial process. 

The first is having the Agency represented at the hearing. Doing 

so would help clarify issues, provide useful feedback, which is sorely missing from the process, at the initial decision level. The second 

point is that it is time for serious consideration to be given to closing the record. Leaving the record open means that the case can 

change at each level of appeal, making it difficult for decisions at 

higher levels to improve the quality of the process at lower levels. 

Organizations get what they measure, and the emphasis in the 

Social Security Administration disability programs has been on 

quantity and processing times. Last January, the Board issued a 

document entitled ‘‘Disability Decision Making: Data and Materials.’’ The document presents extensive data indicating striking 

differences in outcomes over time from State to State and between 

levels of adjudication. I want to make it clear that these problems 

in the disability program are systemic. They are not the result of 

deficiencies in employee performance. In its visits to field offices, 

State agencies, and Offices of Hearings and Appeals around the 

country, the Board has met people on the front lines of the disability process. We have found that they work hard and care deeply. All parts of the process are under stress, severe stress. 

The quality of the decisionmaking is a longstanding issue, but 

several things have happened since the mid-eighties to make the 

disability determination process even more subjective and more 

complex than previously. Over the same period of time, workloads 

have grown substantially, and resources have been constrained. 

The result is that disability policy and administrative capacity are 

now seriously out of alignment. There are also wide variances 

among States in areas that can have a major impact on the quality 

of work that is performed, such as staff salaries, hiring requirements, training, and quality assurance procedures. Turnover rates 

are high in some States. The result of lack of experience is especially troubling as SSA moves toward increased use of a single decisionmaker, examiners who can handle cases without much input 

from a physician. 

So, I have three recommendations that I would like to make in 

my brief time remaining. They are crucial to improving the quality 

of decision making. I want to stress them. 

The Social Security Administration’s current quality assurance 

system relies on end-of-line reviews to check and report on the 

quality of the completed case. The Board believes that quality is 

something that should be built into the disability determination 

process, not something that should be graded at the end of the 

process. So, to make quality a central objective of the disability programs, the Administration needs to develop and implement a new 

quality management system that would apply to all levels of adjuVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00084 Fmt 6633 Sfmt 6602 E:\HR\OC\A169.XXX A169
81

1For more information on this subject, see the Advisory Board’s January 2001 reports, Charting the Future of Social Security’s Disability Programs: The Need for Fundamental Change and 

Disability Decision Making: Data and Materials, as well as How SSA’s Disability Programs Can 

Be Improved, issued in August 1998. The reports are available at the Board’s website, 

www.ssab.gov. 

dication. Quality management is a process of ensuring that the 

right things are done well the first time at every level of the process. 

Second, SSA should develop a single presentation of policy to 

guide all adjudicators. It should also enhance the medical and vocational expertise of its staff. 

Last, there is a gap between what is required by policy and the 

administrative capacity to carry it out. The gap is large now and 

will grow as baby boomers age and become more likely to become 

disabled. The Administration’s actuaries estimate that by 2012 the 

number of cases to be decided will grow by 9 percent, to 2.6 million 

per year. This growth threatens to overwhelm a policy and an administrative infrastructure that is already inadequate to meet the 

needs of the public. Bridging the gap between policy and administrative feasibility will require introducing changes in policy, institutional arrangements, funding, or most probably in all three facets 

of this interwoven process. 

I have listed at the end of my statement, Mr. Chairman, the five 

publications that our Board has presented about SSA’s disability 

program: an August 1998 on how SSA’s disability programs can be 

improved; a September 2000 report on selected aspects of disability 

decisionmaking; a January 2001 report on disability decisionmaking; and the most recent one that was the subject of the hearings a couple of weeks ago, Mr. Chairman—a January 2000 report 

on charting the future of Social Security’s disability programs and 

the need for fundamental change. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Daub follows:]

Statement of the Hon. Hal Daub, Chairman, Social Security Advisory 

Board, and former Member of Congress 

Reforming the Disability Insurance and Supplemental Security Income 

Disability Program1

The Nation’s two primary disability programs—Social Security Disability Insurance (DI) and Supplemental Security Income (SSI) disability—are a vital but complex part of our social insurance and welfare systems, requiring vigilant attention 

in order to keep their policy and administrative structures sound and up to date. 

These programs have grown steadily over the years to the point where in fiscal 

year 2002 they are expected to account for nearly $100 billion in Federal spending, 

or nearly five percent of the Federal budget. They require a growing portion of the 

time and attention of Social Security Administration employees at all levels. In 

2002, about two-thirds of the agency’s $7.7 billion administrative budget, $5.2 billion, is expected to be spent on disability work. 

As the baby boomers reach the age of increased likelihood of disability the growth 

in these programs will accelerate. The Social Security Administration’s actuaries 

project that between now and 2012 the number of DI beneficiaries will increase by 

37 percent. SSI beneficiaries are projected to increase by 15 percent. The projected 

growth in the number of disability claimants threatens to overwhelm a policy and 

administrative infrastructure that is already inadequate to meet the needs of the 

public. 

In recent decades, disability policy has come to resemble a mosaic, pieced together 

in response to court decisions and other external pressures, rather than the result 

of a well thought out concept of how the programs should be operating. 

82

2The Lewin Group, Inc. and Pugh Ettinger McCarthy Associates, L.L.C., Evaluation of SSA’s 

Disability Quality Assurance (QA) Processes and Development of QA Options That Will Support 

The Long-Term Management of The Disability Program, June 21, 2000, p. C–24. 

Compounding the problem, the disability administrative structure, now nearly a 

half century old, has been unable to keep pace with the increasing demands that 

have been imposed upon it. Policy and administrative capacity are dramatically out 

of alignment in the sense that new and binding rules of adjudication frequently cannot be implemented in a reasonable manner, particularly in view of the resources 

that are currently available. 

It has been more than two decades since either the Congress or the Administration has reviewed in a comprehensive manner the question of whether the administrative structure established nearly five decades ago should be strengthened or 

changed. Numerous regulations and rulings affecting how disability decisions are 

made have been implemented without review by policy makers. The question of 

whether the definition of disability for adults should be changed has not undergone 

close examination for more than 30 years.

Major Issues Need to Be Addressed 

Are disability decisions consistent and fair?

There are substantial data that show striking differences in decisional outcomes 

over time, among State agencies, and between levels of adjudication, raising the 

question of whether disability determinations are being made in a uniform and consistent manner. 

For example, in 2001 the percentage of disability applicants whose claims were 

allowed by a State agency ranged from a high of 66 percent in New Hampshire to 

a low of 27 percent in Tennessee. As another example, a strikingly large percentage 

of cases denied by State agencies are reversed upon appeal to an administrative law 

judge hearing, and, at least at the State level, there appears to be no correlation 

between high State agency allowance rates and low ALJ reversals of these decisions. 

Both State agency and hearing level allowance rates have varied substantially over 

the years. The hearing level allowance rates (allowances as a percent of all decisions) for both DI and SSI disability stood at 58 percent in 1985, grew to nearly 

72 percent in 1995, fell to 63 percent in 1998, and grew again to 66 percent in 2000 

and 68 percent in 2001. 

For many years both Members of Congress and others who have studied the disability programs have expressed concern about variations such as these. Analysts 

have identified many factors which they believe contribute to inconsistencies in outcomes, such as economic and demographic differences among regions of the country, 

court decisions, the fact that the claimant has no opportunity to meet with the decision maker until the face-to-face hearing at the ALJ level, and that the record remains open throughout the appeals process. 

But many who are knowledgeable about the programs—including disability examiners in the State agencies as well as administrative law judges—have long believed 

that there are also reasons relating to program policy, procedures, and structure 

that are responsible for some if not many of these inconsistencies. In a recent study 

of SSA’s quality assurance processes, the Lewin Group found that although the information on current consistency of the disability programs is somewhat mixed and 

not as definitive as one would like, ‘‘The evidence of inconsistencies is compelling 

* * *.’’ 2

Despite the long-standing concern about consistency, the agency has no effective 

mechanism to provide the information needed to understand the degree to which the 

programs’ own policies and procedures—including their uneven implementation—

are causing inconsistent outcomes in different regions of the country and different 

parts of the disability system. As long as variations in decision making remain unexplained, the integrity and the fairness of the disability programs are open to question. These programs are too valuable and important to the American public for this 

issue not to be addressed.

83

DI and SSI Disability Determinations and Appeals*

Percentage of Allowances 

Initial Decisions 72.5

Reconsiderations 7.5

Hearing Level 19.8

Appeals Council .2

Note: Due to rounding, data may not always total 100%

* Data relate to workloads processed (but not necessarily received) in fiscal year 

2001, i.e., the cases processed at each adjudicative level may include cases received at 1 or more of the lower adjudicative levels prior to fiscal year 2001. Not 

all denials are appealed to the next level of review.

** Includes ALJ decisions not appealed further by the claimant but reviewed by 

the Appeals Council on ‘‘own motion’’ authority.

*** Remands to ALJs by the Appeals Council and courts result in allowances 

in about 60 percent of the cases. Court decisions include decisions on continuing 

disability reviews. Figures for other levels are for claims only.

Is disability policy being developed coherently and in accord with the intent 

of the Congress?

Although Congress has not changed the law defining disability for adults for more 

than 30 years, the determination of what constitutes disability has changed in fundamental ways. For example, there has been a gradual but persistent trend away 

from decisions based on the medical listings to decisions that increasingly involve 

assessment of function. Today, many more decisions involve mental impairments 

than was the case in the past. In addition, changes in agency rules mean that now 

all adjudicators must adhere to more complex and intricate requirements regarding 

such matters as determining the weight that should be given to the opinion of a 

treating source and making a finding as to the credibility of claimants’ statements 

about the effect of pain and other symptoms on their ability to function. All of these 

changes have made decision making more subjective and difficult. 

These policy changes have been made through changes in regulations and rulings. 

A number of the most significant changes have grown out of court decisions, many 

of which have not been appealed. None of them have been reviewed by the Congress 

as to their effect on decision making or whether they are operationally sustainable 

for a program that must process massive numbers of cases. 

Can today’s administrative structure support future program needs?

When the DI program was enacted in 1956, the expectation was that the program 

would be relatively small. But over the last half century, the original Federal-State 


Insert offset folio 84169gg.001
84

administrative structure has had to accommodate a growth in program size and 

complexity that it has been ill equipped to handle. In addition to working within 

a fragmented administrative structure, employees at all levels have been buffeted 

by periodic surges in workloads and funding shortfalls. 

At the present time, all parts of the applications and appeals structure are experiencing great stress with every indication that the difficulties each is facing will continue to grow unless changes are made. There are about 15,000 disability adjudicators throughout the disability system. Their qualifications and the rules and procedures they follow differ, sometimes dramatically. For example, adjudicators at the 

State agency and ALJ levels may receive vastly different training and draw upon 

very different resources. Factors such as these raise questions about how well the 

administrative structure will be able to handle the growing workload. 

Is Social Security’s definition of disability appropriately aligned with national disability policy?

There are many who believe that the Social Security Act definition of disability, 

which requires claimants to prove they cannot work in order to qualify for benefits, 

is inconsistent with the Americans with Disabilities Act and is at odds with the desire of many disabled individuals who want to work but who still need some financial or medical assistance. Recent Ticket to Work legislation is aimed at helping people who are already on the disability rolls to return to work by providing increased 

services and new incentives, but does not fully address these basic inconsistencies. 

In recent testimony the Consortium of Citizens with Disabilities questioned 

whether the Social Security definition of disability adequately captures ‘‘the spectrum and continuum of disability today. Does it reflect the interaction of vocational, 

environmental, medical and other factors that can affect the ability of someone on 

SSI or SSDI to attain a level of independence?’’

Reform Should Have Clear Goals and Objectives 

Reform of the disability programs must be evaluated within the context of clear 

goals and objectives: 

• All who are truly disabled and cannot work should receive benefits. 

• Those who can work but need assistance to do so should receive it. 

• Vocational rehabilitation and employment services should be readily available 

and claimants and beneficiaries should be helped to take advantage of them. 

• Claimants should be helped to understand the disability rules and the determination process. 

• The disability system should provide fair and consistent treatment for all. 

• The disability system should ensure high quality decisions by well-qualified 

and trained adjudicators. 

• The disability system should provide expeditious processing of claims. When 

cases are complex and require more time, claimants should be informed so 

that they will understand why there is delay. 

The Elements of Reform

To build a disability system that can meet the challenges of the future will require changes in policy, procedure, and structure. The Board has proposed a number 

of changes that we urge policy makers in the Congress and the Administration to 

consider. These changes would represent fundamental reform. In summary, they include the following elements. 

Strengthen SSA’s capacity to manage

SSA’s ability to manage the disability programs is undermined by three major 

shortcomings—

There is a lack of management accountability. Nearly every staff component 

of the agency has a role in administering the disability programs. 

The policy infrastructure is weak. There are too many voices articulating disability policy. Adjudicators in different parts of the system are bound by different 

sets of rules. 

Important policy elements are out of date. As the result of downsizing and lack 

of new staff to replace those who have left the agency through retirement or otherwise, the level of expertise in areas such as medical and vocational factors has declined.

The agency lacks a quality management system that can provide the comprehensive information that is needed for accurate and consistent decision 

making.

The Board recommends that SSA address these shortcomings by——

85

• organizing the agency so as to ensure greater accountability and 

• unified direction for the disability programs, developing a single presentation 

of policy to guide all adjudicators and enhancing the medical and vocational 

expertise of its staff, and 

• developing and implementing a new quality management system that will (1) 

provide the information that policy makers and administrators need to guide 

disability policy and procedures and (2) ensure accuracy and consistency in 

decision making. 

Change the disability adjudication process

Strengthen the Federal-State arrangement.—Although the law gives SSA the 

basic responsibility for administering the disability programs, it requires that disability decisions be made by State agencies rather than by SSA itself. The Federal 

Government pays 100 percent of the cost. 

Whether the disability decision making authority should belong to the States or 

to SSA has been a subject of debate since Congress established the Federal-State 

arrangement nearly five decades ago. Proponents of federalizing the process argue 

that the present structure is inherently difficult to manage and that federal administration is necessary to ensure high quality, uniform administration throughout the 

country. 

The issue of federalizing the disability determination process needs to be examined in the light of anticipated future needs of the disability programs. In the short 

term we believe it is necessary to strengthen the present Federal-State arrangement. Underpinning this view is the fact that SSA currently lacks the administrative and staffing capacity to take on the significant additional responsibility that 

federalization would entail. Nevertheless, the present arrangement is inadequate to 

meet the needs of the disability programs today, and problems need to be addressed 

as quickly as possible. 

SSA’s regulations should be revised to improve the agency’s ability to manage 

State agency operations and to provide greater national uniformity. States should 

be required to follow specific guidelines relating to educational requirements and 

salaries for staff, training, carrying out quality assurance procedures, and other 

areas that have a direct impact on the quality of their employees and their ability 

to make decisions that are both of high quality and timely. 

Reform the hearing process.—The formal right of claimants to a hearing was 

adopted in 1940 with only 12 ‘‘referees’’ to hear appeals. But with the enactment 

of the disability programs, the hearing process has become massive, with about 

1,000 administrative law judges and nearly 7,000 other employees. 

86

DI and SSI Claims Process: Steps and Average Processing Time* FY 2001

*Processing times shown must be added at each step to find the total time

**Field office processing time includes all components of the field office work, including taking the claim and 

processing it after the State agency makes a determination

***SSA reports DDS initial processing time by programs; average total processing time (DI and SSI) is not 

available 

Along with becoming a much larger operation than originally envisaged, SSA’s 

hearing process has also changed as the result of the fact that most claimants are 

now represented by attorneys or other representatives. Because the agency is not 

represented as well, many believe the hearing process has become too one-sided. We 

think that having an individual present at the hearing to defend the agency’s position would help to clarify the issues and introduce greater consistency and accountability into the adjudicative system and, as in a more traditional court setting, 

would help to carry out an effective cross-examination. Consideration should also be 

given to allowing the individual who represents the agency at the hearing to file 

an appeal of the ALJ decision. 

We also recommend that the Congress and SSA review again the issue of whether 

the record should be closed after the ALJ hearing. Leaving the record open means 

that the case can change at each level of appeal, requiring a de novo decision based 

on a different record. Many ALJs have told the Board that leaving the record open 

gives attorneys an incentive to withhold evidence in order to strengthen an appeal 

at a later stage, and provides an inherent incentive to withhold evidence in order 

to prolong the case and increase fees. Other ALJs do not believe that representatives hold back evidence for these reasons. If evidence is held back, they maintain, 

it is because the rules for presenting evidence are lax and representatives do not 

take the time or spend the money to obtain additional evidence unless required to 

do so as a result of an unfavorable hearing decision. Closing the record would 

heighten the need to develop the record as fully as possible before the decision is 

made in order to ensure that claimants are not unfairly penalized. Closing the 

record would not preclude filing a new application. 

Third, we recommend that consideration be given to establishing a system of certification for claimant representatives and to establishing uniform procedures for 

claimant representatives to follow. The objective would be to provide for a more orderly and expeditious hearing procedure than currently exists. 

Consider changes in the current provisions for judicial review.—Concerns 

about national uniformity in policy and procedure have led many to consider whether there is a need for change in the current provisions for judicial review. Under 

the current system, Federal courts frequently issue decisions that vary from district 

to district and circuit to circuit. Over the years a number of bills have been introVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00090 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169

Insert offset folio 84169hh.001
87

duced in the Congress that would create either a Social Security Court or a Social 

Security Court of Appeals that would specialize in Social Security cases, thus establishing a framework that could produce greater uniformity in decision making. The 

statutorily-established Commission on Structural Alternatives for the Federal 

Courts of Appeals, chaired by Justice Byron White, stated in its final report in December 1998 that Congress should seriously consider proposals that would place judicial review of Social Security cases in an Article I court. We believe that the question of whether existing arrangements for judicial review should be retained or replaced by a new court structure deserves careful study by the Congress and the Social Security Administration. 

Align policy and administrative capacity

Nearly every part of the Social Security Administration has been affected by the 

downsizing and restraint on government hiring that has occurred over the last two 

decades. But for various reasons, the disability programs in particular have tended 

to suffer. As resources have been constrained, SSA has issued numerous regulations 

and rulings that require more time and expertise on the part of all adjudicators 

than was the case in the past and workloads have grown substantially. The result 

is that disability policy and administrative capacity are now seriously out of alignment and threaten to become more so as the agency moves toward national implementation of several new initiatives. 

Of particular importance are the ‘‘process unification’’ rulings issued by SSA in 

1996, which were aimed at bringing State agency and ALJ decisions closer together. 

Many State agency administrators claim that some of them are so complex that 

State agency employees cannot adhere to them without spending substantially increased time on a large percentage of the cases they are adjudicating. In addition, 

these new rules for adjudicating cases require analytical and writing skills that 

many employees do not have. 

Both the Administration and the Congress will share the responsibility for making the changes that are needed to ensure that disability policy and administrative 

capabilities are properly aligned. This will likely involve a combination of changes 

in policy, processes, institutional arrangements, and funding. In addition, the Board 

has urged the agency to develop a comprehensive workforce plan and base its appropriations requests on this plan, as directed by the 1994 independent agency legislation. We also urge the Administration and the Congress to exclude SSA’s administrative budget for Social Security from any statutory cap that imposes a limit on 

the amount of discretionary government spending. 

Examine ways to improve incentives for early rehabilitation and employment

The issue of whether the present structure of assistance to the disabled provides 

sufficient help and incentive for employment needs careful review. Many experts believe that the most effective intervention is to help disabled individuals return to 

work as quickly as possible. More comprehensive research on ways to improve incentives for rehabilitation and employment early in a period of disability is needed. 

This may include new or different arrangements for cash or medical benefits or for 

rehabilitation and employment services. The experience of other countries and of 

both private and public employers in the United States should be taken into account. 

Included as part of this comprehensive research effort should be a study of whether providing some type of short-term disability assistance, combined with rehabilitation services, would improve assistance for those who have disabilities while also 

relieving pressure on the permanent disability programs. The studies that are conducted should include cost-benefit analyses. Where needed, specific legislative authority and funding for these studies should be provided.

tion? 

[Attachments are being retained in the Committee files.]

Chairman SHAW. Mr. Daub, what was your second recommendaf Mr. DAUB. The second recommendation is on page 5 at the top 

of our oral presentation, which is to develop a single presentation 

of policy to guide all adjudicators. 

Chairman SHAW. Is that adopting rules of procedure? 

Mr. DAUB. So to speak. It would be. The Agency’s regulations 

should be revised to require States to follow specific Federal guideVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00091 Fmt 6633 Sfmt 6602 E:\HR\OC\A169.XXX A169
88

lines relating to educational requirements and to salaries for: staff, 

initial and ongoing training, quality assurance procedures, and 

other areas that have a direct impact on the quality of their employees and their ability to make decisions. Regulations should also 

ensure that State hiring freezes will not apply to State Agency disability operations. These programs are national programs, and SSA 

has an obligation to ensure equal treatment for all claimants wherever they reside. 

Chairman SHAW. Mr. Robertson, you expressed disappointment 

at the pace at which things are going. Could you frame that better 

for us and a position in time? The Commissioner was late coming 

online, and anyone who comes into a position like that, you don’t 

want them to start making wholesale changes until they can get 

their sea legs, so to speak. Could you comment further or expand 

further as to exactly what you have seen since the new Commissioner has come online? 

Mr. ROBERTSON. Well, let me just start by saying that we like 

a lot of what the Commissioner has done so far. She has taken actions that are very consistent with some of the things that we have 

been recommending for a long time. For example, she has elevated 

a senior manager to the position of a QA adviser. We have been 

emphasizing, as you know, the need to get a QA program underway 

and in place for quite a long time. 

Likewise, we like the emphasis that she has placed on recognizing the importance of Information Technology solving some of 

the problems that the system is currently experiencing. Frankly, 

we like some of the short-term solutions that she has suggested for 

addressing the hearings office problems that we have seen. 

Right now, it is just a little bit too early to get a good handle 

on how effective these actions will be. If I could just make an observation—I was sitting back earlier in the hearing listening to the 

discussion. Being relatively new to the area, it struck me that one 

of the fundamental differences that I see in discussions so far today 

is that there is agreement on what the problem is. There is inconsistency in the decisionmaking. There is a lengthy process. It is a 

costly process. There is also, it seems to me, some agreement on 

some of the actions that should be taken. Trust me, having looked 

at other areas, that agreement is not always there. So, I think this 

is a good thing. Again, being new to the area, it was a personal observation and it was kind of a nice thing to see. 

Chairman SHAW. Mr. Robertson, are you saying that Mr. Matsui 

and I disagree on some things pertaining to Social Security? 

Mr. ROBERTSON. Never, never. 

[Laughter.] 

Chairman SHAW. Mr. Matsui? 

Mr. MATSUI. I won’t respond to that, Mr. Chairman. 

Mr. Robertson, your analysis actually goes back years and years 

in terms of the problems that we have had. I recall Mr. Daub does 

as well—in the early eighties we were having problems with both 

administrative law judges. Obviously the whole issue of disability 

claims and the backlog was significant then. It has obviously grown 

much larger now. 

You have said that the short-term solutions by the SSA Commissioner and Mr. Gerry being implemented now are good short-term 

89

solutions. Then you are basically saying where do we go from here? 

I think that is really the crux of the issue. Obviously time will have 

to be given to them to put together the long-term plan. 

In your analysis—and perhaps I am asking a question that you 

won’t want to answer, but is it a management problem in terms of 

how these things are being done? Is it a structural problem? Is it 

a lack of money? Or is it all three of those? If it is all three of 

those, or any one of those, could you kind of elaborate on that in 

terms of your analysis of the long-term problems? How we can really address these issues? Obviously, we are going to wait for the Administration to come up with their package, and we are all going 

to work with them because we all want to solve this problem. As 

you have said, we are all working in agreement here in terms of 

our goals. What is your analysis of the long-term approach that we 

need to be taking, in those three areas or any other areas that you 

might want to raise? 

Mr. ROBERTSON. You have hit three areas that are all contributors to the problem. The one that maybe you didn’t hit directly 

that I would like to re-emphasize—and I mentioned it in my short 

statement—is that, I think everybody should realize that we are 

dealing with an extremely complex process that involves complex 

judgments, multiple appeals levels, and lots of adjudicators. So, inherently, it is a difficult process to get your hands around, simplify 

and say here is the silver bullet that is going to fix everything. So, 

I would add that—the inherent complexity of the process—to your 

list of factors that have made the progress slow. 

I would also add that the solutions—and I am going to say this 

carefully—the solutions, in my view, to the problems should not be 

narrowly focused. We should be looking very broad. We should be 

looking at some of the systemic problems, the fragmentation problems that are part of this overall problem that we are talking about 

this morning. 

So, my only suggestion as we are looking for causes and for potential solutions to the problem, is that: we not look narrowly, that 

we look broadly, that at least everything gets on the table for discussion to begin with before we eliminate things, and that we look 

at things system-wide as opposed to one segment or another of the 

system. 

Mr. MATSUI. Okay. I think I understood you. I am not sure if 

I did. I think I understand your initial part of your comments in 

terms of the length it takes. As somebody who practiced law before 

coming here, a normal case that goes through a superior court in 

California would take through the appeal process 4 or 5 years, perhaps. We are talking about something a lot simpler in terms of adjudicating a disability claim. We do have statistics that show that 

a claim actually is only seen for approximately 7 days or so. The 

rest is appeal time, or 500 days, 500-plus days, due to the fact that 

we have a backlog. 

What do you think is an ideal time? Let’s say that the backlog 

was cleared, and we had an efficient system going through the entire process. Could you make that estimate? Maybe you can’t. 

Mr. ROBERTSON. I can’t make that estimate. I know that obviously we can do better than we are doing now, but I don’t have an 

ideal time in mind. I think we are going to be talking—or you are 

90

going to be speaking with some QA people later on this afternoon 

that have looked at benchmarking other organizations. They may 

be able to provide some insights into that question. 

Mr. MATSUI. Could I ask you this question—and maybe, again, 

you think it would make some sense to try to figure out what 

should be the average time that a claim is adjudicated? The reason 

I ask that, how do we have a benchmark or how do we have some 

goals? 

Mr. ROBERTSON. I think that is a very difficult question that 

you raise. I think that you can look to other organizations for 

benchmarking. Ultimately, you have got to look back at your process and say what is it that I want? What do I want to accomplish 

with this process? That is going to——

Mr. MATSUI. Process requirements, yes. Okay. Thank you. 

Chairman SHAW. Mr. Brady? 

Mr. BRADY. Thank you, Mr. Chairman. 

Both the testimonies were excellent in different ways. Two of the 

statements that struck me were in Mr. Daub’s testimony, but you 

addressed them a minute ago, Mr. Robertson. One of them was 

that it has been 30 years since Congress has changed the law defining disability. In that timetable, the intervening years, the disabled community itself sort of passed the process by with new technology and new approaches is able to do more in occupational areas 

than ever before. The decisionmaking is more complex with the determiners as a result of that. Also, as you would imagine, in 30 

years a lot of complex and conflicting legal rulings—that have 

made it more difficult to consistently apply the decisionmaking 

across the way. 

The second point you make is that it has also been about two 

decades since either Congress or the administration has really 

taken a fresh look at how the whole structure and process ought 

to work. I guess that is my question for both of you. Are you in different ways saying it is time for the administration to think outside 

the box in defining, in developing a system that really works? Is 

it time for Congress to step up to try to help remove some of the 

complexity or the conflicting legal decisions over the years that 

make it tough for the system to work? I would open it up to both 

of you. 

Mr. DAUB. I would answer in this way: First, I think the Commissioner is very dedicated to summoning the resources of the administrative leadership of the Social Security program to try to 

make as many efficient decisions inside the system without legislative action, if that is possible. I think that the short-term goals she 

has established are starting to make sense and should produce 

some early results. I think that is an important point to emphasize. 

In our testimony, you will recall, I talk on behalf of the Board 

about three things that we believe can be done by the leadership 

of the Social Security Administration, administratively. They deal 

with the quality of the decision making, not the quantity or processing. Focusing on the quality should lead to less confusion in the 

early period of the determination process, which can take 100, 106, 

102, 115 days, according to various studies. If it just took 3 calendar months, to make a decision that wouldn’t be bad for a very 

subjective judgment that is being made about assessing somebody’s 

91

degree of pain, their inability to take occupational therapy and to 

do alternative work to make a living. The Disability Determination 

Services are short of people who are well trained—it takes about 

2 years to train these folks to be able to make those sound early 

judgments. We have high turnover coming, a very aging work force, 

and a crazy quilt of rules and regulations from the courts that have 

impacted the decision process. Many of them never appealed, so we 

don’t have any consistency from region to region. 

I think another important thing is that the administrative law 

judge system is just a paradise for extending matters as long as 

you can—especially if you hire a lawyer who is not forthcoming 

with the evidence or holds back or has something that may be a 

little damaging to your case. The administrative law judge wears 

two hats: the decisionmaking hat of having to decide the fairness 

of the Disability Determination Services decision, to adjudicate 

whether the appeal should be approved or not; and the interrogator 

representing the taxpayer and the system, sort of attacking the 

credibility of the witnesses and the claimant. So, the claimant and 

lawyer perceive the judge as almost being adversarial in a way. 

So, part of the problem is attorneys take cases all the way 

through the court appeals process as long as they can because the 

record is not closed. Then the case gets up to the Federal district 

judge, where it gets remanded with an automatic $2,000 attorney’s 

fee being paid for 30 seconds’ worth of work. So, the longer the case 

is strung out, the more the lawyer makes. What is suffering is the 

process, the backlogs, and the claimants behind them. 

So, I think that a fundamental reform can be accomplished by internally getting some of these things done that we are talking 

about today with the encouragement of this Committee. Second, I 

think Congress should legislate. I think it is time in the next year 

or so that this Committee take a strong look at things like: the 

record being closed, whether there should be an Article I court specialized in disability case matters, and whether there should be a 

process where there is a State’s lawyer, a Federal Social Security 

lawyer, that represents the taxpayer side of the issue. Then after 

that hearing, close the record. 

Those are things that I think need to be looked at by this Committee. 

Mr. BRADY. Thank you. Mr. Robertson? 

Mr. ROBERTSON. The short answer to your question, from my 

perspective, is that in looking for potential solutions to the problems that we are talking about today, yes, indeed, people should be 

thinking outside the box. Of course, that means, however, that 

those outside-the-box solutions are going to have to be discussed in 

terms of here are the pluses, here are the minuses, and there is 

going to have to be a lot of communication with you about the 

pluses and minuses of these types of solutions. 

Mr. BRADY. Mr. Chairman, you need to know, in the questioning I am not suggesting that we have legislative solutions for 

all this, but neither do you want to abdicate responsibility. It 

seems that at some point this has gotten to such a critical situation. We all ought to be looking at ways that—roles we can play 

in helping solve this. Thank you, Mr. Chairman. 

Chairman SHAW. Mr. Becerra? 

92

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

much for empaneling the witnesses and holding this hearing. 

Thank you for having come. 

Let me go back to a question that Mr. Matsui raised. In preparation for this hearing, I asked my district staff to give me a sense 

of what we are encountering when it comes to these cases, these 

disability claims. I was told by the senior caseworker in my office 

that typically it takes someone in my congressional district 4 to 5 

months to get an initial determination, about another 3 or 4 

months to get a reconsideration, about a year to get a decision from 

the judge, an ALJ, and about 2 to 3 years to get a decision from 

the Appeals Council. Of course, there are a few who do go on to 

Federal court. I suspect that is pretty consistent throughout with 

other folks as well. 

Given everything you have said, and having looked over some of 

the written testimony, is there some way that we can reduce that 

latter portion of time? It seems that when you have to appeal your 

case—and oftentimes, many of the claimants are—you are going to 

be waiting a lot longer the last steps, when you probably are most 

in need. Now you are starting to pay an attorney to help you take 

your case forward. So, is there any thought being given to how you 

reduce the wait between the decision by the ALJ and any decision 

that might be rendered by the Appeals Council, which at least in 

Los Angeles has resulted in, in some cases, 2 to 3 year waits? 

Mr. ROBERTSON. Is that a question for me? 

Mr. BECERRA. Mr. Robertson, Congressman Daub, either one. 

Mr. DAUB. The Social Security Advisory Board has addressed it 

since 1998, and I think there are things that can be done. I think 

to Mr. Brady’s question, I said that it is time for Congress to look 

at the process. Although I believe much can be done administratively, the administrative law judge appeals process, where you are 

focusing, is going to require congressional action in order to create 

a new process. 

Mr. BECERRA. Yes, but I am not sure I would like to see the 

record closed. 

Mr. DAUB. Let’s talk about that for a minute, if I may. Closing 

the record is what proves the American system of jurisprudence. If 

you have any other type of court case of any complexity, for mental 

stress, pain, emotion, shock, whatever it is, at some point the 

record close. I am not saying when, now. The concept is that of 

closing the record so that the judge isn’t at each next level considering new evidence, almost taking the case through a de novo new 

process as if you start all over. The fact is that the system currently is not cutting off one set of factual considerations, forcing 

the claimant to put his best evidence in at that point based on the 

disability claim to get a determination, knowing that they can come 

back and refile if there is further degeneration in the spine or other 

illnesses, or if they get dismissed at some level they can come back 

and refile, which you can do without prejudice in any other type 

of court case. 

Mr. BECERRA. See, I would look at it differently. I would say 

that one of the difficulties we are having is that you are having 

claimants who, for the most part, are not versed in the law. They 

don’t know how to best marshal the facts forward, and it is not 

93

until they get to the ALJ stage that when they do finally hire an 

attorney because now it is getting pretty late in the process. If they 

do hire someone who can say, by the way, you should have raised 

these facts. To me that is two things. It spells out two solutions. 

One is we do a much better job—and principally that means putting more resources at the early stage so that these claimants do 

put forward all of their evidence——

Mr. DAUB. Well, that is what we should do. I agree with that. 

Mr. BECERRA. If we do that, then I think you will have a fairly 

complete—without having to close the record, and ultimately I 

think what we have to try to do is figure out a way to get from 

the ALJ through the Appeals Council in a much faster way. To me 

that means if you put more resources in at the initial stage or you 

make that initial determination by someone at the Agency, that 

what you are going to do is you are going to prevent the difficulties 

that I think you raise rightfully, that a judge is having to consider 

new evidence for the first time, which should have been developed 

way at the beginning, at the first stage, and not depend so much 

on the claimant to try to marshal together his or her best case. I 

think we are wasting a lot of time in not allowing them to put their 

best foot forward. We shouldn’t be adversarial in any way with 

them because if they have a legitimate claim, we owe them those 

benefits, and we should develop their case as much as possible. 

Mr. DAUB. We should. We should make sure that it is a proper 

claim, that it is not fraudulent, that it is being paid properly. We 

have a system that also has a substantial insolvency issue. The 

oversight over claims paid and the redetermination process also 

lags dramatically. 

So, it is complex, but to be sensitive to the disability claimant, 

that is truly, compassionately what we should have as our focus. 

On page 5 of the formal testimony that our Board has presented 

to you today, we list the objectives that reform of the system should 

have, that all who truly are disabled and cannot work should receive their benefits. 

My testimony on behalf of the Board today emphasized administratively what we do to improve the quality of the determination 

to begin with. I couldn’t agree with you more that that is where 

the emphasis on reform should be. 

In the end, there will be those cases that will go into the system 

of appeal. That system, too, if it is reformed, will put pressure on 

more quality work up front early on. If you leave that system openended so you are not happy with the way things are going through 

the administrative process, knowing you are going to get a better 

deal from the court system, which is what is basically the result 

now, you will wait because you will get a better deal if you take 

it to court. 

Mr. BECERRA. Mr. Chairman, I know you have been gracious 

with the time——

Mr. DAUB. So, I think that is the dilemma that you face. 

Mr. BECERRA. Congressman Daub, I think the difficulty is the 

courts which have to finally dispense the justice are saying we see 

from the record, which should have been better developed at the 

beginning—that this claimant had a cause. The process didn’t 

allow the claimant to fully develop at the initial stages, so the ALJ 

94

or the Advisory Council could come up with a good decision. It is 

now left up to the courts. Instead of expending so much money and 

time and causing the claimant so much grief and loss of money, 

let’s get our determiners to get out there and virtually tell these 

folks you are missing this piece of evidence. Get it out here, because the earlier we do it, the quicker we can dispense with those 

cases that are truly frivolous and deal with those that are really 

legitimate and come up with a solution. If there is an appeal, then 

you are going to have a good record because the ALJ will have all 

the evidence he or she needs. So will the Advisory Council, and you 

will never have to go to court to do that. 

Mr. Chairman, you have been gracious with the time. Thank you 

to the two of you for your testimony. 

Chairman SHAW. Thank you. I think this is insightful, and I 

think we need to do a little more work. It is difficult sitting here, 

never having tried such a case, and trying to figure out how we can 

solve the problems involved in the process. 

Years and years ago, I was a municipal judge. What we would 

do is if the defendant was represented by counsel, we would always 

bring in the city prosecutor. If he were not, then it would just go 

forth almost as an administrative type of proceeding. 

Maybe what we have here is a system that is a hybrid which 

really doesn’t focus correctly in either instance. It is one size fits 

all, so it is like you are either a size 91⁄2 or 101⁄2. So, we will give 

you a 10. I think we need to maybe take a look at the process for 

people that have attorneys and people that do not to try to expedite 

the process. 

Mr. DAUB. Mr. Chairman, Federal judges tell me—if I might 

just briefly comment, I have talked to a number of Federal judges 

in the last couple of months since I have been privileged to have 

this assignment. They commiserate with the administrative law 

judge. I say this kiddingly because I know that they are here today, 

they are listening, they are watching, and they are my friends. 

They ought to wear robes, but they don’t. They have a tough job 

to wear both hats, almost, in that process. 

So, if there is a way to force quality into that record on the way 

up, we all feel that is the better approach. There is a way—and you 

said it, when you were a municipal judge. There is a way that you 

get some balance in the system. You force it to come to the court 

better prepared so that the playingfield is level. The end result is 

that we want fair and uniform efficient determination. I think you 

are on to something. 

Chairman SHAW. Who presents the case to the judge initially? 

Is it——

Mr. DAUB. The lawyer for claimant normally, on appeal in the 

ALJ system. 

Chairman SHAW. Is there representation from the Social Security Administration who made the first determination? 

Mr. DAUB. Just the file that has been submitted. 

Chairman SHAW. So, you are counting on the judge having thoroughly read the file before the case. 

Mr. DAUB. That is what you are counting on. 

Chairman SHAW. I would assume that that is——

95

Mr. DAUB. I think most—I certainly think those judges make an 

effort to read every file, but there is also a backlog there. They are 

overwhelmed. They’ve got a huge load on them in many jurisdictions. As that Federal judge commented to me, these cases get to 

the Federal court just almost like they have been thrown into a 

shoe box. The Federal judge then has to feel compelled to go sort 

that case out from the beginning. 

Chairman SHAW. How many cases a day would a typical judge 

hear? 

Mr. DAUB. I am sorry? 

Chairman SHAW. How many cases a day would the judge hear? 

A whole slew of them or——

Mr. DAUB. I don’t know. It could be two or three. It could be 10. 

It depends on the——

Chairman SHAW. How long does the process usually take, the 

whole hearing process, typically? 

Mr. DAUB. A typical case? I am going to ask a staffer because 

I haven’t been in the courtroom in a long time. Forty-five minutes 

to an hour and a half? 

Just the actual court experience itself, 45 minutes to an hour and 

a half. That would probably be the average. 

Chairman SHAW. Okay. Well, thank you very much. I thank 

both of you. Perhaps this Subcommittee should go to court 1 day 

and watch one of these. It might not be a bad idea 

Mr. DAUB. We are going to hold field hearings in Denver on 

Thursday and Friday. 

Chairman SHAW. Well, I don’t know that we have to go to Denver. Perhaps downtown would do. I don’t know. Anyway, we thank 

you both. 

Mr. DAUB. Thank you. 

Mr. ROBERTSON. Mr. Chairman, thank you. 

Chairman SHAW. We thank you both for your testimony. 

Next we have Witold Skwierczynski. Boy, I am always challenged 

on difficult names, but I believe this one is the best one I have 

seen. He is the President of the National Council of the SSA Field 

Operations Locals, Chicago, Illinois, and a Representative in the 

American Federation of Government Employees, Social Security 

General Committee, AFL–CIO, Baltimore, Maryland. I apologize 

for crucifying the pronunciation of your name. If it was any longer 

it wouldn’t fit on there. In fact, it barely fit on the placard there. 

Anthony T. Pezza, who is the President of the National Coalition 

of Social Security Management Association; Jeffrey H. Price, who 

is the President of the National Association of Disability Examiners 

(NADE) from Raleigh, North Carolina; Linda Dorn, who is the Vice 

President of the National Association of Disability Determinations 

Directors, Lansing, Michigan; and David Stapleton, who is the Director of Cornell Center for Policy Research. 

Welcome to all of you. We have your written testimony that will 

be made a part of the record, and you may proceed as you see fit. 

Thank you. Thank you all for being here. Mr. Skwierczynski, would 

you pronounce that for me, please? 

Mr. SKWIERCZYNSKI. Witold Skwierczynski. Thank you. 

96

STATEMENT OF WITOLD SKWIERCZYNSKI, PRESIDENT, NATIONAL COUNCIL OF SSA FIELD OPERATIONS LOCALS, CHICAGO, ILLINOIS, AND REPRESENTATIVE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, SOCIAL SECURITY 

GENERAL COMMITTEE, AFL–CIO, BALTIMORE, MARYLAND 

Mr. SKWIERCZYNSKI. I am with the union. We represent 

50,000 bargaining unit Social Security workers. 

The Social Security Disability Program is in trouble, and it is in 

deep trouble. Unfortunately, the Administration has not provided 

sufficient appropriations to allow Social Security to dig out of its 

hole. The Bush budget has cuts in our full-time equivalent staffing 

for fiscal year 2003. I do not see how we can absorb a cut when 

the Commissioner has already said that we are about 150,000 case 

backlog on our disability program. She has indicated to the Senate 

Finance Committee that in order to work off that backlog, the 

Agency is going to need 400 to 500 million additional dollars just 

to work off the backlog. I was shocked to hear Deputy Commissioner Gerry say that they are not going to ask for any more money 

when it is clear that the only way that the Agency is going to be 

able to cut down the backlog is to have additional employees do 

cases. 

I am also disappointed that nobody is mentioning this terrible 

crisis that we are having on the special Title II Disability Workload. Unfortunately, what has happened is literally half a million 

of Title XVI Social Security beneficiaries, the Agency has finally determined, are due back Title II Social Security benefits. The Agency is going to have to take a half a million Social Security claims. 

Most of these claims are going to require additional disability decisions which is going to totally backlog the State agencies as well 

as the field offices that have to take those cases. These half a million Title XVI beneficiaries, who are due back pay benefits, have 

children and spouses who also may be due benefits on their record, 

which will mean additional claims that have to be taken. The union 

estimates that it will take a minimum of 22 to 25 hours per case 

to do these, which means that you’re going to need about 6,000 

work years in order to work off these cases. I think Congress needs 

to look very closely at funding the situation. This is a group of 

beneficiaries, by the way, that is the poorest of the poor. These are 

SSI recipients, who we have not paid properly and are due benefits, 

some of these cases date back to 1974. This is also an indication 

of mismanagement of the disability program. The Agency has 

known about this situation since the mid ’90s and has not taken 

any action until recently to deal with it. 

Another thing that the Agency hasn’t done that nobody is mentioning today is work continuing disability reviews (CDR). People 

who are getting disability benefits, some of them to go back to 

work. If you are a Title II beneficiary, you get a trial work period. 

We get information that these people go back to work, but our employees in Social Security field offices don’t have any time to take 

these work CDRs. The Agency doesn’t track them. They don’t track 

their processing time. They don’t track their volume. They stack up 

in our offices and are overpayments that are not addressed. These 

overpayments continue to mount. We need additional staff to do 

address these CDRs. Now, the Congress did initiate a program 

97

called Ticket to Work. The Agency hired 32 employment support 

representatives (ESR) for a pilot program. One of their functions 

was to do work CDRs, and they have done many of them and saved 

hundreds of thousands of dollars of trust fund dollars. We need to 

expand that program throughout the country. The ESRs pay for 

themselves and save taxpayer dollars. 

Although Commissioner Barnhart has testified about some of the 

problems, it is funny that one of the big problems is the initial 

claim. Most people don’t file appeals. About 47 percent of Title II 

beneficiaries are approved. A large percentage file appeals, but the 

average person that files a claim only makes it through the initial 

claims phase. 

The Disability Claims Manager (DCM), which is a pilot that the 

Agency experimented with, cut the processing time of disability 

claims to 62 days. Right now you have heard testimony that the 

average case takes 102 days. The Agency goal is 120 days. The 

DCM did it in 62 days. Why did the Agency terminate that program? Why aren’t we implementing the DCM across the board to 

save hundreds of thousands of disability applicants time in terms 

of the processing of these cases. 

Not only that, but with regards to the ALJ, the Agency piloted 

the Adjudicate of Officer Program, which was a professional employee who was able to make favorable decisions upon reviews. 

They screened out about 17 percent of all cases that were sent to 

hearing, and in screening out those 17 percent cases, reversing 

them and approving them, the ALJs has less work. They had 20 

percent less work. The Agency killed that program, too. 

The Commissioner says let’s have more litigation. By cutting out 

reconsiderations, what you do is you have more litigation. The 

claimants are forced to get a lawyer to deal with the hearings process. Even though reconsideration is only cut 17 percent, have a 17-

percent reversal rate, that is a large group of people, along with 20 

percent who don’t pursue their claims, 37 percent of the people that 

don’t have to get an attorney, don’t have to deal with the hearings 

process and with the lengthy delays. So, I don’t think it is the 

greatest idea to cut out the reconsideration process. I think what 

we need to do is, one, improve—I agree we need to improve the 

quality. I think the DCM does that. I think the wildly varing approval rates from State to State would indicate that there is something wrong with the system that we have now. 

We ought to seriously look at Federalizing the Social Security 

Disability Program to ensure more uniformity and more consistency in decisionmaking. We should look at having a caseworker approach, like the DCM, which claimants love. The DCMs provided 

a quicker decisionmaking and quality product that produced high 

satisfaction rates. We need to have consistency. The problem today 

is that in the DDSs they are using one set of rules and the judges 

are using another set of rules. So, we need to unify the process to 

rectify the problems. It should be shocking to us that 60 percent 

of cases that are appealed to the ALJs are reversed, 60 percent. 

That means there is something wrong with the initial claims process, and that is the first thing that needs to be addressed. 

Another problem is that we have 50 States with 50 different supervisors making the decisions using different rules. My suggestion 

98

is that this Committee addresses the initial claims process and the 

lack of uniformity. The DCM and ESR have proven effective. 

Thank you Mr. Chairman and Ranking Member Matsui for holding 

this hearing. 

[The prepared statement of Mr. Skwierczynski follows:]

Statement of Witold Skwierczynski, President, National Council of SSA 

Field Operations Locals, Chicago, Illinois, and Representative, American 

Federation of Government Employees, Social Security General Committee, AFL–CIO, Baltimore, Maryland 

Chairman Shaw, Ranking Member Matsui, and members of the Social Security 

Subcommittees, I thank you for the opportunity to present this statement regarding 

Social Security’s disability programs and the challenges that face SSA and Congress. As a representative of the AFGE Social Security General Committee and 

President of the National Council of SSA Field Operations Locals, I speak on behalf 

of approximately 50,000 Social Security Administration (SSA) employees in over 

1400 facilities. These employees work in Field Offices, Offices of Hearings & Appeals, Program Service Centers, Teleservice Centers, Regional Offices of Quality Assurance, and other facilities throughout the country where retirement and disability 

benefit applications and appeal requests are received, processed, and reviewed. 

In previous testimony before the Social Security Subcommittee, we have commended the Social Security Advisory Board (SSAB) for its continual perseverance 

addressing improvements necessary to strengthen SSA’s capability to answer the demands of the public it serves. Prior to becoming SSA Commissioner, Jo Anne 

Barnhart was a member of the SSAB. The Social Security Advisory Board has confronted a number of important issues, including changes in the disability programs, 

the Agency’s quality of service to the public, the need to safeguard the public’s funds 

as well as the administration of the Supplemental Security Income (SSI) program. 

AFGE is committed to working with Commissioner Barnhart and Congress regarding these complex issues, as well as other issues continuing to present challenges 

to SSA and its employees. 

Commitment to Staffing and Resources

The disability program is growing rapidly. Approximately 10 million Americans 

and their families depend upon SSA’s disability programs. As baby boomers grow 

older, there is an increased likelihood of their filing for disability benefits. This 

causes the amount of resources dedicated to SSA disability programs to significantly 

increase. Last year, almost 70 percent of SSA’s administrative budget was spent accomplishing disability work. Unfortunately, without serious changes in the current 

administrative process, along with additional staffing and resources needed to adequately receive and process this work, disability service to the taxpayer will deteriorate. 

SSA will be unable to continue to timely and efficiently process disability claims 

unless the Administration and Congress provide additional resources. Absent appropriate financing for additional staff, SSA cannot guarantee providing timely payment of benefits, correct administration of complex regulations as well as training 

and mentoring both current employees and new workers. President Bush’s FY 

2003 budget request not only falls short of providing the resources necessary 

to begin addressing this crisis, but calls for a reduction in workyears. AFGE 

believes a shortage of over 5500 positions currently exists in field offices and TSCs 

across the country. This shortage has already proven to be a recipe for disaster in 

providing adequate service. Backlogs of disability claims have created lengthier 

processing times. Callers are unable to get through on the toll free number and 

phones in field offices are frequently unanswered. The most recent example of last 

week’s 800 number accessibility will demonstrate my point. Because of the tremendous backlogs in SSA’s Processing Service Centers (PSCs), employees who assist our 

understaffed Teleservice Centers were unable to provide assistance during the busiest week of the month. This resulted in unacceptable levels of service. In fact, SSA 

has indicated that no PSC employees will be answering the 800 number for the rest 

of the fiscal year. This will cause 800 number performance levels to further deteriorate. The Government Performance Results Act goal for SSA’s 800 number service 

is an overall 5-minute access rate of 92%. Last week, the 800 number 5 minute access rate slipped to an average of 82%. Occasionally last week the 5 minute access 

rate was as low as 68%. As I have previously testified, the public can expect to wait 

up to several hours in many SSA reception areas across the country before being 

99

interviewed. Employees are forced to rush through the interviews, and stress levels 

have escalated to an unacceptable degree according to employee surveys. 

Senior SSA officials have testified at various times to this Committee and other 

committees, that without process improvements, the Agency will need 20,000 additional Full Time Equivalent Employees (FTEs) to maintain previous service levels. 

Eighteen years of staffing cuts has been the primary cause for SSA’s deteriorating 

service. During this time FTE levels plummeted from 86,000 to 62,000. Most of the 

cut was in direct service workers in the field. Recently the Social Security Advisory 

Board (SSAB) has issued multiple reports, which criticize SSAs inadequate staffing 

and resources. The Board has concluded that such resource deficiencies have adversely affected the Agency’s ability to provide adequate service. In January 2001, 

the SSAB urged the President to provide sufficient funding for SSA to enable it to 

improve its service to the public. In September 2001, the SSAB contacted the House 

and Senate Appropriation Committees reiterating its concerns previously addressed 

to President Bush. It is unfortunate that those cries for help seem to have fallen 

on deaf ears. 

Unless Congress acts to increase SSA’s administrative budget, the Agency’s service levels will continue to decline. 

SSA’s Disability Programs

AFGE believes that immediate attention needs to be given to three specific issues 

regarding the SSA disability benefit program: providing proper staffing and resource 

allocations, ensuring consistent disability decisions in a more expeditious manner 

and maintaining quality in person service and assistance at the field office level. 

SSA’s disability programs are at the heart of the Agency’s many challenges. 

AFGE is just one of many voices that has insisted upon reform of SSA’s seriously 

flawed disability structure. 

However, institutional problems continue to be overlooked. SSA’s ethos of discouraging open discussion of problems continues to exist. Communication between headquarters and operations in the field remains poor. Workgroups designed to address 

problem areas or workloads no longer include either the union or the employees who 

actually do the work. These employees in field offices and teleservice centers who 

have been working at SSA’s frontlines serving the public, know what is wrong and 

what is needed. The open door policy between the Commissioner and the Union has 

does not exist. These actions have caused SSA employees to doubt Commissioner 

Barnhart’s sincerity and will ultimately cause employees to mistrust any changes 

implemented without their participation and input. AFGE understands that longlasting progress will only be achieved with the assistance of those who not only understand the problems, but also have the institutional experience and knowledge to 

repair SSA’s disability programs. Certainly much more can be accomplished in a 

constructive manner with open two-way communications. The union remains committed to such a process. 

SSA must develop and implement a new quality management system that will 

routinely produce information the Agency needs to properly guide disability policy. 

Equity and consistency in disability decision-making does not exist today. Claimant’s chances of being approved for disability benefits depend on where they live and 

the amount of their resources. 

For example, SSA records appear to suggest that those who have the resources 

to obtain medical attention early and often have a better chance of being approved 

for benefits than those who have a limited income or resources. (See Chart Below) 

Nationwide, those applying for Social Security disability have a much greater 

chance of being approved than those who may only apply for the Supplement Security Income (SSI) program. SSA records clearly expose the inconsistencies of the 

State DDS decisions. More than 70 percent of Social Security disability claims for 

benefits are approved in New Hampshire, while only less than 38 percent of those 

who file for benefit in Oklahoma are approved. Of those who applied for SSI benefits, New Hampshire soars with an allowance rate of over 63%. However, less fortunate are those from Kansas, Missouri, Louisiana and Georgia. Less than 35 percent 

of the SSI applications in these states are approved by the respective State Disability Determination service (DDS). The reconsideration process is fraught with inconsistencies. Reconsideration claims in Missouri and Pennsylvania result in a 40% 

reversal rate. Conversely, reconsiderations in East Los Angeles, Kentucky, New 

York and Oklahoma result in less than 15% approval rate. Reconsideration of an 

SSI application is less likely to be approved than TII cases. 

As an illustration, following is a compilation of different states and the variance 

from state to state in allowance and denial rates:

T2

Initial 

T16

Initial 

Concurrent

Initial 

T2

Recon 

T16

Reco

Allow Deny Allow Deny Allow Deny Allow Deny Allow 

NATIONAL AVERAGE 47.4 52.6 39.5 60.5 30.4 69.6 19.0 81.0 16.0 BOSTON Region 56.8 43.2 43.6 56.4 34.5 65.5 30.0 70.0 25.6 New Hampshire * 70.3 29.7 63.6 36.4 56.2 43.8 33.3 66.7 33.3 Connecticut 55.7 44.3 39.2 60.8 32.3 67.7 30.4 69.6 21.6 New York Region 48.5 51.5 40.8 59.2 34.5 59.2 15.1 84.9 13.5 New York * 51.5 48.5 39.9 60.1 33.4 66.6 12.2 81.3 12.6 Albany 55.0 45.0 36.2 63.8 32.6 67.4 22.0 78.0 19.4 Puerto Rico 34.6 65.4 ¥¥¥¥ 16.3 83.7 ¥ Philadelphia Region 53.1 46.9 43.7 56.3 34.6 65.4 20.3 79.7 16.7 Maryland 49.8 50.2 38.6 61.4 30.4 69.6 25.3 74.7 18.0 PA * 60.2 39.8 48.6 51.4 40.7 59.3 40.6 59.4 29.2 Atlanta Region 40.3 59.7 35.8 64.2 27.0 73.0 16.3 83.7 14.0 Alabama * 48.8 51.2 37.7 62.3 33.3 66.4 34.7 65.3 33.5 Georgia 38.2 61.8 34.0 66.0 25.7 74.3 17.9 82.1 14.5 Kentucky 37.3 62.7 35.0 65.0 23.8 76.2 10.9 90.1 9.8 Birmingham 50.8 49.2 40.3 59.7 35.1 64.9 35.1 64.9 34.0 Florida 41.7 58.3 41.6 58.4 30.7 59.3 20.5 79.5 19.6 Miami 42.3 57.7 49.3 50.7 35.4 64.6 21.7 79.3 26.4 Chicago Region 47.3 52.7 36.4 63.6 30.1 69.9 19.8 80.2 15.0 Illinois 49.3 50.7 38.1 61.9 31.8 68.2 18.7 81.3 15.9 

Michigan * 49.8 50.2 35.3 64.7 31.9 68.1 32.3 67.7 24.7 Wisconsin 52.0 48.0 37.2 62.8 30.3 69.7 31.7 68.2 16.8 Dallas Region 41.3 58.7 36.7 63.3 29.6 70.4 18.7 81.3 17.3 Louisiana * 43.3 56.7 30.9 69.1 30.7 69.3 39.9 61.0 27.6 Texas 40.0 60.0 40.0 60.0 30.5 69.5 18.7 81.3 18.5 New Mexico 49.1 50.9 41.3 58.7 32.2 67.8 23.2 76.8 20.9 Oklahoma 39.3 60.7 36.7 63.3 27.7 72.3 14.3 85.7 12.6 Shreveport 42.8 57.2 31.6 68.4 28.7 71.3 21.4 78.6 29.5 Kansas City Region 54.3 45.7 34.4 65.6 27.0 72.0 23.8 76.2 15.5 Missouri * 56.8 43.2 33.0 66.0 28.6 71.4 44.8 55.2 35.3 Kansas 47.2 52.8 34.7 65.3 22.1 77.9 23.5 76.5 14.6 Denver Region 43.6 56.4 41.1 58.9 25.2 74.8 14.2 85.8 9.7 Colorado * 46.6 53.4 42.2 57.8 27.6 72.4 27.6 72.4 5.7 N. Dakota 45.4 54.6 37.3 62.7 22.0 77.0 17.2 82.8 8.5 S. Dakota 48.2 51.8 36.5 63.5 23.0 76.0 18.8 81.2 12.8 San Francisco Region 52.8 47.2 46.2 53.8 37.1 62.9 25.2 74.8 22.5 Arizona 59.3 40.7 51.8 48.2 43.3 56.7 38.7 61.3 33.8 California 50.9 49.1 45.7 54.3 34.4 65.6 22.1 77.9 18.6 Bay Area 56.0 44.0 52.6 47.4 43.2 56.8 28.5 71.5 20.8 L.A. East 42.7 57.3 44.0 55.0 32.1 67.9 12.4 87.6 12.2 L.A. West * 59.8 40.2 49.9 50.1 42.0 57.0 31.2 68.8 22.5 L.A. North * 58.7 41.3 49.3 50.7 40.0 60.0 31.8 68.2 42.2 L.A. South 42.0 57.0 49.2 60.8 31.4 68.6 19.7 80.3 19.9 

T2

Initial 

T16

Initial 

Concurrent

Initial 

T2

Recon 

T16

Reco

Allow Deny Allow Deny Allow Deny Allow Deny Allow 

Sacramento 48.6 51.4 42.2 57.8 30.2 69.8 23.6 76.4 31.6 Seattle Region 50.0 50.0 43.6 56.4 21.2 68.8 22.2 77.8 16.1 Alaska * 57.4 42.6 52.3 47.7 38.1 61.9 50.0 50.0 0.00 Oregon 49.7 50.3 40.7 59.3 28.3 71.7 24.1 75.9 16.2 Washington 49.9 50.1 44.3 55.7 32.5 67.5 22.0 78.0 15.8 Seattle 50.1 49.9 49.8 50.2 36.6 63.4 24.3 75.7 16.1 

* ‘‘Prototype’’ sites. 

103

In a system where contributions are made equitably, such wildly divergent allowance rates raise significant questions regarding the accuracy and fairness of the decision making process. The American taxpayers are entitled to quality consistent decisions whether they live in California or New Jersey. The significant differences between SSA and SSI disability approval rates leads one to conclude that wealth is 

a factor in the decision making process. We strongly encourage Congress to hold 

hearings in the near future to address these very important issues. 

As long as inconsistent medical decisions continue to be made by the State DDSs, 

the backlogs at the hearing levels may never be completely resolved. In some areas, 

the rate of hearing reversals is as high as 60%. 

SSA has spent millions of dollars testing new disability initiatives in an effort to 

address some of the serious problems with the disability process. One of those initiatives is the ‘‘Prototype’’ pilot. Approximately 25% of SSA’s national initial disability 

claims workload was included in the Prototype, which was conducted in State DDS 

facilities for Alabama, 

Alaska, California (Los Angeles North DDS & Los Angeles West DDS branches 

only), Colorado, Louisiana, Michigan, Missouri, New Hampshire, New York, and 

Pennsylvania. The Prototype features were designed to:

• Provide greater decisional authority to the disability examiner and more effective use of the expertise of the medical consultant in the disability determination process; 

• Provide more complete development and improved explanations of how the 

disability determination was made in order to enhance the quality of decisions; 

• Afford an opportunity for claimants to talk with the decision-maker if the evidence in the file does not support a fully favorable determination, and/or to 

submit further evidence before an initial determination is made. 

• Simplify the appeals process by eliminating the reconsideration step.

Recently, Commissioner Barnhart announced her decision to expand the Single 

Decision Maker aspect of the Prototype pilot and to eliminate the Claimant Conference portion of the initial disability claims in the 10 Prototype states. These decisions were made prior to the completion of the pilot and before an analysis of final 

data regarding the pilot. The decision to eliminate the Claimant Conference appears 

to have been made solely due to the additional time that conducting such a conference adds to the processing time for initial disability claims. No data has been 

provided to the union which measures the impact of the claimant conference on the 

decision making process. Claimant conferences were intended to partially replace 

the loss of the Reconsideration appellate opportunity. Eliminating such conferences 

will, undoubtedly, result in additional hearings requests by denied claimants. Since 

there is a severe backlog of hearings cases, this is an undesirable result. The 2001 

Interim Report on the Prototype indicated that claimant satisfaction was much 

lower than claimant satisfaction for the Disability Claims Manager (DCM) pilot. The 

interim report also indicated that Prototype productivity was less than the current 

process, employee satisfaction was not especially high and that, although final results were not available, the total program costs of the Prototype appeared higher 

than the current process and the elimination of the Reconsideration leads to more 

hearing requests than the current process. In addition, the Prototype did nothing 

to resolve the state to state disparity in the disability claims allowance rates. 

The elimination of the reconsideration and the elimination of the Claimant Conference in Prototype states does not appear to be the solution to the disability problem in SSA. It is particularly puzzling that SSA leadership appears enamored with 

the Disability Prototype and its lukewarm results while it scuttled the DCM, which 

exceeded the current process in numerous respects, especially processing time. 

As I emphasized in previous testimony before the Social Security Subcommittee 

in June 2001, the Disability Claims Manager (DCM) pilot (another SSA initiative) 

proved to be highly successful in addressing these problems in the disability program. Processing time was significantly better. In fact, the DCM processing time of 

62 days was almost 1⁄2 of SSA’s initial disability claim processing time goal of 120 

days. Customer service dramatically improved. Claimants expressed record high satisfaction rates for the DCM. The public likes the DCM caseworker approach and 

wants it retained in the current process. Although SSA contended that the DCM 

would cost more than the current process, no valid data exists showing this conclusion. Also, the pilot was prematurely terminated before valid statistical data could 

be compiled regarding full program costs. It is unfortunate that, since the last time 

I testified before the SSA Subcommittee, then Acting Commissioner, Larry 

Massanari, decided not to implement the most successful new disability initiative, 

the DCM. The DCM was a positive step to ensuring the public that consistent and 

104

equitable disability decisions are made. Tragically, no actions were taken to implement any of these successes, and the pilot was terminated. Congress should demand 

that SSA justify the elimination of this successful and innovative experiment. It is 

part of the answer to the disability problem. 

It is apparent that the primary reason that SSA terminated the DCM pilot was 

due to State resistance. Such resistance certainly was not based on a poor pilot result. Instead the decision appears to be based on political considerations and the 

fear of losing work. Congress should be very concerned when SSA spends $ millions 

for a process that demonstrably improves the disability processing time yet is rejected for political reasons. The concerns of the states are understandable in view 

of their unacceptably poor performance regarding decision consistency from state to 

state and their poor processing time in comparison to the DCM. However, the only 

real criteria should be the level of service that is provided to the claimant. Using 

customer service as a measure, the DCM exceeds State DDS performance in virtually every category. 

AFGE has recommended to Commissioner Barnhart that she reconsider former 

Acting Commissioner Massanari’s decision and implement the position of the DCM 

at SSA as soon as possible. AFGE is willing to work with the Commissioner in an 

incremental approach to achieving this goal. AFGE understands that there will need 

to be changes in policy, processes and institutional arrangements, as well as funding 

to implement this very valuable and successful position at SSA. Legislative amendments to the Social Security Act would be necessary to allow SSA workers to make 

disability decisions; however the crisis in disability processing requires immediate, 

as well as long-term changes. When trained to make medical decisions, SSA employees can provide immediate relief to backlogged Disability Determination Agencies, 

and provide faster and better service to the public by serving as a single point of 

contact. The pilot demonstrates that the public loves the DCM, employees enthusiastically support it and that it provides substantially better service than the current disability product. It is the responsibility of Congress to take the necessary action to assure the DCM is part of the solution to the disability problem. 

As a short term approach not requiring legislative change, AFGE is supportive of 

the ‘‘Technical Expert for Disability’’ position. This position would provide high quality, trained field office employees the tools to assist disability claimants in both programmatic and medical issues, provide professional personalized service to applicants, focus the disability interview, make or recommend disability decisions, and 

assist the DDS’s in their development and backlogs. 

Another tested initiative that would save considerable disability processing time 

is the Adjudicative Officer (AO). This position was intended to assist Administrative 

Law Judges to reduce the number of hearings and to prepare cases for efficient and 

expeditious hearings. AO’s were empowered to gather additional evidence and to 

make favorable decisions without hearings when the evidence submitted indicated 

that such a decision was appropriate. The pilot indicated that many hearings requests were quickly adjudicated by AO’s. These workers reduced the processing time 

for hearing requests. The AO’s met the same fate as the DCM’s. SSA cancelled the 

initiative. When processing time can be legitimately reduced, why is SSA terminating a methodology that achieves that objective? SSA should reexamine this position. 

Ticket to Work

Another prominent challenge for SSA, as well as a legislative mandate, is complying with the provisions of the Ticket to Work and Work Incentives Improvement 

Act of 1999 (TWWIIA). SSA has, in fact, redefined its mission to include promoting 

the employment of Social Security beneficiaries with disabilities. By the year 2005, 

SSA’s goal is to increase the number of beneficiaries who can attain steady employment and leave the disability rolls by 100%. Currently, less than one-half of one percent of Social Security Disability and SSI recipients return to work and whose benefits are terminated. If only an additional one-half of one percent of recipients were 

to cease receiving benefits due to employment, savings to the Trust Funds and 

Treasury would total $3.5 billion over the worklife of these beneficiaries. 

Section 121 of this legislation directs SSA to establish ‘‘a corps of trained, accessible and responsive work incentives specialists within the Social Security Administration.’’ As members of this subcommittee are well aware, this legislation mandating specialists within SSA is the result of many years of poor service on the part 

of SSA in providing accurate information on employment supports and failing to 

process cases timely or accurately. SSA created the Employment Support Representative (ESR) position as this work incentives specialist. The pilot of 32 ESRs testing 

models of how best to service the disabled community concluded in August 2001. 

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The final Evaluation Report of the ESR position was completed in November 

2001. Findings of the report were clear that the ESR was most effective in serving 

organizations and beneficiaries when situated in field offices serving the communities. Beneficiaries and community organizations were overwhelmingly appreciative 

of the services the ESR performed, finding them to be compassionate, responsive, 

accessible, and highly knowledgeable. The investments of the ESRs in outreach programs have led to increased trust of SSA by the communities, and increased program knowledge on the part of professionals and consumers. There is a great deal 

of interest on the part of organizations for a further rollout to service every locality. 

The pilot proved that Congress was correct when it insisted that SSA improve its 

service to disabled beneficiaries seeking to return to work. 

Furthermore, the ESRs were able to develop a single point of contact with beneficiaries, monitor their work progress in a timely and supportive manner, and process work reports and work-issue Continuing Disability Reviews (CDRs) timely, 

greatly reducing large benefit overpayments and anxiety on the part of the beneficiary. ESRs gave many examples of customers who, with ESR guidance, were able 

to reliably predict the outcome of their work activity and viewed benefit cessation 

as a mark of achievement. 

Both SSA and AFGE agree that hundreds of millions of dollars in benefit overpayments would be saved nationally if work issues are reported and worked promptly. 

SSA projects a large increase in work CDR activity, especially in the early stages 

of the Ticket to Work implementation. Even discounting the potential effect of Ticket related workloads, work issue CDRs processed in field offices have been increasing at an average annual rate of over 35% for the past three years. Anecdotal evidence from employees throughout the country indicates that work issue CDRs are 

backlogged for up to several years in field offices. Overpayments on these cases can 

reach $250,000 for an office, and employees have encountered overpayments on individual records reaching $100,000. Unfortunately, the Union is unaware of any statistical data regarding the numbers of work CDRs processed, the number pending 

and the cessation rate due to work activity. SSA should be required to maintain and 

produce such data. In processing medical issue CDRs, SSA contends that for every 

dollar spent, seven to twelve dollars in benefits are saved. The cost savings are 

greater for ‘‘work’’ CDRs since the cost of medical decision making is eliminated. Investing in the ESR position is a perfect example of applying stewardship responsibilities effectively and investing resources in a cost effective manner. 

The Evaluation Report recommends that the ESR job should be made a permanent position within SSA. The report also recommended that the ESR position be 

expanded to as many SSA offices as possible. The Report cautions: ‘‘Failure to institutionalize a position to perform the duties that the ESR has piloted could in effect 

deny the public and community the opportunity to interact with an accessible and 

responsive SSA specialist. This could eliminate an important element in SSA’s plan 

to improve its employment support service delivery to the public. It could also negatively affect our ability to effectively train and advise other SSA staff in the provisions of the law, with implications for increased incorrect payments and the denial 

of benefits to beneficiaries.’’

Unfortunately, SSA is reluctant to implement the ESR position due to the shortages of staff and resources in field offices. These intolerable resource deficits leave 

SSA in the position of ineffectively implementing the Ticket to Work and continuing 

to provide the current level of service. This is an impossible situation. 

AFGE believes an Agency decision not to implement the ESR would be a tragic 

mistake when the ESR has proven to be a winner for all parties. For SSA, it shows 

superb service to the public, provides stewardship in reducing benefits and overpayments, and results in SSA compliance with the legislative mandate for work incentive specialists within SSA. For the public, it provides stellar service, a single point 

of contact, and assists beneficiaries in leaving the disability rolls. For the taxpayer, 

it saves money and extends Trust Fund solvency. 

Section 121 of PL 106–170 authorized $23,000,000 to be appropriated to establish 

a community based work incentives planning and assistance program for disabled 

beneficiaries, and to develop a corps of work incentives specialists with SSA, for 

each of the fiscal years 2000 through 2004. SSA allocated all of the appropriated 

resources to grants outside the Agency. AFGE requests that Congress direct SSA 

to appropriate additional funding to meet the requirements of the Ticket to Work 

and Work Incentives Improvement Act. This provision of the legislation also requires continuous adequate funding beyond FY 2004. Otherwise, the most effective 

method of providing consistent, accurate information and assistance on work incentive programs will not be accessible to disabled beneficiaries. It is outrageous that 

budget constraints for SSA’s Administration Expenses will inhibit the success of the 

ESR, a Ticket to Work initiative, which is designed to generate Trust Fund Savings. 

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It would cost approximately 120 million to staff SSA’s 1300 field offices with 1500 

ESRs. The potential return of $3.5 billion indicates that this would be a prudent 

expenditure. 

Special T2 Disability Workload

Inadequate staffing and resources influences SSA work priorities. While ignoring 

or putting off the inevitable can provide a temporary solution to a staffing and resource problem, the consequences can be severe and compromise the Agency’s integrity. In addition to this being self-evident with the 800 number service, inadequate 

staff is also the cause for the ‘‘Special T2 Disability Workload.’’ This resource shortage will be a great challenge for the new Commissioner, this Congress, and the employees of SSA as it begins to tackle the ‘‘Special T2 Disability Workload.’’

A study done by an SSA employee in the early 1990s revealed that a serious computer processing error existed in the Agency’s software. At that time, SSA became 

aware that the Social Security and SSI programs were not properly interfacing, resulting in a failure to properly identify SSI recipients who may be eligible for Social 

Security and Medicare benefits retroactively to 1974. From 1974 until the early 

1990’s, the SSI application did not solicit information that would identify individuals who would be eligible for Social Security benefits. SSA officials neglected to 

take the necessary action to correct this problem until recently. As a result of this 

systems failure, hundreds of thousands of SSI recipients and their families were not 

paid the proper Social Security benefits. This placed the burden of benefits solely 

on SSI, Medicaid, and State and County welfare programs instead of the Social Security trust fund. 

Under Title XVI of the Social Security Act, SSI recipients are required to apply 

for all benefits for which they are eligible. SSA is responsible for identifying and 

paying the recipient once they achieve insured status for Social Security benefits. 

Eligibility for Social Security benefits reduces the State’s obligation to supplement 

the SSI and Medicaid programs. For example, in the cases SSA has identified, the 

average retroactivity is 8 years. This means that the states will be reimbursed an 

average of 8 years of past payments that States have made on SSI. In addition, 

using Social Security data, these individuals would have been eligible for Medicare 

retroactively for 6 years and Medicare would have been the primary insurance provider rather than Medicaid. Thus, the burden for paying for medical services would 

shift from State budgets to Medicare. Therefore, SSA owes millions of dollars in 

back payments to the States and the U.S. Treasury General Fund. 

In March of this year, the AFGE National Council of Social Security Field Operations Locals made Congress aware of this very serious situation. This issue impacts 

not only the Social Security and Supplemental Income (SSI) beneficiaries in every 

state and/or Congressional district, but affects SSA reimbursements of revenue due 

states for erroneous SSI and Medicaid payments. 

SSA has identified approximately 505,000 impoverished individuals to date who 

appear to be entitled to Social Security and Medicare benefits. Of those cases identified, some may have a retroactivity period that can date as far back as 1974; however, the average retroactivity involved is estimated to be about eight years. Because of the limited number of cases reviewed, we believe that a complete and thorough audit of all SSI cases should be evaluated for possible entitlement to Social 

Security benefits. It is important to notify you that these numbers do not reflect the 

countless thousands of spouses, widows and/or children that may be eligible for Social Security benefits due to the Agency’s failure to correctly enforce the eligibility 

requirements for SSI beneficiaries. 

The cases identified in the Special T2 Disability Workload are complex and require careful screening and diligent review by FO personnel. Development of trial 

work periods, substantial gainful activity, and workers compensation will be very 

time consuming. Most of these cases will require new medical determinations. If 

SSA’s original medical file no longer exists, medical records will have to be redeveloped. Once approved for T2 benefits, the majority of these cases will require extensive manual computations. The complexity of these cases will be overwhelming. For 

example, all historic legislative changes that have occurred since 1973 will have to 

be considered to determine proper payment due to the disabled individual, spouse, 

widow, children, survivors and/or estates. Initial attempts to process these cases indicate that each case takes an average of 12 hours to properly screen. This time 

estimate does not include the time needed to make a disability decision and the time 

necessary to process and adjudicate auxiliary claims (e.g., mothers/father’s and children). 

Based on SSA’s current work measurement system, the minimum amount of time 

to review and adjudicate the simplest of these cases will take 22–25 work hours. 

107

This would result in a minimum of 2,400 work years to fully develop and adjudicate 

the first 210,000 cases. However, most cases will not be simple. 

SSA’s mission requires that the Agency pay each eligible beneficiary timely and 

accurately. Depriving poor SSI recipients accurate benefits adversely affects their 

struggle for survival. 

Without additional resources, addressing this workload will have an enormously 

detrimental impact on service to current applicants and beneficiaries. AFGE recommends that SSA, with Congressional oversight, take immediate action to:

• Determine trust fund expenditures related to this workload; 

• Identify state supplements and Medicaid reimbursements; 

• Provide an analysis of when complete resolution can be expected, including 

reimbursement to federal and state treasuries; 

• Verify that the processes are corrected, in an effort to rebuild the confidence 

of the public, Congress and the states; 

• Identify the additional staffing and resources necessary to successfully process this overwhelming and complex workload; 

• Earmark sufficient funds to process this work. This was done in the 1980’s 

in order for SSA to process the ‘‘Zebley’’ litigation cases, which reversed case 

decisions on hundreds of thousands of cases involving children with disabilities. It is necessary to earmark such funds again, as in Zebley, to process 

this enormous complex workload. 

• Utilize the former Disability Claims Manager (DCM) in processing this workload. DCM’s are highly trained in SSA programmatic issues and experienced 

in making medical determinations. They would be able to process the entire 

complex case from start to finish and provide needed relief to the overburdened State DDS’s regarding this workload. 

• Utilize the skills of the Employment Support Representatives in developing 

and analyzing the many years of work activity present on these records, taking into account all work incentives and provisions, to insure accurate case 

development. 

Summary

There will always be budget priorities, whether it’s reducing the deficit or increasing our military opposition to terrorists. However, both workers and employers contribute to the self-financed Social Security system and are entitled to receive high 

quality service. It is entirely appropriate that spending for the administration of 

SSA programs be set at a level that fits the needs of Social Security’s contributors 

and beneficiaries, rather than an arbitrary level that fits within the current political 

process. 

Mr. Chairman, you and Human Resources Subcommittee Ranking Member Benjamin Cardin reintroduced the Social Security Preparedness Act of 2000 (formerly 

H.R. 5447), a bipartisan bill to prepare Social Security for the retiring baby 

boomers. AFGE strongly encourages each of your committees to reconsider introducing legislation that will provide SSA with the appropriate funding level to process claims and post-entitlement workloads timely and accurately. AFGE believes 

that by taking these costs OFF–BUDGET with the rest of the Social Security program, Social Security funds will be protected for the future. This will permit new 

legislation, such as Ticket To Work, to be fully implemented without comprising 

public service integrity. We believe this can be accomplished with strict congressional oversight to ensure that the administrative resources are being spent efficiently. 

AFGE is committed to serve, as we always have in the past, as not only the employees’ advocate, but also as a watchdog for clients, taxpayers, and their elected 

representatives.

STATEMENT OF ANTHONY T. PEZZA, MANAGER, SOCIAL SECUChairman SHAW. Thank you. Mr. Pezza. 

f RITY ADMINISTRATION DISTRICT OFFICE, HACKENSACK, 

NEW JERSEY, AND PRESIDENT, NATIONAL COUNCIL OF SOCIAL SECURITY MANAGEMENT ASSOCIATIONS, INC. 

Mr. PEZZA. Chairman Shaw, Members of the Subcommittee, my 

name is Anthony Pezza. I am here as President of the National 

Council of Social Security Management Associations, which is an 

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organization of more than 3,000 managers and supervisors who 

work at SSA’s field officers and teleservice centers in more than 

1,300 locations throughout the United States. 

I thank you for giving me the opportunity to come before you 

today to speak about the problems the Social Security Disability 

process is having from the perspective of SSA’s frontline managers 

and supervisors, and make recommendations for change. 

The managers and supervisors I represent deal directly every 

day with the folks applying for Social Security Disability and Supplemental Security Disability Payments. It is most often our Members with whom your local staff deal to resolve Social Security 

problems for your constituents. I must tell you, that more often 

than not those problems involve the disability program. 

Since our organization was founded almost 34 years ago, we have 

been a strong advocate for locally delivered Social Security services 

nationwide. We work directly with those we serve, because they are 

our friends and neighbors, folks we know in our hometowns and 

local communities. We represent the very essence of citizen-centered government. Those of us who work in SSA’s field offices 

spend a great deal of our time and effort on the disability program. 

We deal directly with disability applicants and recipients. We take 

their claims, initiate their continuing disability reviews and provide them and their representatives with information. We hear 

their stories and see firsthand the impact of their impairments and 

our procedures on their lives. 

As we are all painfully aware, SSA’s Disability program has been 

under severe stress for a number of years. I believe we all know 

about the processing delays. It takes too long to get an initial decision. The time it takes to get a decision on appeal is inexcusable. 

I think we all know that there are troubling variances in the allowance rates between State DDSs and between initial and appeals decisions. 

Some 9 years ago, SSA embarked on an effort to re-engineer its 

disability process. After almost a decade of spending literally tens 

of millions of dollars on that effort, the sad fact is we are still talking about the same problems and discussing the same potential solutions today as we were then. It appears the more we discuss and 

study the problem, the less gets done. The bottom line is that after 

all of this effort, from the claimants’ point of view nothing is 

changed. 

In our written submission to the Subcommittee, we made a number of recommendations. I would like to tell you very briefly about 

one of them. In February 2001 and again in January of this year, 

the National Council of Social Security Management Associations 

made a recommendation to SSA that a new position be established 

in our local field offices. The position which we have called the 

Technical Expert for Disability, capitalizes on the success of the 3-

year-long Disability Claims Manager program. That pilot demonstrated that field office personnel, given the same medical determination training as DDS medical examiners, can have a positive 

impact on the initial disability claims process. The new position 

would expand and strengthen the role and performance of the field 

office in the front end of the disability process. 

109

Technical Experts for Disability would be responsible for the intake of applications for disability benefits under both titles. They 

would be responsible for developing both the medical and non-medical aspects of certain claims. They would be responsible for making the non-medical and making or recommending the medical decisions in predetermined types of cases in agreement with individual DDSs, for example, terminal cases and presumptive disability cases. They would be responsible for reviewing and taking 

where indicated the first action on disability claims being forwarded to the DDS for development and medical decision. This 

would ensure that the product sent to DDS for medical determination is of high quality and would often include supporting medical 

evidence. And finally, they would be responsible for training and 

mentoring other field office employees involved in the disability 

process. 

The incumbents of this new position would be drawn mainly 

from SSA’s current field office staff of claims representatives and 

technical experts, and within current FTE ceilings. We don’t envision massive numbers. We are convinced that a 1,000 to 1,500 

Technical Experts for Disability in field offices across the country 

could have a dramatic and positive impact on the timeliness and 

quality of the initial disability determination process. We urge the 

Subcommittee to join us in asking SSA to seriously consider this 

proposal. 

Mr. Chairman, Members of the Subcommittee, I am ready to answer any questions you may have. Thank you. 

[The prepared statement of Mr. Pezza follows:]

Statement of Anthony T. Pezza, Manager, Social Security Administration 

District Office, Hackensack, New Jersey, and President, National Council 

of Social Security Management Associations, Inc. 

Chairman Shaw and Members of the Subcommittee, my name is Anthony Pezza, 

and I am here today representing the National Council of Social Security Management Associations (NCSSMA). I am also the manager of the Social Security District 

Office in Hackensack, New Jersey and have worked for the Social Security Administration (SSA) for 40 years. On behalf of our membership, I am both pleased and 

honored that the NCSSMA was selected to testify at this hearing on the problems 

and opportunities facing SSA in its administration of the disability program. 

As you know, Mr. Chairman, the NCSSMA is a membership organization of more 

than 3000 Social Security Administration managers and supervisors who work in 

SSA’s more than 1300 field offices and teleservice centers in local communities 

throughout the nation. It is most often our members with whom your staffs work 

to resolve issues for your constituents relative to Social Security retirement benefits, 

disability benefits, or Supplemental Security Income. Since our organization was 

founded almost 34 years ago, the NCSSMA has been a strong advocate of locally 

delivered services nationwide to meet the variety of needs of beneficiaries, claimants, and the general public. We represent the essence of ‘‘citizen centered’’ government. We consider our top priority to be a strong and stable Social Security Administration that delivers quality service to our clients—your constituents. 

It is significant to note, that the number of people receiving Social Security or 

Supplemental Security Income (SSI) disability benefits is less than 20% of all those 

receiving Social Security or SSI payments. On the other hand, about two-thirds of 

SSA’s administrative budget, around $5 billion this year, will be spent on the work 

generated by the disability program. 

SSA’s field offices must expend a great deal of their efforts on the disability program. Field offices deal directly with disability applicants and recipients. Field offices take disability claims, provide information to claimants and their representatives, initiate continuing disability reviews, and provide the public and third parties 

with information about the disability program. In dealing directly with disability 

claimants and recipients, we hear their stories and see firsthand the impact of their 

110

impairments and our procedures on their lives. We are in a prime position to assess 

the challenges and opportunities presented by the current situation. 

Challenges Facing the Disability Program:

SSA’s disability programs have been under severe stress for a number of years. 

As reported by the Social Security Advisory Board in its January 2001 report entitled ‘‘Charting the Future of Social Security’s Disability Programs: The Need for 

Fundamental Change’’, SSA’s actuaries project that between now and 2010 the 

number of Title II disability beneficiaries will increase by 50% and the number of 

SSI disability recipients by 15%. This tremendous increase in disability claims 

workloads will further strain a system that is already at the breaking point. Disability claims workloads are rising around the country. During one recent week 

some 60,000 initial disability cases were waiting to be assigned to Disability Examiners in the various Disability Determination Services. There were in all probability 

a like number of Continuing Disability Review cases awaiting assignment. This is 

just the ‘‘tip of the iceberg’’. 

The most prevalent criticism field offices hear concerns the amount of time it 

takes to get a decision. Applicants wait an average of almost 4 months from filing 

to receipt of an initial decision. The almost half a million claimants who request a 

hearing before an Administrative Law Judge (ALJ) each year can expect to wait, 

on average, more than a year from the date of the initial filing for a decision. 

Delay in the process may be the most pervasive problem, but it is by no means 

the only problem. Many claimants have no idea of how the process works or how 

decisions are made. They have little understanding of what is required to meet the 

definition of disability under the Social Security program, much less what is needed 

to document their claim. Unfortunately, limited resources have forced a reliance on 

self-help completion of forms and on telephone interviews. Claims Representatives 

rarely have the time to fully review all forms completed by applicants or to fully 

explain how the process works. Additionally, failure to see a claimant face to face 

increases the opportunity for fraudulent activity. It is also extremely important to 

note and understand that many claimants are suffering from mental impairments. 

This makes self-help and electronic service delivery extremely problematic for such 

individuals. 

Other problems facing the disability program have been abundantly documented 

by reports of the Social Security Advisory Board, GAO, and others. There are, for 

example, wide variances in allowance rates and processing times from state to state. 

Court decisions have greatly complicated the disability determinations process and 

have resulted in a disparity between the criteria used to make initial and reconsideration decisions and criteria used at the hearing level. In addition, recent attempts 

to focus efforts on helping disability recipients return to work have not resulted in 

a promising response. The problem is probably rooted in the ‘‘all or nothing’’ statutory definition of disability and the application process that focuses on inabilities 

rather than abilities. These factors tend to discourage a return to work. 

One of the most significant and sad points about the disability problems faced by 

SSA is that we’ve been discussing the same problems and talking about the same 

potential solutions for many years now. This is not a situation that materialized 

overnight. It’s been a long time coming. But it appears that the more it gets discussed and studied, the less gets done to deal with the problem. 

Unfortunately, from the claimant’s perspective, after years of SSA’s efforts to deal 

with its problems in the disability area, nothing has changed.

• There are reasons for this, among which are: 

• The structure of the disability determinations and appeals process 

• The competing interests of the various ‘‘stakeholders’’

• The institutional bias toward the paralysis of analysis 

• The limitations on resources

It is probable that we have now reached the point where all of the dire predictions 

about a ‘‘melt down’’ in the disability process will occur if action is not taken quickly 

and decisively to avert it. The final straw may be the recent emergence of an unanticipated workload in the form of literally hundreds of thousands of cases that have 

come to be termed Special Title II Disability cases. These cases involve situations 

wherein there was a failure to identify SSI recipients who, after becoming eligible 

for Title XVI (SSI) payments, subsequently became insured for Title II benefits. At 

that point an application for Title II benefits should have been solicited and processed. Having identified these cases, SSA is now obligated to secure and process applications. This will involve a very significant and unanticipated expenditure of 

SSA’s frontline field office resources. But additionally, with specific reference to the 

disability issue, it is anticipated that more than half of these cases will require medVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00114 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
111

ical determinations. This will further strain the already strained Disability Determinations Services (DDSs) with what could involve hundreds of thousands of additional medical determinations. 

Potential solutions to the disability crisis can be divided into two broad categories: 

long-term and short-term. The long-term solutions generally require legislation. The 

short-term solutions require executive decision. 

Long-Term Solutions:

The root causes of the disability dilemma were accurately described by the Social 

Security Advisory Board when it reported: ‘‘. . . the structural problems with 

the agency’s disability determinations and appeals process . . . are at the 

heart of many of the agency’s service delivery problems.’’ We believe that it 

is essential to reexamine the nature of the federal-state relationship in the disability 

process. What we have today is a system that produces wide variances in allowance 

rates, staff salaries, hiring and training practices, and quality assurance practices 

among the 54 different agencies making medical decisions. Because SSA’s disability 

programs are national programs, there is an obligation to ensure that all applicants 

receive equal treatment. This does not appear to be the case today. Examination of 

the federal-state relationship may lead to recommended changes, which in all likelihood will require legislation. 

Another long-term solution would be to change the nature of the disability program by changing the current definition of disability and modifying the program to 

provide for short-term as well as long-term disability payments. 

Such a modified program could provide a smoother and faster initial disability determination process. It could also build into the provision for short-term disability 

the work incentive provisions currently available through ‘‘Ticket to Work’’. 

Short-Term Solutions:

While it may be prudent and desirable to pursue the relatively long-term solutions described above, which would generally require legislation, there are actions 

that can be taken now to improve the current process. 

Nine years ago, SSA embarked on an ambitious effort to improve the disability 

process by attempting to redesign the process. A number of pilots and other efforts 

were undertaken. While we haven’t found a ‘‘silver bullet’’ much has been learned, 

and NCSSMA recommends that some of the positive findings from the efforts undertaken over the past nine years can and should be put to work now to help mitigate 

the problems with the current process. Our specific recommendations are as follows:

• Technical Expert for Disability: The three-year-long Disability Claims Manager (DCM) pilot undertaken by SSA was successful in proving the concept 

that one individual could handle both the program and disability determinations aspects of disability claims. Under this initiative, one individual in either an SSA field office or a DDS was given the responsibility for the complete processing, from initial application and interview to a final decision of 

an initial claim for disability benefits. The DCM served as the claimant’s 

point of contact throughout the process. This pilot demonstrated reduced processing times, greater claimant and employee satisfaction, a level of accuracy 

at or above that of the traditional process, and at the peak of the pilot produced more work for the total number of staff hours involved than the traditional process. It is especially significant that claimants expressed high levels 

of satisfaction with the level of service provided under the pilot vis-a-vis the 

traditional process, especially claimants whose claims were denied. While the 

nature of the federal-state relationship presented difficulties preventing a 

general adoption of the DCM process, there were valuable lessons learned 

that can be put to immediate use to improve current service. The pilot established that, within the confines of the current federal-state relationship, the 

role of the field office could be strengthened and enhanced in the front-end 

disability process. Specifically, the NCSSMA has recommended to SSA that 

a new position be created in field offices whose focus would be on the processing of disability claims. This position, which we have termed ‘‘Technical 

Expert for Disability’’ (TED), would be fully trained in the same basic medical 

determination training received by new DDS Disability Examiners (DEs). 

Their responsibilities would include:

• Intake of initial applications for disability benefits under both the Title II and 

Title XVI programs

• Developing both the medical and non-medical aspects of certain claims

• Making the non-medical and making or recommending the medical decisions 

in predetermined types of cases, with individual state agreement

112

• Reviewing and taking, where indicated, the first action on disability claims 

being forwarded to the DDS for development and medical decision

• Training and mentoring other field office employees in the disability process

The TED position could help resolve one of the most pervasive problems in the 

disability process by improving the quality of the initial medical transmittals to DEs 

in the DDSs. Both the timeliness and accuracy of initial disability decisions should 

be improved. The TED could become the pivotal position in the disability process, 

providing the claimant with a single point of contact that can only be effectively accomplished by someone knowledgeable in both the medical and non-medical aspects 

of the disability claims process. Once again, we urge SSA to implement this position.

• E–DIB: SSA has recently embarked on a project to accelerate the conversion 

of the disability process to an electronic environment, eliminating paper files 

and mailings and permitting easier review and transfer of information in the 

disability claims process. We applaud the Commissioner’s decision to move 

this project quickly.

• ‘‘Intelligent’’ front-end system: Field offices need to be provided with an intelligent front-end interview system that will allow the interviewer to obtain all 

relevant medical information. This would include ‘‘drop down’’ menus and an 

interview path with questions based on the specific impairment. This will result in a better front-end product and avoid unnecessary information by making the questions impairment-specific.

• Improving the appeals process: There are a number of changes to the hearings process that would make the process more efficient and reduce the 

length of time it takes to get hearing and appeals council decisions.

—Close the record after the ALJ decision

—Allow Agency representation at ALJ hearings

—Combine OHA and SSA field offices 

The Need for Resources

Quality and service ultimately takes staff. SSA continues to struggle to keep up 

with its burgeoning disability workload. This situation will continue and probably 

worsen as the ‘‘Baby Boomers’’ age and file for disability in growing numbers if 

something is not done. Because of the nature of the disability process and program, 

it is not amenable to an Internet service delivery solution. Many people who file for 

disability are suffering from mental disorders. The complexity of the process makes 

it unlikely that this service population will be able to apply via the Internet. These 

individuals need the option of face-to-face, personalized service. The NCSSMA, in 

a survey released in March 2001, documented the finding that field managers felt 

the need for an additional 5000 employees simply to keep up with current service 

demands. The Special Title II Disability workload has added to this need. We cannot overemphasize the point that disability claimants need face-to-face, person-toperson service. This is the most effective way to ensure that these most vulnerable 

of our citizens, facing crisis situations in their lives, receive the timely and quality 

service they deserve. 

Again, Mr. Chairman, I thank you for this opportunity to appear before this SubSTATEMENT OF JEFFREY H. PRICE, PRESIDENT, NATIONAL 

committee. I would welcome any questions that you and your colleagues may have.

Chairman SHAW. Thank you. Mr. Price? 

f ASSOCIATION OF DISABILITY EXAMINERS, RALEIGH, NORTH 

CAROLINA 

Mr. PRICE. Mr. Chairman, Members of the Subcommittee, the 

Social Security Administration faces critical choices regarding the 

direction the disability claims process should take, and the National Association of Disability Examiners appreciates this opportunity to present our perspective. 

Our written testimony provides greater detail. Our oral testimony concentrates on our proposal for a new claims process that 

we believe will improve service to the claimant at an affordable 

cost. 

113

Because of the extent of the increase in the number of disability 

claims over the next decade, improving the disability process in a 

way that is practical and affordable is critical. The SSA launched 

its most recent effort to redesign the disability process in October 

1999. Spiraling administrative costs made it clear this design did 

not represent the future of the disability process. It was also clear 

that the attempt to reduce the four-tiered appeals step to two was 

not a viable solution. The ALJs were overwhelmed by the number 

of cases appealed. The need for an intermediate appeals step was 

clearly established. After more than a decade of redesigning efforts, 

SSA still does not have an acceptable new disability process to handle the significant increase and the number of claims. It does not 

have a new claims process that will reinforce the need for fair and 

timely decisions while awarding benefits only to the truly disabled. 

The NADE accepted the challenge to develop a concept for a new 

process that would achieve these goals. What we hoped to achieve 

was to direct attention to a process based on what was fair for the 

claimant, and what could SSA afford. The highlights of our proposal include placing greater emphasis on: claimant responsibility, 

expansion of the single-decision maker in the DDS, enhancing the 

current reconsideration to provide a due process hearing, closing 

the record after the reconsideration decision, allowing administrative law judges to make the legal decisions they are trained to do, 

eliminating the appeals council, and establishing a Social Security 

Court. 

Our proposal affords the claimant a right to the hearing regarding their eligibility for benefits, and a review to ensure that the 

medical decision correctly followed the law. Hearings conducted at 

the DDS level would follow the Administrative Procedures Act 

(APA) in the same way that appeals at State workers compensation 

agencies do at the present. Those hearings preserve claimant appeal rights, and have been tested in courts so that we know this 

process is viable. Under the APA claimants are entitled to a hearing to ensure that the government’s decision follow the law. Our 

proposal does not alter this fact, but it does seek to reduce the 

1,153 days that claimants now wait for a decision if they appeal 

their case all the way through the appeals council. 

Our proposal recommends that the record be closed after the 

DDS hearing. Closing the record is critical to establishing consistency and affordability since appeals beyond the DDS are extremely 

expensive. It will also encourage cooperation with claim development efforts. The NADE’s proposal required claimants and their 

representatives to cooperate with all components of the disability 

claims process. This Subcommittee was advised in March 1999 by 

the U.S. General Accounting Office that, ‘‘Frequent delays in disability proceedings are a significant problem and often attributable 

to the actions of some representatives. Decision makers are frustrated by disability program laws that provide numerous opportunities for claimant representatives to submit new evidence in support of their clients’ claims throughout the entire process, but holding SSA primarily responsible for adequately developing the evidentiary record even when a claimant has representation.’’

The NADE believes this Subcommittee and SSA should consider 

holding claimants and their representatives accountable. Other asVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00117 Fmt 6633 Sfmt 6602 E:\HR\OC\A169.XXX A169
114

pects of our proposal call for the elimination of the appeals council 

and the creation of a Social Security Court. Eighty percent of the 

claims now heard before administrative law judges involve representation for the claimant. This process places an unfair burden 

on the administrative law judge who must remain fair and impartial while considering SSA’s defense as if they had presented one. 

In conclusion, NADE believes truly disabled citizens should be 

awarded benefits as early in the process as possible, and those who 

are not disabled should not receive benefits regardless of the process used. Our proposal has the potential for making this happen. 

We believe that it is time to establish a new process that reflects 

pragmatic reality and offers the best service to the claimant at the 

best price to the American taxpayer. Hon. Clay Shaw, Chairman of 

this Subcommittee, in announcing today’s hearing, commented, ‘‘Individuals with disabilities, already burdened by the challenge of 

their illness or injury, are often in desperate need of benefits to replace lost income. They deserve and should receive timely and accurate decisions through a fair and understandable process. Our 

challenge is to examine the disability process, to ensure that it 

meets the needs of individuals with disabilities and their families.’’

The NADE believes our proposal for a new disability process answer the Chairman’s challenge. Thank you. 

[The prepared statement of Mr. Price follows:]

Statement of Jeffrey H. Price, President, National Association of Disability 

Examiners, Raleigh, North Carolina 

The National Association of Disability Examiners (NADE) commends the Subcommittee on Social Security for holding today’s hearing. It is entirely appropriate 

and urgently needed that public and congressional attention be directed to ‘‘ SSA’s 

Disability Determination and Appeals Process.’’ The Social Security Administration 

is bringing to a close this month the last of many experiments aimed at creating 

a new disability claims process. SSA now faces critical choices regarding the direction it must choose to go. NADE considers itself to be an expert on the disability 

claims process and we appreciate the opportunity to present our perspective on this 

topic. 

Who We Are

NADE is a professional association whose mission is to advance the art and 

science of disability evaluation and to promote ongoing professional development for 

our members. The majority of our members work in the State Disability Determination Service (DDS) agencies and are responsible for the adjudication of claims for 

Social Security and Supplemental Security Income disability benefits. Our membership also includes personnel from Social Security’s Central Office and its Field Offices, claimant advocates, physicians, attorneys, and many others. Our diversity, our 

immense program knowledge, and our ‘‘hands on’’ experience, enables NADE to offer 

a perspective on disability related issues that is unique and, more importantly, reflective of a pragmatic realism. 

Current Process

The current disability claims process presents a four tiered approach that is challenging to the majority of claimants seeking help. An initial application is adjudicated by the DDS. If denied, the claimant may request a reconsideration of their 

claim. This is also adjudicated by the state DDS. Subsequent appeals would ask for 

a hearing before an Administrative Law Judge and review by the Appeals Council. 

Further appeals are made in federal court. Initial and reconsideration decisions are 

subject to quality review in the DDS and in SSA’s regional offices. Counting waiting 

times, hand-offs, etc., claimants currently will wait an average of 1153 days, more 

than three years, for a final decision if their claim is appealed through the Appeals 

Council. 

Is this the kind of service we should expect from our government? Do we really 

want to tell people, who believe they are disabled and unable to work, that if they 

can find a way to feed, clothe and house themselves, and their families, without an 

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income, for more than three years, we will then give them a decision? I doubt anyone believes this is the level of service we should be providing. Anyone who does 

should be made to wait three years for their next paycheck. 

What’s Wrong with the Current Process?

The current disability claims process presents many problems. These are the 

same problems that have been studied by the Social Security Administration and 

this Subcommittee for more than a decade. To date, affordable solutions have remained elusive. The complexity of the regulations and rules that govern the disability program and the multi-layer appeal process tends to discourage many claimants from utilizing all of their appeal rights. Consequently, SSA has been trying to 

redesign the disability claims process. For the most part, these efforts have been unsuccessful. The problems that persist are numerous:

• Timeliness of decisions • Increasing administrative costs • Solvency of Social Security disability trust funds • Disparity in DDS and ALJ allowance rates • Concerns regarding public confidence • Poor customer service throughout the claims process • Inadequate training of staff

Clearly, there is a need for the agency to move forward with implementing a new 

disability process that is practical and affordable. Because of the expected increase 

in the number of Social Security and Supplemental Security Income disability 

claims over the next decade, improving the disability process is critical to the agency’s mission. SSA will also have to discover a way to incorporate into its assessment 

of eligibility for disability benefits a determination of what is actually needed to return the claimant to work. SSA will need to develop more aggressive and more comprehensive return-to-work strategies that focus on identifying and enhancing the 

work capacities of claimants and beneficiaries. 

Redesign

SSA’s most ambitious efforts to redesign the disability claims process were introduced in 1994. In the ensuing years, SSA tested many ideas, including the Full 

Process Model (FPM), the Disability Claims Manager (DCM), and others that, after 

lengthy testing, proved to be inadequate to meet the demands for service and affordability. NADE raised practical concerns about the feasibility of many of these proposals but we supported testing to establish whether or not the ideas would work. 

Our emphatic condemnation of the Full Process Model and concerns over the administrative costs of Prototype did cause SSA to step back from its plans to roll these 

designs out nationally. 

SSA launched its most recent effort to redesign the disability claims process in 

October, 1999. In so doing, the Agency ignored warnings from NADE, from the General Accounting Office, and from others, that this test was too large and committed 

too much of the Agency’s resources. 

As the Prototype experiment was gradually refined in recognition of its spiraling 

administrative costs, it became clear that SSA had misjudged its data and that prototype did not represent the future of the disability process. It was clear that the 

attempt to reduce the four tiered appeal step to two was not a viable approach. Administrative Law Judges were not prepared for the tremendously heavy caseload 

that resulted from so many claimants choosing to appeal initial denials. Without an 

intermediate appeal step, Administrative Law Judges, already faced with a backlog 

of cases, were quickly overwhelmed. The Prototype experiment clearly established 

the need for an intermediate appeal step between the initial decision and the hearing before the Administrative Law Judge. 

Prototype also produced one idea that did show promise for the future—the concept of a Single Decision-Maker (SDM). By eliminating the need for medical consultants to ‘‘sign off’’ on every case and allowing qualified disability examiners to make 

decisions on cases they felt comfortable deciding, the SDM became the one positive 

result of Prototype. It was successful in increasing employee satisfaction for the disability examiner and the medical consultant and, more importantly, there was no 

decline in the quality of the decision. 

NADE Proposal For A New Disability Claims Process

After more than a decade of redesign efforts, SSA still does not have an acceptable 

new disability claims process that will enable the Agency to handle the expected significant increase in the number of claims it will receive in the next decade. It does 

not have in place a new process that will enforce the need for fair and timely decisions, coupled with the need to maintain public confidence that only the truly disVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00119 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
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abled are awarded benefits. NADE accepted the challenge to develop a concept for 

a new disability process that would achieve these goals. A copy of our proposal, published over three months ago, is attached to our statement today. What we desired 

to achieve with this proposal was to direct attention on a concept for a claims process based on two ideas:

• What is fair for the claimant? 

• What can SSA afford?

Our experience and expertise, as the only professional association with the membership base that enables it to view the entire disability process, was critical to our 

ability to develop this concept for a process that, not only would improve the service 

provided to the claimant, but would also be affordable. The major highlights of our 

proposal include:

• Placing greater emphasis on claimant responsibility 

• Expansion of the Single Decision-Maker in the DDS 

• Enhancing the current reconsideration to provide a due process hearing for 

the claimant 

• Closing the record after the reconsideration decision 

• Allowing Administrative Law Judges to make the legal decisions that they 

are trained to do 

• Eliminating the Appeals Council 

• Establishing a Social Security Court to hear appeals of ALJ decisions.

We firmly believe that the decision as to whether a claimant is disabled is a medical decision and should be made by those who are especially trained to make such 

decisions. Judging the impact that a heart attack or stroke has on a person’s ability 

to function in a work setting is a medical decision and is best made by those who 

have been trained to do so. 

Reviewing disability determinations to determine if the law was correctly applied 

is a legal decision and is best left to those who are especially trained to make those 

decisions. American jurisprudence would not accept a legal decision made by a lay 

person untrained in the law. Likewise, America’s disability programs should not 

have to accept medical decisions made by individuals who are not trained to do so. 

NADE’s proposal affords the claimant the right to a medical hearing regarding 

their eligibility for disability benefits and a legal review to ensure that the medical 

decision correctly followed the law. We can hardly see where the argument that the 

claimant would lose appeal rights has any merit. 

There have been arguments presented that hearings conducted at the DDS level 

would violate the Administrative Procedures Act and would restrict the claimant’s 

right of appeal. This is clearly not true. The APA guarantees the claimant is entitled to a hearing to ensure that the Federal Government agency’s decision was made 

in accordance with the law. This concept is reinforced in the NADE proposal. We 

fail see how it can be advocated that the right to a medical hearing much earlier 

in the process would restrict the claimant’s appeal rights. 

NADE’s proposal asserts that the record should be closed after the DDS hearing. 

The Association of Administrative Law Judges has also supported closing the record 

after the claimant has received a hearing. Because each appeal beyond the DDS is 

extremely expensive and each new appeal level is looking at a new case, the decisions made on appeal cannot be used to reflect on the decision rendered by DDS 

adjudicators. There may be an incentive to not cooperate with the DDS. This is why 

we have proposed closing the record after the reconsideration level. It will add consistency and affordability to the program. 

The proposal to close the record simply seeks to incorporate within the disability 

program a practice common to the American judicial system and most state workers 

compensation systems. Appeals are made on issues of law and not on a new case. 

In NADE’s proposal, if claimants believe that new and material evidence does arise 

after the DDS hearing, this evidence can be reviewed in the DDS and, if necessary, 

the claim folder can be recalled and the file reopened. If the claim is not reopened, 

the claimant has the option of submitting a new application for disability and including this evidence. This process still provides claimants with faster processing 

times than currently. 

NADE believes that a new disability process should place greater emphasis on the 

expectation that claimants, and their authorized representatives, must assume 

greater responsibility for cooperating with all components of the disability claims 

process. This Subcommittee was advised in March, 1999 by the U.S. General Accounting Office that, ‘‘frequent delays in disability proceedings are a significant 

problem and often attributable to the actions of some disability representatives.’’ 

The GAO also reported it had found that disability decision-makers were frustrated 

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by, ‘‘* * * disability program laws that provide numerous opportunities for representatives to submit new evidence in support of their client’s claim throughout the 

entire process and hold SSA primarily responsible for adequately developing the evidentiary record, even when a claimant has representation.’’

There is a growing problem in Continuing Disability Reviews where claimants 

refuse to cooperate with requests for information and to attend consultative examinations. This lack of cooperation is often encouraged by representatives and we are 

beginning to see the same lack of cooperation in initial and reconsideration claims, 

particularly when there is legal representation involved. 

Claimants and their representatives should be required to cooperate fully with the 

decision-makers at each level in the disability process. Consideration should be 

given by SSA and the Subcommittee to holding claimants and their representatives 

accountable for their actions in failing to cooperate. 

Other aspects of NADE’s proposal call for the elimination of the Appeals Council 

and the creation of a Social Security Court. The Appeals Council is an unnecessary 

appeal step. The complexity of disability claims should require that a specialized 

court, similar to federal bankruptcy and military courts, be created to hear these 

appeals. 

The DDS hearing decision should be defended in subsequent appeals by an individual who can present the merits of the decision. Many will, of course, advocate 

that this scenario will create an adversarial relationship between the claimant and 

the Social Security Administration at subsequent appeals. We do not believe this 

will be the case. Eighty percent (80%) of claims now heard before Administrative 

Law Judges involve legal representation for the claimant. There is no representation 

of the government’s decision. Administrative Law Judges can be charged with bias 

if they are perceived as defending the decision while questioning the claimant. This 

process is unfair. The Social Security Advisory Board suggested in their September, 

2001 report that the government should be represented at the hearing level. We 

concur with this opinion. 

The Electronic Disability Claims Folder

The Commissioner of Social Security recently announced her intent to have an 

electronic disability claims folder fully operational in the field offices and DDSs by 

January 1, 2004. We believe this is an ambitious goal for an Agency that has struggled for the past ten years to develop an electronic folder. However, NADE is encouraged by the Commissioner’s commitment to advancing this goal and we support 

this effort. We caution the Subcommittee, however, that the expected costs will be 

significant and funding must either be taken from other components within the disability program that are already experiencing financial strain, or be provided as new 

money. It would be unfair to expect the level of service that has been provided to 

be maintained if needed funds are diverted to other projects. We should also not forget that performance and training issues that would arise from this new way of 

doing business have not been addressed. This will require learning and using new 

tools and this usually has a negative impact on production, as it has for the past 

several years in Wisconsin where the DDS in that state has been working on a 

paperless folder pilot for five years. 

Training and Resources

The NADE proposal should be tested to determine whether it can work and provide better service delivery to the claimant than the current process. Its success, 

however, will be contingent on the proper funding and training being made available to each component in the process. 

The need for adequate training has never been more critical. Advances in technology make it likely that knowledge in the world will double every two months by 

the year 2010. Seventy-five percent (75%) of the technology we will use in 2010 has 

yet to be invented. It is critical that all components within the disability program 

be provided with the training that will enable them to discharge their responsibilities in the best interests of the claimants who come to us for help and the taxpayers who pay for the service delivery. 

Conclusion

NADE believes that truly disabled citizens should be awarded benefits and that 

those who are not disabled should not receive benefits, regardless of the claims process used. NADE supports the goal of allowing disability claimants who should be 

allowed as early in the process as possible. Our proposal has the potential of making 

this happen in an affordable and expeditious manner. 

In its September, 2000 report, the Social Security Advisory Board reported that, 

‘‘. . . in recent decades, disability policy has come to resemble a mosaic, pieced together in response to court decisions and other external pressures, rather than the 

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result of a well-thought out concept of how the programs should be operating . . . 

Policy and administrative capacity are dramatically out of alignment in the sense 

that new and binding rules of adjudication frequently cannot be implemented in a 

reasonable manner, particularly in view of the resources that are currently available.’’ NADE concurs with this observation. We believe our proposal for a new disability claims process achieves the goal of providing a well thought out concept that 

describes how the disability program should operate. It is time to move forward with 

a new disability claims process that reflects pragmatic reality and offers the best 

service to the claimant at the best price to the American taxpayer. It is equally important that the Commissioner be given the support necessary to make the appropriate changes that will recommit the Agency to its primary purposes of stewardship and service. 

The disability program presently requires about two-thirds of SSA’s operating 

budget ($8 billion in FY 2002–2003). To continue to allow the disability program to 

operate as described in the report from the Social Security Advisory Board would 

be a violation of the public’s trust and the mission of SSA—‘‘To promote the economic security of the nation’s people through compassionate and vigilant 

leadership in shaping and managing America’s social security programs.’’

At her confirmation hearing last year, the new Commissioner of Social Security 

asserted, ‘‘I do not seek to manage the status quo.’’ NADE agrees that managing the 

status quo is no longer a viable option. While we do not support change for the sake 

of change, we recognize that the status quo has ceased to provide the level of service 

those who seek our help have a right to expect. The question we must all seek to 

answer is, ‘‘How will we respond to the need to improve service delivery while recognizing that financial resources have constraints?’’

No other agency has a greater impact on the quality of life in this nation and the 

American public will judge the ability of their government to meet their needs by 

the quality of service provided by SSA. In announcing today’s hearing, the Honorable Clay Shaw, Chairman of this Subcommittee, commented: ‘‘Individuals with disabilities, already burdened by the challenges of their illness or injury, are often in 

desperate need of benefits to replace lost income. They deserve, and should receive, 

timely and accurate decisions through a fair and understandable process. Our challenge is to thoughtfully and carefully examine the disability determination and appeals process to ensure it meets the needs of individuals with disabilities and their 

families.’’ NADE believes the proposal we have submitted for a new disability claims 

process addresses the Chairman’s challenge. 

NADE Proposal for New Disability Claims Process

February 26, 2002

1. Intake of new disability claims at the Social Security Field Office would not 

be significantly altered from the current practice with the following exceptions:

a. Greater emphasis would be placed on the inclusion of detailed observations 

from the claims representative. 

b. The claimant would be provided with a clear explanation of the definition of 

disability by the claims representative. The definition would also appear on 

the signed application. 

c. SSA’s web site should clearly indicate that this is a complex process that 

would be better served if the claimant filed the application in person at the 

Field Office. 

d. Quality review of the Field Office product would be added to demonstrate 

SSA’s commitment to build quality into the finished product from the very 

beginning of the claims process. 

e. SSA’s outreach activities would combine education with public relations. The 

Agency’s PR campaign would remind potential claimants of the definition of 

disability with the same degree of enthusiasm as the Agency’s efforts to encourage the filing of claims. 

f. Greater emphasis would be placed on claimant responsibility.

2. DDS receipts the new claim and assigns the claim to a disability examiner. The 

Disability Examiners initiates contact with the claimant to:

a. The Disability Examiner will verify alleged impairments, medical sources 

and other information contained on the SSA–3368. 

b. The Disability Examiner will provide a clear explanation of the process and 

determine if additional information will be needed. 

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c. The Disability Examiner will inform the claimant of any need to complete additional forms, such as Activities of Daily Living questionnaires.

3. Expand the Single Decision Maker (SDM) concept to:

a. Include more claim types 

b. Allow more disability examiners to become SDMs 

c. Standardize national training program for all components of the disability 

process 

d. Establish uniform criteria for becoming SDMs 

e. Standardize performance expectations for all components of the disability 

process

4. If the initial claim is denied by the DDS, the denial decision will include an 

appeal request with the denial notice that the claimant may complete and return to the DDS.

a. The requirement for a clear written explanation of the initial denial will remain a major part of the adjudicative process. 

b. Process Unification rulings should be reexamined and, if necessary, modified 

to clarify how the initial disability examiners should address credibility and 

other issues. 

c. Claimant responsibility will be increased in the new process

5. The denied claim will be housed in the DDS for the duration of the period of 

time the claimant has to file an appeal. During this period of time, claims 

could be electronically imaged (with adequate resources—this would further 

the electronic file concept).

6. The appeal of the initial denial will be presented to the DDS. Upon receipt of 

the request for an appeal, the claim will be assigned to a new disability examiner. Under this proposal:

a. This appeal step would include sufficient personal contact to satisfy the need 

for due process. 

b. The appeal decision, if denied, would include a Medical Consultant’s signature. 

c. The decision would include findings of fact. 

d. There would be a provision to include an automatic remand to DDS on appeals for denials based on failure to cooperate.

7. The record should be closed at the conclusion of this appeal (including allowing 

sufficient time for explanatory process before the record closes).

8. Appeal to the Administrative Law Judge must be restricted to questions of law 

rather than de novo review of the claim.

a. The DDS decision needs to have a representative included in the hearing to 

defend the decision. 

b. There must be an opportunity to remand to DDS but such remand procedures must be carefully monitored to prevent abuse and remands should only 

occur for the purpose of correcting obvious errors.

8. There needs to be a Social Security Court to serve as the appeal from OHA 

decisions.

a. The Social Security Court will serve as the final level of appeal. 

b. The Social Security Court will provide quality review of ALJ decision. 

c. The Appeals Council would be eliminated, limiting the total number of appeal steps within SSA to three. Appeals beyond the ALJ level would be presented to the Social Security Court. 

d. The Social Security Court would be restricted to rendering only a legal decision based on the application of the law.

Explanation of New Disability Claims Process Proposed by NADE

NADE considered various alternatives to the current disability claims process before deciding on this process as representing the hope for a claims process that truly 

provided good customer service while protecting the trust funds against abuse. It 

was our intent to develop a vision for what the total program should look like and 

not just the DDS piece of the puzzle. We believe in the concept of ‘‘One SSA’’ and 

our proposal is submitted based on the belief that all components within the disability program should be united in the commitment to providing good customer 

service at an affordable price. Quality claimant service and lowered administrative 

costs should dictate the structure of the new disability program. 

The critical elements identified in the NADE proposal are:

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• The expansion of the Single Decision Maker concept to all DDSs and expanding the class of claims for which the SDM is able to provide the decision without medical or psychological consultant input. Continuing Disability Review 

cases (CDR’s) and some childhood and mental cases can easily be processed 

by SDMs. 

• More early contact with the claimant by the DDS to explain the process and 

to make the process more customer friendly. The Disability Examiner is able 

to obtain all necessary information while clarifying allegations, work history, 

and treatment sources. The claimant is educated about the process so they 

know what to expect. 

• Housing the initial claim folder on denied claims in the DDS pending receipt 

of an appeal of that denial. This will effectively eliminate significant shipping 

costs incurred in transporting claims from the DDS to the Field Office and 

then back to the DDS. Costs of storage in the DDSs would be significantly 

less than the postal fees incurred by SSA in the current process. Housing the 

claims at the DDS instead of the Field Offices could save as much as $20 per 

claim in shipping costs. It will also reduce processing time by eliminating a 

hand-off. 

• Closing the record after the appeal decision is rendered. NADE believes that 

closing the record prior to any subsequent ALJ hearing is critical to generating consistency, providing good customer service, restoring public confidence 

and reducing the costs of the disability program. Without it, there will continue to be two programs, one primarily medical and one primarily legal, with 

two completely different outcomes. We are unclear as to the degree of personal contact that would be required to satisfy the due process requirement 

at this appeal level and would defer to SSA the decision as to how much contact is needed and how the requirement could be met. Is a face-to-face hearing necessary or can a phone interview suffice? Even the former, conducted 

in the DDS, would be substantially less costly than the current hearing before 

the ALJ. The DDS hearing would allow the claimant to receive a much more 

timely hearing than the current process allows. NADE also believes that the 

role of attorneys and other claimant representatives would be significantly diminished as the opportunity for reversal of the DDS decision would be lowered substantially. The DDS hearing would be an informal hearing, lessening 

the impact attorneys have at this level. 

• NADE believes that the current 60 day period granted to claimants to file an 

appeal should be reexamined in light of modern communication and greater 

ability of claimants to file appeals more quickly. Reducing the time allowed 

to file an appeal would produce cost savings to the program and aid the 

claimant in obtaining a final decision much more quickly.

The additional costs incurred by the DDSs in this new process would be paid for 

from monies reallocated from OHA and from the cost savings created by less folder 

movement between the DDSs and the Field Offices. Political decisions will have to 

be made to reallocate these funds and these decisions will not be popular. Because 

of turf guarding by the various components within SSA and a general unwillingness 

to accept change, NADE believes that the victim in past efforts to develop a comprehensive disability claims process has been the claimant. The question must be 

asked, ‘‘Who do we serve, ourselves or the claimant?’’

NADE envisions a claims process that would reinforce the medical decision made 

by the DDS and limit the OHA legal decision to addressing only points of law. 

NADE believes this proposal would produce a high level of consistency for the disability decisions rendered by the DDSs while significantly reducing the opportunities for OHA to reverse DDS decisions. This would help restore public confidence 

in the system, provide good service to the claimant and reflect good stewardship 

since the entire process should prove to be less costly than prototype or the traditional process. The decision as to whether a claimant is disabled would rightfully 

remain primarily a medically based decision. Claimants who appeal the DDS decision to an ALJ would be entitled to hire legal counsel if they wish. Likewise, SSA 

would employ a legal representative to define the legal merits of the DDS decision. 

Each side would present legal briefs in support of their position, rather than appearing in person, and the ALJ would make the decision based on review of the claim 

file and the legal briefs. If necessary, the ALJ could be permitted to request that 

both sides appear in person but this should be only for rare circumstances. Unless 

the law was incorrectly applied, the DDS decision would be affirmed. Any appeal 

of the ALJ decision would be made to the Social Security Court and either side 

could appeal. 

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The proposal is predicated on the assumption that sufficient staffing and resources would be made available to the DDSs. It is also predicated on the need for 

SSA to clearly define the elements that will satisfy the process unification initiatives. It is critical that SSA should provide clarification of what steps must be followed and provide the funds necessary. To minimize the need for additional resources, we believe the process unification rulings should be modified in accordance 

with the recommendations that have been proposed by various workgroups. Failure 

to adhere to this recommendation could result in the likelihood of additional lawsuits throughout the country that will make it mandatory for DDSs to adhere to 

regulations for which they are not funded. Such a situation would have serious consequences for the ability of the DDSs to provide good customer service and also meet 

the requirements established by the courts.

STATEMENT OF LINDA DORN, VICE PRESIDENT, NATIONAL 

Chairman SHAW. Thank you. Ms. Dorn? 

f COUNCIL OF DISABILITY DETERMINATIONS DIRECTORS, 

LANSING, MICHIGAN 

Ms. DORN. Mr. Chairman, thank you for your invitation to participate in this hearing on the challenges and opportunities facing 

the Social Security Disability process. Our organization agrees with 

your statement that improvement in the disability determination 

function is among the primary challenges facing the Commissioner. 

The National Council of Disability Determination Directors 

(NCDDD) reaffirms all its previous commitments to participate in 

finding and implementing responsible solutions with accountability 

by all stakeholders. 

The NCDDD is a professional association of directors and managers of agencies of the State government, performing the disability 

determination function on behalf of the Social Security Administration. The NCDDD’s goals focus on finding ways to establish, maintain and improve fair, accurate, timely and economical decisions to 

persons applying for disability benefits. 

Congress created the Federal/State relationship in response to 

the need for professional experts working effectively and efficiently 

with other community based services. It is through the State initiatives, work with the medical community, cost effectiveness in personnel usage, and working with individual State infrastructures to 

provide referrals to State agencies that serve the disability program and the American public well. This relationship should continue to be nurtured and supported to allow for alignment with 

other community-based services. The Federal/State relationship, 

while not perfect, is at its best when integrated with the administration’s mandate of empowering States to act on behalf of and empowering our most vulnerable citizens. 

We appreciate the recommendations of the bipartisan Social Security Advisory Board as stated in their January 2001 report in regard to strengthening the Federal/State relationship. Our recommendations today focus on six key issues in need of attention: 

adequate resources, clear concise policy, a quality culture promoting consistency, integrated technology systems, support for the 

interim decisions are post prototype, and consistency between the 

DDSs and OHA. 

First in regard to resources. The complex task of applying the 

statutory definition of disability requires extensive development of 

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nation of conclusions. The process is therefore costly. Determining 

eligibility for disability benefits requires staff trained in making 

complex medical, psychological, vocational judgements. It is not 

done in any lab situation or a vacuum, but rather in the real world 

of mounting pressures. The DDS has continued to be the component performing the mission of Social Security disability programs 

productively, responsively, timely, consistently and cost effectively. 

Federal components have referred to the State agencies in the DDS 

as the best deal in government services. A clear relationship exists 

between the level of service we are able to provide and the resources available to provide that service. The recent history of 

downsizing, the attempts to implement multiple costly projects, pilots, prototypes, and the creation of new policies that are expensive 

to administer and other unfunded mandates have contributed to 

the current situation in which the program and the resources available to carry it out are seriously out of alignment. The task to resource deficit has resulted in an alarming situation about which we 

want to be very clear. 

Presently our program has well over 125,000 disability cases nationally pending than we are able to process. These claims and disability application are awaiting assignment to caseworkers because 

the caseloads are at maximum capacity for the resources available. 

Worse, SSA has predicted that the current resource allocation, that 

this number will continue to grow. The NCDDD feels that this 

quality of service delivery is unacceptable and amounts to a failure 

to provide the level of service that the public deserves. 

Second, improving policy and training as recommended in the 

Advisory Board report, the most important step SSA can take is to 

improve the process to develop ongoing joint training for all adjudicators in all components. The Board also noted that such training 

presumes the existence of a clear policy base, which is clear, concise and applicable in the real world setting. The NCDDD indicates 

much more remains to be done in the policy arena. Quality assurance, along with clear, concise policy, NCDDD recommends that 

SSA assign a high priority to revising the quality assurance system 

so as to achieve the goal of unifying the application of policy. The 

NCDDD endorses many aspects of the Lewin Report. We commend 

SSA and the Commissioner for their recent steps to appoint an executive lead to this important focus on quality. The NCDDD has 

a group ready, identified, to step forward and work with the Commissioner on this effort. 

System support, the development and enhancement of effective 

performing electronic systems is critical to delivering a high level 

of service. Historically, the DDSs have an excellent track record of 

having worked together to develop system capabilities to support 

their business processes. The NCDDD wants to express our support 

for accelerated electronic technology initiatives. We recommend further and future development be accomplished with a greater reliance on DDS systems experts and personnel. By working together, 

the DDS systems experts and private sector and SSA will achieve 

the bold timeline announced by the Commissioner. 

Our support for Post-Prototype and strengthening reconsiderations, we applaud the Commissioner’s expeditious actions on prototype, ending years of testing and pilots. We want to acknowledge 

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the decisions are the beginning steps of the process improvements. 

We want the second level of a possible review at the DDS level 

need not be an extra step, but could be such that would provide 

a better product than those that do go on to the next step in the 

appeals. We see as the most important task consistency and bringing together reasonable, consistent decision making to the process 

and the outcomes between the DDS and the Office of Hearings and 

Appeals. 

The DDS process initial and reconsideration level, in an average of about 70 days at a cost about $300 per case, according to data. 

According to SSA quality reviews we have a decisional accuracy of 

about 97 percent. Eighty percent of all allowances of those who receive disability benefits are allowed through decision made at the 

DDS. The NCDDD agrees that disability claims meeting the definition of disability should be allowed at the earliest step in the process. 

In conclusion, there is not one single fix. There are challenges to 

the disabled citizens, the program, the policy, the quality assurance, the employees that make an effort to implement the policy, 

our Agency, as well as the taxpayer challenges, are in need of our 

collective attention. The NCDDD restates its desire to continue to 

work together with you during the continued evolution and improvement of the disability program. Thank you. 

[The prepared statement of Ms. Dorn follows:]

Statement of Linda Dorn, Vice President National Council of Disability 

Determinations Directors, Lansing, Michigan 

Mr. Chairman, thank you for your invitation to participate in this hearing on the 

challenges and opportunities facing the Social Security Disability process at the initial, reconsideration and continuing disability levels at the State Divisions of Disability Determination Services (DDS). Our organization agrees with your statement 

that improvement in the disability determination function is among the primary 

challenges facing the new Commissioner. The National Council of Disability Determination Directors (NCDDD) reaffirms all its previous commitments to participate 

in finding and implementing responsible solutions with accountability by all stakeholders. 

Before commenting on specific issues on the topic of today’s hearing, we would 

like to restate the purpose of our organization, explain the reasons for the federal 

state partnership, and describe our commitment to the identification of barriers to 

service improvements and to the search for solutions to the challenges facing the 

disability programs at the DDS adjudication levels. 

The NCDDD is a professional association of directors and managers of the agencies of state government performing the disability determination function on behalf 

of Social Security. NCDDD’s goals focus on finding ways to establish, maintain, and 

improve fair, accurate, timely, and economical decisions to persons applying for disability benefits. 

Congress created the federal state relationship in response to the need for experts 

at the grass roots level working effectively and efficiently with other communitybased services. The intention was that the DDS be the human face in government 

services to our disabled population. This still proves to be the case in most instances. State initiatives; cost effectiveness in personnel usage, and working within 

the individual state infrastructures to provide referrals to related state agencies 

have served the disability program and the American public well. This relationship 

should continue to be nurtured and supported to allow for alignment with other 

community-based one-stop services. In reality, the federal state partnership, while 

not perfect, is at its best when integrated with the Administration’s mandate of empowering the states to act on behalf of and empowering our most vulnerable citizens. 

The SSA/DDS partnership is held to a high standard by close contact with individual state governors, U.S. Congressional delegations and the American public. 

Serving the public requires close, collaborative teamwork. We appreciate the recVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00127 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
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ommendations of the bipartisan Social Security Advisory Board (SSAB) as stated in 

their report of January 2001 and generally concur with their findings, particularly 

in regard to strengthening the federal state relationship in the short run. 

The definition of disability has remained essentially unchanged in the past 30 

years. It was always meant to be a more stringent standard compared to many 

other programs. Recent attention has been focused on allowance rates and other 

issues when, in fact, the program was never designed to allow every individual with 

any disability. Contrary to some statements contending the disability programs have 

not changed over the past years, the program has indeed experienced multiple 

changes in leadership, focus and direction. For example, mental, childhood, pain, 

treating source opinion, and credibility issues have engendered many changes which 

in turn impacted our ability to provide thoughtful, consistent, timely adjudication 

of Social Security disability cases. 

Our recommendations today focus on key issues on which the Commissioner must 

take prompt and decisive action in order to improve public service for the programs 

that we jointly administer with SSA.

1. Adequate resources 

2. Clear, concise policy 

3. A quality culture promoting consistency and integrity 

4. Up to date, integrated systems support 

5. Support for the interim suggestions ‘‘Post-Prototype strengthened reconsideration’’

6. Consistency between DDSs and OHA 

1. Resources

The complex task of applying the statutory definition of disability requires extensive development of medical evidence, expert analysis of the evidence, and careful 

explanation of the conclusions. The process is therefore costly. Because determining 

eligibility for disability benefits are far more than a medical clerical function, the 

process requires staff trained in making complicated medical, psychological and vocational judgments. This is not done in a ‘‘lab’’ situation or vacuum but rather in 

the real world of mounting pressures. The DDSs continue to be the component performing the mission of the Social Security disability programs productively, responsibly, timely, consistently, and cost effectively. In fact, various SSA components have 

referred to the state agencies as being the ‘‘best deal’’ in government service. 

A clear relationship exists between the level of service we are able to provide and 

the resources available to provide that service. The recent history of downsizing, the 

attempts to implement multiple costly projects, pilots and prototypes, the creation 

of new policies that are expensive to administer, and other unfunded mandates have 

contributed to the current situation in which the program and the resources available to carry it out are seriously out of alignment. 

The task-to-resource deficit has resulted in an alarming situation about which we 

want to be very clear. Presently our program has well over 125,000 cases pending 

than we are unable to process. These disability applications are awaiting assignment to caseworkers because all the caseloads are at maximum capacity for the resources available. Worse, SSA has predicted that, with the current resource allocation, this number will continue to grow. 

NCDDD feels that this quality of service delivery is unacceptable and amounts 

to a failure to provide the level of service that the public deserves. 

2. Improving Policy and Training to Produce More Consistent and Accurate Decision Making.

As recommended by the Advisory Board in its report of August of 1998, ‘‘the most 

important step SSA can take to improve the process is to develop on-going joint 

training for all adjudicators in all the components that make and review disability 

determinations’’. The Board also noted that such a training program presumes the 

existence of a policy base, which is clear, concise, and applicable in a real world setting. 

Presently, SSA policy for evaluating disability claims is fragmented, complex, conflicting, confusing, and sometimes obsolete. This compromises the ability of the 

DDSs to adjudicate cases consistently and accurately and is part of the reason that 

more than 60% of the applicants who appeal denial of benefits at the initial level 

receive those benefits after appeal. 

While SSA should be commended for its recent efforts to introduce a greater degree of consistency into the process, much more remains to be done. 

125

3. Quality Assurance

Along with clear, concise policy and guidelines, NCDDD recommends that SSA assign a high priority to revising its quality assurance system so as to achieve the 

goal of unifying the application of policy among all components. The present QA system is out of date, applies differently to the various components, and induces inconsistency of decision-making. 

SSA presently is in possession of an independent consultant’s report concerning 

changes in the QA system. NCDDD endorses many aspects of the Lewin report and 

recommends that it receive expedited attention by top management at SSA. We 

commend SSA for their recent steps to appoint an executive lead to this important 

focus on quality. 

NCDDD is committed to work with SSA to help create a new quality culture and 

a new quality process. 

4. Systems Support

The development and enhancement of effectively performing electronic systems is 

critical to delivering high quality service at a reasonable cost. Historically, DDSs 

have an excellent track record of having worked together to develop systems capabilities to support their business processes. In the last several years, SSA has embarked on various initiatives to develop, at the centralized level, alternative systems 

that would replace the equipment and software used in the DDSs. These initiatives 

have been extremely costly and have not produced advantages commensurate with 

their costs. While the available resources were diverted to the unsuccessful development of SSA systems, enhancement of the DDS systems has been curtailed due to 

lack of funding. 

NCDDD wants to express our support for accelerated electronic disability technology initiatives. 

NCDDD recommends that future development and enhancement of electronic systems be accomplished with greater reliance on the DDS systems experts and personnel. 

We believe it is reasonable to consider system software development be a task for 

which the knowledge, skills and ability of the private sector should be better utilized. Only by working together with the DDS systems experts and private sector 

will SSA achieve the bold timeline announced by the Commissioner. 

5. Support for the interim suggestions ‘‘Post-Prototype’’ and strengthened 

Reconsideration.

We applaud the Commissioner’s expeditious actions on prototype issues ending 

years of testing and pilots. We want to acknowledge the decisions are the beginning 

steps of process improvements. Further the Social Security Advisory Board (SSAB) 

reported in January 2001 any plans to eliminate the reconsideration should be reviewed carefully. The rationale was that recon had become a meaningless step that 

only delayed the correct decision. But a second level of review at the DDS level need 

not be meaningless. Claimants could be provided the opportunity for a face-to-face 

de novo hearing conducted by highly trained and experienced DDS reviewers. This 

should enhance the reliability and accuracy of DDS decisions and reduce the need 

for claimants to go through the complex and lengthy ALJ hearing process. 

NCDDD’s position is an alignment of the SSAB’s recommendation. 

6. Consistency

We are concerned that by attempting to move on so many fronts simultaneously, 

SSA will sacrifice progress toward solving what we see as its most important task—

bringing reasonable consistency to the decision making processes and outcomes between the state DDSs and the SSA Office of Hearings and Appeals (OHA). 

We believe that variance in decision making between the two levels is a serious 

problem in the disability program. Without asserting which component is ‘‘right’’, 

the facts are as follows: DDSs process initial and reconsideration level decisions on 

average in about 70 days at a cost of about $300 per case. According to SSA quality 

reviews, DDS claims have a decisional accuracy of about 97%. Additionally, we believe that it is critically important to remember that eighty percent (80%) of all the 

individuals who receive disability benefits are allowed through a decision made by 

the DDS. 

NCDDD agree that cases meeting the definition of disability should be allowed 

at the earliest step in the process. 

There has historically been an absence of uniformity and stated clear policy instructions for adjudicators at the two levels. There has been no established ongoing 

common training for personnel. 

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Separate and opposite quality assurance and case review systems tend to drive 

the two components apart rather than to bring them together. 

Mr. Chairman and members of the committee, thank you again for the opportunity to provide these comments on the challenges and opportunities facing the disability program. NCDDD restates its desire to continue to work together with SSA 

during the continued evolution and improvement of the program. We appreciate this 

committee’s initiative in addressing and resolving barriers to improved service delivery.

Chairman SHAW. Thank you. Dr. Stapleton? 

STATEMENT OF DAVID C. STAPLETON, PH.D., DIRECTOR, 

f CORNELL CENTER FOR POLICY RESEARCH 

Dr. STAPLETON. Mr. Chairman, Members of the Subcommittee, 

thank you for inviting me today. 

Since 1993 the bulk of my professional career has been devoted 

to work on projects concerning SSA’s Disability programs. My 

knowledge of the disability determination process comes from assistance that I provided to SSA in three evaluations of its efforts 

to improve the determination process, plus work on another project 

to review the quality assurance process. Martin Gerry referred to 

the report we produced today, which I have here in my hand, in 

his testimony. I am pleased that the Commissioner has followed 

our first recommendation in that report to appoint a quality work 

group at a very high level to study some of the options we developed and try to implement them. 

My briefing paper presents my conclusions on the performance of 

the disability determination process and the key challenges that 

the Agency faces in trying to improve it. My oral remarks are confined to five recommendations that I see as key to making significant improvements 

My first recommendation is to create a disability czar. This recommendation follows from the maxim that if it is everybody’s responsibility, it is nobody’s responsibility. Currently responsibility 

for the disability programs is divided among the deputy commissioners. Each deputy commissioner has responsibilities to go beyond the disability programs, and all of them interact with each 

other as equals. The Agency needs a single person whose sole responsibility is the disability programs, who has the authority needed to improve cooperation and coordination among the offices, and 

who is accountable to the Commissioner for all aspects of disability 

program performance. The senior advisor who has recently been 

appointed is not the disability czar I have in mind. It is possible 

that that position could evolve into a disability czar. 

My second recommendation is to develop a modern performance 

management system for the disability programs. This is the thrust 

of our quality assurance report. Such a system will require improved information technology, improved performance measurement, consistent use of performance score cards in every day decisions, introduction of significance performance incentives, and use 

of management techniques that build a quality culture and support 

continuous improvement. 

My third recommendation is to assign responsibility for each initial determination to a single office. This recommendation also follows from the maxim that if it is everybody’s responsibility, it is 

127

nobody’s responsibility. Currently no office, let alone individual, 

takes ownership of an application. Each office involved blames the 

other for poor performance, and inter-office communications delay 

the process, use significant resources and result in duplication of 

effort. The substantial success of the Disability Claims Manager 

test demonstrates the gains to be made from single office responsibility. I think the DCM went too far, personally, by giving a single 

individual responsibility for adjudicating all aspects of all adult applications. In so doing, it also consolidated responsibility into a single office and gave a single individual ownership of each application. The SSA has concluded that the DCM, as tested, substantially 

reduced processing time, increased claimant satisfaction and improved employee satisfaction with no effect on measured accuracy, 

but at an increased cost. 

My interpretation of the evidence—and let me tell you, I was intimately familiar with that evidence—is that it is actually more favorable than SSA’s. It appears to me that the DCM is roughly cost 

neutral relative to the current process, as it was implemented in 

the test, and also that it reduced processing time by more than 

SSA’s report indicates. 

The most vexing question about assignment of responsibility to 

a single office is: whose office? There are really three options, SSA 

field offices, State run offices, and offices that are established by 

private contractors. All of these ideas have strengths and weaknesses, which I discuss in my briefing paper. I’m not ready to endorse any one of these approaches over the others, but I do think 

that one of them will have to be tried if significant progress is to 

be made. 

The fourth recommendation is that the Agency should abandon 

the one-adjudicator-fits-all model. Currently each medical determination is the responsibility of just one disability examiner with 

some assistance from experts. This approach is probably efficient 

for a large majority of cases, but the complexity of the medical, vocational and legal issues involved in a significant number of cases 

requires a team approach. Such an approach is used for complex 

determinations conducted by private disability insurers, as well as 

for many other complex medical and non-medical determinations. 

My final recommendation for improving the initial determination 

process is to address the problems with the appeals process, and 

in so doing I’m echoing the recommendation of Hal Daub. Current 

problems with the appeals process undermine the initial process 

because it is nearly impossible for SSA to obtain useful information 

from the appeals process and use it to improve the initial process. 

Defenders of the initial process allege that ALJs are out of control 

and they’re undermining the initial process. Others allege that applicants help their representatives game the system by withholding 

evidence at the initial level so they can present it to an ALJ. If the 

ALJ denies their application, they shop for a new ALJ by filing a 

new application. 

Given the lack of information about decisions at the appeals 

level, it is hard to know how much truth there is in these allegations, but it is clear to me that the initial process is being undermined by the lack of trust in the appeals process. 

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1See D.C. Stapleton and M.D. Pugh, Evaluation of SSA’s Disability Quality Assurance (QA) 

Processes and Development of QA Options that will Support the Long-term Management of the 

Disability Programs, to the Social Security Administration, 2001. http://www.quintiles.com / 

products and services / specialty consulting / the lewin group / lewin publications / detail / 

1,1278,213,00.html. 

Those are my five recommendations. Thank you again for inviting me to testify. I would be pleased to answer your questions. 

[The prepared statement of Dr. Stapleton follows:]

Statement of David C. Stapleton, Ph.D., Director, Cornell Center for Policy 

Research 

This briefing paper is largely based on the knowledge I gained through work that 

was performed under contracts from the Social Security Administration to The 

Lewin Group and its subcontractors, Cornell University and Pugh Ettinger McCarthy Associates, LLC. I gratefully acknowledge the contributions of individuals in 

those organizations to the information contained herein and to my thinking on this 

subject. The views expressed in this briefing paper and my oral remarks to the Subcommittee are, however, my own, and do not represent the views of the Social Security Administration, Cornell University, or Pugh Ettinger McCarthy Associates. 

Directions for Improvements to the Social Security Administration’s Disability Determination Process 

I. Introduction

I am an economist, with strong training and experience in the conduct of quantitative evaluations of social service programs. The bulk of my professional career 

since 1993 has been devoted to work on projects concerning the Social Security Administration’s (SSA’s) disability programs, Social Security Disability Insurance (DI) 

and Supplemental Security Income (SSI), and other disability programs and policies. 

My knowledge of the disability determination process comes from assistance that I 

provided to the SSA in evaluation of three of its efforts to improve the determination process—the Full Process Model (FPM), the Disability Claims Manager model 

(DCM), and the Prototype—and from a project to review and develop options for improvements to the Quality Assurance process for disability determinations. The 

product of the latter was a voluminous report, which included extensive background 

material, findings from our analysis, and numerous options for improvement.1 My 

Cornell colleague Gina Livermore co-led the first three of these efforts, and Michael 

Pugh of Pugh Ettinger McCarthy Associates, LLC co-led the last. 

This paper focuses on the initial determination process for all types of applications 

and continuing disability reviews (CDRs) (i.e., everything up to appeals to the Office 

of Hearings and Appeals), reflecting the Subcommittee’s interest for this hearing. 

Some material concerning potential changes to appeals above this level is introduced 

because of its relevance to the initial determination process. 

I begin by briefly summarizing my own conclusions about the performance of the 

disability determination process. I then describe challenges to improving the process 

that are posed by the nature of the determinations being made. It is critical to keep 

these challenges in mind as improvements are developed and implemented. I then 

describe five changes to the initial process that I believe are key to achievement of 

significant process improvements. 

II. Performance of the Disability Determination Process is Poor

Performance of the process is poor. Mean processing times at the initial level are 

very long. Approximately one-third of all allowances are made to applicants whose 

applications are initially denied, including many applications that are allowed on 

the basis of the supporting evidence collected at the initial level. As a result, the 

administrative cost of appeals is very high. The cost to applicants whose awards are 

delayed, and who are often very vulnerable, is perhaps greater, although it is not 

a line item in the federal budget. Worse yet is the cost to an unknown number of 

applicants who should be found eligible, but whose claims are initially denied and 

who fail to appeal. 

There is also substantial evidence that eligibility criteria are applied inconsistently across state Disability Determination Services (DDSs), and even across disability examiners within DDSs, although SSA does not currently have a good system 

to document it. We found one convincing indicator by looking at the spread of initial 

allowance rates across examiners within four DDSs. In each DDS, the examiners 

included were experienced, made several hundred decisions per year, and were 

drawing applications randomly from the same queue. We used statistical methods 

129

to calculate that the luck of the draw would lead to a spread in allowance rates 

across examiners of about 10 percentage points within each of the DDSs, but we 

found that the actual spread in allowance rates was 10 to 19 percentage points 

greater. Thus, it appears that the examiner in a DDS that happens to get assigned 

to a claim could affect the chance of that claim’s allowance by 10 to 19 percentage 

points. It is not hard to imagine that differences across DDSs are much greater, because of differences in management, training, examiner qualifications, expert consultants, the health care system in the state, and other factors. 

Other evidence indicates that decisions are significantly influenced by incentives. 

Dramatic evidence of this occurred in the early 1980s. At that time, SSA, at the direction of Congress, started conducting pre-effectuation reviews of a large share of 

initial awards in response to low allowance accuracy identified through the quality 

assurance process; denial accuracy was much better. Over three years, allowance accuracy increased substantially, but denial accuracy fell by essentially the same 

amount. The most obvious explanation for this reversal in the two accuracy rates 

is that the pre-effectuation review process made it more costly for examiners to 

allow error-prone cases than to the deny them, tipping the balance in favor of denials. Although cause and effect cannot be proved, I have not heard a more convincing 

explanation. 

People involved in the process are disgruntled about it. Applicants, adjudicators, 

managers, union leadership and others all have complaints that are difficult to dismiss. DDSs complain about the SSA field offices, and vice versa. Morale is low, leading to high turnover in many offices. 

Some would say that the process is also very costly, but what is the benchmark 

against which we can say costs are high or low? In 1999, as near as I can tell, SSA 

spent about $1,400 per application adjudicated—including appeal costs, quality assurance costs, and any other costs that SSA associates with applications. The actuaries estimate that the present value of the average SSDI award, including Medicare benefits, is on the order of $100,000. Is $1,400 too much to be spending when 

this much money is at stake? One private disability insurer told us they were spending $2,400 per application when the amount at stake for the average claim was 

much lower. Putting more resources into the current process in a reasonably judicious manner, without any other changes, would clearly improve other aspects of 

performance, but it also appears that substantial improvements in performance 

could be achieved more efficiently by other means. 

III. The Nature of Disability Determination Poses Significant Challenges to 

Performance Imporvements

Several features of disability determinations are significant challenges to improving process performance. The first is the highly complex and diverse nature of the 

medical, vocational, legal, and financial issues involved in making determinations. 

An impressive array of knowledge is required to make appropriate decisions in all 

cases. 

The second is the high level of subjectivity involved in many decisions—assessments of severity of functional limitations, the credibility of evidence about pain and 

other symptoms, the weight to be given to source evidence versus a medical examiner’s evidence, and the value of seeking medical evidence of record from certain 

providers, are all examples. It appears that there is room for well-trained, well-intended examiners to disagree on the ‘‘correct’’ decision in a substantial number of 

cases. 

The third challenge is that the applicant has a substantial incentive—the potential benefit award—to mislead the adjudicator. The applicant’s supporter, including 

the applicant’s provider, might share that incentive. 

The fourth challenge is that the program exists within an agency that, despite its 

fairly recent independence, is subject to the vicissitudes of the political process. Congressmen and governors attempt to influence the program in the interests of their 

constituents. While this can be a positive force for performance improvement in 

some circumstances, it can undermine improvement in others. Unions, professional 

organizations, and other groups can be expected to resist changes that are not in 

the interest of their members. 

The fifth challenge is that major change takes time. The number of years needed 

is likely longer than a Commissioner’s six-year term. Major change also takes extra 

resources during the transition period, and is likely to crowd out other agency priorities. 

Perhaps the most significant challenge is that the concept of disability in the programs is out-of-step with current thinking. Advocates, researchers, policymakers, 

and others have embraced the idea that the inability to work results from the interaction of impairment, or functional limitations, with a person’s environment, yet the 

130

program is required to make determinations on the basis of the old notion that disability is ‘‘medically determinable.’’ Policy is changing in ways that reflect the new 

thinking, albeit very slowly, and the determination process, as well as the broader 

operations of the disability programs, will need to change with it. 

IV. Five Key Changes to Achieve Significant Process Improvements

There is much that can be done to produce small improvements to the initial determination process, but significant improvements require major change. I have developed a list of five changes that I think are key to making significant process improvements. 

1. Appoint a disability czar: A single person who reports to the Commissioner 

must be given lead responsibility for all aspects of the disability programs. The recommended change follows from the maxim that ‘‘If it’s everybody’s responsibility, it’s 

nobody’s responsibility.’’ Currently, responsibility for the program is divided among 

the Deputy Commissioners, each Deputy Commissioner has responsibilities that go 

beyond the disability programs, and all interact with each other as equals. The 

Agency needs a single person whose sole responsibility is the disability programs, 

who has the authority needed to improve cooperation and coordination among the 

offices, and who is accountable to the Commissioner for all aspects of disability program performance. 

2. Develop a modern performance management system. The thrust of our quality 

assurance report is that SSA needs to develop a modern performance management 

system for the disability programs, including the determination process. Such a system will require improved information technology, improved performance measurement, consistent use of performance score cards in everyday decisions, introduction 

of significant performance incentives, and use of management techniques that build 

a ‘‘quality culture’’ and support continuous improvement. The job of the disability 

czar would be to develop and lead this system. 

3. Assign responsibility for each initial determination to a single office: This recommendation change also follows from the maxim that ‘‘If it’s everybody’s responsibility, it’s nobody’s responsibility.’’ Currently, SSA Field Offices and state DDSs 

share responsibility for disability determinations. The result is a system in which 

no office, let alone individual, takes ownership of an application, each blames the 

other for process problems, and inter-office communications delay the process, use 

significant resources, and result in duplication of effort. 

The substantial success of the Disability Claims Manager model demonstrates the 

gains to be made from single-office responsibility. I think the DCM went too far, 

by giving a single individual responsibility for adjudicating all aspects of all adult 

applications, but in so doing, it consolidated responsibility into a single office and 

gave a single individual ownership of each application. SSA’s evaluation of the DCM 

test concluded that it substantially reduced processing time, increased claimant satisfaction, and improved employee satisfaction, but at a somewhat greater cost than 

the current process. My interpretation of the evidence from that evaluation is more 

positive than SSA’s; it appears to me that the DCM is cost neutral, and that it reduced processing time by more than the report indicates. 

That SSA has decided not to pursue the DCM, despite the considerable success 

of the test, reflects the most vexing question about assignment of responsibility into 

a single office: Whose office? There are three options, and all have strengths and 

weakness. The first is to federalize the entire process, so that all decisions are made 

in field offices. This approach is favored by American Federation of Government 

Employees (AFGE), and likely has substantial support among SSA managers, but 

it is probably the most costly and it is also difficult to imagine a federal bureaucracy 

managing such a large internal process well. The determination process for Veterans’ benefits provides a useful model. 

The second approach is to give the responsibility to the states. This might be the 

least expensive approach, would provide a process that is more tailored to the needs 

of the state, and make state governments accountable to their voters for process performance. SSA’s past management of the state DDSs has, however, been hampered 

by lack of political will; SSA does not have sufficient power to hold states accountable. Perhaps a deal that gives the entire process to the states in exchange for provisions that will make it possible for SSA to hold states accountable could be developed. Such a system already exists in the Food Stamp program, although it is imperfect. 

The final approach is to contract the work to the private sector. Many would oppose such a change because of a fundamental distrust of entities that are driven 

by the profit motive. SSA might, however, be in a stronger position to ensure performance of local entities that are outside the political process than local entities 

that are either owned by states or internal to SSA. This approach also has the adVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00134 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
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vantage that a successful firm could make determinations in multiple states. Every 

participating firm would be continuously threatened by competition from firms that 

are operating in other states. The Center for Medicare and Medicaid Services uses 

this approach in its effort to improve health care quality, with some success. 

I’m not ready to endorse any one of these approaches over the others, but I think 

one of these approaches will have to be tried if significant progress is to be made. 

4. Abandon the ‘‘one-adjudicator-fits-all’’ model. Currently, each medical determination is the responsibility of just one disability examiner. While expert consultation is available, and required in some cases, the decision rests on the shoulders of 

an individual. This approach is probably efficient for a large majority of cases, but 

the complexity of the medical, vocational, and legal issues involved in a significant 

number of cases requires a team approach. Such an approach is used for complex 

determinations conducted by private disability insurers, as well as for many other 

complex determinations, including medical ones. 

5. Address the problems with the appeals process. Currently, the appeals process 

has significant performance problems of its own. Those problems undermine the initial process. The fact that the program is represented only by conflicted Administrative Law Judges (ALJs), and that performance management is limited, make it 

nearly impossible for SSA to obtain useful information from the appeals process and 

use it to improve the initial process. Instead, defenders of the initial process allege 

that ALJs are ‘‘out of control’’ and are undermining the initial process. Others allege 

that applicants, with the help of their representatives, game the system by withholding evidence at the initial level so they can present it to an ALJ, and by continuing to file whole new applications until they find an ALJ who will give them 

an award. Given the lack of information about the decisions at the appeals level, 

it is hard to know where the truth lies, but it is clear that the initial process is 

being undermined by the lack of trust in the appeals process.

Chairman SHAW. Mr. Brady? 

Mr. BRADY. Thank you, Mr. Chairman. This was excellent testif mony. While I have questions for each, I will limit it to three very 

brief questions. 

Mr. Pezza, in your testimony you talk about the need for an intelligent front-end interviewing process. I would like to hear a little 

more about that. 

Mr. Price, I was wondering about the relationship between the 

State groups and the Federal Agency, SSA, and how that helps or 

hinders the process? 

Then to Dr. Stapleton, I would like to hear a little more about 

the revenue-neutral approach on the Disability Claims Manager 

because that seems like if we improve the information gathering 

and the intelligence up front, if we have good work relationships, 

consistent standards, and if we can process these claims more accurately and quicker, the whole process benefits in a big way. So, I 

would like to hear those real quickly. 

Mr. PEZZA. Well, one of the things that we do in the initial disability application process taking in the field office, is we take what 

we call a background report which basically gives the nature of the 

impairment in the perspective of the claimant. In doing this background report, it would be very helpful if we had a system which 

would provide drop-down menus for our interviewers. So, that 

based upon the nature of the impairment, the individual interviewer would be able to tailor the questions and guide the claimant 

in giving us the information necessary to do a good background report and supply the folks in the DDS with complete medical information. This is something that I think the Agency’s been looking 

into because each——

132

Mr. BRADY. By its nature, each impairment’s going to have a 

unique set of—or some unique features that you ought to have laid 

out and gathered. 

Mr. PEZZA. Absolutely, right. So, for example, if a person was 

talking about a heart condition there would be certain specific 

guidance that this system would provide in a series of drop-down 

menus which I think would be very beneficial. It makes good sense. 

Mr. BRADY. Thank you. Mr. Price, relationship? 

Mr. PRICE. Yes. The relationship, we would concur with the testimony of Mr. Daub and the previous reports by the Advisory 

Board. Strengthening the Federal/State relationship would greatly 

enhance the opportunity to reduce processing times, to give better 

service to the claimant. The current set up is such that NADE has 

encouraged the establishment of more uniform national training 

standards, for example, at the front end and strengthening the 

quality assurance process throughout. 

Mr. BRADY. If you had to rank what could best be done to improve that relationship, would that increased training be the most 

important thing? 

Mr. PRICE. I think it would be—yes, the training is absolutely 

essential, and having that availability, I think SSA needs to revamp, if you will, the way it does training, the way it mandates 

training. Right now in the DDS’s initial disability examiners who 

are hired, receive training basically in compliance with whatever 

the State feels is their set up. The SSA has introduced a basic examiner training package which forms the basis of this new examiner training, but NADE has asked that there should be more than 

this because many States simply do what is minimum. 

Mr. BRADY. Sure. 

Mr. PRICE. Minimum doesn’t give you good service. 

Mr. BRADY. Good answer. Thanks, Mr. Price. 

Dr. Stapleton, I like the idea of having accountability in one person. I like the idea of having teams evaluating these. I would imagine both between the sophisticated medical decisions and then 

ever-changing occupational standards and opportunities, that the 

would really help. Tell me about disability claims. 

Dr. STAPLETON. Sure. Measuring costs in SSA’s system is very 

difficult. They were doing a test where both the current process 

and the model they are testing. The DCM model were embedded 

in lots of other things that were going on in various offices. 

I would say that—well, my recollection is that the result that 

SSA reported is that the DCM costs from 6 to 12 percent more 

than the current process. I would say that the margin of error in 

just trying to make that estimate is probably 5 to 10 percent. So, 

it is close to the margin of error. 

The other thing, a couple other points though, when they did this 

they got the upper value by one method and the lower value by another method. It seemed to me that the upper value had some serious problems with it, and the other method was much more sound. 

So, I think 6 percent is a reasonable estimate given the whole period of the test which was 18 months. But if you look at the test 

results from month-to-month, you will see that productivity of the 

claims managers increases quite a lot over the first 12 months. By 

the time it gets to the peak, if you recalculated cost at that point, 

133

it would be lower or at least about the same as the current process 

costs using SSA’s methodology. The costs reported are reported for 

the entire 18-month period, and at the beginning there was startup 

time and at the end there was wind-down time. These people knew 

they were losing their positions and tried to wrap things up. 

Mr. BRADY. Sure. 

Dr. STAPLETON. So, that is the basis of my conclusions. 

Mr. BRADY. Are your conclusions in detail on that in your report 

or can we get some information along those lines? 

Dr. STAPLETON. It is not in this report, and in fact, it is not 

written in any report. I have detailed my thoughts in e-mails to 

people at SSA. I could provide those to you, I think. 

Mr. BRADY. If you don’t mind because I would like to learn 

about it. A final thought is that were the increased costs on that 

due to accelerated benefits, that we make decisions sooner and 

more accurately. Therefore, benefits occurred faster? 

Dr. STAPLETON. Not really because the cost had to do with administrative cost, not programmatic cost, and my recollection is the 

allowance, the initial allowance rates were just about the same. 

Mr. BRADY. Thank you, Mr. Chairman, very much. 

Chairman SHAW. Mr. Pomeroy. 

Mr. POMEROY. Mr. Chairman. this is one of the more challenging assignments we have given SSA. I appreciate you having 

this hearing to explore what they are doing to execute these duties 

as best as they can do, and I appreciate very much you holding this 

important hearing. I regret my own schedule prevented me from 

attending the bulk of it, and look forward to reviewing and having 

staff put a review of your written materials. It is obviously an area 

where Members of Congress on the Social Security program perhaps the most active interaction with their constituents. That is 

very important to us all. Thanks again, Mr. Chairman. 

Chairman SHAW. Dr. Stapleton, you said something in your testimony regarding forum shopping to get the best administrative 

judge that you can get. If somebody’s turned down at one, they can 

go ahead and refile, come up with another judge, and there is no 

way of bringing it back to the same judge? 

Dr. STAPLETON. My understanding now is when somebody files 

a new application it just enters a process like any other application, and it can end up——

Chairman SHAW. Even though it may be from the same claimed 

injury? 

Dr. STAPLETON. Yes, yes. 

Chairman SHAW. Interesting. 

Dr. STAPLETON. Actually, if I may go on, there has been some 

discussion earlier about closing the record. I know there is a lot of 

concern about if you close the record and somebody has got a new 

condition. Then that means filing a whole new application and a 

much longer wait for them, and that is a problem. It seems to me 

there is a fairly straightforward solution to that if new evidence is 

being introduced at the appeals level, at the ALJ level—to send the 

case back to the initial level basically and do another reconsideration by taking into account the new evidence. 

Chairman SHAW. Can the court appoint its own doctor to examine the claimant? Does it ever do that? 

134

Dr. STAPLETON. It can do that, yes. 

Chairman SHAW. Is that done very often? 

Dr. STAPLETON. I wouldn’t be the best person to ask. 

Chairman SHAW. I would guess, from the way I understand 

these things, that if you get the right doctor, the right lawyer and 

the right judge, and——

Dr. STAPLETON. Well, I would certainly expect that the advocates for the claimant get them to get medical examinations independently which are brought into evidence. 

Chairman SHAW. I know going from tort law that different doctors are sought after depending on whether you are the plaintiff or 

the defendant. We remember one doctor that we didn’t think he 

really believed in pain. He was one of the favorite of the defendants, but that was before he had a disc problem in is back. He now 

believes in pain. 

All right. I want to thank all of you for being with us. It has been 

a very, very good hearing. I think the thing that comes out of this 

most is that I think this Subcommittee has to know more about 

this process. This is really our first venture into the details of this. 

We have looked at the process before as to the lack of electronics 

and the slowness of the movement, but now we are getting in a little bit into the actual process of the hearing process itself. It is 

something I don’t think we have any expertise on this Committee—

who really did any litigation in this area, even though a number 

of us are lawyers. Still, it is a very specialized area that most lawyers haven’t even ventured into. 

Thank you. Thank you all for being here. This hearing is adjourned. 

[Questions submitted from Chairman Shaw to the panel, and 

their responses follow:]

National Association of Disability Examiners 

Raleigh, North Carolina 27602

August 14, 2002

The Honorable E. Clay Shaw, Jr., Chairman 

Social Security Subcommittee 

Committee on Ways & Means 

United States House of Representatives 

2408 Rayburn House Office Building 

Washington, DC 20515–0922

Dear Mr. Shaw:

The National Association of Disability Examiners (NADE) is pleased to provide 

the following response to your inquiry of August 1, 2002. NADE was asked to respond to several questions regarding our testimony, and the testimony of others, 

that was presented on June 11, 2002. 

1a. Explain the process of developing a case. 

Case development typically begins with a review of the disability application that 

has been forwarded to the DDS from the Social Security Field Office. In the vast 

majority of claims, the disability examiner must initiate contact with the claimant 

(either by phone or by mail) to develop or clarify issues regarding medical treatment, education, past relevant work and the impact the claimant feels that the alleged impairment has on their activities of daily living (ADLs). Frequently, the disability examiner must also contact an interested third party who is also asked to 

provide information about the impact the claimant’s impairment has on these activities. If these reports include conflicting information then the disability examiner 

must resolve the conflicts by re-contacting the claimant, and third party source, or 

contact another source to resolve the conflicts. 

All relevant medical sources listed by the claimant are then contacted by mail or 

fax and asked to either send copies of records or respond to questions specifically 

135

tailored to the alleged impairment. Information received from treating sources is reviewed as it is received to determine if a favorable decision is possible based on those 

records. If so, additional evidence is not pursued. If not, unless the treating source 

is a known uncooperative source, appropriate follow up is made, either by telephone, 

fax, or by mail, to obtain any records or completed forms which have not been received. 

SSA regulations (POMS DI 22505.001ff) mandate that treating sources be allowed 

thirty (30) days to respond and the DDS must initiate at least one follow up if there 

is no response. 

If treating source information is incomplete, unavailable, or does not provide the 

specific documentation needed to determine eligibility under Social Security regulations, the DDS will schedule a consultative examination. This examination is at the 

government’s expense. Every effort is made to assist the claimant in keeping any 

consultative examination, including arranging for responsible parties when the 

claimant has a mental impairment and providing the cost of transportation to the 

appointment. Once all of the medical and non—medical information, including ADL 

and work history forms, pain questionnaires, and so forth., has been received, the 

DDS will prepare a decision following the sequential evaluation process. This decision is based on an appraisal of the objective medical findings and consideration of 

the subjective non-medical findings such as pain allegations, claimant credibility, 

and treating source opinion. 

b. Explain the process for reviewing a case for reconsideration, including 

under what circumstances a disability examiner obtains additional information. 

Reconsideration claims are assigned to disability examiners who are more experienced than disability examiners who adjudicate only initial claims. Reconsideration 

claims are assigned to a disability examiner who had no part in the initial decision. 

If input from a DDS medical or psychological consultant becomes necessary at the 

reconsideration level, the consultant will also be one that had no part in the initial 

decision. 

The reconsideration examiner reviews the claim file to determine both the accuracy of the initial decision and whether additional development is needed in view 

of the claimant’s statements and allegations. The reconsideration examiner must determine if all impairments alleged by the claimant or diagnosed in the file evidence 

were fully developed initially. The reconsideration examiner must also determine if 

there are any new impairments alleged or diagnosed and/or whether the claimant 

has listed any new treating sources or has reported receiving additional treatment 

from previously identified sources. 

If the prior decision was correct based on the information available at the time 

and the claimant has not alleged any worsening of the impairment(s) and has not 

reported receiving additional medical treatment, the initial decision can be affirmed 

‘‘on the record’’ without the need to pursue additional development. However, such 

circumstances are unusual. If the claimant alleges worsening of the impairment(s) 

and/or reports receiving additional medical treatment, all relevant sources for more 

current records are contacted. The reconsideration examiner follows the same adjudicative requirements as the initial examiner in allowing an appropriate period of 

time to elapse for a medical source to respond and initiating appropriate follow up 

contact if the source does not respond. If the reconsideration examiner is unable to 

fully document all alleged or diagnosed impairments based on the medical evidence 

of record, a consultative examination will be scheduled. Once all requested information has been received, or it has been determined that the information is unavailable, the DDS will prepare a reconsideration decision, again following the sequential 

evaluation process. 

c. Are such processes checked and documented via DDS or Federal quality 

review? 

Any DDS decision is subject to review by internal DDS quality assurance staff 

and/or review by the Federal Disability Quality Branch (DQB) in the respective SSA 

regional office. 

2a. Are determinations made by disability examiners in the DDSs, ‘‘devoid 

of rationale and—driven almost exclusively by objective medical findings.’’? What factors and criteria do State disability examiners use to 

assess an individual’s claim? 

NADE is very concerned with the erroneous statements contained in the testimony presented by Ms. Kathleen McGraw on June 11. We are equally concerned 

that such inflammatory statements are often left uncorrected, adding to the false 

perception the public already has of the decisionmaking process in the State DisVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00139 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
136

ability Determination Agencies. NADE is very appreciative of this opportunity to 

challenge Ms. McGraw’s statements.

DDS decisions, by law and by SSA regulation, are based on objective medical findings, coupled with consideration of the claimant’s age, education and past work experience. DDS decisions do take into consideration the subjective findings such as pain 

and fatigue and the impact the alleged impairment is said to have on a claimant’s 

daily activities. However, DDS decisions are influenced to a lesser extent than decisions made by administrative law judges by these subjective findings. Where the 

disability examiner in the DDS is unable to conclude that there is an objective medical basis to support the claimant’s allegations of pain or fatigue, the subjective complaints are often disregarded, as required by law. 

The primary factor in adjudicating disability claims at the DDS level is that it 

must first be concluded that there is a medically determinable physical or mental 

impairment that can reasonably account for the subjective symptoms alleged by the 

claimant before any such symptoms can be factored into the decision. 

As an example, NADE would like to offer the case of an individual who alleged 

disability due to severe burning pain in his hands. A physical examination failed 

to detect a significant medical condition. The claimant retained normal range of motion of all joints in the hands and there was no impairment of neurological functioning. The claim was documented with x-rays, nerve conduction studies, and a 

MRI, all of which failed to reveal any evidence of a significant medical condition. 

Without any objective evidence that could establish the existence of a medically determinable impairment the DDS would conclude that the alleged impairment was 

non-severe. This would be the correct decision under the law and any attempt to 

render a different decision would have resulted in DDS or DQB quality assurance 

reviewers returning the claim to the disability examiner with instructions to deny 

the claim. 

The application of process unification rulings would not alter the DDS decision 

in such cases. By law, DDSs must first establish the existence of a medical impairment before determining that the claimant is functionally limited, even by pain 

alone. 

An administrative law judge, hearing the same case and using the same evidence 

available to the DDS, could conclude that the claimant was under a disability. The 

decision by the ALJ would be based solely on the claimant’s alleged pain and no 

other factors. 

Herein lies the difference between DDS decisions and those made by ALJs—DDS 

decisions must have a medical basis that is defensible to subsequent quality reviewers. Such decisions are sometimes misinterpreted as if the DDS failed to consider 

the claimant’s subjective symptoms. This perception is reinforced by subsequent 

ALJ decisions that do award benefits based only on such subjective complaints, even 

when the objective evidence clearly fails to document the existence of a significant 

impairment. 

Such decisions by administrative law judges impact negatively on program integrity since such decisions will, in effect, place an individual on the disability rolls for 

life. All future continuing disability reviews of such cases will obviously fail to establish that there has been any significant medical improvement in the claimant’s condition. Individuals whose claims are allowed on the basis of subjective symptoms 

alone will continue to receive benefits as long as they continue to allege the presence of such symptoms. Since there was no objective basis for the original allowance 

decision, there can be no objective basis for determining that there has been medical 

improvement. 

NADE would contend that Ms. McGraw’s testimony would have been more effective if she had devoted equal criticism to the administrative law judges who also 

have failed to adhere to the precepts of process unification. 

b. Are such processes checked and documented via DDS or Federal quality 

review? 

As noted earlier, any DDS decision is subject to internal DDS quality assurance 

review and/or review by the Disability Quality Branch in the regional SSA office. 

Not only do such quality reviews check for decisional accuracy, but also ensure that 

the procedures that define the adjudicative process that are outlined in the regulations are followed. 

3. What is the status of implementation of Process Unification? What specific Process Unification activities were held last fiscal year? This fiscal 

year? What are the results? 

Process unification was stressed extensively in the ten Prototype states and in 

those states under various court orders to follow the process unification rulings 

137

without fail. It has been implemented to some extent in all DDSs, both in anticipation of the roll-out of the Prototype experiment and in an on-going effort to align 

DDS and ALJ decisions. However, there has been some inconsistent application of 

the process unification rulings in all DDSs because of a lack of necessary resources. 

DDSs have struggled to apply the process unification rulings in light of inadequate 

funding. For the most parts, the DDS application of process unification has been 

limited for cases in which the rulings would make a decisional difference. NADE 

strongly recommends that, in the future, adequate resources should be allocated to 

the DDSs whenever any changes are made in the adjudicative process that will require significant allocation of time and resources by the DDSs.

NADE also contends that the continued absence of ongoing training for all adjudicators and reviewers, and the lack of a consistent Quality Assurance review of decisions made at all levels, have contributed to the sporadic and inconsistent application of process unification. 

4. Is the reconsideration, ‘‘little more than a rubber stamp of the original 

denial’’? Should it be eliminated? 

Current SSA statistics show a 16% reversal rate at the reconsideration level. 

NADE would like to challenge the testimony presented by others that point to only 

a 3% reversal rate at the reconsideration level. Such a misrepresentation of the 

facts could be viewed as an attempt to misguide the Subcommittee. Obviously, a reversal rate of 16% at the reconsideration level is not a ‘‘rubber stamp of the original 

denial.’’ The reconsideration step in the appeal process has served to provide a needed intermediate appeal step between the initial decision by the DDS and the hearing decision made by the ALJ. This was effectively demonstrated in the Prototype 

experiment when the absence of a reconsideration step caused appeals to OHA to 

soar out of control. Even so, in recent years the reconsideration step has been weakened in the interest of increasing case processing efficiencies and reducing processing time. For that reason, NADE’s proposal for a New Disability Claims Process, 

included as an attachment to our testimony of May 2, 2002 before the Subcommittee 

and the focal point of our testimony on June 11, 2002, proposes strengthening this 

vital step. 

Consideration of affordability, timeliness and fairness issues would indicate that 

there is a need to strengthen the reconsideration step, rather than eliminating it. 

The reconsideration, especially an enhanced reconsideration, would provide claimants an opportunity to have their cases reviewed again much earlier than the current 1–2 year wait for a hearing before an ALJ. For thousands of people, an enhanced reconsideration would prevent lengthy waits and would reduce administrative costs. 

5. Does the agency, ‘‘. . . consult the claimant’s health care providers, and 

compensate them adequately for providing relevant medical information?’’ If so, how? 

All relevant treating sources identified by the claimant on the initial and, if one 

is filed, reconsideration application, or who are subsequently identified in the course 

of DDS case development, are contacted. The majority of disability claims are adjudicated based on information obtained solely from the claimant’s treating source(s). 

However, the reality is that, regardless of the level of compensation offered, some 

sources will to refuse to provide information, either because they don’t feel the 

claimant is disabled or because they don’t want to become involved with ‘‘government bureaucracies’’. Other sources provide little or no information as they have not 

seen the claimant for the alleged impairment or they do not have detailed records. 

Hospitals, clinics and other medical sources are frequently slow to respond due to 

the sheer volume of requests they receive for medical records. 

In every case in which the DDS seeks to obtain medical records, compensation is 

offered. It is a subject of national debate as to whether the amount offered by the 

DDS is ‘‘fair and reasonable.’’ DDSs continually face uphill struggles when attempting to obtain increases in the compensatory rates they offer for medical evidence of 

record. 

6. In the case of continuing disability reviews, how common is it for claimants to refuse to cooperate with requests for information? Are claimant 

representatives a source for this lack of cooperation? What is your solution? 

We are unaware of any factual data that would describe the incidence at which 

claimants and/or their representatives have refused to cooperate with requests for 

information from the DDS. To our knowledge, such data would be nearly impossible 

to collect because failure to cooperate or deliberate actions by the claimant or their 

138

representative to delay the DDS in making a decision are nearly always concealed 

under false pretenses. However, we do have anecdotal information that would indicate this problem is increasing as claimants, and their representatives, become increasingly aware that benefits will continue until a final decision is made and that, 

by failing to cooperate fully with the DDS, such a decision can be delayed for years. 

There are few penalties for such actions as there are no administrative procedures 

in place that require the claimants to pay back any overpayments if the Agency’s 

final decision is to cease benefits. 

We further believe that anecdotal evidence suggests that the common perception 

that exists among the public that claimants have a better chance to ‘‘win’’ at the 

hearing level has caused some claimants and their representatives to elect not to 

‘‘bother’’ with the DDS level, either at the initial or reconsideration steps. We believe that claimants erroneously believe that failing to cooperate with the DDS will 

force a quick denial of their claim and speed their case to the hearing level. This 

is rarely the case. Usually, the DDS spends weeks and months in an unsuccessful 

effort to document each case to show that the DDS has done everything in its power 

to document the claim for a medical decision before having to resort to denying the 

claim for failure to cooperate. 

As at least a partial solution, NADE has proposed that the Regulations be revised 

to allow for the immediate suspension of benefits in CDR claims where the DDS 

proposed a cessation of benefits because the claimant has failed to cooperate or cannot be found. 

NADE would also propose that administrative penalties should be enacted that 

would enable SSA to force the cooperation of claimants and/or their representatives 

when it can be clearly shown that there has been a failure to fully cooperate with 

the DDS or when the claimant and/or representative has engaged in actions designed to delay the development of the case. 

7. Is the Federal/State relationship working? How could this be changed to 

improve this relationship? 

NADE believes that the Federal/State relationship is working. However, we believe that this relationship could be strengthened by encouraging more open discussion between the DDSs and SSA to resolve issues as they occur. SSA must adopt 

a significant change in its culture to allow for the possibility that they are not always the experts in the development of policy for the DDSs. State governments 

must be more willing to accept the oversight requirements of SSA with regards to 

DDS training expectations and salary issues. Too often, the DDSs are asked to compete with similar state agencies in the formation of salary structure and training. 

8. Should SSA’s regulations be revised to require States to, ‘‘follow specific 

guidelines relating to educational requirements and salaries for staff, 

training, carrying out quality assurance procedures, and other areas 

that have a direct impact on the quality of their employees and their 

ability to make decisions that are both of high quality and timely.’’? 

What are the pros and cons, and the feasibility for making these 

changes? 

NADE believes that the Federal/State partnership could be revised to allow SSA 

to stipulate minimum educational and training requirements for DDS staff, but only 

if such a mandate were accompanied by a similar mandate specifying minimum salary levels for DDS staff. NADE believes that a national disability program should 

have national minimum standards with regard to educational and training requirements for all adjudicative staff. NADE is committed to the concept of ongoing training and professional development. However, the ability to set minimum educational 

standards would carry an expectation that SSA would also set minimum salaries, 

an issue that will create problems in many states. Heretofore, SSA has been unwilling to face this political obstacle. 

In recent years, we have witnessed frequent turnover in DDS staff. This is due 

both to an increase in the number of retirees as well as an increase in the number 

of employees who opt to leave the DDS for less complex work, often with an increase 

in pay. The salary levels in the DDSs have not kept pace with private industry and 

the ability of many DDSs to attract the most qualified job applicants has been compromised. At the same time, the DDSs have been forced to contend with the erosion 

of their experienced staff. These two factors will create a crisis of leadership and 

experience in the DDSs and contribute to an erosion of their ability to effectively 

administer the disability program. This will negatively impact on public confidence 

and the continued ability of the disability program to fulfill its mission. 

NADE does believe that educational requirements must not take precedence over 

ongoing training needs. While we recognize there may be a need to establish some 

139

degree of national uniformity in prescribing minimum educational requirements, we 

strongly suggest that it is the need for ongoing training for all adjudicative staff that

will have a greater impact in achieving national uniformity in the disability program. Furthermore, while the ability to prescribe minimum educational standards 

for DDS staff would have to be coupled with the ability to prescribe minimum salaries, something that we do not envision as being possible in the near future, the 

ability to prescribe the need for ongoing training, and to be able to offer such training, either through its own resources or by utilizing the availability of training offered by such organizations as NADE, is certainly within SSA’s ability. In this regard, we agree with the opinion expressed by the Social Security Advisory Board 

in its August, 1998 report, ‘‘How SSA’s Disability Programs Can Be Improved,’’ page 

19). ‘‘The most important step SSA can take to improve consistency and fairness in 

the disability determination process is to develop and implement an on-going joint 

training program for all . . . 15,000 disability adjudicators . . . and the quality assessment staff who judge the accuracy of decisions made by others in the decisionmaking process.’’ The Advisory Board also asserted, ‘‘We urge the Commissioner to 

make a strong ongoing training program a centerpiece of the agency’s effort to improve the accuracy, consistency, and fairness of the disability determination process, 

and to see that the necessary resources are provided to carry it out.’’

Recently, SSA explored the idea that the Agency would offer national disability 

examiner certification. This idea was abandoned because little interest was expressed in a program that came with few tangible rewards. We believe that an effort 

to prescribe minimum educational requirements, without the ability to prescribe 

minimum salary, would have a similar impact. 

9. Do you have specific suggestions for changes in the law to better enable 

you to do your job? 

NADE has long advocated review of an equal percentage of allowed and denied 

decisions by the regional DQBs. We are concerned with recent initiatives by SSA 

and the Congress that would require pre-effectuation reviews in 50% of State agency 

allowances of SSI adult cases. These initiatives are similar to existing legislatively 

mandated reviews of Title II allowances. Without additional resources, any increase 

in the percentage of allowance decisions reviewed will result in a corresponding decrease in the number of denial decisions reviewed. While we support the increased 

reviews as a means to improve decisional consistency, we also strongly suggest that 

reviews of decisions made at all levels should be increased. We are concerned that 

an increased focus on DDS allowances may reduce objectivity and compromise program integrity. The decision regarding an individual’s eligibility for disability benefits should be objective and unbiased. Therefore, NADE supports requiring review 

of an equal percentage of DDS allowances and denials and an increased review of 

decisions at all levels. 

NADE recommends allowing for the immediate cessation of benefits in failure to 

cooperate cases as a means of ensuring full cooperation from claimants and their 

representatives and to also ensure program integrity. 

NADE believes that DDSs should be insulated from the particular circumstances 

that impact on state governmental agencies that tend to negatively effect the quality of service provided. For example, DDSs can be subjected to state hiring freezes, 

inadequate salary structures, and restrictions on out-of-state travel because of internal state budget problems. In many cases, DDSs are not exempted from such restrictions, even though their funding is provided in full from the Federal budget. 

Even when exemptions are granted, DDS Administrators are often required to exercise extraordinary measures to obtain such exemptions, wasting time and resources 

that would be better used in providing quality service to the people. The inability 

to hire new personnel, retain experienced staff, or offer employees opportunities to 

receive national training that may not be offered within their particular State, negatively impacts on the quality of service DDSs can offer. SSA needs to exert greater 

oversight in this regard. 

Thank you for the opportunity to provide this additional response. Should you or 

any Member of the Subcommittee have any additional questions, please do not hesitate to ask. 

Sincerely, 

Jeffrey H. Price 

f President

140

National Council of Disability Determination Directors 

Lansing, Michigan 48909

August 29, 2002

1. Judge Bernoski, the President of the Association of Administrative 

Law Judges, testified on June 20 that improving the quality of disability 

determination services decisionmaking would improve the overall determination process. He stated (page 4 of his testimony), ‘‘rather than carefully develop and examine the claimants’ case once, DDS often is making 

its initial determination based on incomplete records, and upon reconsideration, rarely obtains significant additional medical evidence or changes the 

outcome of the case.’’ What are your comments on this statement? Would 

you explain the process of developing a case? Would you explain the process for reviewing a case for reconsideration, including under what circumstances a disability examiner obtains additional information? Are such 

processes checked and documented via DDS or Federal quality review?

The National Council of Disability Determination Directors (NCDDD) agrees that 

improving the quality of disability determinations would improve the process. We 

agree that quality improvements are necessary for all steps in the process, including 

the appeals process. However, quality is a relative term when the Disability Determination Service (DDS) is the only component with regular, targeted and substantive reviews of their work. No other component, including Office of Hearings 

and Appeals (OHA) is held to this type of quality review standard. The DDSs’ record 

of accuracy is well known as documented by the Federal Disability Quality Branches 

(DQB) of the Social Security Administration (SSA). 

Additionally, we strongly disagree with the assumption that the DDS often makes 

initial determinations based on incomplete records and at reconsideration level rarely obtain significant medical evidence. We know of no study or report that factually 

documents these assertions and statements by the association of administrative law 

judges. The DDS follows the legal requirements for development of claimants’ cases 

for the disability determination process. 

The current process begins at the local SSA Field Office. The SSA Claim Representative, in person or via teleclaim, obtains the pertinent information from the 

claimant as to allegations, medical sources, types of tests, medications, work history 

information and daily activities. The claim file then moves to the DDS. Each case 

is assigned to a Disability Examiner. The Examiner does, in fact, carefully develop 

and examine the information provided by the claimant and/or representative. This 

would include requesting all medical evidence relevant to the claim within twelve 

months of the claimant’s alleged onset (the day he/she indicates that disability precluded work at substantial gainful work activity). There are time constraints explained to each medical vendor and prescribed by law, including a series of follow 

up activities to providers slow in providing reports. Concurrently, Examiners send 

requests to collateral sources, including but not limited to relatives, friends, therapists, employers, teachers and special service providers. This is an attempt to supplement the objective medical evidence with additional evidence of functionality 

from a source that is more familiar with the claimant. Each DDS complies with 

state requirements for payment of medical reports. This entails, at the national 

level, literally millions of requests for medical evidence of record from various providers. 

Throughout the entirety of the case, when an Examiner receives enough documentation for an allowance, development is ceased and a medical determination is 

made at the earliest possible time. After the legal requirements for requests and follow-ups are met, the Examiner reviews the evidence that has been compiled. The 

Examiner is required to have supporting documentation for all alleged impairments. 

In addition, if an impairment is discovered in the course of the development, the 

Examiner is required to fully and carefully document the new impairment(s). If 

there is enough evidence to support the medical determination, the Examiner finalizes the decision. If there is not enough evidence for one or more impairment, the 

Examiner requests a Consultative Examination (CE) from one or more sources including the treating physician, if appropriate. For the first 8 months of fiscal year 

2002, nationally, over 42% of the DDS cases required more medical/psychological information. In these cases the DDS was required to purchase additional medical information. This is a significant administrative cost to the program. After the CE report(s) are received, the Examiner once again re-evaluates the case. In the statutory 

claims, both the DDS examiner and physician review the case for the thoroughness 

and completeness of the legally required documentation. In addition, all of the subjective information is synthesized into the decisionmaking process. This would also 

include credibility determinations and weighing treating source opinion. 

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1 Redundant—stated in the 1st 

After the DDS makes the medical determination, the case is subject to random 

sample review by the Regional Federal Disability Quality Branch (DQB). This review includes both allowances and denials. If the DQB concurs with the documentation and/or decision, the case is returned to the SSA Field Office for final processing. 

In unfavorable decisions the claimant has 60 days to file for reconsideration. At this 

time, the claimant may allege new impairments, new medical information, and/or 

question why the DDS did not obtain pertinent medical records. An Examiner is 

once again required by law to attempt to obtain the medical evidence from appropriate providers as updated by the claimant. The case is again subject to the same 

process as described above. This may include documenting a newly alleged or worsening impairment with a CE. 

It is unfortunate that the reconsideration step may have been perceived as a ‘‘rubber stamp’’ of the initial decision. The DDSs have well known resource and time 

constraints in which to proceed with a case. When the medical provider does not 

provide reports in a timely manner (timely is considered in the range of 30 to 45 

days), the case must be moved along in the process without the unavailable records. 

Many times these records do come in and are associated with the reconsideration 

claim. Again, if the lack of the medical information leaves an impairment ‘‘undocumented’’ a CE is purchased in most cases in order to meet SSA policy requirements.1

The DDSs have internal management reviews and/or quality assurance teams 

who check all legally required processes. This includes appropriate requests, followups on these requests to the sources if the information has not yet been received 

and waiting the legally prescribed time for the medical providers to respond. 

Since the appeal period on a denial is 60 days, many times the DDSs do not see 

a vastly different case at the reconsideration level. However reconsideration does 

validate that the claim was correctly adjudicated and, where conditions have worsened, results in an earlier allowance decision. Given the 12 month durational requirement for disability benefits, the DDS may agree that while the claimant is disabled at the time of the initial and reconsideration claim, their medical condition 

is not expected to remain severe for 12 continuous months. Because the DDSs have 

to make a medical/vocational projection of the claimant’s recovery 12 months down 

the line, the DDS would be directed to deny the claim as a duration denial. This 

is a critical fact, but little known factor in the definition of disability under Social 

Security. Cases at the ALJ level are usually well beyond the 12-month duration requirements. Many ALJs in our communities tell the DDSs that they see a vastly 

different case when the case is a year or two older. These ALJs tell us that there 

is much new evidence in the file that the DDS was never told about or which occurred in months after the case left the DDS the claimant’s condition has changed. 

However, these same judges tell us, given the DDSs’ medical expertise, the DDS has 

laid the foundation for the medical evaluation. 

The continuing challenge of the process in the DDS is to manage within the context of cost, resource, quality, and timeliness requirements. The historical underfunding of the program has a direct impact on our ability to balance the quality, 

timely adjudication of disability claims at the DDS level. Now is the opportunity for 

the Congress and Administration to find the supporting financial resources to move 

into the DDS environment. This would enhance the overall strength of the disability 

determination process.

2. Kathleen McGraw, the Chair of the Social Security Section of the Federal Bar Association, testified on June 20 that State Disability Examiners 

do not assess claimants’ subjective complaints. She stated (page 2 of her 

testimony), ‘‘They were confounded by the task of assessing a claimant’s 

credibility and subjective allegations and articulating a reasoned basis for 

their conclusions. Notwithstanding the clear message from the Process 

Unification Training that State Agency Examiners were expected to perform individualized assessments and rationalize their determinations, they 

have failed to do so. State agencies have balked at this requirement, and 

examiners’ determinations continue to be devoid of rationale and are driven almost exclusively by objective medical findings.’’ What are your comments on these statements? Would you explain what factors and criteria 

State disability examiners use to assess an individual’s claim? Are such 

processes checked and documented via DDS or Federal quality review?

NCDDD disagrees with the perceptions stated in the testimony of the Federal Bar 

Association. In response to the allegation, ‘‘. . . examiner’s determinations continue to be . . . driven almost exclusively by objective medical findings’’ we believe 

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this demonstrates a lack of understanding and medical expertise. We believe the 

DDSs are in compliance and alignment with the law for determining Social Security 

disability. 

The foundation of each case is an objective medical impairment. ‘‘A medically determinable impairment (MDI) which must result from anatomical, physiological or 

psychological abnormalities which can be shown by a medically acceptable clinical 

and laboratory diagnostic techniques and be established by medical evidence consisting of signs, symptoms and laboratory findings . . .’’ The DDS is the only adjudicative component with the medical expertise, training and in-house medical staff 

to develop and evaluate the facts of the case. Our decisions are not based on bias, 

assumptions or unsupported allegations. Also, subjective complaints are just that—

-subjective and, by nature, individualized. It is not an easy process to evaluate this 

information in the context of a medical determination, but it is considered in the 

final determination by the DDSs. Severe resource constraints do in fact place limitations upon the whole process. 

We should be clear that most denial determinations have an individualized assessment and rationale. The DDS certainly admits that due to historical underfunding of the DDS process and workload volume, the assessment obviously is 

briefer than a detailed legal document. Most DDS cases that are appealed to an ALJ 

are rationalized on a Residual Functional Capacity form which addresses current 

functioning, subjective complaints, credibility and treating source opinion. As part 

of Process Unification, Social Security Ruling (SSR) 96–6p dictates that the DDS 

medical and psychological consultants’ finding of fact may not be ignored and must 

be given weight. It appears the legal community might be reluctant to view this 

RFC as the individualized assessment and rationalization. However, this is the format prescribed by SSA, used consistently by the DDSs and should not be dismissed. 

The DDSs have participated in pilots and prototype initiatives, which provided for 

more detailed assessment, rationalization and explanation. It is our understanding 

that resource limitations are the basis for not including this detailed level of case 

explanation and documentation as part of the DDS determination. 

All of these processes, including the assessment and rationalization, are subject 

to both DDS internal and Federal DQB quality review. In fact, the Examiner’s assessment is subject to very close review by both quality review teams because it is 

a source of potential inconsistencies and deficiencies. The DDSs’ review process reinforces the application of these concepts. The current national quality rating has not 

identified insufficient Process Unification application in the DDSs across the nation. 

Given the DDS budgetary constraints, our organization believes that we are meeting the challenge, fulfilling the mandate and case compliance expectations set forth 

by SSA. We are in compliance with the training, and the feedback/monitoring by 

DQB. 

The DDS stands ready to make further refinements and adjustments as required 

by the appeals process and SSA. The DDSs have been leaders on various pilots and 

projects to improve the adjudicative process. Unfortunately, resources have not always been commensurate with the mission and goals of the pilots and process improvements. In the future, it is crucial that both staffing and time extensions be 

built into the process and additional resources dedicated to these concepts, principals and requirements. The NCDDD believes that we need to continue strengthening training, learning from case examples, conducting cross reviews, and receiving 

component feedback.

3. What is the status of implementation of Process Unification? What specific Process Unification activities were held last fiscal year? This fiscal 

year? What have been the results?

The status of the Process Unification (PU) implementation at the current time is 

commensurate with the level of funding provided by SSA to DDSs. Activities continue and further refinements, training programs; case staffing and the collective 

understanding of the concepts outlined in the Process Unification guidelines are 

being pursued. However SSA policy for evaluating disability claims is fragmented, 

complex, conflicting, confusing and sometimes obsolete. This compromises the ability 

of the DDSs to adjudicate cases consistently and accurately. 

NCDDD agrees with the recommendation by the Social Security Advisory Board 

in its report of August 1998, ‘‘The most important step SSA can take to improve 

the process is to develop on-going joint training for all adjudicators in all the components that make and review disability determinations’’. The Board also noted that 

such a training program presumes the existence of a policy base, which is clear, concise, and applicable in a real world setting. 

Specific to your question about training, PU was the initial step in the direction 

of providing a consistent level of training. When PU was instituted there was a masVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00146 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
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sive and mandatory intercomponent training. PU is the framework upon which the 

DDS makes determinations on a daily basis. This is not an added-on process. PU 

training is initiated in the DDSs as the order of business from day one when training the new Disability Examiner. This is supported in the following ways: Basic Examiner Training, in-house mentoring, trainer/supervisor/coach review, internal DDS 

Management Quality Assurance, SSA-provided Interactive Video Training, update 

training, and Federal DQB quality review. 

As far as the specific training this past year, much of the PU training has been 

integrated into other training. For example, in January 2002, the DDSs had mandatory national training on the SSA changes in the musculoskeletal listings. PU was 

included into the training because it is the way we currently evaluate cases. 

The DDSs continue to receive claims with ongoing feedback from the DQB for appropriate application of the PU concepts and principles. The DDS community does 

believe that there is a need for ongoing, intercomponent refresher training that 

should be provided by SSA for consistent presentation of policy similar to the original PU training. 

It should be reiterated that this type of training and application of these concepts 

is resource-intensive and very time consuming. The DDS is not the only component 

with PU responsibilities. All components should share in the consistent application 

of these principles. Limited funding has compromised, in part, a comprehensive approach to the PU principles. We are aware of various pilots, and certainly the Prototype process, which have had success with these concepts when supported by adequate funding. With sufficient training and funding support, this regulatory language can continue to be refined and strengthened in the DDSs and throughout the 

disability determination process. Further cross component training, feedback and 

monitoring of PU concepts across all components would serve as a cost-effective 

method in our delivery of services.

4. Several witnesses testified at the Subcommittee’s hearings recently 

that the reconsideration step should be eliminated. Ms. McGraw stated 

(page 8 of her testimony), ‘‘Reconsideration is widely—and correctly—

viewed as little more than a rubber stamp of the initial denial.’’ What are 

your comments on this statement and the recommendation of eliminating 

the reconsideration step? What are the pros and cons in your view?

NCDDD is in agreement with the Social Security Advisory Board that the reconsideration step should not be eliminated. We believe it should be strengthened and 

enhanced at the DDS. For the 86,000 individuals granted disability benefits at the 

reconsideration level last fiscal year (19% of those appealing), it should not be considered a rubber stamp for the initial decisions. This is particularly important when 

you consider how soon these decisions were made following the initial determination. The claimant does not have to wait for months for a hearing and it is exceptionally less expensive to process a case in the DDS. Per SSA Office of Disability, 

it costs on average $418.00 to process a claim at the DDS level. This is 1⁄3 of the 

cost of any case appealed subsequent to the DDS determination. Therefore, we believe it to be the most cost efficient part of the disability process. 

In the debate over the value of the reconsideration we share the concern that the 

second step in the case process should be meaningful and value added. The rationale that the reconsideration has become a meaningless step, only delaying the correct decision, is not valid for the thousands of disabled citizens whose conditions 

continue to deteriorate. The DDS can and does step in to reverse an adverse decision to an allowance at the earliest possible time, including at the reconsideration. 

This is the right thing to do for the American public that the DDSs serve and is 

more cost-effective to the claimant and the taxpayer than sending the case to OHA. 

The challenge as we view this process is in strengthening the reconsideration 

step. A second level of review at the DDS level need not be meaningless or have 

the appearance of a ‘‘rubber stamped’’ decision. Claimants could be provided the opportunity for a face-to-face de novo hearing, conducted by highly trained and experienced DDS staff. This ‘‘new’’ reconsideration would enhance the reliability and accuracy of the DDS decisions and reduce the need for claimants to go through the complex and lengthy ALJ hearing process. In addition, we recommend that the record 

be closed after this enhanced reconsideration in order to strengthen the consistency 

of the adjudicative process. 

The opportunity, as we see it, is to target resources that achieve results in the 

component with a proven track record . . . the DDS. We would again reiterate, as 

in much of our earlier testimony, that our DDS organizations are the most cost effective and efficient. With proper funding and resource support, we are prepared to 

help establish and implement the program improvements that strengthen both the 

initial claim and the reconsideration appeals step.

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5. Mr. John Pickering, Commissioner Emeritus of the American Bar Association Commission on Legal Problems of the Elderly, stated in testimony 

on June 11 (page 2) that to improve the initial quality of medical and vocational evidence and reduce the number of appeals, ‘‘the agency consult the 

claimant’s health care providers, and compensate them adequately for providing relevant medical information.’’ Isn’t this done today? Can you explain how? What are your comments on this recommendation?

The NCDDD position is that the DDS organizations are under-funded in terms 

of appropriate financial support to pay medical providers. Medical evidence is the 

very foundation for our documentation in all disability claims. The states’ ability to 

compensate health care providers has been compromised and weakened and has 

negatively affected their ability to deliver quality and timely service. 

Each year many states request, as a part of their budget planning requests, increases in the Medical Evidence of Record (MER) and Consultative Examination 

(CE) fees paid by their state. This is typically the first line item in the funding authority that is eliminated or reduced as funds are being allocated to the State agencies. Further, many states do not even pay the Medicaid rate for retrieval of medical 

records and purchase of CE medical evaluations, laboratory tests and x-rays. By 

law, as previously stated, the DDSs are required to request the appropriate MER 

from the claimant’s health care providers. This is not a matter of ‘‘picking and 

choosing’’ which piece of evidence to obtain. However, there are known timeframes 

to which all providers are expected to adhere in order to improve overall claims 

processing time. 

Each state pays a predetermined amount for this MER. MER could be in the form 

of the physician’s notes, diagnostic studies, and could include a narrative by the 

medical source in response to specific questions from the DDS. Nationally the DDSs 

send out millions of requests per year to document these cases. Mr. Pickering makes 

the case to ‘‘. . . compensate them [health care providers] adequately for providing 

relevant medical information’’. However, that would not appear to take into consideration the millions of dollars spent to document these cases in the current process. 

It also does not take into consideration that despite perhaps not ‘‘adequately compensating’’ the health care providers, the DDSs still manage to get the much of the 

Medical Evidence of Record. Again, this could be in direct contrast to Mr. 

Pickering’s assertion that if we paid more for the medical records, we would get 

more ‘‘relevant medical information’’. We reiterate, the DDSs’ don’t dictate the relevancy of the record, it IS what is on the record. The challenge continues to be one 

of ever increasing administrative costs to the program. 

We firmly believe that there are two options. These records could be made available to government agencies as belonging to the claimant. The other option would 

be to obtain available records and/or purchase evaluations with the ability to pay 

a fair market price, similar to what insurance companies and Medicare are paying, 

for existing medical records or examinations. This may also be an up front cost, saving overall dollars, resources, rework and costly appeals. The theory of ‘‘pay slightly 

more now or pay significantly more later’’ would seem to apply.

6. We have heard from the Advisory Board, as well as others, about the 

need for disability policy to be clear, concise, and applicable in real world 

settings. Can you give us an example of current policy that is not clear, 

concise, and applicable to real world settings? How can Social Security Administration (SSA) improve their policies to ensure they are applied consistently as they administer a national program?

The NCDDD organization believes that disability policy that is clear, concise and 

can be applied in real world settings is ultimately the most cost effective use of the 

limited resources in today’s environment. Historically, there has been inaccurate 

analysis and insufficient funding associated with the implementation of operational 

policy changes. Policy effectiveness and its implications are not reviewed post-implementation. It is critical that decisionmakers at both levels (DDS and OHA) apply 

the same statutory definition of disability and the same regulations. The language 

in the regulation is far less specific than that of the separate vehicles used to convey 

policy to DDSs and to OHA. For DDSs there is a manual called the Program Operations Manual System (POMS). Adherence to POMS directives is required at the 

DDS level. The OHA appeals process has its own separate manual, which differs 

substantially from the DDS manual. 

In addition to the different directives given to the DDSs and OHA, there are a 

number of unclear regulations and policies. A specific example is found in the newer 

‘‘Musculoskeletal’’ listing regulation. One criterion for ‘‘loss of function,’’ as required 

by the listings, is ‘‘The inability to ambulate effectively.’’ This is defined as, ‘‘Inability to ambulate effectively, means an extreme limitation of the ability to walk; i.e. 

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an impairment(s) that interferes very seriously with the individuals’ ability to independently initiate, sustain, or complete activities.’’ Terms such as ‘‘effectively’’, ‘‘extreme limitation’’, ‘‘very seriously’’ ‘‘independently initiate’’, ‘‘sustain’’ or ‘‘complete 

activities’’ are nebulous and could lead independent reviewers to different conclusions. 

Another example is found in the different approaches to the assessment of residual functional capacity by various decisionmakers. According to the law and regulations, decisionmakers must consider the effect of the medical impairments(s) on the 

applicant’s ability to perform work-related tasks. The resulting conclusion is called 

the claimant’s ‘‘residual functional capacity’’. This finding is based on the medical 

facts and any opinions that may have been provided by a claimant’s treating physician. It is our understanding that OHA decisionmakers tend to place much greater 

weight on the conclusionary statements of treating physicians, often without supporting, objective findings. SSR 96–2p requires controlling weight to treating source 

opinions only when supported by objective findings. An extreme difference in 

decisional outcomes emerges from the conclusions reached about claimants’ remaining ability to work. 

A third example can be found in the way that SSA determines disability due to 

a mental impairment. Policies dictate that the claimant with a medically determinable impairment have two of the following: ‘‘Marked restriction of activities of 

daily living.’’ ‘‘Marked difficulties in maintaining social functioning’’; ‘‘Deficiencies of 

concentration, persistence or pace resulting in frequent failure to complete tasks in 

a timely manner (in work settings or elsewhere)’’. Or ‘‘Repeated episodes of deterioration or decompensation in work or work-like settings, which cause the individual 

to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors).’’ We suggest that 

these four areas are fraught with potential for inconsistencies in the application of 

policy. In addition, in spite of the allegation that ‘‘Disability Examiners do not assess claimants’ subjective complaints’’ one should clearly see by evaluating the listing for a mental impairment, the way to establish any limitation is by assessing 

subjective complaints. Although data are not available, it is our understanding that 

at least half of the cases in each DDS involve mental impairments. 

An additional example is the Speech and Language policy being applied in childhood disability claims. To some this is a very complex, comprehensive policy and appears to be heading beyond the real world operational boundaries. 

A final example is in the way the DDSs and ALJ’s assess vocational information. 

The DDS is required to assess and evaluate the claimant’s past relevant work history for the previous 15 years. Then, using the Dictionary of Occupational Titles 

(DOT) produced by the Department of Labor, the examiner is required to make a 

vocational determination including transferability of skills to other jobs in the national economy. As an aside, the DOT has not been updated in many years; is not 

being continued as a research publication; but it is the only reference material available to the DDS. A finding of transferability of skills in most cases dictates a finding 

of ‘‘not disabled’’. This determination is done in the DDS by the Examiner who has 

been trained to apply the DOT. 

The ALJ frequently contracts an independent a Vocational Expert (VE) to be 

present at hearings where a vocational determination is required. While the VE 

uses the same DOT he/she is frequently allowed to give testimony that the job as 

performed in the national economy (as the DDS is required to determine) is no 

longer available in the claimant’s community. Therefore, there are no transferable 

skills used in the determination. This frequently results in an allowance decision 

at the ALJ level. This is inconsistent with the policy that the DDS Examiner would 

be ‘‘allowed’’ to use for determination purposes. 

The challenge continues to be improvements and methods to ensure consistent application of policy. NCDDD and others in the disability community have consistently 

advised that updates and changes in regulations/policies should be carefully reviewed. There has been an ever-increasing move for including more subjectivity and 

‘functionality’ in the medical listings, which has increased variation in the decisionmaking process. We acknowledge the current SSA Commissioner for essentially putting a hold on any medical listing updates that were being considered. It is our understanding that all of the proposed changes are being re-reviewed and reconsidered 

at least partly in response to NCDDD’s expressed concerns. 

The opportunity now is to review the many workgroup recommendations in which 

our organization has participated. We encourage SSA to again review the 30-Day 

Workgroup proposals, the Philadelphia Workgroup suggestions, Tri-Regional recommendations, the One-Agency session ideas and various subgroup proposals. All 

of these initiatives generated comprehensive strategies that would advance improved cost efficient policy development and operational efficiency. 

146

In conclusion, a single presentation of clear policy for all components is required. 

In addition, the quality assurance system must be revised so as to achieve the goal 

of unifying the application of policy among all components.

7. You state your organization supports many aspects of the Lewin report. Would you describe which recommendations you specifically support 

and why?

NCDDD does support many of the key elements in the Lewin Report. First, 

NCDDD reiterates our commendation for SSA’s recent steps in appointing an executive lead to focus attention on creation of a quality culture at all levels in the disability process. As one of the first recommendations of the Lewin report, we urged 

SSA to start a dialog. The SSA Executive Lead has already taken steps to include 

the NCDDD organization in early deliberations and movement forward on the findings of this report. We fully support this effort. The report recommends that the existing QA system be changed radically. It is very explicit that tinkering at the margins of the present system is not enough. The most fundamental precepts and processes must be changed. 

The structure of the disability program is too fragmented with too many components responsible for the various pieces of the program and too little coordination 

among those units. We particularly agree with Lewin’s recommendation that SSA 

develop a new organizational structure that clearly establishes responsibility and 

authority for the disability program across all SSA functions. This would not only 

include operations and quality review; but also policy development, budgeting, training and electronic data and tele-video systems design. 

The current model is based on a decades-old industrial antiquated model for quality control in which end-of-process reviewers check a sample of the completed product and report and describe ‘‘errors’’. Quality reviews should assure a consistency 

across the nation. End-of-line quality review does not educate the front line workers 

or develop their abilities, but simply makes them fearful of being identified as errorprone workers. The SSA quality assurance system should place much more emphasis on in-line process improvement and much less emphasis on finding and reporting 

on defects. 

The report recommends that SSA adopt a broader definition of what it means by 

quality outcomes in the disability program. At the present, quality, in the quality 

component, means only the extent of documentation, analysis, and explanation and 

the resulting ‘‘correctness’’ of the eligibility decision. Other important factors correlate with the quality of an operation—most notably case costs, case processing 

time and claimant satisfaction with the process—are not considered. This broader 

definition of quality must be shared among all components. Everyone must buy 

into it. Progress toward the objective is unlikely and is compromised if different 

components have different views of what quality means. Lewin also observes that 

leaders and managers in all components must commit to achieving all aspects of the 

quality objectives. 

The frontline workers, the quality reviewers and OHA, should develop a shared 

definition of what ‘‘quality’’ means to replace the current process in which they view 

the concept much differently. Presently, frontline workers must always simultaneously balance concerns for the amount of documentation, the thoroughness of 

analysis and explanation, case processing time and case costs. The operations definition of ‘‘quality’’ includes all these elements. But at the case review level, ‘‘thoroughness’’ is the only consideration, cost and case processing time are entirely ignored. 

The result is that operations workers on the frontlines receive feedback from the 

quality reviewers, which is virtually impossible to apply in the real work environment. We recommended establishing a quality concept that all components can work 

toward rather than continue the present model, which places the components in adversarial positions to one another. The current process does not demonstrate reviews as a value-added step in the process, rather it is viewed as a costly, ineffective 

impediment. 

Lewin recommends that DDSs be responsible for first level reviews (which would 

incorporate emphasis on in-line improvements) and that Federal resources be used 

to coordinate and develop the DDS QA units rather than to perform direct reviews 

of the DDS work. 

NCDDD supports the following: creation of a strong link between the mission and 

goals of the disability programs. We support the refinement of the definition of goals 

and how they are measured. We also support the development and implementation 

of a communication plan that reinforces the understanding of the mission, vision, 

and quality definition for the disability programs at all levels of the organization. 

We especially agree with:

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• Continuing the DDSs’ internal quality management systems that meet SSA’s 

disability program specifications; • Case review and accuracy sampling conducted by the DDS quality management unit (whereby redundant [and costly] Federal and DDS end-of-line reviews are eliminated); • Validation audits conducted by SSA on self-reported DDS accuracy and other 

performance metrics; and • Using the findings to adjust state measures.

DDS performance monitoring, through use of a balance scorecard of key performance indicators, would serve as the foundation of the new Federal state relationship. 

The opportunity and the reasons for our support of these key aspects are many. 

The DDSs have a proven track record of providing accurate, cost effective, and timely service to the disabled population that they serve. The DDSs have always been 

held accountable for a multitude of performance metrics. We support all the components being held to quality standards. A ‘‘balanced scorecard’’ approach would be an 

important step toward creating a quality environment for all components throughout the organization. This sets the stage for reducing variation in the decisionmaking process across the nation. Of critical importance in the quality process, are 

actions and steps throughout the process that would advance national quality consistency. 

In conclusion, developing the broader definition and applying the definition to all 

the components can reasonably be expected to change the current environment into 

one here teamwork and collaboration flourish and adversarial behavior diminishes. 

The emphasis on quality must begin much earlier in the business process than in 

end-of-line review. Dedicating valuable time and resources to in-line quality culture 

is ultimately cost effective and efficient to a business process. The current environment costs the agency work and rework and is an ineffective way to assure quality 

and national quality consistency.

8. Much has been said by the Advisory Board and the media about 

decisional variance across states. Can you provide your opinion on why 

that is?

The NCDDD has historically recognized the issue of decisional variance across 

states. Reasons for variance include, but are not limited to demographics, urban, 

rural, age of population, education, poverty, economy, health care programs, employment base, insurance and corporate insurance policies, workers’ compensation requirements and workload mix. 

An SSA Office of Policy study last year determined allowance rate variance exists. 

State supported programs, local economies, policies of large business corporations 

that require application for SSDI benefits when employees are in medical leave status and unemployment can all contribute to the variation. Access to health care and 

availability of public health and community mental health programs also add to the 

variance. 

There have been no population-based studies to analyze the client population coming into the disability process. The questions of who is applying, what are the reasons, what are the disabilities, are there differences from state to state or among 

geographic areas, what are the influences of health care in select geographical areas 

have not been addressed. 

In addition, we believe that the variance in decisionmaking between the DDS and 

OHA is a serious problem in the disability program. Realizing that time has passed 

and the claimant’s condition may have changed, and without asserting which component is ‘right’, the facts are as follows: DDSs process initial claims with an average processing time of about 86 days, at a cost of about $418 per case. According 

to SSA quality reviews, DDS claims have a decisional accuracy of about 97%. Additionally, we believe that is critically important to remember that eighty (80%) of all 

the individuals who receive disability benefits are allowed through a decision made 

by the DDS at 1⁄3 of the administrative cost incurred at subsequent appeals steps. 

There has historically been an absence of uniformity and clearly stated policy instructions for adjudication at the two levels. There has been no established ongoing 

common training for personnel. Separate and opposite quality assurance and case 

review systems tend to drive the two components apart rather than bring them together. These challenges continue today. 

In addition, there is clear variance in the decisionmaking between the ten DQB 

offices, again leading to inconsistencies across the nation. Although SSA has recently undertaken ‘Consistency Reviews’, SSA has reported that the review ‘‘Did not 

measure what we needed to measure’’. 

Another demonstration of variances in the decisionmaking between components is 

‘Case Bank Studies’. This is an ongoing project to attempt to provide sample cases 

148

to each component to get feedback on consistency in adjudicative application. In theory, the results were to come back to SSA and the ‘correct’ answer would be disseminated to all components. The results of this action did not provide clear case policy 

decisional direction. 

The variance can be attributed to the very beginning of policy development and 

operational aspects of policy. There is variance in interpretation at various levels 

including the DDS, the DQB, as well as the OHA. The training, or lack thereof, also 

contributes to the variation. There is little opportunity for dialog, cross component 

feedback, retraining, and learning about the subjective areas of policy complexities. 

The opportunity exists for further in-depth study to explain the variation. A national, not regional, review could minimize variance. Dedicating resources to assure 

the public confidence in the program and eliminate the concern of bias and unequal 

treatment of the disabled citizens of this country is absolutely necessary.

9. Do you have specific suggestions for changes in the law to better enable you to do your job?

NCDDD has recommended in several workgroups over the past few years many 

changes in policy and process to better deliver service and meet the mandated goals 

and objectives of the program. Adequate resources, administration and management 

support could better enable the DDSs to deliver improved service. 

One specific suggestion is a change in the relevancy of past relevant work from 

consideration of a 15-year work history to a 5-year period. This is essential given 

the previous statement regarding the currency of the Dictionary of Occupational Titles and ever-changing job duties. 

We have also recommended closing the record after an enhanced reconsideration 

decision performed by DDS personnel. We also suggest consideration be given to 

temporary and/or time-limited benefits. Temporary disability and short-term disability with new work incentive provisions and closing the record after the DDS 

final case review would be consistent with future goals and return to work initiatives for the future viability of the program. These kinds of changes in the disability 

laws, consistent with the Americans with Disability Act protections and provisions 

as a matter of general public policy, encourages successful efforts to have the disabled in the work force contributing to the national economy and productivity. 

Decisionmaking between the initial (DDS) and appeals (OHA) level must be more 

consistent. It is our understanding that SSA management has historically permitted 

the development of an inaccurate view of the immunity from management control 

of administrative law judges under the Administrative Procedures Act. ALJs have 

successfully asserted broad decisional independence and freedom from management 

control and oversight. Our organization believes that this not only accounts for 

much of the difference in decisionmaking between DDSs and OHA, but also for the 

extreme difference in allowance rates generally. SSA has recently obtained an opinion for its General Counsel that declares management authority for requiring ALJs 

to attend training, apply the agency policy, conform to administrative rules, and so 

forth. As the administration establishes their authority as provided by law, a change 

in the law may not be necessary 

Again our organization encourages changes and updates in laws that demonstrate 

cost effective public policy, protect vulnerable citizens, protect integrity of the trust 

fund and assure that resources and means to fund the program are consistent with 

these laws and initiatives.

Note: NCDDD is recommending regulatory changes that may not require 

a change in law.

10. Do you think the Federal/State relationship is working or not working? Please explain why, and what you would like to see changed?

The Federal state relationship is working, however the NCDDD organization believes that this unique relationship should be enhanced, nurtured and supported. 

We believe that the mission of the DDSs is to make accurate determinations of eligibility, to do so quickly, and to be economical. 

In considering the effectiveness of the relationship, as well as some of the challenges, we encourage ongoing, open dialog on areas of concern. In reality, the federal/state partnership, while not perfect, is at its best when integrated with the Social Security Administration’s mandate of empowering the states to act on behalf 

of and empowering our most vulnerable citizens. Our organization does recognize 

areas in need of attention and focus. 

The NCDDD organization recommends changes including regulatory language 

that provides sufficient resources and appropriate funding to meet the mandates of 

the Administration. In addition, education of the DDS’s parent agency and state entities supporting the DDS structure, improving the quality of staffing to deliver the 

149

service of this complex process, training initiatives that support national consistency, and staff that are dedicated to systems support are vital. 

Working together is cost-effective when both national and local governments understand the mission, goals and values of meeting the needs of vulnerable citizens. 

The time and effort to strengthen the relationship will, in the long run, serve both 

the states and nation.

11. The Social Security Advisory Board has recommended that SSA 

strengths the Federal/State relationship, including revising SSA’s regulations to allow improving the agency’s management of State operations. In 

his testimony of June 11 (page 6), Mr. Hal Daub, the chairman for the Advisory Board, suggested that these revised regulations require States to ‘‘follow specific guidelines relating to educational requirements and salaries 

for staff, training, carrying out quality assurance procedures, and other 

areas that have direct impact on the quality of their employees and their 

ability to make decisions that are both of high quality and timely.’’ What 

are your comments on this recommendation? What do you believe are the 

pros and cons, and the feasibility for making these changes?

We agree with the Social Security Advisory Board (SSAB) in their report of January 2001 that ‘‘The agency’s regulations should be revised to require States to follow 

specific Federal guidelines relating to educational requirements and salaries for 

staff, training, carrying out quality assurance procedures, and other areas that have 

a direct impact on the quality of their employees and their ability to make decisions 

that are both of high quality and timely. Regulations should also ensure that State 

hiring freezes will not apply to State agency disability operations.’’ While many 

states have recognized the valuable, skilled professional staff in the DDS agencies, 

others are seriously impairing DDS and SSA to achieve their service goals. DDS organizations throughout the country have been impacted—as state budgets continue 

to be compromised by current fiscal conditions and the impact of revenue shortfalls 

and other local/state challenges. Hire freezes and downsizing of state government 

programs have all had a corollary impact on the DDS’s business process. There is 

an urgent need for SSA to address in regulatory terms the DDS’s ability to direct 

and control their data systems support staff, hardware and software assets. Therefore, there are many issues regarding staffing, staffing retention, training, internal 

DDS process issues, with a dramatic impact on the agencies’ ability to meet the SSA 

service delivery goals. 

We agree with Chairman Daub of the SSAB, that the regulations need strengthening. There are pros and cons to this challenge. The pros include language and 

strengthened abilities to minimize these mitigating effects on the DDS business and 

organizational process. The cons include the question of oversight and control 

issues. Carrying out the Federal mandate of the Social Security Administration 

should include flexibility in business processes, while protecting the integrity of the 

Federal funding. 

The opportunity is now. The times call for an updating of the regulations that will 

instill public confidence and deliver the most cost-effective process for disabled citizens at the state and national levels. Together we can create the future of effective 

human service and efficient public policy.

fCornell Center for Policy Research 

Washington, DC 20036

Kim Hildred 

Staff Director 

Subcommittee on Social Security 

U.S. House of Representatives 

B–316 Rayburn House Building 

Washington, DC 20515

Dear Ms. Hildred:

This letter is my response to a letter I received from Representative Clay Shaw, 

Jr., as follow-up to my testimony before the Subcommittee on June 11, 2002. He 

asked me to respond to the following question: 

The results of your evaluation of the Disability Claims Manager test were more 

positive than the Social Security Administration’s (SSA’s) results. Would you explain why you disagree with SSA’s evaluation of this test, including why they found 

higher costs and lower processing times than you? 

First, I need to correct a misimpression that is reflected in the preamble to the 

question. I did not conduct a separate evaluation of Phase 2 of the Disability Claims 

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1SSA, Disability Process Redesign Team, Disability Claims Manager Final Evaluation Report,

October 2001, p. 29. 2 Ibid., p. 29. 

Manager (DCM) test—the phase on which SSA’s conclusions are based. Instead, I 

interpret SSA’s findings from Phase 2 differently than SSA does. That interpretation is based on a detailed knowledge of those findings, as well as the methods used 

to produce them. My colleague, Gina Livermore, and I evaluated the Phase 1 pilot, 

designed the evaluation of Phase 2, and provided technical assistance to SSA’s Disability Process Redesign Team on their implementation of the Phase 2 evaluation. 

Cost 

The most critical issue is the interpretation of the cost data. SSA’s report draws 

the following conclusion: 

Dependent on the productivity and staffing models used, the DCM administrative 

cost to process an initial claim ranged from about 7 to 21 percent higher than the 

current process.1

The major component of cost is labor cost, which mirrors labor productivity. SSA 

drew the following conclusion about productivity: 

DCM productivity ranged from about 14 percent less to 8 percent more than the 

current process.2

Based on the evidence provided in the same report, I think a more reasonable conclusion is that, apart from training costs, DCM cost per claim was about the same 

as cost per claim under the current process. DCM productivity is probably higher, 

but offset by higher salaries and expenditures for medical evidence. I would further 

conclude that opportunities for reducing DCM costs are substantial. My reasons follow:

• SSA’s cost per claim and productivity estimates are based on the average performance of the DCMs over 13 months of the Phase II test. It is clear from 

other evidence in the report, however, that productivity increased substantially from the first month of Phase II through the 10th and 11th months, 

then declined somewhat in the last 2 months. In the peak month, SSA’s estimates show that DCM productivity is no lower than current process productivity and possibly 20% higher. I think that peak productivity is a better 

gauge of actual DCM productivity than the mean over 13 months because the 

reasons for the gradual increase, followed by a decline near the end, have to 

do with the test situation. Although there was a substantial Phase I, the 

DCMs were still learning their jobs as Phase II started, and as Phase II 

ended their attention shifted to what they would be doing after the test 

ended. In fact, it is possible that productivity would have continued to increase had the test not ended when it did. • Measurement of DCM productivity relative to current process productivity is 

very inexact, for two reasons. First, the current process has two components 

(state Disability Determination Service (DDS) and SSA field office (FO)), with 

two different productivity measurement systems, and these must be combined 

in some fashion for purposes of comparison to the DCM. Second, many activities other than initial adult disability claims processing occur in the DDSs 

and FOs, and it is problematic to accurately apportion labor effort into initial 

application processing and other activities. The problems are so substantial 

that we cannot be confident that the productivity (and cost) differences reported are real, rather than the result of measurement problems. SSA developed two approaches to measuring productivity, and the extremes of the 

range of both productivity and cost estimates reflect these two approaches. 

The range for measured DCM productivity relative to measured current process productivity is 22 percentage points. If I had to choose, I would prefer the 

approach that produces the relatively high productivity measures for the 

DCM, because it relies less heavily on work sampling. The more important 

point, however, is that the estimates are not sufficiently precise to draw firm 

conclusions about which process is less costly, given the differences observed 

for these measures. • DCM costs could likely be lowered relative to current process costs through 

adjustments to the DCM process. Remember that the DCM process is largely 

new, while the current process has been in place for many years; SSA and 

the DDSs have had much more time to tinker with the current process in 

order to improve productivity. An important example is improvement in management information systems (MIS). Each DCM had to use both Federal and 

state MIS during the test. Combining the two systems would likely reduce 

costs substantially. 

151

3 Ibid, p. 18. 4 Ibid, p. 23. The table on this page of the report shows the percentage of claims filed in each 

month that were processed as of each 30 day interval after filing, from 30 to 180 days, plus 

the number of claims filed in each month, by Title and DCM versus control. From these data 

I calculated the percent of each type of claim completed at 60, 90 and 120 days for those claims 

filed in the first 10 months. My estimates of the medians were obtained by interpolation between these percentages. For example, I found that 39.0 percent of DCM Title II claims were 

completed within 60 days and 62.7% were completed within 90 days. The median must, therefore, be between 60 and 90 days. I used linear interpolation between these two points to estimate a median of 74 days for DCM Title II claims. Note that this value is actually greater than 

the median reported by SSA, but this is because of the bias in SSA’s estimate caused by; the 

fact that SSA included claims that were filed after the 10th month if they were adjudicated by 

the end of the 13th month. 

• DCM salaries were an important determinant of DCM costs during the test, 

and it is quite possible that lower salaries would be sufficient to operate this 

process. The costs SSA reports reflect the salaries of individuals who actually 

participated in the test. With a few exceptions, the DCMs were a mix of 

former disability examiners (state employees) and claims representatives (federal employees). Almost all Federal DCMs received a promotion, and many 

state DCMs also did. One reason for the promotions was to encourage employees to accept temporary assignments, in many cases away from home. In general, state DCMs were paid substantially less than Federal DCMs. • The cost estimates from the evaluation do not include training costs. Training 

costs under the DCM might be higher than under the current process because 

every adjudicator must receive training in both medical and non-medical adjudication. Lower adjudicator turnover, resulting from greater job satisfaction 

and higher pay, might substantially mitigate this increase. 

Processing Time 

SSA concludes that the median processing time for DCM Title II claims was 10 

days shorter than under the current process; for Title XVI the median was 6 days 

shorter. These estimates understate the reduction because of the way the samples 

used to calculate the medians were selected. While it is not possible to determine 

exactly what the corrected values would be from data in the report, it is possible 

to make a good estimate. My calculations indicate that median DCM processing 

times were shorter than those for the current process by about 19 days for Title II 

(compared to SSA’s 10), and by about 15 days for Title XVI (compared to SSA’s 6). 

The report states: ‘‘Any claim filed before Phase 2 began (11/1/1999) or that was 

adjudicated after the evaluation phase ended (11/30/2000)’’ is excluded.3 Exclusion 

of claims filed before Phase 2 is fine. Exclusion of claims adjudicated after the evaluation phase ended is necessary, but by itself introduces a downward bias in processing time for both DCM and control (i.e., current process) claims, because claims 

filed late in the evaluation phase are included if they are adjudicated quickly, but 

omitted if they are not. The bias is greater for control claims, for two reasons. First, 

longer processing times for control claims means that for all claims filed during any 

month, the share of ‘‘slow’’ control claims excluded is larger than the share of slow 

DCM claims excluded. Second, due to an initial problem in the assignment of control 

claims, a larger share of the control claims is initiated in the last few months of 

the evaluation period. 

It is possible to produce unbiased estimates of the medians for claims in each 

group that were filed in the first 10 months of the evaluation period, because more 

than half of all claims filed in each of these months had been adjudicated by the 

end of the evaluation period, for both the DCM and control processes and for both 

Titles. SSA provides enough information in the report to approximate the median 

processing time for all claims filed in the first 10 months of the test by process and 

Title.4 My estimates of the reductions in median processing time are based on those 

claims only. 

Conclusion 

Based on the evaluation, I think that the DCM, if fully implemented in a reasonable way, would produce substantial improvements in processing time, applicant 

satisfaction, and employee satisfaction without an increase in cost, a decline in accuracy or a change in the initial allowance rate. However, as indicated in my testimony, I do not recommend implementation of the DCM as it was tested. Based on 

discussions with many people involved in the test, I think that much of the success 

of the DCM occurred because a single person in a single office took ownership of 

the claim and also served as the point of contact for the claimant. That feature of 

the DCM can be preserved without requiring the person to be qualified to adjudicate 

all aspects of the claim. The complexity of many claims makes it inefficient to have 

152

a single person have the expertise needed to fully adjudicate any claim. A system 

that preserves the most positive aspects of the DCM, but includes more specialization of expertise and functions, would be better. 

I hope this information is useful to the Subcommittee. 

Sincerely, 

David C. Stapleton, Ph.D. 

Director

[Whereupon, at 5:30 p.m., the hearing was adjourned, to reconvene on Thursday, June 20, 2002, at 10:00 a.m.]

THURSDAY, JUNE 20, 2002

fHOUSE OF REPRESENTATIVES, 

COMMITTEE ON WAYS AND MEANS, 

SUBCOMMITTEE ON SOCIAL SECURITY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:21 p.m., in 

room B–318 Rayburn House Office Building, Hon. E. Clay Shaw, 

Jr. (Chairman of the Subcommittee) presiding.

am advised that we should be left alone for an hour before they call 

Chairman SHAW. We are going to go ahead and get started. I 

f us back across the street. I am told Mr. Matsui will be here in just 

a moment. So, I am going to go ahead and read my opening statement. 

Today the Subcommittee will continue our examination of the 

challenges and opportunities faced by Social Security’s two disability programs, Disability Insurance and Supplemental Security 

Income. 

Last week we examined the disability and appeals process. 

Today, we will focus in depth on the disability appeals decisions 

made by Federal Administrative Law Judges, the Appeals Council 

and the Federal District Courts. 

We will hear from stakeholder groups who can provide their perspectives on the major issues their constituents face as well as 

their recommendations. 

Americans that apply for disability benefits and those who appeal the Agency’s decision expect to receive accurate fair decisions 

within a reasonable period of time. 

This is not happening now. Individuals with disabilities who pursue disability benefits for themselves or their families by appealing 

an unfavorable decision face unconscionable delays. On average, according to the Commission of Social Security, wait time from initial 

applications to decisions from an Administrative Law Judge averages 495 days. 

Add appeals and the court’s processing time, the average is nearly 3 years. Worse yet, this broken system has persisted for years 

with little improvement. Individuals with disabilities face tremendous obstacles every day and an enormously frustrating process of 

applying for and obtaining Social Security benefits shouldn’t contribute to this challenge. 

153

Changes must be made to improve this process to ensure that 

Americans with disabilities and their families can depend on Social 

Security to provide the economic security that they deserve. 

This morning we have one panel, and it is a large panel. We 

have Marty Ford who is Co-Chair of the Social Security Task 

Force, Consortium for Citizens with Disabilities (CCD). We welcome you back. 

We have Nancy Shor who is Executive Director of the National 

Organization for Social Security Claimants’ Representatives from 

Midland Park, New Jersey. 

We have James Hill, who is President of the National Treasury 

Employees Union (NTEU), Chapter 224. 

We have the Honorable Ronald G. Bernoski, who is President of 

the Association of Administrative Law Judges. He is from Milwaukee, Wisconsin. 

We have the Honorable Kathleen McGraw who chairs the Social 

Security Section of the Federal Bar Association (FBA). 

We have John Pickering who is the past Chair of the Senior 

Lawyers Division, Commissioner Emeritus, Commission on Legal 

Problems of the Elderly, American Bar Association (ABA). 

We have Paul Verkuil, who is Professor of Law, Benjamin N. 

Cardozo School of Law at Yeshiva University in New York. He is 

accompanied by Jeffrey Lubbers, who is a Fellow at the Washington College of Law, the American University. 

We welcome all of you. We have your full statements which will 

be made a part of the record and you may summarize as you see 

fit. Ms. Ford. 

[The opening statement of Chairman Shaw follows:]

Opening Statement of the Hon. E. Clay Shaw, Jr., a Representative in Congress from the State of Florida, and Chairman, Subcommittee on Social 

Security 

Good morning. Today the Subcommittee will continue our examination of the challenges and opportunities faced by Social Security’s two disability programs—Disability Insurance and Supplemental Security Income. 

Last week we examined the disability determination and appeals process. Today, 

we will focus in-depth on the disability appeals decisions made by Federal Administrative Law Judges, the Appeals Council, and Federal District Courts. We will hear 

from stakeholder groups who can provide their perspectives on the major issues 

their constituents face, as well as their recommendations for change. 

Americans that apply for disability benefits, and those who appeal the agency’s 

decision, expect to receive accurate, fair decisions within a reasonable amount of 

time. This isn’t happening now. 

Individuals with disabilities who pursue disability benefits for themselves and 

their families by appealing an unfavorable decision face unconscionable delays. On 

average, according to the Commissioner of Social Security, wait time from initial application to decision from an Administrative Law Judge averages 495 days. Add appeals through the courts plus processing time and the average is nearly 3 years. 

Worse yet, this broken system has persisted for years, with little improvement. 

Individuals with disabilities face tremendous obstacles every day—the enormously 

frustrating process of applying for and obtaining Social Security benefits shouldn’t 

contribute to their challenges. Changes must be made to improve this process to ensure that Americans with disabilities and their families can depend on Social Security to provide the economic security that they deserve.

f

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STATEMENT OF MARTY FORD, CO-CHAIR, SOCIAL SECURITY 

TASK FORCE, CONSORTIUM FOR CITIZENS WITH DISABILITIES 

Ms. FORD. Chairman Shaw, thank you for this opportunity to 

testify. 

For people with disabilities it is critical that the Social Security 

Administration significantly improve the process for determining 

disability and the process for appeals. The CCD Social Security 

Task Force strongly supports efforts to reduce unnecessary delays 

and to make the process more efficient—so long as those efforts do 

not affect the fairness of the outcome. 

I will highlight three points from my written statement. First, regarding technological improvements: The current system requires a 

great deal of manual labor. Using electronic folders could allow 

much faster processing. 

However, it is critical to establish from the outset that electronic 

files must contain all of the claimant’s evidence in an exact, unalterable electronic copy of the original. 

In addition, nothing should preclude the claimant from presenting available evidence in any format. Important details and nuances in handwritten and typed reports must not be lost. We do not 

consider summaries or partial documents acceptable substitutes for 

inclusion in a folder. 

Advances in technology will allow the Commissioner to ensure 

protection of this evidence by requiring that exact, unalterable, 

electronic copies of all originals be permanently maintained in the 

folder. 

Second, keeping the record open for new evidence: We strongly 

support the development and submission of evidence as early as 

possible in the process. However, there are often factors beyond the 

claimant’s control which contribute to delay. Claimant’s conditions 

may worsen over time and diagnoses may change. Claimants may 

undergo new treatment. They may be hospitalized or referred to 

different doctors. Some conditions take longer to diagnose. Some 

claimants misunderstand their own impairments. 

By their nature, these claims are not static and a finite set of 

medical evidence does not exist. At what point can a individual say 

that he now has all of the information about the condition and how 

it will affect his life? 

How sensible is it to refuse to receive new information, especially 

if the process itself creates such a delay that changes in condition 

are possible? 

If the record is closed earlier in the process, individuals will be 

forced to file new applications merely to have new evidence reviewed. However, filing a new application may severely jeopardize, 

if not permanently foreclose eligibility for benefits. 

Individuals applying for Title II Disability Insurance could lose 

their entitlement to benefits if they are unable to reapply before 

their recent connection to the workforce ends. 

Contrary to statements made in oral testimony during last 

week’s hearing, great harm could be done to an individual who is 

forced to reapply and who, due to the Title II time limits, loses his 

or her eligibility. 

155

We believe that it is important to work on the front end of the 

process instead and figure out how to get the best possible evidence 

as soon as possible. 

Third, the Agency role in adjudication. An important issue underlying many of these discussions is the role of the Agency in determining disability and paying benefits. There seems to be a sentiment among some that SSA is not being fairly represented in the 

determination process. 

We believe that it is important, however, to note that SSA and 

the claimant are not parties on opposite sides of a legal dispute. 

The SSA already has a major say in what goes on. The SSA develops and publishes the regulations, including the medical listings. 

The SSA provides guidance to claims workers and DDS staff 

through its program operations manual system. The SSA contracts 

with the States for determinations based on its own regulations 

and Program Operating Manual System (POMS) and SSA hires the 

ALJs. 

The claimant’s role is to show that she has an impairment with 

limitations that fit within the parameters constructed by Congress 

and implemented by SSA. Very few claimants would have the 

wherewithal to know and understand all of the things that could 

or should pertain to their cases. 

The SSA’s role is not to oppose the individual’s claim, but rather 

to ensure that people who are eligible, as contemplated by Congress, are enabled, as a result of the claims process, to receive the 

benefits to which they are entitled. 

Where an individual has representation, SSA is not placed in a 

weaker or unfair position. The SSA still controls the process. Rather, SSA should see the individual’s representative as an ally in facilitating the collection of relevant evidence and highlighting the 

important questions to be addressed in making the disability determination. 

Again, I thank you for this opportunity to testify on these important issues. The CCD Social Security Task Force looks forward to 

working with the Subcommittee and the Commissioner in meeting 

the challenges to improve the disability determination and appeals 

processes. 

[The prepared statement of Ms. Ford follows:]

Statement of Marty Ford, Co-Chair, Social Security Task Force, Consortium 

for Citizens with Disabilities 

Chairman Shaw, Representative Matsui, and Members of the Subcommittee, 

thank you for this opportunity to testify regarding the disability determination and 

appeals process. 

I am Director of Legal Advocacy for The Arc of the United States. I am testifying 

here today in my role as co-chair of the Social Security Task Force of the Consortium for Citizens with Disabilities (CCD). CCD is a working coalition of national 

consumer, advocacy, provider and professional organizations working together with 

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 XVI Supplemental Security Income program and the 

Title II disability programs. 

For people with disabilities, it is critical that the Social Security Administration 

address and significantly improve the process for determining disability and the 

process for appeals. We are pleased to see Commissioner Barnhart take on this task 

as a major goal of her tenure as Commissioner. We support her view that this is 

a vitally necessary course of action for the agency and we look forward to working 

with the Commissioner and this Subcommittee in meeting the challenges 

156

The backlog of cases waiting for ALJ and Appeals Council decisions is clearly unacceptably long, as so vividly and visually illustrated by the Commissioner at this 

Subcommittee’s hearing on May 2, 2002. People with severe disabilities who by definition have limited earnings from work are often forced to wait years for a final decision from the time of application through the final Appeals Council decision. This 

is damaging not only to the individual with a disability and his/her family, but also 

to the public perception of and integrity of the program. 

We strongly support efforts to reduce unnecessary delays for claimants and to 

make the process more efficient, so long as they do not affect the fairness of the 

process to determine a claimant’s entitlement to benefits. 

Technological Improvements 

We support the Commissioner’s efforts to make technological improvements at 

SSA. Whatever funds are necessary should be appropriated to ensure that the process works as intended by the law. 

Much of the delay in the current process is caused by a system that still requires 

a great deal of manual labor. If the system is not upgraded, from a technological 

standpoint, some of the process reform changes discussed below will not improve the 

system. Several initiatives have been announced recently that, we believe, could reduce delays, provide better service to the public, and would not require fundamental 

changes to the current process. They include: electronic folders (eDIB); digital recording of hearings, and video teleconference hearings. We support such modernizations where they are used to ensure a full and fair evaluation of a claim and ensure 

the claimant’s access to a full and fair hearing on appeal, where necessary. 

We believe that using electronic folders will allow much faster processing, eliminating delays while folders are moved from place to place, avoiding loss of valuable 

records, and allowing immediate recording of updates, new evidence, or other actions regarding the file. However, we believe that it is critical to establish that electronic files contain all of the claimants’ evidence in an exact, unalterable electronic 

copy of the original, including complete copies of originals that are received electronically. In addition, nothing should preclude the claimant from presenting available evidence in any format. 

In the past, we were skeptical about the use of electronic folders due to concerns 

about how evidence, such as handwritten or typed doctors’ reports, would be included in an electronic file. We do not consider summaries or partial documents acceptable substitutes for inclusion in a folder. Important details and nuances in the 

paper reports must not be lost. However, technology is now commonly available to 

allow such ‘‘paper’’ evidence to be fully included in the electronic folder without alteration. We urge the Commissioner to ensure protection of this valuable, sometimes 

irreplaceable, evidence by requiring that exact, unalterable electronic copies of all 

originals be permanently maintained in the electronic folder. Otherwise, we could 

not support this move toward a fully electronic record. 

Gathering Evidence 

It is critical that SSA 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 non-medical evidence by explaining what is 

needed and asking the correct questions, with appropriate variations for different 

treatment sources. 

Claimants should be encouraged to participate to the extent they are able. To that 

end, SSA should assess, as early in the process as possible, the claimant’s need for 

special assistance and provide it. Such assistance could be triggered when applicants are unable to read, show evidence of cognitive or other mental impairments, 

or give other indications of being unable to maneuver the process alone. 

As noted below, it may be difficult for claimants to obtain evidence for various 

reasons, e.g., state laws limiting release, reluctance of providers to release information, inadequate payment for records. Providing DDSs with adequate funds to obtain 

evidence would assist greatly at an earlier part in the process. 

Eliminating Reconsideration 

We support the concept of eliminating reconsideration and providing the opportunity for a pre-denial interview. The Commissioner recently announced in April 

2002 that the elimination of the reconsideration step would be extended in the ten 

‘‘prototype’’ states while SSA gathers additional information, but will not be extended nationwide at this time. 

However, the Commissioner also announced the end of the ‘‘claimant conference’’ 

in the prototype states, upon publication of a notice in the Federal Register. We believe that an in-person interview would be beneficial to many claimants. In addition 

157

to identifying further information, these interviews would also allow claimants to 

provide information and explain the limitations caused by their impairments. 

The Right To A Full And Fair Hearing Before An Administrative Law 

Judge 

The key aspect of the adjudication process for a claimant is the right to a full and 

fair hearing by an Administrative Law Judge (ALJ), who is an independent decision-maker, providing impartial fact-finding and adjudication. The ALJ asks questions of and takes testimony from the claimant, may develop evidence when necessary, and applies the law and agency policy to the facts of the case. Claimants 

have the right to present new evidence in person to the ALJ and to receive a decision from the ALJ that is based on all available evidence. This right should be preserved. 

Keep the Record Open for New Evidence 

Many recent proposals to change the disability determination process recommend 

that the record be closed to new evidence either after the DDS or, at least, after 

the ALJ level. In the past, both Congress and SSA have recognized that such proposals are neither beneficial to claimants nor administratively efficient for the agency. 

We strongly support the submission of evidence as early as possible. Full development of the record at the beginning of the claim means that the correct decision 

can be made at the earliest point possible. The benefit is obvious: the earlier a claim 

is adequately developed, the sooner it can be approved and the sooner payment can 

begin. 

Despite the obvious benefit to claimants, the fact that early submission of evidence does not occur more frequently indicates that factors beyond the claimant’s 

control contribute to this problem. In attempting to find a solution, Congress and 

SSA should be careful not to make the process less ‘‘user-friendly’’ or more problematic for SSA. 

There are several reasons why closing the record is not beneficial to claimants:

(1) Conditions change over time. Claimants’ conditions may worsen or improve over time and diagnoses may change. Claimants may undergo new treatment, be hospitalized or referred to different doctors. Some conditions, such as 

multiple sclerosis, take longer to diagnose. Some claimants mischaracterize 

their own impairments, either because they are in denial or lack judgment or 

understanding about their illness. 

By their nature, these claims are not static and a finite set of medical evidence 

does not exist. Think for a minute about your own and your family’s situation. 

How often has someone received a diagnosis, only to have it change later as 

more tests are conducted or as more symptoms begin to appear? How often has 

the original assessment of a condition’s severity changed, for the better or the 

worse? At what point can the individual affected say that he/she now has all 

of the information about the condition and how it will affect his/her life? And 

how sensible is it to refuse to receive new information, especially if the disability determination process itself creates such a time lag that changes in condition are possible, if not likely? 

If the record is closed, individuals will be forced to file new applications merely 

to have new evidence reviewed, such as reports from a recent hospitalization 

or a report that finally assesses and diagnoses a condition. Closing the record 

to such evidence does not serve either the claimant or the agency well. It would 

merely ensure that a decision will be made based on a snapshot that may be 

significantly out of date. 

Finally, the system already imposes restrictions on new evidence submitted 

after the initial DDS decision. These limitations prevent the process from being 

entirely open-ended and serve to encourage claimants and their representatives 

to gather as much relevant information as possible as early in the process as 

possible.

(2) The ability to submit evidence is not always in the claimant’s control. Claimants always benefit by submitting evidence as soon as possible. However, there are many reasons why they are unable to do so and for which they 

are not at fault. Closing the record punishes them for factors beyond their control, including situations where:

• DDS examiners fail to obtain necessary and relevant evidence. 

• Neither SSA nor the DDS explains to the claimant what evidence is important and necessary for adjudication of the claim. 

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• Claimants are unable to obtain medical records either due to cost or because state laws prevent them from directly obtaining their own medical 

records. 

• Medical providers, especially treating sources, receive no explanation 

from SSA or the DDS about the disability standard and are not asked 

for evidence relevant to the claim. 

• Medical providers delay or refuse to submit evidence.

So that claimants are not wrongly penalized for events beyond their control, the 

current system provides a process to submit new evidence if certain conditions 

are met. This exception should not be eliminated in the name of streamlining 

the system.

(3) The process should remain informal. For decades, Congress and the 

United States Supreme Court have recognized that the informality of SSA’s 

process is a critical aspect of the program. Imposing a time limit to submit evidence and then closing the record is inconsistent with the legislative intent to 

keep the process informal and inconsistent with the philosophy of the program. 

The value of keeping the process informal should not be underestimated: it encourages individuals to supply information, often regarding the most private aspects of their lives. The emphasis on informality also has kept the process understandable to the layperson, and not strict in tone or operation. SSA should 

be encouraged to work with claimants to obtain necessary evidence and more 

fully develop the claim at an earlier point.

Further, filing a new application is not a viable option because it does not improve 

the process and may in fact severely jeopardize, if not permanently foreclose, eligibility for benefits. A claimant should not be required to file a new application merely to have new evidence considered where it is relevant to the prior claim. If such 

a rule were established, SSA would need to handle more applications, unnecessarily 

clogging the front end of the process. 

Worse yet, individuals applying for Title II Disability Insurance benefits could 

permanently lose their entitlement to benefits if they are unable to re-apply before 

their recent connection to the workforce ends (DI beneficiaries must have worked 

20 out of the last 40 quarters). Contrary to statements made in oral testimony during last week’s hearing, great harm could be done to an individual who is forced 

to re-apply and who, due to the Title II time limits, loses his/her eligibility permanently. 

Many people will wait some time before applying for benefits as they try to see 

if their impairments can be overcome or if they can make it in their changed circumstances. Added to the delays in the process as described by the Commissioner, 

the individual could be beyond the 5-year ‘‘recency of work’’ test before facing the 

need to re-apply. Those who do not have problems with recency of work may still 

lose benefits for the time period between the first and second applications. Forcing 

re-application merely to consider new evidence is clearly unfair to the claimant. 

The Agency Should Not Be Represented at the ALJ Level 

We do not support efforts to have SSA represented at the ALJ hearing because 

past experience shows that it does not result in better decision-making and reducing 

delays, but instead injects a level of adversity, formality and technicality in a system meant to be informal and non-adversarial. In the 1980’s, SSA tested, and abandoned, a pilot project to have the agency represented. It was terminated following 

Congressional criticism and a judicial finding that it was unconstitutional and violated the Social Security Act. In the end, the pilot did not enhance the integrity of 

the administrative process. 

Agency Role in Adjudication 

In the discussions above regarding maintaining an informal process and representation of SSA in the ALJ hearing, an important underlying issue is the role of the 

agency in determining disability and paying benefits. There seems to be a sentiment 

among some that SSA is not being fairly represented in the determination process. 

We believe that it is important, however, to note that SSA and the claimant are 

not parties on opposite sides of a legal dispute. SSA already has a very heavy say 

in what goes on: SSA implements the law through development and publication of 

regulations, including the medical listings; provides guidance to claims workers and 

Disability Determination Services staff through its Program Operations Manual 

System (POMS); contracts with the states for determinations made in accordance 

with its regulations and POMS; and hires the ALJs. The claimant’s role is to show 

that he/she has an impairment with limitations that fit within the parameters constructed by Congress and implemented by SSA. 

159

Very few claimants would have the wherewithal to know and understand all of 

the things that could or should pertain to their cases. SSA has a vital role in helping the claimant through a very complex process. SSA’s role is not to ‘‘oppose’’ the 

individual’s claim; but rather to ensure that people who are eligible as contemplated 

by Congress are enabled, as a result of the claims process, to receive the benefits 

to which they are entitled. Where an individual has representation, whether legal 

or lay representation, SSA is not placed in a weaker or unfair position requiring its 

own representation. SSA has still written all the regulations and POMS and contracted with the DDSs and hired the ALJs. Rather, SSA should see the individual’s 

representative as an ally in facilitating the collection of relevant evidence and highlighting the important questions to be addressed in making the disability determination. 

We believe that all the discussions about the formality/informality of the process 

and whether SSA should/should not be represented should be viewed from this perspective. 

Retain Review by the Appeals Council 

We oppose the elimination of a claimant’s right to request review by the Appeals 

Council. The Appeals Council currently provides relief to nearly one-fourth of the 

claimants who request review of ALJ denials, either through outright reversal or remand back to the ALJ. Review by the Appeals Council, when it is able to operate 

properly and in a timely manner, provides claimants, and SSA, with effective review 

of ALJ decisions. Given the low percentage appealed to federal court, it appears that 

claimants largely accept decisions by the Appeals Council as the final adjudication 

of their claims. As a result, the Appeals Council acts as the initial screen for ALJ 

denials, a position for which the district courts are ill equipped, given their other 

responsibilities. 

Retain Access to Judicial Review in the Federal Court System 

Both individual claimants and the system benefit from the regular federal courts 

handling social security cases. Given the wide variety of cases they adjudicate, federal courts have a broad background against which to measure the reasonableness 

of SSA’s practices. 

Reasons given for establishing a Social Security Court include creating a uniform 

body of case law and guaranteeing that the claims of similarly situated claimants 

are treated without regional disparity. Creation of a Social Security Court is not the 

most effective, efficient, or fair manner in which to accomplish these goals. 

Intervention by the federal courts has played a vital role in protecting the rights 

of claimants. The courts have halted illegal practices by SSA and have provided 

standards and guidance where SSA has failed to articulate clear policies. The current federal court system has contributed to national uniformity. The process of federal court review has not led to significant regional variation. In general, the courts 

have reached agreement on core issues concerning SSA programs. As a result, extensive circuit case law has provided guidance to SSA in developing uniform standards. Two examples in major areas include: (1) rules describing the weight to be 

given all medical evidence, including reports from treating sources; and (2) rules to 

evaluate subjective symptoms, including pain. Overall, there is substantial benefit 

to be derived from different courts thoughtfully considering different cases on the 

same issue to shed light on the many aspects of any particular position. 

The courts should be readily accessible to all claimants, and should allow everyone, including people who are poor, disabled or elderly, an equal opportunity to be 

heard by judges of the high caliber we expect. A Social Security Court located in 

Washington, DC, would severely limit access to the court for those who most need 

it—people with disabilities or who are elderly and who have limited financial 

means. Currently, claimants and their attorneys have relatively easy access to the 

federal courts and un-represented individuals are able to file appeals without the 

assistance of counsel. If Social Security Courts were not located in as many locations 

as the federal district courts, many people would be unable to file cases because of 

distance and the cost of travel. These individuals would likely feel that the system 

had utterly failed to provide a fair opportunity for review. In light of geographical 

distances and high caseloads, the court might be forced to forego oral argument altogether, as has been the case with the Appeals Council. 

There are high financial and administrative costs in creating the court. The court 

would involve expenditures for judges, staff, courthouse space, etc. The financial cost 

of creating the court must be weighed against the questionable effectiveness of the 

court to achieve its stated objective, especially given the limited resources available. 

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Remove Limitation on Administrative Expenses 

Reducing the backlog and processing time must be a high priority. We urge commitment of resources and personnel to resolve the exorbitant waiting times and 

make the process work better for people with disabilities. First, SSA must be provided with the resources to fully meet its administrative responsibilities. This can 

be accomplished by removing SSA’s Limitation on Administrative Expenses budget 

authority from the domestic discretionary spending category. 

SSA workloads are projected to begin increasing rapidly within the next decade 

as the baby boom generation begins to reach its peak disability years just prior to 

reaching early retirement age beginning in 2008. In addition, the SSA workforce is 

also aging and will begin to lose significant numbers of staff, including senior and 

leadership staff. About 3,000 employees are expected to retire per year from 2007 

through 2009. SSA is also taking on new or more complex responsibilities such as 

providing increased rehabilitation and employment services for people with disabilities, completing and maintaining an appropriate schedule of continuing disability 

reviews and other eligibility reviews, and new approaches to prevent fraud and 

abuse. In FY 1985, SSA’s staffing levels were 80,844 FTEs and 83,406 workyears. 

The President’s budget requests for FY 2003 include 63,464 FTEs and 64,730 

workyears, for a reduction of 17,380 FTEs and 18,676 workyears over the last 18 

years. 

The CCD Social Security Task Force has voiced concern for some time over the 

continued long-term downsizing of the SSA workforce. We believe that failure to 

conduct appropriate and timely CDRs and other eligibility reviews could lead to decreased trust in the integrity of the Social Security and SSI programs. In addition, 

the new efforts to assist people with disabilities to go to work, through the Ticket 

to Work and Work Incentives Improvement Act of 1999, require new and expanded 

approaches for SSA interaction with beneficiaries. Adequate staffing levels are critical for these and other efforts to be successful, especially given the coming disability and retirement years of baby boomers. 

For these reasons, we strongly support removing the Social Security Administration’s Limitation on Administrative Expenses (LAE) budget authority from any domestic discretionary spending caps. Even if the LAE were removed from the domestic discretionary caps, SSA’s LAE would still be subject to the annual appropriations 

process and Congressional oversight. Currently, SSA’s administrative expenses total 

less than 2% of benefit payments paid annually. Congress would still maintain its 

role in ensuring continued administrative efficiency. 

Most importantly, removal of the LAE from the domestic discretionary spending 

caps would remove it from competition with other health, education, and human 

needs programs for limited funds. It would allow for growth that is necessary to 

meet the needs of the coming baby-boomer retirement years (including the retirement of SSA and state DDS personnel); continue the efforts to improve the processing time for initial applications and appeals, particularly through technological 

improvements; continue the efforts to ensure integrity in the program through 

CDRs and other redeterminations; and allow for replacement of staff in a timely 

manner and to provide for adequate training and mentoring. 

Again, thank you for this opportunity to testify on these important issues. The 

CCD Social Security Task Force looks forward to working with the Subcommittee 

and the Commissioner on improving the disability determination and appeals processes. 

On Behalf Of: 

American Association on Mental Retardation 

American Congress of Community Supports and Employment Services 

American Network of Community Options and Resources 

American Occupational Therapy Association 

Brain Injury Association of America 

National Alliance for the Mentally Ill 

National Association of Protection and Advocacy Systems 

National Multiple Sclerosis Society 

National Organization of Social Security Claimants’ Representatives 

Research Institute for Independent Living 

The Arc of the United States 

Title II Community AIDS National Network 

United Cerebral Palsy Associations, Inc.

Chairman SHAW. Ms. Shor? 

f

161

STATEMENT OF NANCY G. SHOR, EXECUTIVE DIRECTOR, NATIONAL ORGANIZATION OF SOCIAL SECURITY CLAIMANTS’ 

REPRESENTATIVES, MIDLAND PARK, NEW JERSEY 

Ms. SHOR. Chairman Shaw, thank you for inviting us to testify 

today about challenges and opportunities in the administration of 

the Social Security Disability Programs. 

Collectively, Members of the National Organization of Social Security Claimants’ Representatives (NOSSCR) have many, many 

years of experience in representing claimants at every level of the 

disability determination process. We appreciate this opportunity to 

share some observations and recommendations with you. 

Today’s hearing focuses on the challenges facing the disability 

programs, two extremely important criteria for such review are certainly efficiency and timeliness. They are not the sole criteria. Today’s hearing should be directed to ensure the fairness of the process for determining whether or not a claimant is entitled to benefits. 

Without hesitation, NOSSCR strongly supports efforts to reduce 

unnecessary delays for claimants and to make the process much 

more efficient as long as these efforts do not impair the fairness of 

the process to determinate a claimant’s entitlement to benefits. 

First, it is certainly necessary to State without elaboration. It is 

crucial to provide the Social Security Administration with adequate 

resources to meet current and future needs. To improve delays, better develop cases and implement technological advances, SSA requires adequate staffing and resources. The NOSSCR supports removing SSA’s administrative budget from discretionary domestic 

spending caps. 

Secondly, very briefly, but it is certainly necessary to improve 

full development of the record earlier in the process. Unfortunately, 

very often the files that denied claimants bring to our Members 

show that inadequate development was done at the initial and reconsideration levels. 

Often claimants are denied at those levels, not because the evidence establishes that the person is not disabled, but because the 

limited evidence gathered there cannot establish that the person is 

disabled. 

Often, a properly developed file is before the ALJ because either 

the claimant’s representative has obtained the necessary evidence 

or because the ALJ has. Not surprisingly, these different evidentiary records can easily produce different results on the issue 

of disability. 

To address this, the Agency needs to emphasize the full development of the record at the beginning of the claim. The benefit is obvious. The earlier a claim is adequately developed, the earlier it 

can be correctly decided. 

We have set out several recommendations to improve the development process in our written testimony. 

Third, I want to speak to processes to streamline the disability 

determination process without impairing the claimant’s right to a 

full and fair hearing. 

First, we support elimination of the reconsideration level. It appears to be a step that requires a lot of time and produces very little. 

162

Secondly, with the focus on the Office of Hearings and Appeals, 

clearly current processing times at the ALJ and Appeals Council 

levels are unacceptably high. We strongly agree with the Commissioner that reducing the backlog and processing time is a high priority. We urge commitment of resources and personnel necessary to 

reduce delays and make the process work better for the public. 

We believe that features of a full and fair process include the following: retain the right to a de novo hearing before an Administrative Law Judge. This is the right to a full and fair administrative 

hearing by an independent decision maker who provides impartial 

fact finding and adjudication, free from any agency coercion or influence for claimants. This means the right to appear in person to 

provide testimony and new evidence to an ALJ. 

Keep the record open for new evidence and understand that 

there are currently regulatory and statutory limitations on what 

can come into a file once an ALJ has issued an opinion. 

The NOSSCR strongly supports the submission of evidence as 

early as possible, but we know there are often many legitimate reasons that evidence cannot be presented at the time of the ALJ 

hearing. I would certainly offer a cautionary observation that telling a claimant to file a new application in lieu of submitting new 

evidence on appeal can be significantly disadvantageous to that 

claimant. 

We believe that the Social Security Administration should not be 

represented at the ALJ level. In the eighties, SSA tested and abandoned a pilot project to have the Agency represented. The government representation project, which I guess works out to GRP. 

The GRP caused extensive delays in a system that was overburdened even then and injected an inappropriate level of adversity, 

formality and technicality into a system meant to be informal and 

non-adversarial. 

We support continued review by the Appeals Council. I will note 

very briefly, appropriately 25 percent of claimants who have requested review of an unfavorable ALJ decision find relief at the Appeals Council. We also note that the processing times are significantly improved at that level in the past year. 

Finally, we support continuation of the current system of access 

to the Federal courts for judicial review of Social Security claims. 

Thank you for the opportunity to testify. 

[The prepared statement of Ms. Shor follows:]

Statement of Nancy G. Shor, Executive Director, National Organization of 

Social Security Claimants’ Representatives, Midland Park, New Jersey 

Chairman Shaw, Representative Matsui, and Members of the Subcommittee:

Thank you for inviting me to testify about challenges and opportunities in the Social Security disability programs. I commend you for holding this hearing since millions of people with disabilities depend on these programs. 

For the past twenty years, I have been the Executive Director of the National Organization of Social Security Claimants’ Representatives (NOSSCR). NOSSCR’s current membership is approximately 3,450 attorneys and others from across the country who represent claimants for Social Security and Supplemental Security Income 

(SSI) benefits. Collectively, we have many years of experience in representing claimants at every level of the disability determination process and welcome this opportunity to share some observations and recommendations with you. 

During my tenure as the NOSSCR Executive Director, SSA Commissioners and 

other officials at the Social Security Administration have been willing to meet with 

us and other groups to discuss issues important to our membership and to claimVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00166 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
163

ants. This has proven to be an effective way of addressing our concerns before they 

become serious problems requiring other types of intervention and we look forward 

to continuing this dialogue with Commissioner Barnhart and her staff regarding the 

disability programs. 

Today’s hearing focuses on the challenges facing the Social Security and Supplemental Security Income disability programs. Two extremely important criteria for 

such a review are efficiency and timeliness. But these are not the only criteria. Today’s hearing should be directed to ensure the fairness of the process for determining whether or not a claimant is entitled to benefits. We share SSA’s goal of 

providing accurate decisions for claimants as early in the process as possible. Further, changes at the ‘‘front end’’ can have a significant beneficial impact on improving the backlogs and delays throughout the hearings and appeals process. 

The vast majority of cases handled by NOSSCR members are claims for Social Security and SSI disability benefits. NOSSCR strongly supports efforts to reduce unnecessary delays for claimants and to make the process more efficient, so long as 

these efforts do not impair the fairness of the process to determine a claimant’s entitlement to benefits. 

Provide SSA With Adequate Resources To Meet Current And Future Needs 

NOSSCR is concerned about SSA’s readiness to deal with the impending increase 

in its workload as the ‘‘baby boom’’ generation approaches the peak age for onset 

of disability and, subsequently, retirement. At hearings held by this Subcommittee 

in 2000, testimony painted a bleak picture regarding SSA’s ability to deal with the 

increased work, at the same time that its own workforce will reach peak retirement 

numbers. To exacerbate this problem, SSA’s budget continues to be cut from levels 

that would allow it to adequately address current and future service delivery needs. 

Most cases handled by NOSSCR members are at the ALJ hearing and Appeals 

Council levels, where current processing times are unacceptably high. A claimant 

cannot proceed with an appeal in federal district court until the Appeals Council has 

acted. Thus, while their medical and financial situations are deteriorating, claimants are forced to wait for many months, if not years, before receiving a decision. 

To improve delays, better develop cases and implement technological advances, 

SSA requires adequate staffing and resources. NOSSCR supports removing SSA’s 

administrative budget, like its program budget, from the discretionary domestic 

spending caps. Legislation such as H.R. 5447, a bipartisan bill introduced in 2000 

by Chairman Shaw and Representative Cardin, would accomplish this by allowing 

Congress to approve funding for SSA to address current service delivery needs and 

planning for the future. 

Improve Full Development Of The Record Earlier In The Process 

Developing the record so that relevant evidence from all sources can be considered 

is fundamental to full and fair adjudication of claims. The decisionmaker needs to 

review a wide variety of evidence in a typical case, including the medical records 

of treatment; opinions from medical sources and other treating sources, such as social workers and therapists; records of prescribed medications; statements from 

former employers; and vocational assessments. The decisionmaker needs these types 

of information to determine the claimant’s residual functional capacity, ability to return to former work, and ability to engage in other work which exists in the national economy in significant numbers. Once an impairment is medically established, SSA’s regulations envision that all types of relevant information, both medical and nonmedical, will be considered to determine the extent of the limitations 

imposed by the impairment(s). 

The key to a successful disability determination process is having an adequate 

documentation base and properly evaluating the documentation that is obtained. 

Unless claims are better developed at earlier levels, the procedural changes will not 

improve the disability determination process. Unfortunately, very often the files 

that denied claimants bring to our members show that inadequate development was 

done at the initial and reconsideration levels. Until this lack of evidentiary development is addressed, the correct decision on the claim cannot be made. Claimants are 

denied not because the evidence establishes that the person is not disabled, but 

because the limited evidence gathered cannot establish that the person is disabled. 

A properly developed file is usually before the ALJ because the claimant’s representative has obtained evidence or because the ALJ has developed it. Not surprisingly, these different evidentiary records can easily produce different results on the 

issue of disability. To address this, the agency needs to emphasize the full development of the record at the beginning of the claim. The benefit is obvious: the earlier 

a claim is adequately developed, the earlier it can be correctly decided. 

164

NOSSCR supports full development of the record at the beginning of the claim 

so that the correct decision can be made at the earliest point possible. Claimants 

should be encouraged to submit evidence as early as possible. However, the fact that 

early submission of evidence does not occur more frequently is usually due to reasons beyond the claimant’s control. 

Our recommendations to improve the development process include the following:

• SSA should explain to the claimant, at the beginning of the process, what evidence is important and necessary. • DDSs need to obtain necessary and relevant evidence. Representatives often 

are able to obtain more relevant medical information because they use letters 

and forms that ask questions relevant to the disability determination process. 

DDS forms usually ask for general medical information (diagnoses, findings, 

etc.) without tailoring questions to the Social Security disability standard. 

The same effort should be made with nonphysician sources (therapists, social 

workers) who see the claimant more frequently than the treating doctor and 

have a more thorough knowledge of the limitations caused by the claimant’s 

impairments. • Improve provider response rates to requests for records, including more appropriate reimbursement rates for medical records and reports. • Provide better explanations to medical providers, in particular treating 

sources, about the disability standard and ask for evidence relevant to the 

standard.

The Disability Determination Process: How to Streamline Without Impairing the 

Claimant’s Right to a Full and Fair Hearing 

I. Initial And Reconsideration Levels 

In ten ‘‘prototype states’’ [AL, AK, CA, CO, LA, MI, MO, NH, NY, PA], SSA currently is testing two significant changes at the pre-hearing levels of the process: 

elimination of the reconsideration level and adding a predecision interview, also 

known as a ‘‘claimant conference.’’ Originally scheduled to be implemented in 2002, 

SSA published proposed regulations in January 2001. 66 Fed. Reg. 5494 (Jan. 19, 

2001). However, SSA announced in mid-2001 that the nationwide rollout would be 

deferred pending further analysis. In April 2002, the Commissioner announced that 

the claimant conference would be eliminated after notice is published in the Federal 

Register. 

NOSSCR has supported elimination of reconsideration and adding the predecision 

claimant conference. We have had concerns about the conduct of the claimant conference based on reports from NOSSCR members such as: brief and pro forma conferences held by telephone; variations in content of the conference, depending on the 

particular DDS adjudicator involved; claimants not being informed of their right to 

be represented at the claimant conference; and claimants possibly being discouraged 

from pursuing an appeal if the decision is denied. 

We have long advocated the value of providing claimants with a face-to-face meeting with the decisionmaker and hope that the Commissioner will find a way to incorporate the most beneficial features of the original objectives of the claimant conference. When she announced that the conference would be eliminated, the Commissioner stated that SSA would encourage early and ongoing contacts with claimants 

during the development process. As discussed above, these are goals that NOSSCR 

strongly endorses. Many NOSSCR members would like to participate earlier in the 

process since they are able to assist the disability examiners in obtaining medical 

evidence and focusing the issues. 

II. The Hearings And Appeals Levels 

Current processing times at the ALJ and Appeals Council levels are unacceptably 

high. We agree with the Commissioner that reducing the backlog and processing 

time must be a high priority. We urge commitment of resources and personnel necessary to reduce delays and make the process work better for the public. 

Recently, a number of proposals to change the disability determination process 

have been put forward. However, these proposals contain some recommendations 

that we believe would undermine a claimant’s right to a fair adjudication process. 

We believe that features of a full and fair process include the following:

• Retain the right to a de novo hearing before a Administrative Law 

Judge.

A claimant’s right to a hearing before an Administrative Law Judge (ALJ) is central to the fairness of the adjudication process. This is the right to a full and fair 

administrative hearing by an independent decisionmaker who provides impartial 

fact-finding and adjudication, free from any agency coercion or influence. The ALJ 

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1 20 C.F.R. §§ 404.970(b) and 416.1470(b). 

2 42 U.S.C. § 405(g). 

3 42 U.S.C. §§ 405(b)(3) and 1383(c)(1). 

asks questions of and takes testimony from the claimant, may develop evidence 

when necessary, 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 in person to the ALJ, and to receive a 

decision from the ALJ that is based on all available evidence.

• Keep the record open for new evidence.

Many recent proposals to change the disability determination process recommend 

that the record be closed to new evidence either after the DDS or, at least, after 

the ALJ level. In the past, both Congress and SSA have recognized that such proposals are neither beneficial to claimants nor administratively efficient for the agency. 

Under current law, an ALJ hears a disability claim de novo. Thus, new evidence 

can be submitted and will be considered by the ALJ 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 only if it relates to the period before the ALJ decision 

and is ‘‘new and material.’’ 1 At the federal district court level, the record is closed 

and the court will not consider new evidence. However, the court may remand the 

case to allow SSA to consider new evidence, but only if it is ‘‘new and material’’ and 

there is ‘‘good cause’’ for the failure to submit it in the prior administrative proceedings.2

As noted earlier, NOSSCR strongly supports the submission of evidence as early 

as possible. Full development of the record at the beginning of the claim means that 

the correct decision can be made at the earliest point possible. The benefit is obvious: the earlier a claim is adequately developed, the sooner it can be approved and 

the sooner payment can begin. However, there are many legitimate reasons why evidence is not submitted earlier and thus why closing the record is not beneficial to 

claimants including: (1) worsening of the medical condition which forms the basis 

of the claim; (2) the fact that the ability to submit evidence is not always in the 

claimant’s or representative’s control, e.g., providers delay sending evidence; and (3) 

the need to keep the process informal. 

Proponents of closing the record note that claimants could file a new application. 

This does not improve the process and may in fact severely jeopardize, if not permanently foreclose, eligibility for benefits. By reapplying rather than appealing: (1) 

benefits could be lost from the effective date of the first application; (2) in SSDI 

cases, there is the risk that the person will lose insured status and not be eligible 

for benefits at all when a new application is filed; and (3) if the issue to be decided 

in the new claim is the same as in the first, SSA will find that the doctrine of res 

judicata bars consideration of the second application. 

In the past, SSA’s notices misled claimants regarding the consequences of reapplying for benefits in lieu of appealing an adverse decision. Congress addressed 

this serious problem and, in legislation enacted in 1990, required SSA to include 

clear and specific language in its notices describing the adverse effect on possible 

eligibility to receive payments by choosing to reapply in lieu of requesting review.3

Apart from these harsh penalties, which have been recognized and addressed by 

Congress, a claimant should not be required to file a new application merely to have 

new evidence considered where it is relevant to the prior claim. If such a rule were 

established, SSA would need to handle more applications, unnecessarily clogging the 

front end of the process. Further, there would be more administrative costs for SSA 

by creating and then developing a new application.

• SSA should not be represented at the ALJ level.

We do not support proposals to have SSA represented at the ALJ hearing. In the 

1980’s, 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 was revived in 1982 with no public hearings 

and was instituted as a one-year ‘‘experiment’’ at five hearing sites. The one-year 

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4 In Sallings v. Bowen, 641 F. Supp. 1046 (W.D.Va. 1986), the federal district court held that 

the Project was unconstitutional and violated the Social Security Act. In July 1986, it issued 

an injunction prohibiting SSA from holding further proceedings under the Project. 5 Comments dated May 26, 1994, of Chief Judge John F. Gerry, Chairman of the Judicial Conference of the United States, in response to SSA’s April 1, 1994 ‘‘Disability Reengineering 

Project Proposal.’’ 6 Id.

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 decisionmaking and reducing delays, it was an utter failure. The GRP caused extensive 

delays in a system that was overburdened, even then, and injected an inappropriate 

level of adversity, formality and technicality into a system meant to be informal and 

nonadversarial. In the end, the GRP experiment did nothing to enhance the integrity of the administrative process.

• Retain review by the Appeals Council.

In the ten prototype states, SSA also is testing the elimination of a claimant’s 

right to request review of a hearing decision by the Appeals Council. We oppose the 

elimination of a claimant’s right to request review by the Appeals Council. The Appeals Council currently provides relief to nearly one-fourth of the claimants who request review of ALJ denials, either through outright reversal or remand back to the 

ALJ. As the Commissioner noted in her testimony at this Subcommittee’s hearing 

on May 2, the Appeals Council has made significant improvements in reducing processing times and its backlog. Based on this progress, she stated that by the end of 

the year, the Appeals Council pending caseload could be at a workable level. 

The Appeals Council, when it is able to operate properly and in a timely manner, 

provides claimants with effective review of ALJ decisions and acts as a screen between the ALJ and federal court levels. In addition, elimination of Appeals Council 

review could have a serious negative impact on the federal courts. As long ago as 

1994, the Judicial Conference of the United States opposed elimination of the claimant’s request for review by the Appeals Council prior to seeking judicial review in 

the district courts, stating that such a proposal was ‘‘likely to be inefficient and 

counter-productive.’’ 5 Since most ALJ denials did not then result in federal judicial 

review, as is currently the case, the Judicial Conference stated: ‘‘Claimants largely 

accept the outcome of Appeals Council review.’’ Further, the Conference expressed 

concern that allowing direct appeal from the ALJ denial to federal district court 

could result in a significant increase in the courts’ caseloads. As a result, the Judicial Conference concluded: 

From the perspective of both unsuccessful litigants and the federal courts, 

the present system of Appeals Council review as a precondition to judicial 

review is sound. The right of judicial review by Article III courts for all 

claimants remains intact under the present system. To the extent that the 

process of Appeals Council review is thought to be too time-consuming, despite the high degree of finality that results, it would be wiser to seek to 

streamline and expedite the process of review rather than to bypass it as 

a precondition to federal judicial review.6

We agree with the conclusion of the Judicial Conference of the United States. Access to review in the federal courts is the last and very important component of the 

hearings and appeals structure. Court review is not de novo, but rather, is based 

on the substantial evidence test. We believe that both individual claimants and the 

system as a whole benefit from federal court review. The district courts are not 

equipped, given their many other responsibilities, to act as the initial screen for ALJ 

denials.

• Retain access to judicial review in the federal court system.

NOSSCR supports the current system of judicial review. Proposals to create either 

a Social Security Court to replace the federal district courts or a Social Security 

Court of Appeals to provide appeal of all Social Security cases from district courts 

have been considered, and rejected, by Congress and SSA over the past twenty 

years. 

We believe that both individual claimants and the system as a whole benefit from 

the federal courts deciding Social Security cases. Over the years, the federal courts 

have played a critical role in protecting the rights of claimants. The system is wellserved by regular, and not specialized, federal judges who hear a wide variety of 

federal cases and have a broad background against which to measure the reasonableness of SSA’s practices. 

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Creation of either a single Social Security Court or Social Security Court of Appeals would limit the access of poor disabled and elderly persons to judicial review. 

Under the current system, the courts are more geographically accessible to all individuals and give them an equal opportunity to be heard by judges of high caliber. 

Rather than creating different policies, the courts, and in particular the circuit 

courts, have contributed to national uniformity, e.g., termination of disability benefits, denial of benefits to persons with mental impairments, rules for the weight to 

give medical evidence, evaluation of pain. The courts have played an important role 

in determining the final direction of important national standards, providing a more 

thorough and thoughtful consideration of the issues than if a single court had 

passed on each. As a result, both Congress and SSA have been able to rely upon 

the court precedent to produce a reasoned final product. 

Finally, the financial and administrative costs of creating these new courts must 

be weighed against their questionable effectiveness to achieve the stated objectives. 

The courts, if created, would involve new expenditures. We believe that limited resources should be committed to the front end of the process. Further, from an administrative perspective, the focus should not be on the end of the appeals process 

but, rather, on the front end. Requiring claimants to pursue an appeal to obtain the 

justice they are due from the beginning will only add to the cumulative delay they 

currently endure. 

Other Hearing Level Improvements 

Recently, the Commissioner decided that the Hearings Process Improvement plan 

(HPI) would be discontinued as a nationwide initiative and that she would move forward, based on what was learned from that initiative. We support her decision. 

From the inception of HPI, NOSSCR members raised numerous, critical concerns 

about the current state of affairs in hearing offices around the country. These concerns were shared last year with the Executive Task Force established by former 

Acting Commissioner Massanari to evaluate HPI. The main problems included: 

processing times after the Request for Hearing is filed; development; lack of on-therecord decisions; conduct of hearings; and processing times after the hearing. Specific concerns included duplicate requests for medical evidence; inability to speak to 

a ‘‘point’’ person on the case; mail not being associated with the file prior to the 

hearing; organization of files; preparing cases for hearing; and confusion over when 

a case was ready for hearing. 

Some of the recommendations NOSSCR presented to the Task Force included: (1) 

creating the same claims folder earlier in the process; (2) reinstating senior attorney 

authority to issue decisions in certain cases; (3) identifying a ‘‘point’’ person who is 

available to ensure that the case is ready for hearing; (4) a better mechanism for 

review of requests for on-the-record decisions; (5) single requests for information; 

and (6) advance notice of hearings so that submission of evidence can be targeted. 

We hope that the Commissioner will consider these recommendations as she determines the future organization of the hearings process. 

In addition, the Commissioner and the Associate Commissioner for Hearings and 

Appeals recently announced an initial series of initiatives to improve the hearings 

and appeals process which include:

• Early screening and analysis of cases, including possible on-the-record decisions 

• Short form favorable decisions 

• Bench decisions 

• Expansion of videoconference hearings 

• Digital recording of hearings

We are generally supportive of these initiatives so long as they do not impair the 

claimant’s right to a full and fair hearing. The technological improvements are discussed below. 

Technological Improvements 

At the Subcommittee hearing on May 2, 2002, Commissioner Barnhart expressed 

her strong support for moving forward to improve the technology used in the disability determination process. NOSSCR fully supports the Commissioner in this effort, as we believe that much of the delay in the system could be rectified with improved technology. 

For example, the Commissioner has committed herself to development of the electronic disability folder, ‘‘eDIB,’’ as soon as practicable in light of available resources. 

This would reduce delay caused by moving and handing off folders, allowing for immediate access by whichever component of SSA or DDS is working on the claim. 

Further, this would allow adjudicators to organize files to suit their preference. 

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In terms of preparing a record for the district court, it would allow for electronic 

filing of the administrative record, which is consistent with the Judicial Conference 

of the United States’ policy and initiative to move towards electronic filing of documents and pleadings. The Appeals Council has had difficulty reproducing copies of 

the record, whether needed by the claimant or for federal court filing. Files are too 

often lost or difficult to locate, leading to delays at the Appeals Council and district 

court levels. Our members report increasing delays and government requests for extension while cases are pending in court, in order to locate files and prepare transcripts. In many cases, after more lengthy delays, the files cannot be found and the 

court must remand the case for a new hearing. The electronic folder would certainly 

ease the workload in this regard and consequently, reduce delays. However, we urge 

the Commissioner to ensure that the eDIB folder contains complete copies of the 

paper records, rather than summaries or otherwise reduced copies, and that claimants would be able to submit evidence in any format, including paper records. 

Another important component of technological improvement is digital recording of 

ALJ hearings. Currently, hearings are taped on obsolete tape recorders, which are 

no longer even manufactured. If copies are needed, they must be transferred to cassette tapes, which is time-consuming. Tapes are frequently lost because they are 

stored separately from the paper folder. Given the age of the taping equipment, the 

quality of tapes is often quite poor, which also results in remands from the Appeals 

Council or the district court. A digitally recorded hearing would not only be of high 

audio quality but would be easy to copy or transfer to the district court as part of 

the administrative record. 

The Commissioner also has announced an initiative to expand the use of video 

teleconference ALJ hearings. This allows ALJs to conduct hearings without being 

at the same geographical site as the claimant and representative and has the potential to reduce processing times and increase productivity. NOSSCR members have 

participated in pilots conducted by SSA and have reported a mixed experience, depending on the travel benefit for claimants, the quality of the equipment used, and 

the hearing room set-up. 

In 2001, SSA published proposed rules on video teleconference hearings before 

ALJs. 66 Fed. Reg. 1059 (Jan. 5, 2001). In general, we support the proposed rules 

and the use of video teleconference hearings so long as the right to a full and fair 

hearing is adequately protected and the quality of video teleconference hearings is 

assured. 

Conclusion 

We commend the Subcommittee for holding this hearing today to look at the challenges and opportunities for the Social Security disability programs. NOSSCR is 

committed to working with Commissioner Barnhart to improve these programs 

which are so vital to millions of people in this country. I would be glad to answer 

any questions that you have.

STATEMENT OF JAMES A. HILL, ATTORNEY–ADVISOR, OFFICE 

OF HEARINGS AND APPEALS, SOCIAL SECURITY ADMINISf TRATION, CLEVELAND HEIGHTS, OHIO, AND PRESIDENT, NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 224

Mr. HILL. Good morning, Mr. Chairman. I thank the Subcommittee for inviting me to testify today. 

I have been employed as an attorney advisor in the Cleveland, 

Ohio hearing office for nearly 20 years. I am also the President of 

Chapter 224 of the National Treasury Employees Union, which represents attorney advisors and other staff Members in approximately 110 hearing offices and regional offices across the United 

States. 

The crisis in disability adjudication of the mid-1990s has returned. The OHA is once again failing to provide quality service to 

the American public. Commissioner Barnhart and her staff are currently in the process of planning long-term initiatives. Implementation of those initiatives is years into the future. 

To address the current problems, SSA has announced a series of 

short-term initiatives. I regret to inform you that these initiatives 

169

are utterly inadequate for the task. Some of the initiatives resulted 

from recommendations of the HPI Executive Steering Committee, 

which was tasked by Acting Commissioner Massanari with finding 

short-term initiatives to combat the growing case backlog at OHA. 

I was a Member of that Committee. Many Members of that Committee were bitterly disappointed that we failed to address the primary problem with OHA disability adjudications, that being the 

lack of a sufficient number of decision makers. 

We were well aware that the initiatives we advised would have 

only a minimal impact. I seriously doubt that feeling was conveyed 

to the Commissioner during the briefing she received regarding the 

Committee’s recommendations. 

Despite the plethora of problems caused by the implementation 

of HPI, the most fundamental problem at OHA remains the lack 

of a sufficient number of decision makers. The SSA must quickly 

recognize that the current initiatives are inadequate and quickly 

augment them by reinstituting the Senior Attorney Program. 

The GAO recently issued a report which emphasized the success 

of that program. Its recommendations to SSA clearly contemplated 

a return to that program. However, SSA did not follow that advice. 

While recognizing the value of early screening of cases by a decision maker, SSA is instructing its ALJs to perform that role. 

Having ALJs perform the time-consuming task of reviewing 

‘‘unpulled’’ cases significantly reduces the time they can spend conducting hearings and deciding cases in which a hearing is required. 

While the Senior Attorney Program produced a substantial number of dispositions in addition to those produced by ALJs, the current program only redirects ALJ time. It does not increase the 

number of decision makers and will not significantly increase the 

number of dispositions. 

The lack of sufficient decision makers must be addressed on both 

a short term and a long-term basis. However, the answer is not hiring vast numbers of ALJs, as was acknowledged last week by Deputy Commissioner Gerry in his testimony before this Subcommittee. Hiring the number of ALJs needed to efficiently adjudicate the entire OHA workload is cost prohibitive and operationally unnecessary. 

Many of the cases that come to OHA do not require the participation of an Administrative Law Judge in the adjudicatory process. 

The ALJs must remain the backbone of the OHA process. The SSA 

should investigate the utility of introducing an Agency representative into the hearings process and the feasibility of using other attorney adjudicators, such as a magistrate or hearing officer, to assist the administrative law judges and Senior Attorneys in adjudicating the OHA caseload. 

The NTEU makes the following recommendations for actions necessary to ensure OHA delivers quality service as demanded by the 

American people now and in the future: 

One, all qualified OHA attorney advisors should be converted to 

Senior Attorney decision makers now and given the authority to 

issue fully favorable on-the-record decisions. These Senior Attorney 

decision makers would review all cases coming into the hearing office, as well as provide decision-writing support for Administrative 

Law Judges. 

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Two, SSA should establish a work group to examine the implementation of additional attorney decisionmakers such as a magistrate or hearing officer who would work in conjunction with ALJ’s 

and Senior Attorneys in adjudicating the ever growing disability 

work load that faces SSA. 

Three, SSA should establish a work group to examine the issue 

of introducing Agency representatives into the adjudication process 

at the hearing level. Thank you very much. 

[The prepared statement of Mr. Hill follows:]

Statement of James A. Hill, President, Attorney-Advisor, Office of Hearings 

and Appeals, Social Security Administration, Cleveland Heights, Ohio, 

and President, National Treasury Employees Union, Chapter 224

Chairman Shaw and Members of the Subcommittee:

My name is James A. Hill. I have been employed by the Office of Hearings and 

Appeals (OHA) of the Social Security Administration (SSA) for more than 19 years 

as an Attorney-Advisor. I am also the President of National Treasury Employees 

Union (NTEU) Chapter 224 that represents Attorney-Advisors and other staff members in approximately 110 Hearing Offices and OHA Regional Offices across the 

United States. I wish to thank the Subcommittee for inviting me to testify regarding 

the challenges and opportunities facing Social Security disability programs today. 

The crisis in disability adjudication at the hearing level of the mid-1990’s has returned. Case backlogs and average processing time have increased at an alarming 

rate, severely diminishing the quality of service provided to the American public. 

SSA must immediately address the current backlog problem and devise a system 

that will adequately serve the needs of the future. At the request of the Social Security Subcommittee, the United States General Accounting Office (GAO) conducted 

a study of the initiatives that SSA developed and the results that have been obtained. GAO stated that:

SSA’s current backlog is reminiscent of a crisis-level backlog in the mid 1990’s, 

which led to the introduction of 19 temporary initiatives designed to reduce 

OHA’s backlog of appealed cases . . . Among the most long-standing of these 

initiatives was the Senior Attorney Program. Under this program, selected attorneys reviewed claims to identify those cases in which the evidence already 

in the case file supported a fully favorable decision. Senior attorneys had the 

authority to approve these claims without ALJ involvement. The Senior Attorney Program took effect in fiscal year 1995 and was phased out in 2000. During 

its existence, the program succeeded in reducing the backlog of pending disability cases at the hearing level by issuing some 200,000 hearing-level decisions. . . . SSA management has expressed concern that the Senior Attorney 

Program is a poor allocation of resources as it diverts attorneys from processing 

more difficult cases in order to process the easier cases. (GAO Report 02–322, 

February 2002, Page 23–24, (hereinafter ‘‘GAO’’))

GAO recommended implementing ‘‘short-term strategies to immediately reduce 

the backlog of appealed cases in the Office of Hearing and Appeals. These strategies could be based on those that were successfully employed to address 

similar problems in the mid-1990’s’’. (GAO at Page 28) (Emphasis added.) 

Unfortunately, SSA has chosen to evade the clear advice of the GAO and has not 

implemented strategies based on those that worked in the 1995 to 1999 time period. 

The misuse of ALJs to screen and analyze unassembled cases off the master docket 

is the only short term change proposed by the Commissioner that bears any resemblance to the changes that successfully brought down the backlog by more than 

250,000 cases. It will not succeed because every minute an ALJ spends on screening 

and analyzing unassembled cases is a minute that that ALJ will not spend preparing for a Hearing, holding a Hearing or deciding a case after the Hearing, tasks 

that no other SSA employee can assume. It robs from Peter to pay Paul. It actually 

reduces the time ALJs will have to spend on the great majority of cases that go to 

Hearing, the ones where the claimant waits the longest. This initiative will have 

the unintended consequence of actually making most claimants wait longer for their 

Hearing. Additionally, if each ALJ does not produce a decision for each 4 hours he 

or she spends on this program, ALJs will actually produce fewer decisions with this 

initiative than they would have without it. To be sure, some deserving (and lucky) 

claimants will get their decisions and benefits significantly earlier than they would 

under the present process, but it will come at the expense of other claimants who 

171

have been waiting much longer. Further, these claimants would receive the same 

benefits from a Senior Attorney program that has none of the adverse consequences 

of this initiative. The Senior Attorney program would not divert any ALJ time from 

the Hearing workload. No one would wait longer for a Hearing because of the Senior 

Attorney program. Rather than the possibility of fewer cases going out each month, 

the Senior Attorney program will result in as many as 5,000 to 8,000 more cases 

going out every month. Based upon previous experience the average processing time 

for these cases would be approximately 100 days. We asked the Agency how many 

cases they expected their initiatives to produce and we were told that they did not 

have that data. 

Deputy Commissioner Martin Gerry recently testified before this Subcommittee 

and stated that short term initiatives are being implemented that are intended to 

alleviate some of the current problems at the Office of Hearings and Appeals. Mr. 

Gerry testified that these initiatives were recommended by the HPI Executive Steering Committee impaneled by Acting Commissioner Massanari and charged with 

finding short term initiatives to solve many of the problems associated with HPI. 

I was a member of the Executive Steering Committee as was Judge Bernoski. I regret to inform you that many members of that Committee were bitterly disappointed 

that we failed to address the primary problems associated with HPI, and we left 

the final meeting with a pervasive feeling that we had failed. We were well aware 

that the initiatives we advised would have only a minimal impact. I seriously doubt 

that feeling was conveyed to the Commissioner during the briefing she received regarding these initiatives. 

In light of the GAO analysis and recommendations, NTEU makes the following 

recommendations for action necessary to ensure that the Office of Hearings and Appeals delivers the quality of service demanded by the American people currently and 

in the future:

1. All qualified OHA Attorney Advisers should be converted to Senior Attorney 

decision makers and given the authority to issue fully favorable on-therecord decisions. These Senior Attorney decision makers would review all 

cases coming into the hearing office. 

2. SSA should establish a workgroup to examine the implementation of additional attorney decision makers, such as Hearing Officers, in the OHA hearing offices to work in conjunction with the ALJs in processing the ever-growing workload that faces SSA. 

3. SSA should establish a workgroup to examine the issue of introducing an 

Agency representative into the adjudication process.

Since the mid-1990’s SSA’s disability program has been in crisis. In the mid-1990s 

the disability backlog rose to over 550,000 cases and processing time climbed to 

nearly 400 days at the hearing office level. In 1995 SSA introduced the Senior Attorney Program that was instrumental in reducing the disability backlog to approximately 311,000 cases by September 1999 and reducing processing time to approximately 270 days at the end of fiscal year 2000. Since the termination of the Senior 

Attorney Program the pending case backlog has risen to approximately 491,350 and 

SSA projects by the end of FY 2002 the backlog will rise to 546,000 cases. 

The Senior Attorney Program was replaced by HPI, a program which was implemented without testing. HPI includes a triage system in which Attorney Advisers 

screen profiled cases (the same profiles used by the Senior Attorney Program) and 

recommend cases to ALJs that could be paid on the record. This still requires a significant commitment of ALJ resources. However, this process has resulted in a considerable decline in on-the-record decisions emanating from this profiled workload 

leading to fewer overall dispositions. The average rate of ALJ dispositions has not 

increased; in fact, it has declined, leading to a substantial decrease in total dispositions. We are in the midst of an emerging disaster precipitated by the demise of 

the Senior Attorney decision maker and fueled by HPI. The situation continues to 

deteriorate. Any hope of significant improvement without bold and decisive action 

is unreasonable. OHA has traditionally maintained a roster of 1000–1100 ALJs. Hiring substantial numbers of additional ALJs to meet future needs is fiscally irresponsible. SSA recently hired approximately 130 new Administrative Law Judges (returning to the norm) but readily admits that this addition will not solve today’s 

problems. 

The loss of efficiency caused by HPI, the elimination of the Senior Attorney Program, the precipitous decline in the number of on-the-record decisions, the staggering increase in ‘‘unpulled’’ cases, the expected increase in disability receipts, and 

the imposition of a new and increased Medicare workload spell disaster. The Social 

Security Administration must act quickly to deal with the current disability backlog. 

172

It must also realistically assess its future workloads and devise processes sufficient 

to meet the decision-making needs of the future. 

SSA Must Immediately Re-introduce the Senior Attorney Program 

The fundamental problem at OHA is that the number of decision makers is insufficient to meet the workload. There is widespread agreement that it is unreasonable 

to expect an Administrative Law Judge to produce more than 500 dispositions in 

a year if an acceptable level of quality is to be maintained. If ALJs are the only 

decision-makers, unless the Agency is prepared to accept a much greater number 

of ALJs than currently are employed, the simple arithmetic mandates an ever increasing backlog and skyrocketing processing times. The solution is more decision 

makers. 

In 1995 the Social Security Administration faced a disability caseload backlog and 

processing time crisis very similar to that existing today. In order to reduce the 

backlog and decrease processing time, SSA instituted the Short Term Disability Program. The primary element of that program, designed to reduce both the backlog 

and processing time, was the Senior Attorney Program. 

That program continued until the advent of the HPI Program. The authority to 

make and issue fully favorable decisions on the evidence of record, with minimal development, was delegated to the Agency’s experienced Attorney Advisors. The Senior 

Attorney decisions combined with ALJ decisions resulted in a substantially higher 

level of total dispositions than would have occurred if ALJs had been the sole decision-makers. In addition to performing the ‘‘Senior Attorney work’’, the Senior Attorneys also continued to draft ALJ decisions. This arrangement utilized the knowledge, skills, and abilities of these attorneys to issue fully favorable decisions to those 

claimants whose case did not require a hearing, and to continue to draft the more 

difficult ALJ decisions. This afforded, on an individual hearing office basis, the flexibility to direct decision making and decision writing resources as necessary to 

achieve maximum productivity. 

Senior Attorneys issued approximately 220,000 decisions during the course of the 

Program. The average processing time for Senior Attorney decisions was approximately 105 days. During its pendency the OHA backlog fell from over 550,000 to 

as low as 311,000 at the end of FY 1999. The correlation is obvious. During the 

same time period there was also an increase in ALJ productivity demonstrating that 

dual decision makers was a viable concept. It is readily apparent that processing 

a large number of cases in such an expeditious manner materially reduced the average processing time for all disability cases at the hearings level in OHA. 

While the Senior Attorney Program resulted in a substantial increase in on-therecord decisions, there was not a corresponding increase in the OHA payment rate. 

In fact the overall payment rate at OHA declined during the course of the Senior 

Attorney Program. 

In July 1998 the Senior Attorney Program was significantly downsized with approximately one-half of the senior attorneys returned to the GS–12 attorney adviser 

position. The remaining Senior Attorneys spent 100 percent of their time doing 

‘‘Senior Attorney work’’. This lack of flexibility doomed this arrangement which 

lasted only four months before the remaining Senior Attorneys were also assigned 

ALJ decisions drafting duties. Unfortunately, the number of Senior Attorneys was 

not increased which led to a significant decline in the Program’s productivity. This 

decrease in productivity led to the rise in unpulled cases and the beginning of the 

increase in the backlog and average processing time. 

The Senior Attorney Program benefited more than just those claimants who received their disability payments far earlier than would otherwise have been the 

case. Staff and ALJ time was not spent needlessly on cases that could be paid without a hearing and they could more timely attend to the other cases, thereby reducing processing time for those cases as well. Another benefit was that cases paid by 

a Senior Attorney were not ‘‘pulled’’ (prepared for hearing). Had the Senior Attorney 

Program not been downsized, and then eliminated, there would be about 90,000 

fewer cases waiting to be ‘‘pulled’’. 

The processing of Senior Attorney cases involved a very limited amount of hearing 

office staff time. This resulted in the expenditure of far fewer work years devoted 

to processing Senior Attorney cases than would have been the case had ALJ adjudication been required. This resulted in a significant reduction of administrative 

costs for those cases. The former Chief Administrative Law Judge stated that OHA 

may receive as many as 100,000 cases a year that with minimal development could 

be paid without a hearing. The savings in administrative costs arising from the reinstitution of the Senior Attorney Program would be substantial. 

One of the criticisms of the Senior Attorney Program involved decisional accuracy. 

Of course that is also one of the chief complaints regarding ALJ decisions. The ApVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00176 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
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peals Council review of Senior Attorney and ALJ on-the-record decisions found no 

difference in quality. I am convinced that the formulation and implementation of an 

effective quality assurance program at the hearing level should be of the highest priority 

The success of the Senior Attorney Program ultimately rests on the competence 

of the legal professionals who can serve as adjudicators. These individuals are experienced OHA Attorney Advisors who have many years experience dealing with the 

intricacies of the legal-medical aspects of the Social Security disability program. 

They are attorneys well versed in the law, and they are experienced disability practitioners with a wealth of adjudicatory experience in the Social Security disability 

system. 

The conversion of OHA Attorney Advisers to Senior Attorney decisionmakers as 

described above will result in an immediate and substantial improvement in OHA 

service to the public at minimal additional cost. Based upon the Agency’s experience 

with the original Senior Attorney Program, and with the full cooperation of hearing 

office management (lacking during the original Senior Attorney Program), this 

measure could produce as many as 75,000–100,000 decisions a year without diminishing ALJ productivity. 

The original Senior Attorney Program was a resounding success. It materially improved the quality of service provided to the public, especially for those individuals 

who were disabled and entitled to receive their disability decision and benefits on 

a timely basis. In addition, it resulted in administrative and program cost savings. 

Senior Attorney decisionmakers have proven by their performance that pre-ALJ decisionmaking in the OHA hearing office significantly improves the quality of service 

provided to the public. 

SSA’s Proposed Changes 

Instead of following the advice of GAO, SSA has once again decided to implement 

additional permanent untested changes to the Appeals process. These include requiring ALJs to perform early screening and analysis of unassembled cases from 

Master Docket; implementing a short form favorable decision; and, authorizing ALJs 

to issue bench decisions. While current Senior Attorneys will continue to screen and 

analyze some cases, they will not have the decisionmaking authority that they had 

in the original, successful, Senior Attorney Program. Also contrary to the advice of 

GAO, SSA did not involve this Stakeholder, NTEU, in any predecisional planning 

for these changes. 

The agency has stated that both the ALJs and Senior Attorneys will generally be 

expected to complete their early screening and analysis of cases within five work 

days. This will not permit ALJs or Senior Attorneys to develop the record. The system will allow ALJs to do little more than cherry pick the easy cases and second 

guess the DDS decision. The review of a lesser profile of cases by Senior Attorneys 

who have neither the authority to decide the case, nor the time allocated by management that is necessary to develop the case, will largely be a waste of resources. 

These short-term strategies will not reduce the backlog, in fact, it is unlikely that 

they will significantly slow the rate of growth of the backlog. (Other changes, such 

as ending certification of cases as ready to hear, simply recognize the reality that 

many offices never implemented this change, and most of those that did have already stopped the practice. Similarly, many offices no longer rotate clerical employees. Neither of these changes will have a measurable affect on the backlog.) 

Without a doubt the biggest problem with the plan is the decision to have ALJs 

perform screening and analysis. This adds significantly to the workload of SSA’s 

most expensive and most limited resource, ALJs. The time they spend on screening, 

analyzing, deciding and writing these unassembled cases is time that they cannot 

spend preparing for a Hearing, holding a Hearing, deciding a case after a Hearing 

or editing and signing the final decision, functions that no other SSA employee can 

perform. Even if the program worked, most claimants would have to wait longer for 

their decision. ALJs will have less time to review, hear and decide those cases already in the 500,000 case backlog while critically limited ALJ time is spent cherry 

picking payments as they come into the office. This is supremely unfair to those 

claimants already waiting almost a year at OHA for their decision. The critical difference between the Senior Attorney Program and this current SSA plan is that the 

Senior Attorney Program did not divert any ALJ time to produce 50,000 or more 

decisions a year. NTEU does not believe that a process that reduces the number of 

Hearings that an ALJ can hold and the number of Hearing decisions that an ALJ 

can issue is a fair or effective way to increase production or reduce processing time. 

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174

fering claimants whose cases require a Hearing. That program is the Senior Attorney Program. 

The Senior Attorney Program is a real life tested program that demonstrated it 

could produce 50,000 to 60,000 on the record decisions a year without the use of 

any ALJ time. It can be instituted quickly with minimal cost to the Agency using 

current Agency personnel. If it were implemented with the strong support of the 

Commissioner, OHA could, for the first time since the original Senior Attorney program was eliminated, actually decide more cases in a month then it received and 

begin to reduce the backlog. 

As indicated by Acting Commissioner Larry Massanari, in response to questions 

from the Chairman following your June 28, 2001, Hearing:

The Senior Attorney Program was established in 1995 as an initiative of the 

Agency’s Short Term Disability Project to rapidly reduce the number of pending 

disability cases at the hearing level. Under this program, some 200,000 fully favorable decisions were issued without the need for approval by an ALJ, thus 

saving the ALJ’s time for hearings and decisions on the rest of the hearing 

workload. In general, the Senior Attorney Program had a positive impact on 

hearing process efficiency and productivity.

I note that rather than saving the ALJ’s time for hearings and decisions the current plan reduces the time that ALJs have for hearings and decisions on the rest 

of the hearing workload. Acting Commissioner Massanari continued:

However, by the beginning of FY 2000, pending hearing workloads had declined and fewer cases lent themselves to on-the-record fully favorable decisions 

primarily because of process unification improvements at the initial claim level. 

Thus, it was decided that an adjudicator in addition to the ALJ would not be 

a useful element of the workflow and staffing structure and that the signatory 

authority of the Senior Attorney would be terminated in each office.

Note that pending hearing workloads are now higher than they were during most 

of the existence of the Senior Attorney Program and they continue to increase. The 

anticipated improvements from ‘‘process unification’’ have not materialized and thus 

the conditions that now exist are remarkably similar to the conditions that led to 

the first Senior Attorney Program in 1995. Acting Commissioner Massanari further 

stated:

At the time the decision was made to terminate the Senior Attorney Program, 

the full implementation of prototype in the DDSs was believed to be imminent. 

These process changes would further reduce the pool of possible on-the-record 

decisions at the hearing level by ensuring more allowance decisions made correctly at the DDS level and by sending fully developed and ‘‘fresher’’ cases to 

the hearing offices for adjudication.

Clearly, this did not take place.

The Senior Attorney Program was never a part of HPI. However, the HPI 

plan institutionalized key positive aspects of the Senior Attorney Program, like 

early screening and analysis of cases and early identification and fast-tracking 

of potential on-the-record decisions.

Unfortunately, HPI was unsuccessful in its attempt to screen, analyze, identify 

and fast-track on-the-record decisions. HPI proved that taking a few, but not all, 

key aspects of a successful program like the Senior Attorney Program, does not 

guarantee success in a new untested program. HPI had too many handoffs and still 

required the ALJ to review the potential on-the-record decision, and make the decision. This cumbersome process is what remains in place for most of the cases that 

will be screened and analyzed in OHA. It did not work well when it was called HPI 

and it won’t work any better with whatever new name they put on it. 

NTEU doubts that Bench decisions will add significantly to ALJ productivity or 

decrease processing time. We do believe, however, that they will increase the rate 

of cases remanded to ALJs as these decisions are likely to be less well reasoned and 

drafted than those decisions where an ALJ can review the entire record after the 

Hearing and make a thoughtful reasoned decision with the advice and counsel of 

Hearing Office attorneys and program experts. Even without the screening and 

analysis initiative, many ALJs (who generally have hundreds of cases on their docket at any one time) have insufficient time to fully evaluate and consider all of the 

nuances of each case prior to the Hearing. We are concerned that ALJs are being 

pressured into making premature decisions. 

NTEU also has serious concerns about the short form for favorable decisions format (FEDS) that the Agency proposes that ALJs and other employees use in drafting decisions. We are unimpressed that a number of Agency components have reVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00178 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
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viewed the format for legal sufficiency and quality as formats do not have to be legally defensible, disability decisions do. Decisions such as these, long on conclusions 

and short on facts, will fuel the complaint that the ALJ decisions are not supported 

by the evidence. 

Long Term Changes 

NTEU believes that it is time for the Social Security Administration to seriously 

consider fundamentally altering the nature of ALJ hearings by introducing an Agency representative, the Social Security Counsel, who will be responsible for presenting the Agency’s case to the Administrative Law Judge. The Counsel would be 

responsible for developing the record and presenting it at the hearing. It is the responsibility of the Counsel to present the adjudicator with a balanced and complete 

record upon which a fair and just decision can be based. The Counsel, in concert 

with the claimant’s representative, will resolve issues and propose settlement agreements that would be presented to the adjudicator for approval. 

The role of the adjudicator would be reduced to oversight of the pre-hearing process, conducting hearings, and preparation of written decisions based on evidence 

presented at hearing. The ALJ would be relieved of the responsibility of representing the agency and the represented claimant, and would act as a trier of fact. 

In its report dated January 2001, Charting the Future of the Social Security’s Disability Programs: The Need for Fundamental Change, the Social Security Advisory 

Board also noted that Administrative Law Judges have been required to balance 

three roles. They are obligated to protect the interests of both the claimant and the 

government, and to serve as an objective adjudicator. The Board further noted that 

approximately 80 percent of disability insurance claimants are now represented by 

an attorney. The Board also noted that because of the massive increase in the disability appellate workload, SSA has periodically made efforts to increase ALJ productivity which many in OHA believe has impacted adversely on the quality of decision-making. The Social Security Advisory Board recommended that the agency be 

represented at hearings. The Board stated that having a representative present at 

the hearing to defend the Agency’s position would help clarify the issues and introduce greater consistency and accountability into the adjudicatory system. 

The extent of the quality assurance problems in the current system is underlined 

in the report of The Lewin Group, Inc, which stated that the adjudication process 

at OHA is almost unique. The Lewin Group reported, ‘‘We have not encountered 

good examples of non-adversarial processes.’’ The Lewin Group suggested that one 

way to improve the non-adversarial system is to make it more adversarial. It suggested that the mechanism for such a change would be to introduce a representative 

from the Social Security Administration into the adjudication process. This would 

relieve the Administrative Law Judge of the responsibility of representing the agency, and if the claimant were represented by outside counsel, the responsibility for 

representing the claimant. 

In conclusion, NTEU makes the following recommendations:

1. All qualified OHA Attorney Advisers should be converted to Senior Attorney 

decisionmakers and given the authority to issue fully favorable on-the-record 

decisions. These Senior Attorney decision makers would review all cases coming into the hearing office. 

2. SSA should establish a workgroup to examine the implementation of additional 

attorney decision makers in the OHA hearing offices to work in conjunction 

with the ALJs in processing the ever-growing workload that faces SSA. 

3. SSA should establish a workgroup to examine the issue of introducing an 

STATEMENT OF THE HON. RONALD G. BERNOSKI, ADMINISChairman SHAW. Thank you, Mr. Hill. Mr. Bernoski? 

Agency representative into the adjudication process.

f TRATIVE LAW JUDGE, OFFICE OF HEARINGS AND APPEALS, 

SOCIAL SECURITY ADMINISTRATION, MILWAUKEE, WISCONSIN, AND PRESIDENT, ASSOCIATION OF ADMINISTRATIVE LAW JUDGES, MILWAUKEE, WISCONSIN 

Mr. BERNOSKI. Thank you, Mr. Chairman for inviting us to testify here today. 

Based on the testimony of this hearing and other hearings that 

you have conducted so far this year, it is clear that the Social SecuVerDate Jan 31 2003 05:42 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00179 Fmt 6633 Sfmt 6602 E:\HR\OC\A169.XXX A169
176

rity Disability System is under severe distress. It is also clear that 

the Agency-imposed process of HPI is at the center of the problem. 

Immediately before the start of HPI, both case backlogs and case 

processing times were being reduced. For fiscal year 1998 and 

1999, we averaged about 600,000 cases each year. After HPI, both 

case backlogs and case processing times have increased and for fiscal year 2001, we produced about 450,000 cases. 

As found by the Social Security Advisory Board, the Agency has 

not properly administered the hearing process. Therefore, we believe that active Congressional oversight is needed at this time. 

I will discuss three major issues this morning. 

First, if the entire case processing time is to be reduced, the 

steps in the process should also be reduced. This can be done by 

having one complete review at the DDS level, which is based upon 

the same legal standard that is used by the Administrative Law 

Judges. 

The issue of the variance between the DDS allowance rates 

should also be addressed. 

Second, the hearing process must be restored and the problems 

caused by HPI corrected. As stated in some detail in our written 

statement, we believe the corrections should include both short 

range and long-term objectives. 

Some of the reforms that we consider vital include restoring the 

Administrative Law Judges to the primary position in the hearing 

process; assigning staff and attorney writers to each judge; adopting a government representative to help develop the record and to 

represent the Agency at some hearings before the Administrative 

Law Judge; closing the record after the ALJ hearing and as of the 

date of the decision; defending decisions of the Administrative Law 

Judges before the Appeals Council and in the Federal courts; clarifying the disability law by either statute and/or case law; and 

adopting rules of practice and procedure for claimant representatives and for our hearings. 

The Commissioner has stated that she will announce reforms for 

the disability system this fall. We have not been asked to participate, despite our effort to do so. 

Thirdly, the hearing system and the hearing system should be 

strengthened. A bill has recently been introduced into Congress 

within the last week. It is H.R. 4932. This bill will place the Administrative Law Judge hearings of SSA under the operational control of a Chief Judge who reports directly to the Commissioner. 

This is an important first step for reform and this bill deserves the 

support of this Committee. 

We have also suggested a more comprehensive reform that would 

make the hearings function a separate component within the Agency. The hearings component will report directly to the Commissioner. The plan eliminates the Appeals Council and it creates local 

administrative law judge appellate panels that are based upon the 

Bankruptcy Court model. 

We testified in detail on this change before this Committee, and 

the plan is part of the record of a prior hearing of this Committee. 

Whichever reform the Congress adopts, we believe that it is now 

time for the Congress to act. We know the problems. We have been 

discussing them for many years. We have also identified several soVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00180 Fmt 6633 Sfmt 6602 E:\HR\OC\A169.XXX A169
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lutions. We think that the Congress should begin moving along 

these lines and begin some type of reform effort. 

We think that it is now time to bring together a work group consisting of legal scholars, judges, attorneys and claimant groups and 

start crafting a plan for reform. We believe that we should also 

give the recommendations of the Social Security Advisory Board 

considerable credit and use them as a guide. 

We believe that the American people must have a hearing system that is timely, accurate, fair and understandable, and is protected by the Administrative Procedure Act. 

Mr. Chairman, our request as judges is simple. We ask that we 

be given the responsibility and authority and we be held accountable for our work. 

Mr. Chairman, we look forward to working with you and the 

Committee on this important project of reforming the Social Security disability system. Thank you. 

[The prepared statement of Mr. Bernoski follows:]

Statement of the Hon. Ronald G. Bernoski, Administrative Law Judge, Office of Hearings and Appeals, Social Security Administration, Milwaukee, 

Wisconsin, and President, Association of Administrative Law Judges, Milwaukee, Wisconsin 

Mr. Chairman and Members of the Subcommittee: 

I. INTRODUCTION 

Thank you for the opportunity to testify before you today. My name is Ronald G. 

Bernoski. I am an Administrative Law Judge (‘‘ALJ’’) who has been hearing Social 

Security disability cases at the Office of Hearings and Appeals (‘‘OHA’’) of the Social 

Security Administration (‘‘SSA’’) in Milwaukee, Wisconsin, for over 20 years. 

This statement is presented in my capacity as the President of the Association 

of Administrative Law Judges (‘‘AALJ’’), which represents the ALJs employed in the 

SSA OHA and the Department of Health and Human Services (‘‘DHHS’’). One of 

the stated purposes of the AALJ is to promote and preserve full due process hearings in compliance with the Administrative Procedure Act for those individuals who 

seek adjudication of program entitlement disputes within the SSA. 

I will address the challenges and opportunities for the Social Security Disability 

Programs in improving the disability determination appellate process at the ALJ 

hearing and Appeals Council administrative review levels. First, I will list the challenges at the DDS agencies that affect the appellate levels and at each of the appellate levels. Then I will offer short and long term solutions that may be implemented 

to resolve these challenges. The table of contents is an outline of the challenges and 

proposed solutions that I present for the Social Security Disability Programs. This 

discussion presumes familiarity with the structure of the SSA OHA and the initiatives by the SSA management to change or improve the functioning of OHA, including the Process Unification Training (‘‘PUT’’), the Hearing Process Improvement 

Plan (‘‘HPI’’), and the Appeals Council Improvement Plan (‘‘ACPI’’). 

II. CHALLENGES FOR THE SOCIAL SECURITY DISABILITY PROGRAMS 

A. Challenges at the DDS Level:

1. The Need to Reduce the Number of Cases that Require an ALJ Hearing 

by Getting the Claimants a Correct Final Administrative Result Sooner: The 

reversal rate of the DDS decisionmakers’ determinations by the ALJs remains high. 

In order to reduce the number of ALJ reversals of DDS determinations, in 1996, 

the SSA conducted the PUT training to have the DDS decisionmakers use the same 

rules to decide cases as the ALJs. This has not resulted in fewer cases requiring 

an ALJ hearing because DDS decisionmakers are required to apply a medical standard set forth in the SSA POMS manuals when determining disability, which is not 

the standard used by the ALJs. ALJs use a legal standard when determining disability that is based upon the Social Security Act, the SSA regulations and rulings, 

and the federal case law that interpret them. 

Although Congress has expressed concern about the different benefits allowance 

rates between the DDS agencies and OHA, there also is a concern about the wide 

discrepancy in the benefits allowance rates among the different states’ DDS agenVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00181 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
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cies. The latter discrepancy cannot be explained by the use of a different standard 

for decisionmaking, since all of the DDS agencies use the same medical standard. 

2. The Need to Reduce Processing Time for the Initial and Reconsidered 

Determinations Levels: Rather than carefully develop and examine the claimants’ 

cases once, DDS often is making its initial determinations based on incomplete 

records, and, upon reconsideration, rarely obtains significant additional medical evidence or changes the outcome of the case. SSA recently reported that only about 

three percent of initial determinations are changed at the reconsideration level. 

There are steps that SSA can take that do not require legislation to (1) improve 

the quality of DDS decisionmaking, which will reduce the number of ALJ hearings, 

and (2) reduce the DDS case processing time. They are enumerated in Section III 

below. 

B. Challenges at the ALJ Hearing Level: In brief, the Social Security Disability Programs’ challenges at this level is to have a large and growing volume of 

cases heard and decided by SSA’s ALJs in a timely and high quality manner that 

preserves the claimant’s due process rights under the Social Security Act and Administrative Procedure Act (‘‘APA’’). Several specific challenges that now confront 

the new Commissioner are as follows: 

1. The Need to Reduce the Number of Cases that Require an ALJ Hearing by Getting the Claimants a Correct Final Administrative Result Sooner: The burgeoning 

caseload at the ALJ hearing level has been growing unabated in recent years. Prior 

to HPI, the SSA OHA heard and decided over 500,000 cases annually, and surpassed 600,000 in one recent year. SSA is projecting that the annual caseload will 

climb to about 726,000 by 2005. This has strained the current structure of OHA to 

timely handle the volume with quality because nothing effective has been done to 

either reduce the number of cases that require an ALJ hearing or change the structure of OHA to better address the huge caseload:

(a) OHA’s structure and process for hearing cases has not changed significantly 

to adjust to the large scale of the operation since the APA went into effect in 

1947. There is no mechanism for settling cases without a hearing, other than 

granting a claim on the record, because SSA has no representative to assert its 

interests at the hearing level.

(b) Cases endlessly are remanded back to the ALJ level for rehearing because 

the record remains open without limits, new issues may be raised at all levels 

of appeal, and the quality of the Appeals Council review is poor.

There are several steps that SSA can take that do not require legislation to reduce the number of ALJ hearings. They are enumerated in Section III below. 

2. Challenges from the ALJ Level HPI Reorganization of OHA: There is a 

consensus that HPI, which SSA implemented in 2000, has both exacerbated the case 

disposition time problems that it was intended to solve and created new problems 

that have caused work flow bottlenecks, reduced the quality of decision drafts by 

some decision writers, and increased the case backlog. The several HPI challenges 

are as follows:

(a) One purpose of HPI was to reduce the amount of processing time it takes 

to obtain the evidence for the record by doing it more completely before the ALJ 

hearing, so that fewer cases would need post-hearing development. The practice 

of HPI did not result in a reduction of cases that require post-hearing development.

(b) HPI also was expected to reduce overall case processing time, ostensibly by 

reducing the need for post-hearing development. Instead, case processing time 

steadily has lengthened under HPI beyond what was considered to be unacceptable at the time that HPI was implemented. The creation of teams to handle 

cases was intended to decrease the number of people who have to work on each 

case and increase individual responsibility for the quality of work within the 

group, which were expected to reduce case processing time and increase work 

quality. Instead, HPI process has resulted in an increase of the ‘‘hand offs’’ of 

the files and the sense of individual responsibility for work quality has vanished. The cases are assigned to judges later in the process and the responsibility for early pre-hearing case development has been transferred to the staff.

(c) The quality of decision drafts has declined because, as part of the HPI plan, 

SSA has promoted to Paralegal Specialist positions as ALJ decision writers clerical staff members, many who do not have the skills to perform the job adequately. HPI created promotion opportunities for the clerical staff, which boosted the morale of those receiving the promotions. However, the implementation 

of HPI resulted in the promotion of clerical staff to approximately 350 writer 

positions without the need to show that they have the skills to do the job. This 

179

promotion process resulted in positions being filled by clerical staff, some of 

whom who have not been successful in performing the job.

(d) A huge backlog of case files that need to be prepared for hearing has accumulated as a result of the SSA promoting about 350 clerks to writer positions 

and about 300 clerks to case technician positions as part of the HPI plan without replacing the vacated clerical positions. (The process of organizing and 

marking exhibits to prepare a case for hearing is called ‘‘pulling,’’ which is a 

clerical task.) As a result, the backlog of unpulled cases has ballooned from 

about 34,000 to 216,000 since HPI has been implemented. The shortfall in 

‘‘pulled’’ cases has resulted in an insufficient number of cases being scheduled 

for ALJs to hear in many offices and adds to the case processing time.

(e) The lack of acceptance of the failure of HPI by the SSA administrators is 

a challenge that the new Commissioner confronts. At a hearing before the 

House Subcommittee on Social Security in June 2001, Mr. Stanford Ross, Chair 

of the SSAB, testified that the HPI did not improve the hearing process and 

in some circumstances it had made the situation worse. Without acknowledgment of the failure of HPI, new strategies will not be considered seriously and 

implemented by SSA administrators.

3. The Challenge of Preserving Due Process While Achieving Greater Efficiency: 

I have a strong concern with recent information that AALJ has received relating 

to three proposals to transfer the SSA administrative law judge hearing and final 

adjudication of Social Security Act claims to non-ALJ claims personnel within the 

District Offices, non-ALJ claims personnel within the District Offices the Departments of Disability Services, and/or non-ALJ hearing officers within OHA. A brief 

summary of the facts about these proposals that are known to AALJ are as follows:

Transfer of SSA Hearings to non-ALJ Technical Personnel in the District Offices: Recently, AALJ learned that the SSA is creating a ‘‘Special Title II Disability Workload cadre’’ (‘‘ST2DW’’) to make final determinations of Title II Social Security Act claims. The jobs are for a detail of one year that may be extended in upstate New York (Buffalo, Schenectady, Albany) that will consist exclusively of GS–12 level claims personnel employed in the District Offices in 

that local area, whose title is ‘‘Technical Expert (‘‘TE’’).’’ No OHA personnel reportedly will be considered for this position. The SSA New York Region Personnel Operations already has issued solicitations for Technical Experts to 

apply for the position that was to close on May 1. There reportedly will be a 

two month training period for this one year detail. The training was to begin 

in New York City on May 13. The solicitation provided as follows:

TEs will perform a pre-interview assessment of each ST2DW case and complete a development sheet. This sheet will be used to conduct interviews with 

the claimant and to obtain complete development of the case. TEs will be 

responsible for final adjudication of developed cases, and/or pre-effectuation reviews of cases developed by others. TEs will use all available tools 

and controls associated with the ST2DW. 

The position reportedly will be at the GS–12 level and no position description 

has been prepared. This is a proposal that already is being translated into action. The use of the words ‘‘final adjudication’’ of cases in this job announcement 

is telling, since only ALJ and Appeals Council decisions may become final decisions of the SSA Commissioner pursuant to the Social Security Act and APA. 

Transfer of SSA Hearings To DDS: Since February, information has surfaced 

that report that the Agency may attempt to change the Social Security hearing 

process and move the administrative law judge hearing to the reconsideration 

level at the DDS. The National Association of Disability Examiners (‘‘NADE’’) 

has published its detailed proposal for such a change and the fact that its executive officers met with the SSA Commissioner in February 2002 to discuss the 

proposal. NADE also has submitted its proposal in a written statement that is 

part of the record of this Subcommittee’s May 2, 2002, hearing on the Challenges Facing the New Commissioner of Social Security. The DDS proposal 

would restrict appeals to the administrative law judge to questions of law, rather than the de novo review of the claim that is mandated by the Social Security 

Act and the APA. 

In mid-January, the New York DDS director sent a letter to the Commissioner 

that includes suggested reforms of the Social Security disability system that is 

like the NADE proposal. The letter contains the recommendations that the administrative law judge hearing be abandoned and that the hearing be changed 

to a ‘‘fair hearing’’ conducted at the state level by the DDS. At the end of JanuVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00183 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
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ary, the Commissioner attended a meeting of DDS personnel at which the 

attendees agreed to continue to investigate this change. 

AALJ has learned that a small committee had been appointed by the SSA Commissioner to look at alternative hearing methods. There also is an existing SSA 

Commissioner’s Committee on Disability that is looking at various aspects of 

the disability program. AALJ learned that the Committee soon will send a report to the Commissioner that contains a recommendation to conduct the de 

novo Social Security hearing at the Reconsideration level of the DDS. Under 

this proposal, administrative law judges would have jurisdiction only to review 

cases for errors of law. If error is found, the case would be remanded to the 

DDS for hearing. The Commissioner apparently has not made a policy decision 

on the transfer of the due process hearing to a lesser DDS hearing, but this 

issue clearly is on the table for consideration. 

Any such change would have a profound effect on the rights of the American 

people and would deny them a constitutional due process hearing and decision 

of their claims as now is protected by the APA. The DDS proposal also would 

markedly restrict the claimants’ access to judicial review, since few cases would 

reach ALJs and thus be subject to the Appeals Council review that is a necessary predicate to judicial review. 

Transfer of SSA Hearings to Non-ALJ Hearing Officers: AALJ has learned 

from a reliable, well-placed source that SSA is planning to budget for hiring of 

hearing officers at the GS–14 and GS–15 level. However, AALJ does not have 

information on the timing or implementation of the plan. This information is 

consistent with a proposed hearing officer job description for a position to handle ‘‘small claims’’ that the National Executive Board became aware of at the 

time of its October 2002 meeting. This news is of considerable concern because 

it is a natural ‘‘spin off’’ from the discussions to transfer the hearings to the 

DDS. This type assault on the hearings system goes to the very heart of the 

purpose and function of administrative law judges.

Any plan to deny Social Security claimants the right to a full due process hearing 

under the APA before an administrative law judge will result in a denial of basic 

constitutional rights to the American people. The preservation of APA due process 

for the claimants, including the hearing and decision of their claims by ALJs who 

are appointed pursuant to the APA, is essential as the new Commissioner devises 

ways to more efficiently address the agency’s large and growing caseload. 

The APA was adopted by Congress in 1946 to ensure that the American people 

were provided hearings that are not prejudiced by undue agency influence. The securing of fair and competent hearing adjudicators was viewed as the heart of the 

Administrative Procedure Act. 

The APA was enacted primarily to achieve reasonable uniformity and fairness of 

the administrative process in the Federal Government for members of the American 

public with claims pending before Federal agencies. The APA sets forth a due process administrative procedure for the hearing and decision by administrative law 

judges of cases brought before the Federal agencies to which the APA applies. The 

APA provides the minimum standards for federal administrative due process in the 

Executive Branch, and delineates procedures for adjudicative administrative proceedings, namely individual case decisions about rights or liabilities as an agency’s 

judicial function. This includes uniform standards for the conduct of adjudicatory 

proceedings, including the merit appointment of administrative law judges. U.S. 

Justice Dept., Attorney General’s Manual on the Administrative Procedure Act 9

(1947) (the ‘‘Manual’’). The APA, Pub. L. No. 79-404, 60 Stat. 237 (1946), as amended, is codified at 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301(2)(E), 

5335(a)(B), 5372, and 7521. 

By APA mandate, the administrative law judge is an independent, impartial adjudicator in the administrative process and there is a separation of the adjudicative 

and prosecutorial functions of an agency. The administrative law judge is the only 

impartial, independent adjudicator available to the claimant in the administrative 

process, and the only person who stands between the claimant and the whim of 

agency bias and policy. If SSA returns to using subordinated employees who would 

be an instrument and mouthpiece for the SSA, we will have returned to the days 

when the agency was both prosecutor and judge. 

There is a close relationship between the APA and the Social Security Act. In the 

case of Richardson v. Perales, 420 U.S. 389 (1971), the U.S. Supreme stated that 

the APA was modeled upon the Social Security Act. 

It is clear that Congress intended the APA to apply to hearings conducted under 

the Social Security Act. The Attorney General’s Manual on the Administrative Procedure Act, which is recognized by the U.S. Supreme Court to be part of the legislaVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00184 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
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tive history of the APA, states that ‘‘the residual definition of ‘‘adjudication’’ in section 2(d) was intended to include. . . . [t]he determination of . . . claims under Title 

II (Old Age and Survivor’s Insurance) of the Social Security Act. . . . ’’ Manual at 

14–15 (emphasis added), citing, Senate Judiciary Committee Hearings on the APA 

(1941) at 657, 1298, 1451 and S. Rep. No. 752 at 39; 92 Cong. Rec. 5648. (The other 

programs did not then exist.) 

The U.S. Supreme Court defined the role of a federal Administrative Law Judge 

in Butz v. Economou, 438 U.S. 478, 513–514 (1978), as follows:

There can be little doubt that the role of the modern hearing examiner or administrative law judge within this framework is ‘‘functionally comparable’’ to 

that of a judge. His powers are often, if not generally, comparable to those of 

a trial judge. He may issue subpoenas, rule on proffers of evidence, regulate the 

course of the hearing, and make or recommend decisions. . . . More importantly, the process of agency adjudications is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the 

agency. Prior to the Administrative Procedure Act, there was considerable concern that persons hearing administrative cases at the trial level could not exercise independent judgment because they were required to perform prosecutorial 

and investigative functions as well as their judicial work . . . and because they 

were often subordinate to executive officials within the agency. . . . Since the 

securing of fair and competent hearing personnel was viewed as ‘‘the heart of 

formal administrative adjudication,’’ . . . the Administrative Procedure Act contains a number of provisions designed to guarantee the independence of hearing 

examiners. They may not perform duties inconsistent with their duties as hearing examiners. When conducting a hearing under the APA, a hearing examiner 

is not responsible to or subject to the supervision or direction of employees or 

agents engaged in the performance of investigative or prosecution functions for 

the agency. Nor may a hearing examiner consult any person or party, including 

other agency officials, concerning a fact at issue in the hearing, unless on notice 

and opportunity for all parties to participate. . . . Hearing examiners must be 

assigned to cases in rotation so far as practicable. . . . They may be removed 

only for good cause established and determined by the Civil Service Commission 

after a hearing on the record. . . . Their pay is also controlled by the Civil Service Commission.

The Supreme Court recently reaffirmed its holdings in Butz that a federal ALJ’s 

role is similar to that of a trial judge and that administrative adjudications are 

similar to judicial proceedings when it held that state sovereign immunity bars the 

Federal Maritime Commission from adjudicating a private party’s complaint against 

a non-consenting state. Federal Maritime Commission v. South Carolina State Ports 

Authority, lll U.S. lll, slip op. 1, 10–14 (2002). 

The Congress has reviewed the function of the administrative law judge in the 

Social Security Administration. In 1983, a Senate Subcommittee on Oversight of 

Government Management of the Committee on Governmental Affairs conducted a 

hearing that inquired into the role of the administrative law judge in the Title II 

Social Security Disability Insurance Program. S. PRT. 98–111. The Committee 

issued its findings on September 16, 1983, which provided in part as follows:

The APA mandates that the ALJ be an independent impartial adjudicator in 

the administrative process and in so doing separates the adjudicative and prosecutorial functions of an agency. The ALJ is the only impartial, independent adjudicator available to the claimant in the administrative process, and the only 

person who stands between the claimant and the whim of agency bias and policy. If the ALJ is subordinated to the role of a mere employee, and instrument 

and mouthpiece for the SSA, then we will have returned to the days when the 

agency was both prosecutor and judge.

The decisionmaking independence provided by the APA is not for the benefit of 

the judge, but instead is provided for the protection of the American people. The 

protections are intended to ensure that the American people receive a full and fair 

due process hearing with a decision based on the evidence in the hearing record. 

This is a right protected by the constitution. ‘‘The APA creates a comprehensive bulwark to protect ALJs from agency interference. The independence granted to ALJs 

is designed to maintain public confidence in the essential fairness of the process 

through which Social Security benefits are allocated by ensuring impartial decisionmaking.’’ Nash v. Califano, 613 F.2d 10, 20 (2nd Cir. 1980). Despite these protections, the Social Security Administration has a history of attempting to assert 

undue influence on the decisionmaking of its administrative law judges. This abuse 

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occurred in the 1980’s after the agency had implemented the Bellmon Review Program. The Senate Subcommittee on Oversight of Government Management (referred 

to above) issued findings on September 16, 1983, on this improper agency conduct 

that provided in part as follows:

The principal findings of the subcommittee is that the SSA is pressuring its 

ALJs to reduce the rate at which they allow disabled persons to participate in 

or continue to participate in the Social Security Disability Program.

The Bellmon Review Program also was challenged in the courts in Association of 

Administrative Law Judges v. Heckler, 594 F.Supp. 1132 (1984). In that case, a Federal district court judge found in part as follows:

In sum, the Court concludes, that defendant’s unremitting focus on allowance 

rates in the individual ALJ portion of the Bellmon Review Program created an 

untenable atmosphere of tension and unfairness which violated the spirit of the 

APA, if no specific provision thereof. Defendants’ insensitivity to that degree of 

decisional independence the APA affords to administrative law judges and the 

injudicious use of phrases such as ‘‘targeting’’, goals and ‘‘behavior modification’’ 

could have tended to corrupt the ability of administrative law judges to exercise 

that independence in the vital cases that they decide.

The efforts of the administrative law judges of the Social Security Administration 

to protect the Social Security hearing process and the rights of Social Security 

claimants was recognized in an award presented to the judges of the agency by the 

President of the American Bar Association in August 1986. The award acknowledged the efforts of the Social Security administrative law judges in protecting the 

integrity of the hearing system. The award specifically stated:

That the American Bar Association hereby commends the Social Security Administrative Law Judge Corps for its outstanding efforts during the period from 

1982–1984 to protect the integrity of administrative adjudication within their 

agency, to preserve the public confidence in the fairness of governmental institutions and uphold the rule of law.

On January 9, 2001 Commissioner Kenneth S. Apfel affirmed the relationship between the Administrative Procedure Act and the Social Security Act for Social Security hearings. He stated as follows:

The Social Security Administration (SSA) has a long tradition, since the beginning of the Social Security programs during the 1930s, of providing the full 

measure of due process for people who apply for or who receive Social Security 

benefits. An individual who is dissatisfied with the determination that SSA has 

made with respect to his or her claim for benefits has a right to request a hearing before an Administrative Law Judge, an independent decisionmaker who 

makes a de novo decision with respect to the individual’s claim for benefits. As 

the Supreme Court has recognized, SSA’s procedures for handling claims in 

which a hearing has been requested served as a model for the Administrative 

Procedure Act (APA). Congress passed the APA in 1946 in part to establish uniform standards for certain adjudicatory proceedings in Federal agencies, in 

order to ensure that individuals receive a fair hearing on their claims before an 

independent decisionmaker. SSA always has supported the APA and is proud 

that the SSA hearing process has become the model under which all Federal 

agencies that hold hearings subject to the APA operate. SSA’s hearing process 

provides the protections set forth in the APA, and SSA’s Administrative Law 

Judges are appointed in compliance with the provisions of the APA.

In a recent study prepared for the Social Security Advisory Board by Professors 

Paul Verkuil and Jeffrey Lubbers, entitled Alternative Approaches to Judicial Review of Social Security Disability Cases, the authors recommended the establishment of an Article I court for Social Security cases. The report favorably refers to 

the over 1000 administrative law judges in the Social Security Administration as 

an objective source of decisionmaking that can be effectively integrated into an article I court review structure. This recommendation seeks to improve and strengthen 

the Social Security disability process, not to diminish the system as would result 

from abandoning the administrative law judge hearing. In fact, articles recently 

have been published that recommend that the Veterans disability appeals system 

be improved by modeling it after the Social Security administrative law judge hearing process. James T. O’Reilly, Burying Caesar: Replacement of the Veterans Appeals 

Process Is Needed to Provide Fairness to Claimants, 53 Admin. L. R. 223 (2001); William F. Fox, Jr., A Proposal to Reform the VA Claims Adjudication Bureaucracy: 

One Law Professor’s View, FBA Veterans Law Sec., Tommy: A Lawyer’s Guide to 

Veterans Affairs, 1 (Issue 3, 2001). 

183

Any retreat from this long and proud tradition of the Social Security Administration with regard to the manner in which it conducts hearings will have a substantial 

adverse effect on Social Security claimants and will deny them basic constitutional 

rights. American citizens will have less rights than they had prior to the enactment 

of the APA. 

We urge Congress to protect the constitutional rights of the American people and 

to continue to provide the Social Security claimants the full range of due process 

rights for a Social Security hearing under both the APA and the Social Security Act. 

C. Challenges at the Appeals Council Level: Several specific challenges that 

now confront the new Commissioner are as follows: 

1. Long Case Processing Time: The long case processing time at the Appeals 

Council often is measured in years, rather than months. 

2. Poor Decision Quality: The chronically poor quality of the Appeals Council 

decisions has declined further in recent years. The decisions rarely have legal citations of authority or rationales for the positions taken, and often are factually inaccurate regarding what the record shows. The informality of the decisions does not 

give the impression of the careful deliberation to which the claimants are entitled. 

3. Excessive Number of Lost Hearing Record Tapes and Files: The chronic 

loss of hearing record tapes and files by the Appeals Council requires a lengthy rehearing process for the claimants. Anecdotal evidence suggests that thousands of 

hearing tapes and files have been lost. SSA recently reported that there are about 

5,000 remands per year for lost or inaudible hearing tapes, most of which are for 

lost tapes. The loss of tapes and files reportedly is caused by three problems: (a) 

the repeated crashing of the Appeals Council’s antiquated computer case tracking 

system and loss of case names from the database that are not recoverable, (b) a 

large backlog of cases that have not been entered into the case tracking system but 

instead are stored on shelves without being alphabetized, numbered or coded, and 

(c) separating hearing tapes from the hearing file to save storage space and prevent 

jamming paper shredder machines when the files ultimately are destroyed. 

4. Achieving Acceptance of the Failure of the Appeals Council Level ACPI 

Reorganization of OHA: Acceptance by SSA administrators of the failure of the 

ACPI that was implemented in 2000 to correct these three chronic challenges of the 

Appeals Council operation also is a challenge that the new Commissioner confronts. 

Without acceptance of the failure of ACPI, new strategies will not be considered seriously and implemented by SSA administrators. 

III. PROPOSED ACTIONS TO MEET THE CHALLENGES FOR THE SOCIAL 

SECURITY DISABILITY PROGRAMS 

A. Overview of Needed Reforms for the SSA Hearing Process 

1. Reorganize the Hearing Office Process: Because of the failure of HPI, SSA 

should reorganize the hearing office process. The reorganization should correct the 

defects in HPI. We propose that the recommendations of the Commissioner’s HPI 

Steering Committee be used as a guide for the reorganization. The reorganization 

should consist of both short term and long term changes. The short term changes 

should be structured in a manner that permits easy transition to the long term reforms. The objective should be to immediately return to the efficiency and level of 

case production that existed in the hearing offices immediately before the introduction of HPI (over 500,000 cases a year). The long term reform should then build on 

that base. There is no single change that will accomplish this objective. It instead 

must be accomplished by a series of coordinated changes in several different areas. 

The changes will allow the agency to improve the service provided to the American 

public. 

We recommend that the short term changes should include the following elements:

(a) The process must be simple, and administrative law judges should be assigned to cases from master docket according to law. 

(b) Each administrative law judge should have adequate and properly trained 

support staff. The support staff should include a clerical worker, paralegal 

and attorney/writer. 

(c) The support staff should be assigned to perform the work product of a particular administrative law judge according to the instructions and guidance 

of the judge. 

(d) The administrative law judge should have control of all case development. 

(e) The administrative law judge should have the responsibility to determine 

when a case decision is legally sufficient and the judge should have the authority to return the decision for rewrite to achieve the same. 

(f) Case files of each administrative law judge should be maintained separately. 

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(g) The assigned support staff of each administrative law judge should be under 

the supervision of the hearing office management staff for personnel actions. 

(h) Staff members should be accountable for their work product. Case work 

should be assigned on an individual basis to support staff to provide for accountability and enhance the employees’ sense of ownership.

We recommend that the long term changes should include the following elements:

(a) Close the hearing record after the administrative law judge hearing as of 

the date of the ALJ’s decision. 

(b) Assignment of Social Security Administration representatives to represent 

the agency at administrative hearings. Such representatives would be responsible to defend the position of the agency at the hearing, recommend 

favorable cases, exercise settlement authority, and assist unrepresented 

claimants. When most claimants were unrepresented, having a non-adversarial process made sense to keep the benefits process simple and not intimidating. However, now, approximately 82% of the claimants who have an 

ALJ hearing are represented, according to recent statistics assembled by the 

SSA OHA Office of the Chief ALJ. 

(c) Create a case manager and law clerk position for the support staff of each 

administrative law judge (as recommended by the Commissioner’s HPI 

Steering Committee). 

(d) Allow administrative law judges to issue bench decisions and short form decisions. 

(e) Adopt regulations for issue exhaustion as suggested by the United States 

Supreme Court in the case of Sims v. Apfel, 530 U.S. 103 (2000), if SSA representatives are available to assist the unrepresented claimants. 

(f) Reform the Appeals Council to issue decisions in some cases, limit the scope 

of appeal for claimants who have received the requested relief from the administrative law judge, and support the administrative law judge in ‘‘noshow’’ dismissals. 

(g) Implement a sustainable agency policy on the issue of pain and the treating 

physician rule and defend the same if challenged. 

(h) Require the DDS to follow the same legal standard as the ALJs when determining disability, which is based upon the Social Security Act, the SSA regulations and rulings, and the federal case law that interpret them. 

(i) Improve the use of technology in the hearing process (i.e. an improved case 

processing and management system, and electronic file, voice to print software, improved equipment for recording hearings, etc., most of which already is in the planning and pilot stages). 

(j) Adopt rules of procedure for the hearing process.

(k) Reorganize the Office of Hearings and Appeals.

B. Strategies to Reduce the Number of Cases Heard at the ALJ Hearing 

Level that May Be Effected in the Short Term by Regulation Changes and 

Preserve Due Process 

1. Require DDS Decisionmakers to Follow the Same Legal Standard as 

the ALJs, not a Medical Standard: SSA should issue regulations that require 

DDS decisionmakers to adjudicate cases pursuant to the Social Security Act, the 

SSA regulations and rulings, and the federal case law that interpret them. This can 

be implemented on a short term basis and immediately would serve to reduce the 

number of cases appealed to the ALJs. 

2. Have the DDS Do One Thorough Case Development and Determination 

to Increase the Accuracy and Quality of the DDS Determinations: If the DDS 

were enabled to do one thorough development of the medical record and carefully 

considered determination, rather than two incomplete reviews of incomplete files, 

the accuracy and quality of the determinations would rise and result in fewer appeals to the ALJ level. Either eliminate the reconsideration level to save processing 

time at the DDS level or make it into a meaningful decision level in which evidence 

is further developed and a meaningful second look is taken at the claimants’ files 

that has a realistic chance of a more accurate outcome for the claimants than at 

the initial level. 

3. Close Record as of the Administrative Law Judge decision date: The 

amendment of SSA’s regulations to close the record after the ALJ hearing and as 

of the date of the ALJ decision would reduce the number of cases that ALJs must 

hear upon remand from the Appeals Council and courts based upon new evidence. 

New evidence is one of the most common reasons for remand of cases. This adds 

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ants. This change will place the responsibility upon the claimants’ representatives 

for producing all relevant and material evidence at the hearing. 

By SSA regulation, the hearing record in the Social Security disability system is 

not closed at any stage in the appeals process. This system precludes administrative 

finality and allows the claimant to introduce new evidence at each step of the process, including the Appeals Council level. 20 C.F.R. §§ 404.900(b), 404.976(b). This is 

true even when the evidence was in existence and available during the prior stage 

of the appeal. The reason the SSA keeps the record open at the administrative levels is that the Social Security Act authorizes the courts to remand a case to SSA 

when a claimant shows that there is material new evidence and there is good cause 

for not including it in the record earlier. 42 U.S.C. § 405(g). 

In a recent report, the Social Security Advisory Board (‘‘SSAB’’) stated that ‘‘Congress and SSA should review again the issue of whether the record should be fully 

closed after the ALJ decision.’’ Charting the Future of Social Security’s Disability 

Programs: The Need for Fundamental Change, January 2001, p. 20. This change 

will bring administrative finality to the Social Security disability case and will encourage all known relevant and material evidence to be produced at the hearing. 

New documentary medical evidence of disability based upon treatment that occurred before the date on which the ALJ hearing closed should be admitted into evidence by the Appeals Council only upon a showing that the new evidence is material 

and that there is good cause for the failure to incorporate such evidence into the 

record in a prior proceeding. This standard is in keeping with the standard that the 

Social Security Act allows for the courts. Unrepresented claimants should be excepted from the requirement to show good cause. 

4. The SSA Should Have a Representative at the ALJ Hearings: After conducting a pilot program to work out the details in practice, the SSA should amend 

its regulations to provide for a government representative at the ALJ hearing. This 

change would permit SSA to complete the documentary record faster, enter into settlements without the need for a hearing in some cases, and present the government’s position on each case. SSA representation will allow the SSA to present its 

evidence, present the type of expert witnesses it deems necessary, and advance its 

legal theories in the case. The government representative also should provide assistance and advice to claimants in unrepresented cases. 

In order to meet the requirements of due process, the APA provides that ‘‘[a] 

party is entitled to appear in person or by or with counsel or other duly qualified 

representative in an agency proceeding.’’ 5 U.S.C. § 555(b). Therefore, the SSA, as 

a party, has the right to appear on its own behalf at the proceedings before the 

OHA. However, the Social Security Administration is not represented at the disability hearing before an administrative law judge. SSA regulations long have stated 

that it ‘‘conducts the administrative review process in an informal, nonadversary 

manner,’’ 20 C.F.R. § 404.900(b), so SSA thus has waived its right to appear at the 

ALJ hearings. The present system worked well when most claimants in Social Security cases were not represented at the hearing. However, there has been a dramatic 

rise in the number of claimants who are represented at the hearing. Presently, well 

over 80% of the claimants are represented at the hearing. The Social Security Advisory Board has noted that ‘‘[t]he percentage . . . of claimants represented by attorneys at ALJ hearings has nearly doubled [between] 1997 [and 2000].’’ SSAB, Disability Decision Making: Data and Materials, Chart 56 Attorney and Non-attorney 

Representatives at ALJ Hearings Fiscal Years 1997–2000, p. 73 (January 2001). 

In its recent report, the SSAB recommended that the SSA have representation at 

the Social Security disability hearing: ‘‘We think that having an individual present 

at the hearing to defend the agency’s position would help to clarify the issues and 

introduce greater consistency and accountability into the adjudicative system.’’ 

Charting the Future of Social Security’s Disability Programs: The need for Fundamental Change, January 2001, p. 19. 

The SSA had a pilot program for its representation at the hearing in 1982. This 

pilot program was discontinued after an unfavorable court decision on the project. 

Salling v. Bowen, 641 F. Supp. 1046 (W.D.Va. 1986). The past pilot program on the 

government representative project was not an adequate test of this system. The SSA 

should implement a new test program for agency representation at the hearing. This 

pilot project should be implemented in coordination with the claimants’ bar, SSA 

employee organizations, our Association, and other interested groups. The pilot program should address the issues raised by the court in Salling. The objective is to 

establish a hearing process that provides a full and fair hearing for all parties who 

have an interest in the case. 

In addition, in the current non-adversarial setting, the SSA ALJ has the legal responsibility to ‘‘wear three hats’’ in each case. The ALJ legally is bound to ensure 

that all of the claimant’s relevant and material evidence is made part of the record 

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and the claimant’s interests are protected, to protect the interests of the government 

in the hearing, and to make a fair decision which is based on the evidence in the 

record. Additionally, the judge must take care to not become overly protective of the 

interests of the government for fear that the case will be reversed on appeal on a 

claim of bias against the claimant. The inherent conflict in all of these roles is patent and would be resolved by having the government represented at the hearing. 

5. If the SSA Provides for a Government Representative at the Hearing, 

Require Issue Exhaustion at the Appeals Council Level for Represented 

Claimants: As the Supreme Court stated in Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 

2080, 147 L. Ed. 2d 80 (2000), there is no statute or regulation that requires that 

a claimant must list the specific issues to be considered on appeal on the request 

for review by the Appeals Council of an ALJ’s decision, in order to preserve those 

issues for judicial review. Although agencies often issue ‘‘regulations to require issue 

exhaustion in administrative appeals,’’ which are enforced by the courts by not considering unexhausted issues, ‘‘. . . SSA regulations do not require issue exhaustion.’’ Id. at 2084. The Supreme Court refused to impose a judicially inferred issue 

exhaustion requirement in order to preserve judicial review of the issues upon a 

claimant for Title II and Title XVI Social Security Act benefits because the issues 

in SSA hearings are not developed in an adversarial administrative proceeding and 

the ‘‘[Appeals] Council, not the claimant, has primary responsibility for identifying 

and developing the issues.’’ Id. at 2086. However, the Court, deferring to the agency, 

noted that ‘‘. . . we think it likely that the Commissioner could adopt a regulation 

that did require issue exhaustion.’’ Id. at 2084. The Supreme Court thus explicitly 

invited SSA to draft new regulations. 

Unrepresented claimants should be excepted from the requirement to show good 

cause. Expecting unrepresented claimants to bear the burden of preserving specific 

legal issues for judicial review does not comport with a sense of fair play and keeping the claims process claimant-friendly. 

Issue exhaustion would bring finality to the administrative process and it is consistent with the general principles of administrative law and the procedure of other 

agencies in the Federal Government. 

C. Strategies to Reduce Case Processing Time and Increase Quality of 

Service at OHA While Preserving Due Process 

1. Administratively Reform the HPI Process: SSA should change the HPI 

process by assigning cases to ALJs at an earlier point in the process, such as when 

the cases are entered into the computerized master docket. This would return the 

control of pre-hearing case development to the ALJs, leave the ALJ in control of the 

hearing, and support the ALJ’s responsibility for determining when a draft decision 

is legally sufficient. SSA also should return individual accountability for work product to the employees by assigning staff employees to work with each ALJ, which 

should consist of a clerical person, paralegal, and staff attorney. This will enhance 

morale through a sense of ownership by employees working on particular cases for 

an individual judge. These changes are needed to permit the ALJs to provide full 

and fair hearings for the American public in an efficient and timely manner. SSA 

may effect these changes administratively on a short term basis. 

2. Redefine Paralegal Specialist Job To Include Clerical Duties: SSA OHA 

may redefine the GS-0950 Paralegal Specialist ALJ decision writer job across a 

broad band of General Schedule levels to permit the assignment of appropriate clerical duties to the people promoted to this position who have not performed the ALJ 

decision writing function well. The clerical work could include the case pulling and 

other clerical work that has been accumulating. This permits the necessary clerical 

work of the agency to get done while permitting the promoted staff to stay at their 

new grade levels and experience satisfaction from a job well done. 

3. Enhance the Appeals Council Case Tracking System by Including it in 

the First Phase of the Accelerated e-DIB Project: SSA should install a modern 

computerized case tracking system with bar coding for the Appeals Council as expeditiously as possible to prevent loss of files and tapes by the Appeals Council. SSA 

is in the process of developing a new Case Processing and Management System 

(‘‘CPMS’’) for OHA that is part of the Accelerated e-DIB project, the first phase of 

which will be implemented in January 2004. Although both the ALJ-level offices 

and the Appeals Council are expected to have the capacity to read an electronic file 

by January 2004, senior SSA management reportedly is including only the ALJ-level 

offices in the implementation of the CPMS by January 2004. Implementation of the 

CPMS for the Appeals Council reportedly is being deferred to a later phase of the 

Accelerated e-DIB project, despite the chaos in its case tracking system. If 140 OHA 

offices can be brought into the CPMS by January 2004, the Appeals Council, with 

its one location, also can be included in the first phase of implementation. 

4. Reorganize the Office of Hearings and Appeals 

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(a) Proposed Legislation to Reform the Office of the Chief ALJ and Create 

an Office of Administrative Law Judges within SSA: 

Current Status: 

The adjudication of administrative claims by the SSA currently is done by administrative law judges who are part of the OHA. The function for both administrative 

law judge hearings and the appellate process for the review of administrative law 

judge decisions by the Appeals Council are located in the OHA. The OHA is under 

the dual leadership of a Chief Administrative Law Judge and an Associate Commissioner. The position description of the Chief Administrative Law Judge places the 

Chief Judge in charge of the hearings function and hearings field operation of the 

agency. The Associate Commissioner is placed in charge of the Appeals Council and 

major policy-making and policy-implementation responsibilities of the OHAs. The 

Chief Judge reports to the Associate Commissioner, who in turn reports to the Deputy Commissioner for Disability and Income Security Programs (‘‘ODISP’’), who in 

turn reports to the Commissioner. 

Problems with Current System: 

In the current organization of SSA, the Office of Hearings and Appeals is buried 

in the bureaucracy and is far removed from the Commissioner. This structure prevents the Commissioner from having effective oversight of the agency hearing process. The administrative law judge adjudication function should not be treated as a 

staff responsibility in the agency. The administrative law judge adjudication function is a major program of the agency with every individual in this nation being 

a potential claimant within the system. The SSA Administrative Law Judge hearing 

system protects a constitutional right of our citizens and provides a constitutionally 

protected due process hearing to the American public. This vital process should have 

direct oversight from the Commissioner and the Chief Judge should have direct 

interaction with the Commissioner. 

Another major defect in OHA is created by the dual leadership responsibilities of 

the Chief Judge and the Associate Commissioner. Frequently these two leaders are 

competing for power to control the administrative and/or policy decisions for this 

component of SSA that has deprived OHA of strong effective leadership. The lack 

of effective leadership and direction of the Office of Hearings and Appeals has resulted in an organization that has been deteriorating. During the past 10 plus years 

several reforms have been imposed on the SSA hearing process. Each attempt has 

resulted in failure. Subsequent to a recent change in the hearing office process that 

was implemented in January 2000 (HPI), the number of case depositions have 

dropped while the case processing time and the case backlog have increased. The 

result has been poorer service for the American public. Within the past several 

years, the Associate Commissioner attempted to reorganize the responsibilities of 

the Chief Judge and divest the Chief Judge of most of the powers of that office leaving the Chief Judge with some minor duties relating to judicial education and staff 

support for the Associate Commissioner. This scheme was thwarted by the efforts 

of interested individuals and organizations together with the oversight action of the 

Congress. 

The problem has now returned with the present Associate Commissioner of the 

Office of Hearings and Appeals. He has striped most of the power from the Office 

of the Chief Judge. He treats the Chief Judge as a staff person instead of a vital 

policy maker who is in charge of the field operations for the hearings function of 

the agency as provided for in the Chief Judge’s position description. This action of 

the Associate Commissioner has led to a crisis within the Office of Hearings and 

Appeals with the last Acting Chief Judge leaving the position last March after having served for only a few weeks in office. The Chief Judge position was vacant until 

June 3, when a new Acting Chief Judge was appointed. This position has not been 

filled permanently since the last Chief Judge left over a year ago. 

Proposed Reform: 

This system requires basic reform that places an established Chief Judge in 

charge of the agency hearing process with reporting responsibility directly to the 

Commissioner. We propose legislation that separates the agency hearings function 

from the Appeals Council and places the hearing component in an Office of Administrative Law Judges under the control of a Chief Judge who reports directly to the 

Commissioner. Our bill to effect this reform imminently will be introduced in the 

House. 

The following improvements in service to the American public will result from the 

proposed legislation:

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a. The Commissioner will have direct oversight of the hearing component of the 

agency that is necessary to effectively administer this important program 

which provides constitutional due process hearings for the American public. 

b. Improved leadership and efficiency in the hearings component will permit the 

SSA to provide better service for the American public by increasing case dispositions, reducing processing times and reducing case backlogs. 

c. The change will improve the SSA hearing process and will continue to ensure 

that the American public receives a fair constitutional due process hearing. 

d. The proposed legislation creates an Office of Administrative Law Judges (‘‘Office’’) in the SSA. The national ALJ hearings function and hearings field operation that presently is within the OHA would be transferred to the Office by 

the proposed legislation. 

e. The Chief Judge would be in charge of the Office, would report directly to the 

Commissioner, be appointed by the Commissioner for a term of six years that 

is renewable once, and be subject to removal only upon a showing of an enumerated cause. 

f. The administrative law judge hearing component of SSA is regarded as an organization that is responsible for administering a major agency program which 

reports directly to the Commissioner. It will be no longer organized as a staff 

function within the agency. 

g. The Office of Administrative Law Judges will have one individual, the Chief 

Judge, responsible for administrative operations and policy making. This will 

result in effective leadership of the administrative law judge function. 

h. The Associate Commissioner of OHA will continue to head the Appeals Council. 

i. The change is a reorganization within the agency and will not result in any additional costs to the agency.

This change is endorsed by the SSAB. The SSAB recently prepared a report on 

the Social Security disability system that states that ‘‘[m]any believe that the Office 

of Hearings and Appeals is buried too low in the agency and should be elevated so 

that the head of the office would report directly to the agency leadership. Others 

believe that there should be independent status for an administrative law judge organization.’’ Charting the Future of Social Security’s Disability Programs: The need 

for Fundamental Change, January 2001, p. 19. 

(b) In the Alternative, Reorganize OHA to Have the Chief ALJ Report Directly to the Commissioner and Replace the Appeals Council with a Right 

of Appeal to Appellate Panels Staffed by ALJs that Would Be Administered 

by the Chief ALJ: This proposal is identical to AALJ’s proposal for an independent 

adjudication agency that would provide a hearing before an ALJ with a right of appeal from the individual ALJ’s decision to an appellate panel staffed by ALJs, which 

is explained in suggestion 6(b) below, except that the Chief ALJ would report to the 

Commissioner rather than be the head of an independent agency. Such a reorganization may be effected by the SSA without legislation. 

(c) As an Alternative to Reorganizing OHA, Create A New Independent Agency 

within SSA to Issue the Final Administrative Decisions of Social Security Act 

Claims, Including Medicare Claims: A consensus has formed that the SSA’s administration of OHA and its efforts to bring DDS decisionmaking into accord with ALJ 

decisionmaking have failed and that fundamental change is needed. Management 

initiatives such as process redesign, process unification, prototype, and, most recently, the Hearing Process Improvement Plan (‘‘HPI’’) and Appeals Council Process 

Improvement Plan (‘‘ACPI’’), have not achieved their goals. The Appeals Council, 

which originally was intended as a policy making body, is universally recognized as 

a failure in its function as the final step in the administrative review of Social Security claims. 

OHA performs an adjudicatory function in an executive agency that was created 

by Congress, and handles the largest appellate administrative caseload of any agency in the world. SSA’s many misguided efforts to implement policy through OHA’s 

adjudication function, some of which are described in this statement and AALJ’s 

Statement that is published in the Report for the June 28, 2001, First Hearing in 

the Series on Social Security Disability Programs’ Challenges and Opportunities, 

House Subcommittee on Social Security, No. 107–35, 107th Cong., 1st Sess., pp. 80–

93, reveal the nature of the change in the Social Security claims process the American public needs: Separation of OHA’s appellate administrative adjudication function into an entity that is independent of the political policy making and implementation portions of SSA. An independent adjudication agency would provide members 

of the American public who file claims for Social Security Act entitlement program 

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ess, including a timely and fair hearing free of policy implementation and political 

pressure. 

The rationales that have justified Congressional separation of the appellate administrative adjudication function from Executive Branch agencies include an efficient and low cost process for the claimants, high case volumes, expertise, and 

decisional independence of adjudicators. The maintenance of a reasonably efficient, 

orderly and low cost adjudication system in the traditional domain of public rights 

is in the public’s interest, especially for programs that distribute benefits on a large 

scale. Specialized tribunals are more likely to make correct decisions in subject 

areas that are legally complex or have technical facts. The large increase in the administrative case volume also supports the use of specialized adjudication agencies. 

The most important rationale is the experience that effective protection of individual 

rights before agencies through independent decisionmaking cannot take place unless 

adjudications are separated from the agency’s rulemaking/policy, prosecutorial/enforcement and investigatory functions. 

These rationales, particularly the need to separate the adjudicatory function from 

other conflicting agency functions, led Congress to create the Occupational Safety 

and Health Review Commission (‘‘OSHRC’’) in 1970, 29 U.S.C. § 661, and the Federal Mine Safety and Health Review Commission (‘‘FMSHRC’’) in 1977, 30 U.S.C. 

§ 823, as independent Executive Branch agencies outside the Department of Labor 

with only adjudicative authority. The OSHRC determines whether regulations promulgated and enforced by the Occupational Safety and Health Administration have 

been violated. The FMSHRC adjudicates violations of standards promulgated and 

enforced by the Mine Safety and Health Administration. 

Therefore, when an agency, such as SSA, exclusively uses rulemaking proceedings 

to set policy, rather than also using adjudications to set policy, there no longer is 

any rationale for keeping the adjudicatory function within the agency. The Congressional interest in providing a check on SSA’s enforcement powers, i.e., to withhold 

disability and other program benefits, is best served by having entitlement determinations decided by an independent adjudicatory agency based on the benefits entitlement standards set by SSA. Hence our proposal that the independent agency 

be an adjudicatory body that is self-administered by the ALJs with a right of appeal 

from an individual ALJ’s decision to an appellate panel staffed by ALJs. 

There are additional reasons why an independent adjudication agency administered by ALJs would provide a more efficient and higher quality of due process for 

Social Security benefits claimants than the current SSA Appeals Council or an independent but politically appointed Commission or Board structure. First, a small 

body, such as the current Appeals Council, or a Commission or Board, cannot be 

of sufficient size to do meaningful administrative review of appeals from the ALJ 

decisions, which now number near 100,000 per year. The SSA ALJs are a large 

group of highly qualified judicial professionals who are capable of administering 

themselves and the appellate administrative process in a competent and effective 

manner. Second, creating an independent agency would eliminate political oversight 

by appointees (ie., Commissioners or Board members) who do not have due process 

and adjudicative independence as their foremost goal in agency administration. Finally, if the SSA ALJs administer themselves, they will draft and issue the procedural regulations and rules of the new agency based upon their experience and 

needs of the process, rather than expediency and other policy concerns as they are 

now. There now is no coherent set of procedural regulations and rules for the SSA 

appellate administrative process. 

For all of these reasons, the Social Security Act hearing process should be reformed by the transfer of the authority to make final administrative adjudications 

of Social Security Act claims, which currently are made at the ALJ and SSA Appeals Council levels, from the Social Security Administration to a new ALJ-administered independent adjudication agency within SSA. This agency may be called the 

United States Office of Hearings and Appeals (‘‘USOHA’’). 

The USOHA would have the exclusive jurisdiction to make the final administrative decisions of Social Security Act Title II and XVI claims. The USOHA would 

have permissive jurisdiction over other classes of cases, including Medicare cases 

under Social Security Act Title XVIII. [On December 4, 2001, the House passed the 

Medicare Regulatory and Contracting Reform Act of 2001, H.R. 3391, section 401 

of which authorizes the transfer of the ALJ function from SSA to the Department 

of Health and Human Services by October 1, 2003, to hear and decide Medicare 

cases pursuant to Title XVIII of the Social Security Act. AALJ’s proposal advocates 

placing all of the ALJs hearing Social Security Act cases into one independent agency, including Medicare cases.] 

AALJ recommends the creation of a new ALJ-administered independent adjudication agency for Social Security Act claims that would provide a hearing before an 

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ALJ with a right of appeal from the individual ALJ’s decision to an appellate panel 

staffed by ALJs. The panels would consist of three ALJs who would review the cases 

locally. This Social Security Appellate Panel Service within the USOHA would replace the Appeals Council, a failed appellate review step that already exists and is 

funded. 

The ALJ appellate panels would be akin to the Bankruptcy Court appellate panels 

and is one of the key features that makes the ALJ self-administration model superior to the current SSA Appeals Council model, which is a small body that cannot 

timely and effectively handle a heavy caseload. Based upon the Bankruptcy Court 

experience, the appellate panel model (1) is an appellate system that can handle a 

large caseload, (2) results in a shorter disposition time because the large pool of 

about 1,000 ALJs throughout the United States permits the timely determination 

of appeals that cannot take place with a small body such as the Appeals Council 

or a Commission or Board, (3) results in higher quality decisions because of expertise, (4) results in substantially fewer appeals to the courts and a substantially 

lower reversal rate by the courts because of the confidence in the high quality of 

the decisions, which reflects a higher degree of decision accuracy, (5) results in a 

substantially reduced federal court caseload, and (6) affords the claimants access to 

a local administrative appellate process. 

This proposal would provide the claimants with timely, high quality, impartial 

and fair decisions of their claims pursuant to the Social Security Act and APA by 

adjudicators who are in an agency independent of, but within, the SSA. 

The USOHA would be located within the SSA for logistical reasons, but its officers 

and employees will not be supervised by any other part of SSA. The USOHA will 

be accountable only to Congress and the President. Placing the USOHA within SSA 

results in no new costs for office space and information systems and is a practical 

necessity, given the USOHA’s substantial space needs that currently are in place 

at SSA, the need to share the SSA’s information services and data bases, and the 

need to use the same case files. 

A Chief ALJ appointed by the President for a term of years would administer the 

agency. 

The final decisions of the USOHA that are made by its appellate panels would 

be appealed only to the federal courts, with the District Courts as the first step in 

the judicial review. A District Court appeal step is essential for several reasons: (1) 

The huge size of the Social Security appellate caseload would overwhelm the Circuit 

Courts if the District Court step is removed. An Article I court as a substitute for 

the District Courts would suffer from the same problems of being too small to effectively handle the case load that the Appeals Council does. (2) Retaining District 

Court judicial review keeps local decisional generalists in the appeals chain who are 

sensitive to due process concerns, including adherence to the Administrative Procedure Act. (3) Social Security claimants have come to rely on the availability of the 

District Courts as a part of the judicial review due process. (4) Congress has a demonstrated preference for local control and decisionmaking with Social Security programs. (5) It is desirable to retain local access to the judicial review process for the 

often indigent Social Security claimants. 

The appeals from the District Courts will remain with the regional Circuit Courts 

of Appeal, as they do now, rather than go only to the D.C. Circuit or the Federal 

Circuit. Even with District Court review, placing all of the Social Security Circuitlevel appeals in either of these courts would increase their workload by over 50%. 

The SSAB’s recent suggestion of a specialized Social Security Court of Appeals superficially may sound attractive as a device to have one national interpretation of 

the Social Security Act. However, the SSAB does not demonstrate a strong need for 

such a specialized court. First, as SSAB points out, the Supreme Court already 

serves the function of providing a national interpretation of the Social Security Act, 

and having the regional circuits address the issues allows for legal debate that 

would otherwise not occur. Second, continuing to have the appeals go to the regional 

Circuits allows somewhat local access to the claimants. This is the same procedure 

as for appeals from both Bankruptcy Court decisions after District Court review and 

Tax Court decisions, which are appealed to the regional Circuits, which makes sense 

since they also serve individual claimants throughout the country who often have 

limited means. (Although the Tax Court is based in Washington, D.C., it sits 

throughout the country.) Regional circuit review has worked for tax and bankruptcy 

cases, despite the obviously strong argument that a single standard for construing 

the tax and bankruptcy laws is desirable so that they are applied the same to everyone. Finally, the regional circuits are not being overrun with Social Security cases. 

During the years that ended on September 30, 1999, and September 30, 2000, only 

891 and 845 Social Security cases respectively were filed with the regional Circuit 

Courts of Appeals. Judicial Business, 1999 and 2000 Reports, Table B–1A. This is 

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less than two percent of the 54,693 cases that were filed in 1999 and 54,697 cases 

filed in 2000 in the regional Circuit Courts. Judicial Business, 1999 and 2000 Reports, Table B. 

Thus, no substantive changes in the process of judicial review after the final administrative decision are recommended by AALJ, other than to amend the Social Security Act to reflect that judicial review will be from the final decisions of the new 

agency, not the SSA. Our recommendations pertain only to the appellate administrative adjudication process that results in a final administrative decision of the 

claimants’ entitlement to Social Security benefits, since that is where the problems 

lie. 

This proposal requires legislation that would amend the Social Security Act. 

A detailed version of the features of the proposed new agency and the rationales 

for such a new agency is presented in the AALJ’s Statement that is published in 

the Report for the June 28, 2001, First Hearing in the Series on Social Security Disability Programs’ Challenges and Opportunities, House Subcommittee on Social Security, No. 107-35, 107th Cong., 1st Sess., pp. 80-93. A very detailed version of the 

features of the proposed new agency and the rationales for such a new agency, including legislative language, is presented in the AALJ’s ‘‘Report and Recommendations for the Transfer of the Authority to Make Final Administrative Adjudications 

of the Social Security Act Claims from the Social Security Administration to a New 

Independent Regulatory Agency,’’ which is available upon request or on the AALJ 

website, www.aalj.org. 

The AALJ proposal for a new adjudication agency is a detailed and practical blueprint to improve the Social Security disability process. The AALJ proposal would improve the timeliness and quality of ALJ and final administrative review decisions 

that, at the same time, likely will reduce the claimant’s need to resort to federal 

court review and thus reduce the federal court Social Security caseload. The process 

AALJ is proposing is realistic in terms of handling the large caseload, which I respectfully submit is not the case for the other proposals in this area. All of the agencies and academicians who comment on the disability process correctly recognize the 

need for change, but rely on the creation of small bodies, such as a Review Board 

or Social Security Court, that would suffer from the same problems of low decision 

quality and untimely action as the SSA Appeals Council, another small body, has 

had for years. 

(d) As an Alternative to Reorganizing OHA, Create A New Independent 

Agency outside SSA to Issue the Final Administrative Decisions of Social 

Security Act Claims, Including Medicare Claims: Another alternative is to create a separate adjudication agency to hear Social Security Act claims, including 

Medicare claims. This agency would have the same organization structure as is described in section 4(c) immediately above, but it would be a separate agency outside 

the SSA. 

(e) As an Alternative to Reorganizing OHA at the ALJ Level, Create a Unified Corps of ALJs outside SSA: A more comprehensive reform of the ALJ hearing process may be achieved through the House Judiciary Committee by creating 

a unified corps of ALJs outside SSA and other agencies that includes SSA ALJs and 

ALJs from other agencies in any one of the following three configurations:

1. a unified corps of all ALJs from the agencies that hear benefits cases, including SSA, 

2. a unified corps of all ALJs from SSA and the Cabinet-level Executive Branch 

agencies, and 

3. a unified corps of all ALJs in the Executive Branch, including all of the indeSTATEMENT OF THE HON. KATHLEEN MCGRAW, ADMINISTRAChairman SHAW. Thank you, Judge. Ms. McGraw? 

pendent agencies.

f TIVE LAW JUDGE, OFFICE OF HEARINGS AND APPEALS, SOCIAL SECURITY ADMINISTRATION, ATLANTA, GEORGIA, AND 

CHAIR, SOCIAL SECURITY SECTION, FEDERAL BAR ASSOCIATION 

Ms. MCGRAW. Chairman Shaw, thank you for convening this 

hearing on an issue of vital importance to millions of Americans. 

I am pleased to be here on behalf of the Social Security section 

of the Federal Bar Association. Although I am an ALJ with Social 

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Security, I am not here in my official capacity and my remarks are 

solely those of the Social Security section of the Federal Bar. 

As you know, the FBA represents a broad array of stakeholders 

working at all levels of the disability adjudication process. The primary concern of the FBA is the integrity, independence, fairness 

and effectiveness of the disability hearing process. Clearly, the effectiveness of the process is front and center in this hearing today. 

Two years ago, I testified before this Committee and not much 

has changed. We are faced with the same problems, only they have 

gotten worse. In my limited time I want to address two of those 

problems. First, the fundamentally different approaches to disability of DDS and OHA, and second, the unacceptable delays at 

OHA. 

The SSA’s process unification initiative was intended to have everyone using the same legal standards to decide the issue of disability. That still is not happening. At the DDS, decisions are driven solely by the objective medical findings with mere lip service 

being paid to the requirements of the law that a claimant’s subjective complaints such as pain and fatigue be assessed. No two people with the same objective findings have identical functional limitations. The law requires an individualized assessment. 

While there has been some good faith effort in prototype States 

to apply the law and assess subjective complaints, the testimony 

before this Committee 1 year ago of Sue Heflin, then President of 

NADE, is illuminating. She made the point that it is expensive and 

time consuming to gather the evidence necessary to make an individualized assessment. Moreover, doing individualized assessments 

leads to inconsistencies in decisionmaking. Consequently, DDS prefers to base decisions purely on objective medical findings. That, 

however, is not what the law requires. 

The NADE has proposed to move the claimant’s hearing to the 

DDS level. Based on the DDS response to process unification, it is 

clear the DDSs are not capable of providing claimants the due process hearing they are entitled to consistent with the requirements 

of the law. 

At a minimum now, DDSs need to do a better job of collecting 

relevant evidence; they need to contract for higher quality consultative examinations; and, they need to provide claimants with 

rationalized decisions that explain the standards for disability and 

the reasons claimants don’t meet those standards. 

The Commissioner recently announced an initiative to have ALJs 

screen cases as they come in the door from DDS. The purpose is 

to pay those that should be paid on the record and to identify those 

that need more development. If this initiative can be productive, 

then clearly claimants are not being allowed as early in the process 

as they should be and cases are not being properly developed at the 

DDS. 

That said, the delays at OHA are unacceptable. You no doubt 

want to know why and what can be done about the situation. As 

for the ‘‘why,’’ the culprit is poor management practices at OHA. 

Mr. Bernoski referenced the number of cases ALJs used to produce. 

We are dealing in large part here with a management-induced crisis. 

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Two years ago we raised with this Committee a warning about 

management problems within OHA. The HPI was conceived and 

implemented without meaningful input from judges. It was not designed for the needs of an organization that delivers judicial services. 

Under HPI, employees were organized into groups servicing 

groups of judges. Instead of more accountability, there was none. 

Claimants and representatives found themselves unable to identify 

any one employee who had responsibility for or knowledge of their 

cases. Judges didn’t even know which employees were handling the 

cases on their own dockets. There was chaos in the office. 

In addition, there was wholesale promotion of employees into 

jobs they weren’t prepared for or qualified to perform. The OHA 

was without a support staff that could effectively process cases. 

Judges who routinely issued 40 to 60 decisions a month no longer 

had enough cases pulled and scheduled to enable them to maintain 

that level of production. Added to this organizational debacle is the 

inscrutable decision of SSA not to impose performance standards 

on its employees. The only people in OHA who have production expectations are judges. The employees that both claimants and 

judges rely upon for case preparation, scheduling and decision 

drafting have no quantifiable standards. They operate on a passfail basis. In my experience, no one, no matter how little they do 

or how poorly they do it, has ever failed or suffered any adverse 

consequences. 

The simple act of imposing quantifiable performance standards 

would produce immediate improvement in OHA’s productivity and 

timeliness. 

Finally, in the view of the FBA, OHA is a judicial entity. It needs 

to be led by a Chief Judge and it needs the support and services 

of attorneys. While there is a legitimate place for paralegals, the 

massive promotion under HPI of 350 clerical staff to the paralegal 

position with no legal training and no demonstrated qualifications 

for the job of drafting decisions is inexplicable. These so-called 

paralegals are at the same pay and grade as attorneys. This decision flies in the face of effective judicial administration. 

With this, I am afraid time deserts me. So, I thank you for this 

opportunity to testify on behalf of the Social Security section of the 

FBA. 

Chairman SHAW. Thank you. 

[The prepared statement of Ms. McGraw follows:]

Statement of the Hon. Kathleen McGraw, Administrative Law Judge, Office 

of Hearings and Appeals, Social Security Administration, Atlanta, Georgia, and Chair, Social Security Section, Federal Bar Association 

INTRODUCTION 

Chairman Shaw and Members of the Subcommittee:

I am Kathleen McGraw, Chair of the Social Security Section of the Federal Bar 

Association. I am an administrative law judge in the Office of Hearings and Appeals 

of the Social Security Administration in its Atlanta North office. As an Administrative Judge for the U.S. Merit Systems Protection Board for 13 years and as an Administrative Law Judge for Social Security for the past seven years, I have heard 

and decided well over 2,500 appeals. I am very pleased to be here today representing the Social Security Section of the Federal Bar Association (FBA). My remarks today are exclusively those of the Social Security Section of the Federal Bar 

194

Association, not the FBA as a whole. Moreover, they in no way reflect the official 

views of the Social Security Administration. 

Thank you for convening this hearing this afternoon on a matter of critical importance to the Federal Government’s delivery of effective services to the American people. As you know, the Federal Bar Association is the foremost professional association for attorneys engaged in the practice of law before federal administrative agencies and the federal courts. Fifteen thousand members of the legal profession belong 

to the Federal Bar Association. They are affiliated with over 100 FBA chapters in 

many of your districts. There are also over a dozen sections organized by substantive areas of practice, such as the Social Security Section, of which I am the 

Chair. 

Unlike other organizations associated with Social Security disability practice that 

tend to represent the narrow interests of one specific group, the Federal Bar Association’s Social Security Section encompasses all attorneys involved in Social Security disability adjudication. Our members include:

• Attorney Representatives of claimants 

• Administrative Law Judges (ALJs) 

• Administrative Judges at the Appeals Council 

• Staff Attorneys at the Office of Hearings and Appeals 

• Attorneys at the Social Security Administration’s Office of General Counsel 

• U.S. Attorneys 

• U.S. Magistrate Judges, District Court Judges and Circuit Court Judges

The greatest interest of the FBA’s Social Security Section is in the effectiveness 

of the adjudicatory process associated with hearings in the Office of Hearings and 

Appeals (OHA), the appeal process at the Appeals Council and judicial review in the 

federal courts. Our highest priority is to assure the integrity, independence, fairness, and effectiveness of the Social Security disability hearing process for those it 

serves—both Social Security claimants themselves and all American taxpayers who 

have an interest in assuring that only those who are truly disabled receive benefits. 

It is the Section’s collective view that the Social Security disability program is 

under considerable strain. Current delays in the processing of claims are unacceptable and the quality of decisions at all levels is less than ideal. The Commissioner 

is faced with a daunting task. It is with that in mind that we offer the following 

comments. 

Full Implementation of Process Unification at All Levels of Adjudication 

Process unification is essential to an efficient, timely and accurate disability adjudication system that ensures disabled claimants will be paid as early in the process 

as possible. 

In the mid-1990’s the Social Security Administration (SSA) acknowledged the inconsistency created by the Disability Determination Services (DDS) applying one set 

of rules for determining eligibility through the Program Operations Manual 

(POMS), and its Administrative Law Judges, Appeals Council, and the federal 

courts applying another through statute, regulations, rulings and case law. Consequently, in 1996 SSA initiated Process Unification Training for all DDSs, ALJs, 

and the Appeals Council. The training was based on a set of rulings—the ‘‘Process 

Unification Rulings’’—that were designed to guide all adjudicators at every level. It 

was anticipated that the DDSs would no longer rely exclusively on POMs, and that 

they would begin to write an analysis of their decision-making. This rationalized determination, in turn, would be granted some deference by reviewing ALJs and Appeals Council. 

As a facilitator for this training, I traveled across the country and interacted with 

all components being trained. It became clear to me during this training that State 

Agency examiners, although hardworking and well-trained in the medical area, 

were not assessing a claimant’s subjective allegations. Moreover, they were overwhelmed by the prospect of having to do so. They were confounded by the task of 

assessing a claimant’s credibility and subjective allegations and articulating a reasoned basis for their conclusion. Notwithstanding the clear message from the Process Unification Training that State Agency Examiners were expected to perform individualized assessments and rationalize their determinations, they have failed to 

do so. State agencies have balked at this requirement, and examiners’ determinations continue to be devoid of rationale and are driven almost exclusively by objective medical findings. It is the only way they can maintain the production expected 

of them. 

These observations were confirmed by Sue Heflin, President of the National Association of Disability Examiners, who testified before this Subcommittee on June 28, 

2001. In her answer to the Subcommittee’s question on the prototype initiative, she 

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confirmed that it is only in the 10 prototype states that Process Unification initiatives have been really implemented. In those states, while the implementation of 

Process Unification enabled examiners working as Single Decision-Makers to allow 

claims they might have otherwise denied—something they found to be a positive 

and fulfilling professional experience—examiners also learned that it takes longer 

to process a claim and costs more to do the additional development required to comply with Process Unification requirements. Ms. Heflin astutely observed that evaluating subjective factors such as pain, fatigue, credibility and treating source opinions is more time consuming for examiners and therefore more costly. 

The evaluation of the claimant’s subjective complaints is an everyday occurrence 

for ALJs deciding Social Security disability cases. Under Process Unification, it 

should have been an everyday occurrence at the DDS level as well. The failure to 

fully implement Process Unification at the DDS level implicates the due process 

rights of the claimant because the evaluation of subjective complaints is an integral 

part of the process that is due the claimant. The evaluation of subjective complaints 

should not be postponed until the case reaches OHA. Postponement in the review 

of subjective complaints represents one of the core problems that Process Unification 

was intended to address. 

Social Security regulations and rulings mandate an individual assessment of each 

and every claimant’s subjective complaints and their impact upon that claimant’s 

ability to function. Yet, as candidly acknowledged by Ms. Heflin, the DDS examiners 

do not consider subjective complaints. We have all heard the stories about people 

walking around with herniated discs, documented by MRI, who suffer few or no 

symptoms, while others with the same MRI findings suffer from debilitating pain. 

At the DDS, both would receive the same decision based on the objective findings 

the individual level of pain alleged would not matter. That certainly makes for consistency, but unfortunately does not make for accuracy in decision-making. One can 

only imagine how the claimant who suffers with a subjective condition such as 

fibromyalgia or chronic fatigue syndrome will fair at the DDS level. Only at OHA, 

will the claimant’s subjective complaints be fully evaluated. 

The failure to implement Process Unification has led to a new agency initiative 

to identify cases shortly after arriving at OHA offices from the DDS. The new initiative would have been wholly unnecessary had Process Unification been implemented 

at the DDS. The Commissioner recently announced that, in an effort to deal with 

the backlog and delays at OHA, ALJs will begin to review raw, unpulled files as 

they arrive from DDS. The purpose of the review is twofold: to grant those claims 

that can be allowed on the record without a hearing; and to undertake immediate 

development of cases requiring additional expansion of the record. While this initiative is commendable from the viewpoint of claimants who should have been paid 

earlier in the process, it attests to the failure of process unification. If such an initiative yields significant results and productivity, then the cases were either: (1) not 

decided correctly under the law at the DDS; or (2) not adequately developed at the 

DDS. 

We submit that SSA had it right the first time when it recognized the need for 

process unification. Fairness requires that all adjudicators assess a disability claim 

using the same legal standards and requirements. A fundamental premise of the 

SSA process unification effort was that disability benefits should be awarded to 

claimants as soon as their disability has been determined under the law. The burden of long delays to claimants before the statute, regulations, rulings, and case law 

are applied is unacceptable and does not serve the interests of justice. Quite simply, 

it can wreak havoc in the lives of deserving claimants. 

Preservation of the Due Process Hearing Before an Administrative Law 

Judge 

It is our understanding that various proposals are being made that would eliminate a hearing before an Administrative Law Judge. The Social Security Section of 

the FBA strongly opposes any such effort. 

In 1983, the Senate Governmental Affairs Subcommittee on Oversight of Government Management conducted a hearing on the role of the ALJ in disability hearings. The report provided in part:

The principal finding of the Subcommittee is that the SSA is pressuring its 

ALJs to reduce the rate at which they allow disabled persons to participate in 

the Social Security Disability Program. . . . [The Subcommittee found that the 

SSA was limiting the decisional independence of ALJs through its Rulings, its 

non-acquiescence to federal court decisions, and its increasing of case quotas 

that reduced the time an ALJ could spend on each case to develop additional 

evidence that may support an allowance decision, among other things.] The 

APA mandates that the ALJ be an independent, impartial adjudicator in the 

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administrative process and in so doing separates the adjudicative and prosecutorial functions of an agency. The ALJ is the only impartial, independent adjudicator available to the claimant in the administrative process, and the only 

person who stands between the claimant and the whim of agency bias and policy. If the ALJ is subordinated to the role of a mere employee, an instrument 

and mouthpiece for the SSA, then we will have returned to the days when the 

agency was both prosecutor and judge.

Sen. Rep. No. 98-111 (September 16, 1983). 

The Administrative Procedure Act requires that independent administrative law 

judges be selected on a merit basis and insulated from agency bias and pressure 

in performing the adjudicative function. See Butz v. Economu, 458 U.S. 478, 513 

(1978). Regretfully, as noted in the Senate Report, SSA in the past has attempted 

to subvert the statutory independence of its administrative law judges. It has sought 

overtly, and at other times more subtly, to influence the decisions of its ALJs to 

achieve some predetermined acceptable allowance rate or altogether cease payment 

of benefits to a particular class of disabled beneficiaries. In one well-publicized episode in 1982, SSA attempted to terminate benefits to thousands of Americans with 

mental disabilities, triggering the reversal in many cases of that policy decision by 

SSA ALJs who applied the law and restored the benefits. The American Bar Association in fact honored the SSA ALJ corps for their outstanding efforts during the 

period from 1982-84 to protect the administrative adjudication within their agency, 

to preserve the public confidence in the fairness of governmental institutions and 

to uphold the rule of law. 

A due process hearing conducted by an ALJ is a protection against potential agency bias and policy that may at times run contrary to the law as mandated by Congress. Disability claimants should not be deprived of this step in the disability process. Moreover, as noted earlier, given the constraints on DDS’s, it is the first opportunity for claimants to have their subjective complaints meaningfully considered as 

mandated by the law. That being said, there remains the critical issue of unacceptably long delays at OHA. The causes of these delays are many, but most obvious 

is the abject failure of the Hearing Process Improvement (HPI) initiative. Prior to 

HPI, in FY 1998, ALJs issued 618,578 decisions. In FY 2001, with full implementation of HPI, that figure plummeted to 465,228. 

The defects in HPI, both in design and implementation, are legion and need not 

be enumerated here. Suffice it to say, a fundamental problem was the de-legalization of the adjudicative process, which included the removal of judges from the case 

development function. Over 350 employees, primarily from the clerical ranks, were 

promoted to the position of ‘‘paralegal’’. Their promotion left OHA bereft of employees trained in ‘‘pulling cases’’ in preparation for adjudication by administrative law 

judges. This created fewer cases ready for judges to hear and fewer cases for judges 

to decide—a crisis induced by an ill-advised management decision. To make matters 

worse, the employees who have been promoted to the ‘‘paralegal’’ position, in almost 

all cases, have had no legal training whatsoever and in their promotion were not 

even required to demonstrate an ability to write; yet, they were and remain tasked 

with writing draft decisions for the judges—decisions that are subject to judicial review in U. S. District Court. Attorneys could have filled the positions encumbered 

by these ‘‘paralegals’’ as the two positions are at the same grade and pay level. Instead, SSA made the conscious choice to fill these slots with clerical workers rather 

than trained lawyers. It goes without saying that under this new arrangement the 

review time required for judges to edit and revise their decisions has increased exponentially further delaying disposition of claimants’ cases. 

OHA performs an adjudicative function and its procedures and support systems 

need to be designed and implemented to facilitate that function. Clearly, with proper and adequate support, ALJs are capable of timely adjudicating the cases before 

them while providing claimants with due process. 

OHA Adjudicative Support Functions Should be Reorganized

OHA fundamentally is a judicial operation. Therefore, it should be under the direction of a Chief Administrative Law Judge, who is provided appropriate administrative assistance in carrying out the adjudicative function. Contrary to the current 

situation, the administrative and support system should not dictate to OHA’s judges 

how the adjudicative function should be accomplished. 

The foremost problem within the Office of Hearings and Appeals is that the 

judges have no managerial authority over the staff who work for them. It may come 

as a surprise to members of this Subcommittee, particularly those who may have 

practiced in federal or state courts, how different the delivery of judicial ‘‘services’’ 

is in Social Security cases. In federal district courts, as well as in most state courts, 

197

judges have secretaries and law clerks whose work they direct on a day-to-day basis. 

Theses employees are ultimately responsible to the judge and practitioners can 

readily identify them as the employees who support the work of the judge. 

This is decidedly not how the Social Security Administration has chosen to deliver 

its judicial services. A pooled staff is available to assist judges, but without direction 

or supervision by the judges themselves. Judges, as well as claimants’ representatives, are often at a loss to know what staff member to talk to about specific case 

problems. Miscommunication abounds, leading to processing and scheduling problems that impede the timely adjudication of cases. The situation is further compounded by staff working at home—a complicating factor that in some cases further 

diminishes the effectiveness of the office. On a daily basis, evidence that needs to 

be associated in a timely manner is not. In fact, the evidence may even be lost. Messages do not reach the right person to avert scheduling problems. Ultimately claimants’ cases are delayed as a result of this administrative chaos. 

Added to these problems, and probably chief among them, is the fact that within 

OHA there are no quantifiable standards by which employee performance is measured. Appraisals are done on a pass/fail basis, and no one ever fails. Employees can 

nominate themselves for awards and too often the worst of employees reap the same 

rewards as their hardworking coworkers who are picking up the slack for their 

shoddy performance. Morale is understandably low. Other components of SSA have 

employee performance standards and it is difficult to see why a component such as 

OHA would not utilize a system of individual employee accountability. 

Like it or not, OHA is drawn into a numbers game. Yet, the only persons in OHA 

for whom there is a stated numerical expectation are the judges who are supposed 

to produce a certain number of cases per day. There is no comparable expectation 

for the employees upon whom the judges must rely for support, such as the case 

technicians who ‘‘pull’’ cases or the attorneys and paralegals who draft decisions. 

Competitive and excepted service employees in other federal agencies are subject to 

objective performance standards both for quality and quantity of work. For some unexplained reason, that is not the case at OHA. As a result, substandard performance 

is routinely tolerated and claimants suffer as a result. There could be no more single 

effective improvement at OHA than the imposition of quantifiable performance 

standards and the willingness on the part of management to enforce those standards. 

Establishment of a Comprehensive Quality Assurance Program Throughout 

the Disability Program 

The General Accounting Office has repeatedly reported that SSA needs to implement a comprehensive and meaningful quality assurance system. SSA announced a 

plan to revamp its existing quality assurance system in 1994. Yet, in 2001 SSA acknowledged that its quality assurance system needed to more effectively promote 

uniform and consistent disability decisions across all geographic and adjudicative 

levels. GAO has made specific recommendations as to the content of such a plan. 

The Commissioner has appointed a Regional Commissioner to lead an effort to establish a quality assurance program. We commend the Commission for undertaking 

this action, and we encourage the development of a comprehensive quality assurance program that establishes quality standards at all levels of the claims process. 

The disability program is a nationwide program, and it is not acceptable to have 

disparate allowance rates at the initial DDS level on disability claims in FY 2001 

ranging from a low of 27% in one state to a high of 65% in another state. 

A quality assurance plan should, for example, set the standard for the collection 

of evidence at all levels of review, including DDS. Much of the delay in the life of 

a disability claim is due to the time needed to collect relevant evidence. For example, if a claimant alleges disability due to severe injuries in an automobile accident 

and DDS obtains the primary care physician records of general care, but fails to obtain the records of the trauma surgeon and hospital, DDS will not have the relevant 

evidence needed to make an accurate determination. While a denial based on the 

primary care physician records may be technically correct, given the record as developed, that record is wholly inadequate. The claimant is then forced to appeal the 

denial until someone develops the complete and relevant record. If the correct record 

were obtained at the DDS level, the accuracy of the DDS decision could be realistically measured. It is a meaningless statistic to say the DDS made the right decision, 

when it was rendered on an inadequate record. 

Similarly, delays at the ALJ level occur while the relevant evidence is obtained 

and the file is assembled. One of SSA’s redesign initiatives, the Adjudication Officer 

(AO), sought to accomplish the generation of evidence and file assembly at the DDS 

level. The AO developed the record and granted eligible claims, forwarding the ineligible claims to an ALJ for further review. In those cases that were denied, the AO 

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prepared a summary of the evidence, and certified that the record was complete. 

The case was then heard by an ALJ generally within 60 to 90 days of its receipt 

and little or no further development of the record was required. Concerns were 

raised about the AO project because a higher percentage of claims was paid at the 

DDS level, and administrative costs for assembling a complete record and providing 

a summary were high. The project, however, resulted in correct decisions earlier in 

the process and savings of administrative costs and time at OHA. 

A Quality Assurance Program should measure the adequacy of the file, the quality 

of the analysis, and the correctness of decisions at all levels. It should also undertake to measure the accuracy of both allowances and denials of claims. At the DDS 

level, quality review work currently performed by SSA’s Disability Quality Branch 

focuses on allowances of claims rather than denials. This creates systemic pressure 

on the DDS examiner to avoid erroneous allowances, but not necessarily erroneous 

denials. Since an erroneous denial is much less likely to be scrutinized by quality 

control, a denial represents a far more attractive and safer decision option for the 

DDS examiner. At the ALJ level, the opposite is true. To be effective, without subtly 

influencing the outcome of decision-making, a quality assurance program should be 

neutral and refrain from pushing the process toward allowing or disallowing claims. 

The QA program must measure the accuracy of both allowances and denials. 

The Electronic Folders Initiative (E–DIB) must be adequately funded, closely monitored, and not viewed as the complete answer to disability adjudication problems 

The Commissioner has announced that the entire record at all levels will be contained in an electronic folder (E-DIB) by January, 2004. The E-DIB initiative has 

the potential to provide significant improvement in the speed of claims adjudication. 

However, given SSA’s track record in the conceptualization and implementation of 

HPI and other redesign initiatives, we strongly encourage the application of significant care and attention to the testing and introduction of E-DIB. 

Very few details concerning the plan have been announced, and there are innumerable questions relating to the implementation of this initiative. We urge extensive testing at the pilot stage and vigilant monitoring of its rollout. Given the shortage of personnel within DDS and OHA to handle the current caseload, careful attention also should be devoted to staffing plans for those who will maintain the systems 

and scan the documents included in the electronic folder. Attention should also be 

devoted to whether E-DIB coverage will extend to claims pending at the time of conversion or whether this will include only claims filed after January, 2004. The Social 

Security Administration needs to work with the representative community to insure 

the confidentiality of the claimant’s record, while also assuring safety and security 

of the internet system itself. Access to the claimant’s record by those on the other 

side of the digital divide, who lack compatible equipment, also should be considered. 

Elimination of Reconsideration and Reorganization of the Appeals Council 

The Social Security Section of the FBA seriously questions whether the current 

processes of DDS level reconsideration and Appeals Council review are serving their 

intended purposes. Thoughtful scrutiny should be devoted to whether the time spent 

on these two review processes contributes to the effective adjudication of disability 

claims and the interests of justice. 

A claimant who is initially denied benefits may request DDS reconsideration of 

the denial decision. Reconsideration is widely—and correctly—viewed as little more 

than a rubber stamp of the initial denial. During FY 2001, of an average 100 claims 

processed by DDS, 40 were approved at the initial level and 4 at the reconsideration 

level. Time spent at the reconsideration level was 69 days. Given the few requests 

for reconsideration that ultimately are successful, concerns can be deservedly raised 

whether reconsideration represents a meaningful step in the disability process. The 

Social Security Section of the FBA supports the elimination of reconsideration and 

redirection of that portion of DDS budgets into the initial level of decision-making. 

Attention should also be devoted to the role and effectiveness of Appeals Council 

review. Upon receipt of an adverse claims decision by an ALJ, a claimant may appeal to the Appeals Council, which then undertakes a review on the record. While 

the Appeals Council serves a valuable purpose in screening out many cases that 

should not reach federal court due to deficiencies in the ALJ decisions, the Appeals 

Council is overwhelmed by its staggering workload. It has taken steps to shorten 

its appeal time, and according to the General Accounting Office, reduced the amount 

of time to process an appeal from 458 days in FY 1999 to 447 days in FY 2000. 

This is still an unduly long period of time. There can also be no excuse for the number of cases in which a remand occurs for no reason other than a lost or defective 

hearing tape. Technology needs to be improved to eliminate this needless delay for 

claimants. 

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The substantive legal correctness of the decisions of the Appeals Council has also 

been frequently challenged. In a mounting number of cases appealed to U.S. District 

Court after denial of review by the Appeals Council, the Office of General Counsel 

and U.S. Attorneys have asked the Appeals Council to agree to a ‘‘voluntary remand.’’ These requests are prompted by concerns over the ability to defend the underlying ALJ decision—the decision that had already been affirmed by the Appeals 

Council. The frequency of such ‘‘voluntary remands’’ indicates that in its rush to 

process appeals, the Appeals Council may not be getting it right the first time. The 

record the Appeals Council agrees to take back in a voluntary remand is usually 

identical to the record it initially reviewed. If the ALJ decision is indefensible, it 

should have been caught before the case proceeded to federal court. That, after all, 

is the role of the Appeals Council in the request for review process. 

Therefore, we believe that the Commissioner should review and study the role and 

responsibility of the Appeals Council, with special attention devoted to: the usefulness and necessity for the request for review function; the merits of redesign of the 

Appeals Council mission to focus on quality review; and the establishment of a timelimit for the processing of requests for review, permitting cases not reached within 

the allowable time to go directly to court. 

Conclusion 

This concludes my prepared remarks. Thank you once again for the opportunity 

to appear before you today. The Social Security Section of the Federal Bar Association looks forward to working with you and the Social Security Administration in 

improving disability process. I would be happy to answer any questions you may 

have.

STATEMENT OF JOHN H. PICKERING, PAST CHAIR, SENIOR 

LAWYERS DIVISION, AND COMMISSIONER EMERITUS, COMf MISSION ON LEGAL PROBLEMS OF THE ELDERLY, AMERICAN BAR ASSOCIATION 

Mr. PICKERING. Mr. Chairman and Members of the Subcommittee, it is a privilege to appear before you this morning to 

present the views of the American Bar Association to discuss the 

important issue of improving the Social Security disability appeals 

system. 

The American Bar Association as a representative of our legal 

profession, is particularly concerned with making access to justice 

available to those persons who are most in need and are least able 

to protect their rights: the poor, the elderly and persons with disabilities. 

Accordingly, we have had a longstanding interest in the Social 

Security disability review process and we have worked actively to 

promote increased efficiency and fairness. Over the years we have 

developed numerous recommendations for improvement, which are 

appended to my written statement. We have filed an amicus brief 

in the landmark Bowen case in the Supreme Court for the disability claimants who had been unlawfully deprived of their rights. 

Our first recommendation for improvement builds on what you 

have previously heard. To reduce the number of appeals, we need 

to improve the initial stage of the process by providing applicants 

with a clear statement of eligibility requirements, a list of claimant 

responsibilities, and a description of the administrative steps in the 

process, and explanation of relevant medical and vocational evidence and a notice of the availability of legal representation. 

The SSA should take affirmative steps to make a better record 

at the initial stage by compiling accurate documentation and by 

supplementing medical reports that are not sufficient. 

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Next we recommend that before denying a claim, SSA should notify claimants of the pending adverse action, inform them of the 

reasons for the finding, ensure that they have access to all the evidence in their file, and provide them with an opportunity to submit 

further evidence. 

We recommend that the SSA advise claimants’ health care providers of deficiencies in the medical evaluation and give them an 

opportunity to cure those deficiencies. 

If the claim is denied after full development of the file, we recommend additional steps to ensure the integrity and efficiency of 

the appeals process and to guarantee due process. To do that, 

claimants should be provided with a clear and detailed statement 

of the reasons for denial, their opportunity to appeal, the availability of legal representation, and the consequences of failing to 

appeal. 

We support the elimination of the reconsideration level. In the 

present scheme it serves no purpose. Instead, you should go right 

to a due process hearing on the record before an Administrative 

Law Judges whose authority as an independent fact finder is assured. 

That ALJ should have the opportunity to take testimony from 

the client, develop evidence when necessary, consider and weigh 

the evidence and evaluate vocational factors in order to reach an 

impartial decision free from Agency coercion. I emphasize the need 

for independence because we must never forget past history when 

SSA tried to eliminate the backlog of disability cases by threatening the ability of the ALJs to ensure due process. That sorry experience must not be repeated. 

We also urge that the proposals to close the record be carefully 

considered. We think the record should not be closed until the conclusion of the hearing at the very earliest and that it could be reopened upon a showing of good cause. Denying the opportunity to 

reopen and requiring the applicant/claimant to submit a new application is simply a waste of time and resources. 

Recent proposals have again raised questions about the role of 

the Appeals Council. We have recommended that this issue be 

studied in the past. We caution that any changes should not compromise the independence and the impartiality of the ALJs. We 

therefore urge that the scope of the Appeals Council review be limited to clear errors or law or lack of substantial evaluated. 

The ALJ findings of fact should not be reversed without specific 

documentation and review of the hearing tapes. 

We recommend that if the Appeals Council fails to act upon a request for a review within a specified period of time, claimants 

should be deemed to have exhausted their administrative remedies 

and be permitted to seek Federal court review if the decision is adverse. 

Finally, there is the issue of creating Article I courts to hear Social Security appeals. The ABA has consistently opposed legislation 

to create such Article I review courts. It may be timely to revisit 

this issue, but the important factor is that it is not court review 

that has resulted in delay. It has been defects in the administrative 

process itself. 

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Accordingly, we think that the improvements have to be made at 

the front end, not at the back end of the review. Simply shifting 

appeals to another court system is not a practical solution. 

We are confident that our recommendations will improve the disability system and alleviate the backlog by reducing the number of 

appeals and the number of reversals when cases are appealed. 

We commend the Subcommittee for holding these hearings on 

these important issues. We appreciate the opportunity to testify. 

We look forward to working with the Subcommittee and with SSA 

on these issues in the future. Thank you very much. 

[The prepared statement of Mr. Pickering follows:]

Statement of John H. Pickering, Past Chair, Senior Lawyers Division, and 

Commissioner Emeritus, Commission on Legal Problems of the Elderly, 

American Bar Association 

Mr. Chairman and Members of the Subcommittee:

My name is John H. Pickering. I serve as Commissioner Emeritus of the American Bar Association Commission on Legal Problems of the Elderly, which I chaired 

for a number of years. I am also a past chair of the ABA Senior Lawyers Division. 

I appreciate the opportunity to appear before you today on behalf of the Association, 

to discuss our views on the Social Security disability appeals system. 

As representative of the legal profession in the United States, the American Bar 

Association is particularly concerned with equal access to justice for those members 

of our society who are generally least able to protect their own rights—low-income 

persons, individuals with disabilities and older people. We have a long-standing interest in the Social Security Administration’s disability benefits review process, and 

have worked actively for many years to promote increased efficiency and fairness 

in this system. We have followed the agency’s efforts over the past decade to improve the timeliness, accuracy, and consistency of its disability decisions, and we 

commend those attempts, although we recognize that they have met with mixed results. It is clear that they have not alleviated backlogs in the system. It still takes 

the agency as long as one year to reach a determination on an initial appeal; some 

claimants must wait years for a final Appeals Council decision. These delays have 

a profound effect on public confidence in the agency, on agency staff, and most significantly, on claimants who desperately need the benefits. 

Almost seventeen years ago, the ABA joined with the Administrative Conference 

of the United States (ACUS) to sponsor a national symposium to examine Social Security’s administrative appeals process. In 1986, the Association filed an amicus curiae brief in the landmark U.S. Supreme Court case, Bowen v. City of New York, 

in which we argued successfully that the Social Security Administration should reopen the cases of thousands of mentally disabled claimants who were denied disability benefits because they failed to meet sub rosa requirements and appeal deadlines. Brief for the American Bar Association, Amicus Curiae, in Support of the Respondents, Bowen v. City of New York, 476 U.S. 467 (1986). More recently, the Association adopted a set of recommendations for strengthening safeguards and protections in the representative payee program. Over the years, we have drawn upon the 

considerable expertise of a membership with backgrounds as claimant representatives, administrative law judges, academicians and agency staff to develop a wide 

ranging body of recommendations on the disability adjudication process that encourage clarity in communications with claimants, due process protections, and application of appropriate, consistent legal standards at all stages of that process. 

It is with this background that we offer some recommendations to the Subcommittee for consideration. We believe that implementation of these recommendations will help to alleviate the backlogs and delays that are overwhelming the current system, and will lead to the development of a disability determination and appeals process that is timely, efficient and fair, and that meets the needs of individuals with disabilities and their families. 

The first step toward increasing the speed and efficiency of the appeals process 

is to reduce the number of appeals. According to the General Accounting Office, of 

the 40% of claimants who appealed initial denials in fiscal year 2000, approximately 

two-thirds were awarded benefits upon appeal. In all too many cases in the system 

today, claims that could have been decided at the initial stages are awarded at the 

hearing level simply because the evidence of disability is more complete by the time 

it is presented to the administrative law judge. We recommend that the Social SecuVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00205 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
202

rity Administration improve the front end of the process by providing applicants 

with a clear statement of eligibility requirements, a list of claimant responsibilities, 

a description of the administrative steps in the process, an explanation of relevant 

medical and vocational evidence, and notice of the availability of legal representation. 

To improve the quality of medical and vocational evidence at the initial stages of 

the process and to reduce the need for appeal, we suggest that the agency consult 

the claimant’s health care providers, and compensate them adequately for providing 

relevant medical information. We encourage SSA to take affirmative steps to compile accurate documentation and to supplement medical reports (particularly those 

from treating physicians) that are not sufficiently detailed or comprehensive. We are 

pleased to note that the SSA website includes information for the medical community about eligibility criteria used in the disability program. We encourage the agency to go further by assisting claimants in compiling necessary documentation and 

in supplementing incomplete reports. We also urge the agency to establish a single 

standard for the determination of disability at all levels of decision-making making. 

We recommend that, prior to denying claims, the Social Security Administration 

notify claimants of the pending adverse action; inform them of the reasons why the 

finding of disability cannot be made; ensure that they have access to all the evidence in their file, including medical reports; and provide them the opportunity to 

submit further evidence. We also recommend that SSA advise claimants’ health care 

providers of deficiencies in the medical evidence and give them the opportunity to 

supply additional information. Disability claims managers should be encouraged to 

consult with legal as well as medical resources in their evaluation of a claim. We 

encourage the vesting of initial decision-making authority in two-member teams 

composed of a disability examiner and a medical or psychological professional, and 

we support face-to-face interviews between claimants and agency decision-makers 

before a final decision is made. 

In the event that the claim is denied after this full and complete development of 

the file, we suggest certain additional steps to enhance the integrity and efficiency 

of the appeals process while guaranteeing the claimant due process. 

Claimants whose applications are denied should be provided a clear and detailed 

statement of the reasons for denial, the opportunity to appeal, the availability of 

representation, and the consequences of failing to appeal. The ABA supports elimination of the reconsideration level. If the quality of intake and development of evidence at the early stages is improved, there is little reason for reconsideration, particularly given the historically low reversal rate and substantial delays involved at 

this level. Instead, claimants whose applications are denied should have the right 

to a due process hearing on the record before an administrative law judge whose 

authority as an independent fact-finder is assured. The administrative law judges 

should be appointed pursuant to the Administrative Procedures Act. This hearing 

is essential to a full and fair review of the claim, and administrative law judges 

should have the opportunity to take testimony from the claimant, develop evidence 

when necessary, consider and weigh the medical evidence, and evaluate vocational 

factors in order to reach an impartial decision free from agency coercion. 

In 1995, in response to the Social Security Administration’s efforts to eliminate 

the backlog of cases that threatened the ability of administrative law judges to assure due process at the hearing level, the ABA House of Delegates endorsed additional reforms at the hearing and pre-hearing stages. We recommended the designation of adjudication officers with supporting staff who, immediately following the initial denial of a claim, would work with the disability claims manager to develop the 

evidence, assemble a file and, where appropriate, allow the claim. The adjudication 

officer could obtain additional evidence necessary to establish a change in medical 

condition, or evidence that the claimant was unable to procure due to cost or other 

circumstances beyond the claimant’s control. Should the case proceed to a hearing, 

the adjudication officer could be a ‘‘presenter’’ responsible for drawing attention to 

salient facts in the record and calling witnesses where appropriate. However, concerned about the disadvantage such a system might pose to unrepresented claimants, we also recommended that administrative law judges have access to investigative sources and be permitted to assert direct control over the development of the 

record. Those recommendations still have value today. 

Several proposals over the past few years have suggested closing the record at 

some point during the administrative appeal process to provide a measure of finality. While we hope that evidence would be submitted as early in the process as possible, we urge that proposals to close the record be carefully considered. Certainly, 

the record should not be closed until the conclusion of the hearing at the earliest. 

Even then, claimants who show good cause, such as newly discovered evidence or 

a material change in condition, must be permitted to reopen the record within one 

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year of an adverse decision. To close the record without allowing reopening under 

those circumstances would penalize claimants who may have been unable through 

no fault of their own to gather the evidence necessary for a full and fair hearing. 

It would also create additional costs for the agency, because claimants would file 

new applications simply to submit new evidence. 

Recent proposals have raised anew questions about the role of the Appeals Council. In 1986, the ABA advocated for a complete study of Appeals Council procedures 

and functions to determine whether Appeals Council review is necessary and to explore possible changes in the Council’s role. We are cognizant of past agency attempts to control the rates at which administrative law judges allowed claims, so 

we caution that any changes to the role of the Appeals Council not compromise the 

independence and impartiality of administrative law judge decision-making making. 

We therefore urge that the scope of Appeals Council review be limited to clear errors 

of law or lack of substantial evidence. Administrative law judges’ findings of fact 

should not be reversed without specific documentation and review of the hearing 

tapes. Finally, we recommend that if the Appeals Council fails to act upon a request 

for review within a specified period of time, claimants should be deemed to have 

exhausted their administrative remedies and permitted to seek federal court review. 

Finally, we consider the issue of Article I courts to hear Social Security appeals. 

The ABA has consistently opposed legislation to create Article 1 courts to hear appeals from final decisions of the SSA. When we testified before this Subcommittee 

in 1991, we observed that efforts to establish a separate court appeared to have 

been motivated by three concerns: increasing numbers of appeals, issues too technical for courts of general jurisdiction; and the need for uniformity of decision-making making. More recent arguments have included the potential for more cases in 

the system as a result of baby boomer claim filings, and the parallels to be drawn 

with the Veterans Court of Appeals and other specialized courts. We have posited 

in the past that Social Security appeals are not drains on federal court resources 

since they are considered by magistrates in many if not all jurisdictions, and are 

on the record reviews using a substantial evidence test. While it may be time to revisit this issue in light of the more recent arguments, the more significant problem 

remains the failure of the Social Security Administration to make accurate determinations on claims in the earlier stages of the process. Simply shifting appeals to 

another court system is not a practical solution, and indeed could overwhelm a single court. 

We attach copies of relevant ABA policies for your reference. 

The Social Security Administration has made great strides in improving access to 

information, particularly on the Internet, but there continues to be room for improvement in the appeals process itself. We are confident that our recommendations 

would improve the disability system and alleviate the backlog by reducing the number of appeals and the reversals upon appeal. We commend the Subcommittee for 

holding hearings on these important issues, and appreciate the opportunity to submit this testimony. We look forward to working with the Subcommittee and with 

the Social Security Administration on these issues in the future.

STATEMENT OF PAUL VERKUIL, PROFESSOR OF LAW, BENChairman SHAW. Thank you. 

f JAMIN N. CARDOZO SCHOOL OF LAW, YESHIVA UNIVERSITY, 

NEW YORK, NEW YORK, ACCOMPANIED BY JEFFREY LUBBERS, FELLOW, WASHINGTON COLLEGE OF LAW, AMERICAN 

UNIVERSITY 

Mr. VERKUIL. Thank you. Mr. Chairman and Members of the 

Committee, I am pleased to be here this morning to discuss the 

findings and conclusions of a recent study for the Social Security 

Advisory Board that evaluates various proposals for changes in the 

judicial review structure relating to disability determinations. 

The study was conducted for the SSAB by Jeffrey Lubbers and 

myself. Mr. Lubbers is here. It was submitted on March 1, 2002. 

Of course, in our testimony we do not speak for the SSAB, but 

I believe that the Committee has copies of the study. It should be 

made generally available. It was submitted both to Members of 

Congress and also to Members of the Judiciary. 

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In the last few decades there have been several legislative proposals to modify the current system of judicial review, including 

one model that would change the review structure after the ALJ 

stage by creating a new Article I court, a so-called Social Security 

court, and give it limited Article III review power to legal and constitutional issues. 

There is another proposal that would maintain the current district court review structure, but centralize court of appeals review 

in a special Article III court, the Social Security Court of Appeals. 

While these and other alternatives are not themselves new, they 

have become increasingly relevant in light of recent events. The 

number of disability claims is expected to rise in the future for several reasons. One is the impending retirement of baby boomers; 

two, the downturn of the economy in the last 2 years; three, the 

resumption of CDRs by the SSA; and four, the increasing tendency 

of private insurance companies to require as a condition of payment that claimants pursue their offsetting SSA benefits. 

These caseload realities create pressure on the SSA to achieve 

more uniform, fair and efficient decision-making and will likely increase the present time-consuming nature of that review, which 

varies between 12 to 18 months. 

In addition, during the last decade, a possible model for Article 

I and Article III shared review of disability cases has become a reality with the emergence of a program for the review of the U.S. 

Department of Veterans Affairs disability claims. 

Finally, in 1994 Congress also made a significant structural 

change in the Social Security program by separating SSA from the 

U.S. Department of Health and Human Services to ‘‘ensure that 

policy errors resulting from inappropriate influence from outside 

the Agency such as those that occurred in the early 1980s do not 

occur in the future.’’ I believe Mr. Pickering referred to those incidents in his testimony. 

As a result, the Agency is now independent and better able to assist in a restructuring of the decision process. After the SSA signs 

off on a disability case, either as a result of an ALJ decision or 

after Appeals Council review, the losing claimant has an opportunity to appeal to the District Court. While traditionally known as 

a trial court, the District Court serves an appellate function in connection with disability review. In this role it is called upon not to 

hear matters in a trial de novo, as it usually does, but to apply the 

substantial evidence test to the record before it. 

Over the years, substantial evidence review of disability cases by 

District Courts and even subsequent review by Courts of Appeals 

has been a heavily contested matter. 

Modification in the role of a District Court was made necessary 

because of the size of the disability caseload, which makes the 

usual practice of direct review in the Court of Appeals to create administrative adjudication impractical. 

For example, during the decade 1990 to 2000, the number of new 

disability cases in the Federal District Courts nearly tripled from 

5,000 to 15,000. In terms of impact upon the court system, during 

the 1-year period ending September 30, 2000, Social Security cases 

represented 5.86 percent of all civil District Court cases. 

205

It seems clear that the substantial judicial resources allocated to 

disability determinations are not used in the most cost effective 

manner. 

I do not wish to minimize the significant, symbolic role, as well 

as a corrective one that the District Courts play in our judicial system. Over the years the theoretical advantage of Article III oversight in SSA cases has become more limited in practice. District 

judges increasingly review disability cases not by themselves directly, but through surrogates. Article I, magistrate judges take 

evidence, decide on summary judgment or remand to the Agency. 

In fiscal year 1999 magistrates decided over 40 percent of disability 

cases throughout the Federal courts and, in some jurisdictions over 

50 percent. 

In addition to caseload concerns within the District Courts, there 

are genuine concerns as to uniformity of decisions around the country, not only because of widely varying reversal rates, but also in 

terms of the need for better development of the law. A Social Security court would be a remedy for both of these problems. 

Opponents of such a court counter these arguments on a variety 

of fronts: the new court would be inconvenient to claimants; it 

would produce a windfall of appointments to the current President; 

or it might become captured by the SSA or those that tend to favor 

a higher rate of denial of claims. 

I respect these concerns, but believe that the caseload and uniformity problems are acute enough to warrant serious consideration of the changes to the current system. 

The current system of administrative hearings with a somewhat 

revised system of administrative review, followed by review in an 

Article I Social Security court with a right of appeal on questions 

of law to the regular courts of appeals, as with the current Tax 

Court, is, in our judgment, the best approach. 

This doesn’t mean that class actions and facial constitutional 

challenges would be heard in this Article I court. They could still 

be reserved to the District Courts, as well as, challenges to SSA 

rule making which could be heard directly in the Courts of Appeals. 

Concerns about the convenient problem can be addressed by having regional offices for the SSA disability court. Concern about politicized appointments to the court would, of course, be ameliorated 

by the Senate confirmation process, but could be addressed more 

directly by requiring judges to be appointed like commissioners of 

independent agencies, with one political party limited to a bare majority. 

Down the road one could foresee the combination of such a court 

with the current Court of Veterans Appeals to produce a Federal 

disability court with a broader experience and expertise. 

Well, next steps to consider: Whatever happens with the Judicial 

Review Proposal, we believe that several steps can and should be 

taken at the SSA level. First, the use of attorneys for the government requires further consideration, as has been mentioned. 

Second, consideration should be given to a long pending suggestion to closing the file after the ALJ stage. 

Third, amending the good cause remand provision in the current 

law, section 205(g), should also be considered to reduce the ease 

206

with which District Courts simply remand cases back to the SSA. 

These remands fail to produce an effective feedback loop. 

Finally, we believe that much can be done to better utilize and 

improve the performance of ALJs in the current process, separate 

and apart from the Article I idea. An ALJ appeals process, which 

has been mentioned, is something worth looking at. We have made 

some initial analyses of that idea and if it works it could assume 

the correction and quantity review functions now performed by the 

Appeals Council. 

By the side of my statement was written ‘‘explain.’’ In connection 

with the ALJ appeals process idea, I gather that note is from the 

staff. I will reserve further explanation for the comment period. 

I would like to thank you and praise the Committee for their efforts in this hearing. 

[The prepared statement of Mr. Verkuil follows:]

Statement of Paul Verkuil, Professor of Law, Benjamin N. Cardozo School 

of Law, Yeshiva University, New York, New York 

I am pleased to be here this morning to discuss the findings and conclusions of 

a recent study for the Social Security Advisory Board (SSAB) that evaluates various 

proposals for changes in the judicial review structure relating to Social Security disability determinations. The study was conducted for the SSAB by Professor Jeffrey 

Lubbers of American University, Washington College of Law and myself, and was 

submitted on March 1, 2002. Professor Lubbers is with me today. I believe the Committee has copies of the complete study. 

Background

In the last few decades, there have been several legislative proposals to modify 

the current system of judicial review of Social Security Administration (SSA) disability cases, including one model that would change the review structure after the 

administrative law judge (ALJ) stage by creating a new Article I court structure (a 

‘‘Social Security Court’’) with Article III review limited to legal and constitutional 

issues; and another that would maintain the current district court review structure 

but centralize court of appeals review in a special Article III court (a ‘‘Social Security Court of Appeals’’). 

While these and other alternatives are not themselves new, they have become increasingly relevant in light of recent events. The number of disability claims is expected to rise in the future for several reasons: (1) the impending retirement of 

Baby Boomers, (2) the downturn of the economy in the last two years, (3) the resumption of continuing disability reviews (‘‘CDRs’’) by the SSA, and (4) the increasing tendency of private insurance companies to require as a condition of payments 

that claimants pursue their offsetting SSA disability benefits. 

These caseload realities create pressure on the SSA to achieve more uniform, fair, 

and efficient decisionmaking and will eventually add to the caseload of the federal 

courts on judicial review. In addition, during the last decade, a possible model for 

Article I/Article III shared review of disability cases has become a reality with the 

emergence of a program for review of the Department of Veterans Affairs disability 

claims. 

Finally, in 1994, Congress also made a significant structural change in the social 

security program, by separating SSA from the Department of Health and Human 

Services to ‘‘ensure that ‘policy errors resulting from inappropriate influence from 

outside the agency such as those occurring in the early 1980s do not recur in the 

future.’’’ As a result, the agency is now independent and better able to assist in a 

restructuring of the process. 

The Current System of Judicial Review

After the Social Security Administration signs off on a disability case, either as 

a result of an ALJ decision or Appeals Council consideration, the losing claimant 

has an opportunity to appeal to the federal district court. While traditionally known 

as a trial court, the federal district court serves an appellate function in SSA disability review. In this role, it is called upon not to hear matters in a trial de novo

as it traditionally does, but to apply the substantial evidence standard to the record 

before it. Over the years, substantial evidence reviews of disability cases by district 

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1 Class actions and facial constitutional challenges could be preserved in district courts, with 

challenges to SSA rulemakings going directly to the courts of appeals. 2 If the ALJ stage were to be made the final stage, then SSA should also be entitled to appeal 

such decisions to the Social Security Court. 

courts (and even subsequent review of such decisions by courts of appeals) have remained a heavily contested matter. 

This modification of the role of district courts is made necessary because of the 

size of the disability caseload, which makes the usual practice of direct review of 

formal administrative adjudication in the courts of appeals impractical. For example, during the decade 1990 to 2000, the number of new disability cases in the federal district courts nearly tripled from 5,000 to 15,000. In terms of impact upon the 

court system, during the one-year period ending September 30, 2000, Social Security 

cases represented 5.86 percent of all civil district court. It seems clear that the substantial judicial resources allocated to disability determinations are not used in a 

cost-effective manner 

I do not wish to minimize the significant symbolic role (as well as a corrective 

one) that federal district courts play in our judicial system. But over the years, the 

theoretical advantage of Article III court oversight in SSA cases has become more 

limited in practice. District judges increasingly review disability cases not by themselves, but through surrogates: Article I magistrate judges take evidence, decide on 

summary judgment, or remand to the agency. In FY 1999, magistrates decided over 

40 percent of disability cases. 

In addition to caseload concerns within the district courts, there are genuine concerns as to uniformity of decisions around the country not only in terms of widely 

varying reversal rates, but in terms of development of the law. A Social Security 

Court would be a remedy for both of these problems. 

Possible Concerns

Opponents to such a court counter these arguments by saying that the concerns 

are overstated and that a new court would be inconvenient to claimants, would 

produce a windfall of appointments for the current President, and might become 

‘‘captured’’ by the SSA or those that tend to favor a higher rate of denials of claims. 

I understand those concerns, but believe that caseload and uniformity problems 

are acute enough to warrant serious consideration of changes in the current system. 

I believe that the current system of administrative hearings (with a somewhat revised system of administrative review), followed by review by an Article I Social Security Court, with a right of appeal on questions of law in the regular courts of appeals (as with the current Tax Court) is the best approach.1 Concerns about convenience can be addressed by having regional offices for the SSA Court. Concern about 

politicized appointments to the court would, of course, be ameliorated by the Senate 

confirmation process, but could be addressed more directly by requiring the judges 

to be appointed like commissioners of independent agencies, with one political party 

limited to a bare majority. 

Down the road, I could also foresee the combination of such a court with the current Court of Veterans Appeals to produce a Federal Disability Court. 

Next steps

Whatever happens with the judicial review proposal, we believe several steps can 

and should be taken at the SSA level. First, the use of attorneys for the government 

requires further consideration, and we are currently looking at this issue for the 

SSAB. Second, consideration should be given to the long pending suggestion of closing the file at the ALJ stage. Third, amending the ‘‘good cause’’ remand provision 

in the current law (section 205(g)) should also be considered, to reduce the ease with 

which district courts simply remand cases back to SSA. 

Finally, we believe much can be done to better utilize and improve the performance of ALJs in the disability decision process, separate from the Article I court 

idea. An ALJ appeals process (using two or three ALJs to review their colleagues’ 

decisions in precedential or other selected cases) could aid uniformity and correctness, and, if it works well, could take over the error correction and quality review 

functions now performed by the Appeals Council.2 The resources currently spent on 

the Appeals Council (reportedly over $64 million in FY 2000) could be used to cover 

the additional ALJs needed for the two tier review. Additionally, some Appeals 

Council members might be considered for positions as ALJs or as members of the 

Social Security Court. Moreover, the SSA should use some of these resources to improve its policymaking through rulemaking. 

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I compliment the Committee for giving its consideration to these ideas and others 

for improving our vital but overly stratified SSA disability appeals process and 

would be happy to try to answer any questions about our proposals.

erence in your testimony and I believe Mr. Pickering also made refChairman SHAW. Thank you, Professor. Ms. Ford, you made reff erence that when someone is going through the appeals process 

and their condition changes, that this is sort of an unamendable 

process. 

An example: Starting out the process, the claimant is partially 

blind. He is denied. During the appellate process in the days that 

are going by the claimant becomes totally blind. I would gather 

from your testimony that the process would require that claimant 

to start the process all over again and claim total blindness. Is that 

what you are saying? 

Ms. FORD. Well, as I understand the process, after the ALJ 

hearing new evidence would be allowed only if it related to the period before the ALJ hearing. So, depending on when that total 

blindness occurred, it might require him to start over, if I get that 

correctly. 

Chairman SHAW. I see. So, it would be like regular court process. Once a judgment is made, if you are appealing an ALJ process, 

that the record would stay intact. Is that correct? 

Ms. FORD. It is closed somewhat. The period of disability before 

the hearing is what is being looked at. If you have new evidence 

that relates to that period, as I understand, you can bring that evidence in at that point. We think that is important because people 

keep on seeing doctors. 

Chairman SHAW. I think it is important to that point. I would 

like to get the judges to comment on that because I want to be sure 

this Committee fully understands the process here. Would either 

one of you judges comment on that? 

Mr. BERNOSKI. The current process is that the record is not 

closed after the Administrative Law Judges hearing. In theory, the 

Appeals Council is not to receive new evidence, but in fact it is 

done routinely. 

The record isn’t ever really closed. Even before the Federal court 

evidence is submitted to the Federal court. It is usually attached 

to the brief. The judge considers the new evidence as part of the 

brief. 

I understood Marty Ford’s comment to be addressed to closing 

the record, the proposal to close the record after the Administrative 

Law Judges hearing. Now the record is not closed. 

Chairman SHAW. When the appeal is made to the Federal District Court from the Administrative Law Court, does it go up as a 

record or does the Appeal Court take testimony? 

Mr. BERNOSKI. No. It is certiorari. It is on the record. 

Chairman SHAW. So, it is simply, it is as any other court process? 

Mr. BERNOSKI. Yes, Mr. Chairman. 

Chairman SHAW. I’m glad you cleared that up. Another point 

that I would like to explore here for just a moment is how long do 

these cases usually take in the courtroom? 

Mr. BERNOSKI. Before the Administrative Law Judges? 

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Chairman SHAW. Yes, sir. 

Mr. BERNOSKI. I would say a case before an Administrative 

Law Judge ranges from 45 minutes to an hour and a half, maybe 

2 hours on the outside. 

Ms. MCGRAW. Yes. In my experience, on average it is about 1 

hour. That brings me to that other question. In 2000, last year, 

there were two cases that were disposed of per day as an average. 

This would go from a high of about four and a half cases that were 

heard down to slightly less than one per day. 

What is the variance and how do you spend the rest of your day 

and how many cases do you all hear per day on the average? 

Ms. MCGRAW. I would say that on average I hear about two 

cases a day. I think it is important to realize Social Security is 

looking for numbers here, but I think it is important to realize that 

each claimant is entitled to a full and fair hearing. 

I think when you get up over two to three cases a day, because 

you have to prepare for these hearings. I do not go into a hearing 

without reading all the evidence concerning that claimant. I then 

hold the hearing and have to write directions and actually review 

the decision. 

So, I think there is an outside limit on what a judge can do effectively and in my view two to three cases a day is that limit. 

Chairman SHAW. How thick are those files when you receive 

them? 

Ms. MCGRAW. They range from a half an inch to a foot high, 

depending on how much treatment the claimants have. That is a 

very good point. Across the country you have different sized files 

based on the medical treatment that is available to citizens in particular parts of the country. 

Chairman SHAW. Do you have clerks working for you? 

Ms. MCGRAW. I have no one directly working for me. We are 

in a pooled system. I believe that if I had someone that I was working with it would be more efficient. 

Chairman SHAW. You have, as you say, a pool system. Are they 

reviewed by staff for you, are the files reviewed for you and summarized when they come to you or are you just given the raw file? 

Ms. MCGRAW. When the file is given to me it is what we call 

‘‘pulled.’’ The exhibits have been put in chronological order. That 

is all that has been done to the file. I personally go through and 

read every piece of evidence in the file. I don’t think it is fair to 

a claimant not to have done that. 

Chairman SHAW. Are there depositions in the file or is that part 

of the process? 

Ms. MCGRAW. No. By and large, depositions do not occur in 

these cases. We are dealing with medical evidence, physical therapy, statements of activities of daily living. There is rarely a deposition unless there has been a workers comp case or something like 

that that the claimant has been involved in. 

Chairman SHAW. We have heard about incomplete medical 

records that sometimes show up. Do you order the claimant to go 

back and do you bring the doctors in? How do you handle that? 

Ms. MCGRAW. If the claimant is unrepresented, the claimant 

has filled out a form that States his medical sources. If a claimant 

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is unrepresented, I ask someone on the staff to write to the sources 

that the claimant has identified. 

If a claimant is represented, then I expect the representative to 

go out and get that evidence. 

Chairman SHAW. Is there any sworn evidence that comes before 

you? 

Ms. MCGRAW. At the hearing the testimony is sworn. 

Chairman SHAW. It is all sworn in at the hearing. These medical records can come into consideration without sworn testimony. 

Is that correct? 

Ms. MCGRAW. Absolutely. They are almost never sworn. 

Chairman SHAW. Do you find in your experience that—and this 

is getting in the area of represented and non represented claimants—I would assume that if someone has a serious claim and represented by a lawyer, that perhaps the lawyers screen their cases 

somewhat. So, if somebody is just unhappy with the decision but 

without legal grounds, I would assume that probably if a lawyer is 

representing the claimant—the claimant probably has some 

grounds or the lawyer probably wouldn’t have taken the case. 

Do you generally find that when the lawyers are involved that 

there are stronger grounds on the average? 

Ms. MCGRAW. I don’t think that is necessarily so because I 

think there a lot of claimants out there who simply don’t know how 

to go about getting an attorney. They may have a very good case. 

Some lawyers screen. There are other lawyers who are willing to 

take the cases of almost any claimant. 

On average I would say that cases where the claimant is represented, there has probably been more preparation of that case 

and a greater understanding of what is necessary to meet the disability standards. 

Chairman SHAW. I would assume that most of the State bar associations would represent this as a specialty, representing claimants for Social Security, and they could actually list that as qualified. 

Ms. MCGRAW. Yes, and when a claimant files we send out a 

form that gives them information about sources of legal representation. 

Chairman SHAW. A list of lawyers? 

Ms. MCGRAW. Not specific lawyers, but places to go to look for 

lawyers. 

Chairman SHAW. That is interesting. What is the general quality of the lawyers who practice before you? That is not a fair question, but I am going to ask it anyway. 

Ms. MCGRAW. By and large, it is good, although in any forum 

like this there are those that don’t do such a good job. I think that 

Social Security takes the view that the job of developing the record 

is the Judge’s. There are some lawyers out there who do take the 

view, ‘‘Judge, it is your job. We will let you do it. Ultimately, it is 

your responsibility.’’

Unfortunately, that happens sometimes, but it is not the normal 

course of events. 

Mr. MATSUI. Thank you very much, Mr. Chairman. I want to 

thank all of you for your testimony. 

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Let me follow up with Ms. McGRAW. on the questions that Mr. 

Shaw was asking. My understanding is that there are groups of 

lawyers in various communities, Sacramento, for example, where I 

represent, in which they kind of specialize in Social Security claim 

issues or workmen’s comp claim issues. 

We have a law school in Sacramento. It is McGeorge School of 

Law. Oftentimes the lawyers will recruit some of the law students 

to participate in this. I would imagine that law students can come 

before you as well. I have gone through the process with some of 

the professors and some of the lawyers and some of the students 

over the years. 

I find, as you suggest and I think that Mr. Shaw was suggesting, 

some are really good and some are not so good. You get all kinds 

of variations here. Do the Administrative Law Judges? They come 

to know this over time, they are more careful in some cases than 

they need to be in others, I would imagine. 

How does that affect the issue of closing the record, which obviously is the big issue in terms of the point of view of the ALJ 

judges in terms of why the case never closes? That is why you have 

somewhat a backlog here. 

Can you discuss that with us a little bit? Go ahead, and then I 

will follow up. 

Ms. MCGRAW. Generally, when someone is represented, I leave 

it up the representative to develop the record. I will often identify 

pieces of evaluated that I feel are missing and need to be obtained. 

I leave it to the representative to do that. 

So, the closing of the record, if a representative is not doing their 

job, it might disadvantage a claimant. I agree with you. Representatives are being paid a lot of money, and I think they have an obligation. I think it is part of the process that they should be held 

to that obligation to properly develop the record. 

Mr. MATSUI. It is so difficult to know when that happens and 

when that doesn’t happen. Obviously Mr. Pickering——

Ms. MCGRAW. I can honestly say, there is discussion that there 

are some attorneys who hold back evidence and then they spring 

it on the Appeals Council. I don’t see that happen very often. I 

don’t believe attorneys are doing that and representatives are doing 

that. I think what sometimes happens is a claimant loses and then 

a representative will say, ‘‘Well, I am going to send this claimant 

to another doctor and have another opinion.’’

Then that opinion gets offered at the Appeals Council level and 

as a result the case gets remanded because it raises a question 

about the decision. That is a somewhat frustrating situation for 

ALJs. 

Mr. MATSUI. I can appreciate that. 

Chairman SHAW. If you would yield to me just for a moment, 

I want to develop this line of questioning a little bit because I am 

confused. I am hearing an inconsistency which probably isn’t there. 

Do you mean after you rule in a case that the claimant can go 

get another opinion from another doctor and that would be admitted at the appeal level at the District Federal Court? 

Ms. MCGRAW. I have had that happen on multiple occasions. 

That is not unusual. 

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Chairman SHAW. Well, then the record is kept open as it goes 

up the appellate process. 

Ms. MCGRAW. We do not close the record. We have no authority 

right now to close the record. 

Chairman SHAW. So, you can get reversed on evidence you 

never saw? 

Ms. MCGRAW. I won’t get reversed. I will probably have the 

case sent back to me, and that happens a lot. 

Chairman SHAW. Okay. Thank you. 

Mr. MATSUI. On the contrary side of that, and I have a totally 

open slate on this because this is kind of like Groundhog Day to 

me. This has been like a lot of times we have had discussions on 

this and the caseload. The backlog just keeps growing more and 

more and we really need to solve it. 

I really appreciate the Chairman holding these hearings and 

really trying to come to grips with it. In your opinion, and of course 

I am asking you to speculate and I am somewhat reluctant to do 

this kind of—in a formal hearing, because I don’t want to create 

a bias for you. Is it in your opinion that the lawyers or representatives of the claimants—do you think they are gaming the system 

when they do this? 

I mean I know that there are a lot of doctors in various communities that specialize in these areas. You know, you can cherry 

pick, I guess, and pick and choose. You see, probably, the same doctors in the reports over and over again. 

Tell me, is that a gaming of the system? Do you think there is 

some of that going on? Again, if you don’t want to answer it, that 

is fine, because you do have to maintain your independence here. 

Ms. MCGRAW. I think our representatives are putting their best 

foot forward for the claimants, trying to get the case allowed. I do 

see doctors who are used repeatedly by particular representatives. 

The system allows that. I am not sure how to correct that, to tell 

you the truth. 

Chairman SHAW. Mr. Lewis. 

Mr. LEWIS. What is your opinion, the panel, of continuing to 

keep the record open or closing the record? Are you in favor of closing the record? 

Mr. BERNOSKI. The Association of Administrative Law Judges, 

and I believe most administrative law judges in the field, are of the 

opinion that the record should be closed because this provides administrative finality to the adjudication process. 

In my opinion at some time the record has to be closed and the 

case has to come to an end. We believe that the best point for that 

is at the conclusion of the ALJ hearing when the decision is actually signed and issued. At that point the case record should be 

closed. 

There should be at that point a process for an appeal on the 

record, a certiorari appeal on the record that has been compiled. 

Mr. LEWIS. On the question of employment representatives, 

should there be a system of certification for these claimant representatives or some standard procedures that are set forth for 

these representatives? 

Mr. BERNOSKI. Well, our association hasn’t taken a position on 

that issue, but I will offer my opinion. I would say yes. It is not 

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uncommon in the government system of administrative hearings to 

have some type of a certification process by the government Agency. I think it would be appropriate for the Social Security Administration to do that. 

We have a system in place, but it is not very well developed. I 

think there could be work done in this area. It would provide protection to the claimant to have the government, the Social Security 

Administration, certify the claimant representatives. 

Hopefully we would have better quantity representation. You 

must understand that not all of the representatives are required to 

be attorneys. We have people representing claimants before Administrative Law Judges who are not attorneys and do not have the 

skill and training of an attorney. 

In my personal opinion, that is probably where most of the trouble is, in that area as opposed to attorney representatives. 

Mr. LUBBERS. If I could add a quick point on that. With respect 

to attorneys, under the Agency Practice Act, all attorneys are 

deemed to be qualified to participate in Agency proceedings. So, a 

special law would be needed to allow certification of attorneys in 

SSA cases. With respect to the non-attorney representatives, however, it is a different matter. 

Mr. PICKERING. On the closing of the record, the American Bar 

Association takes the position that if you do close the record, it 

should not be until after the ALJ hearing, but there should be a 

good cause exception for claimants who have been unable through 

no fault of their own to gather necessary evidence. 

The alternative, if there is no additional evidence, is for the 

claimant to start a new proceeding. There is no res judicata here 

and I would like to emphasize, even though representation is desirable, we are not dealing with an adversary process. 

The Social Security Program is a social insurance for the benefit 

of the people of this Nation. Consequently, they are entitled to 

some help. That is one of the reasons why we suggested that the 

ALJs be able to take a more active role in questioning and in trying to assist people to get a full record so that rights are not arbitrarily or without reason denied. 

Mr. LEWIS. Just following up on the adversarial role, you know, 

there has been some that believe that the Social Security Administration should be represented at the hearing. What is your feeling 

on that? 

Mr. VERKUIL. Maybe I can offer something on that score. In the 

study that Jeff Lubbers and I are doing for the SSAB, we will explore this more fully. The following case serves as a basis for government representation. 

The first assumption is that when this process started out there 

were no representatives for either side. The ALJ in the Richardson 

v. Perales case in 1971 was approved by the Supreme Court as 

having a three-hat role: represent the claimant, represent the 

United States, Foreign Sales Corpration, and be an objective decider. 

Now, over the years one of those hats has dropped off, since the 

claimant is now represented in 80 to 90 percent of the cases. That 

is the reality. So, now the judge has got two hats, is that right? 

This puts the judge in an awkward position vis-a-vis the claimant 

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because by trying to question the claimant the judge often feels, he 

or she may be showing a kind of bias against the claimant. 

Now, the process looks imbalanced. So, the notion would be to 

give the judge the independent role, keep the one most important 

hat, but give the other one over to a government representative. 

This representative could also serve in preparing the case. Importantly, if there are two lawyers, or even if there are two non-lawyers, before a hearing, cases can get decided without having to go 

to a hearing. That happens frequently in other settings. Certainly 

in our criminal justice system it happens all the time. So, there is 

that opportunity and that is the case for it, I think. 

Mr. LEWIS. So, obviously, you feel like this would speed the 

process up. 

Mr. VERKUIL. It could have that effect. I don’t want to be committed to a precise definition because we really haven’t finished the 

study. But, of course, that is one of the issues that would be explored, i.e., whether it would have a positive effect. 

Mr. LEWIS. Thank you. 

Chairman SHAW. Mr. Becerra. 

Mr. BECERRA. Thank you, Mr. Chairman. Thank you again for 

this second of two hearings on this matter. 

Thank you all for your testimony. 

Let me ask a series of questions, and I will try to go through 

them quickly. Do disability examiners follow precedent in reaching 

their decisions on whether or not a claimant deserves or does not 

deserve benefits? 

Ms. MCGRAW. Well, they have objective medical standards that 

they use. Court precedent is not really a part of their world. They 

follow the POMS. In my experience from reviewing these cases, I 

would say that they are driven by the objective medical evidence 

in the record. 

Mr. BECERRA. So, it is principally a fact-finding mission that 

these examiners undertake. 

Ms. MCGRAW. What is critical is developing the record properly, 

getting the medical evidence that relates to the claimant’s impairments. 

Mr. BECERRA. Now, do the examiners have any interaction with 

the claimants? 

Ms. MCGRAW. By and large they do not. They may call them 

on the phone. I see phone contacts asking questions of the claimants. If you are familiar with the prototype, with the 10 States 

where there has been some change at the DDS. The idea was to 

have a face-to-face contact at the DDS level. The Commissioner has 

now eliminated that face-to-face contact with the claimant, even in 

prototype States. 

Mr. BECERRA. Is that working well? 

Ms. MCGRAW. It has just started. I can’t tell you. I think that 

most people believe that face-to-face contact assists in deciding a 

case. 

Mr. BECERRA. That would be my gut reaction as well, that you 

are trying to make a judgment on someone’s disabilities which in 

many cases is emotion. To not have a face to face, to have a paperwork administrative act occur which could be life or death for an 

215

individual probably doesn’t help that individual feel comfortable 

with the final decision if it is adverse. 

It just seems to me that you add to the mounting number of days 

and delay that occurs. It is kind of horrific to see that at the very 

final stage of this process at the Federal court level, there is a 64 

percent, nearly a two-thirds result of either remand or granting of 

the claimant’s case. Two-thirds, if we had that in our judicial process, we would be swamped from here until eternity. It just doesn’t 

make any sense that 64 percent of all the cases by the Federal 

court have to be in some way returned to the system to be reviewed. 

It seems to me we don’t do enough at the initiative stage and if 

it is accurate that most of these claims that have some difficulty 

take up to 3 years to complete——

Chairman SHAW. At what level is that? Is that from the District 

Court? 

Mr. BECERRA. You are correct, Mr. Chairman. The numbers 

that I am showing from the Social Security Administration show 

that 6 percent of the cases presented to the Federal court are allowed and 58 percent of the cases are remanded, which could mean 

at the end of the day the ALJ still dismisses the case or finds adversely to the claimant. 

The fact remains, it has to go through the process again. So, you 

are adding additional time, delays, grief for the claimant. Even in 

our court system, which most people complain about to begin with, 

I guarantee you, two-thirds of the cases that go to the court on the 

appellate level do not have some type of positive or recurring activity. 

So, we have got to deal with that. If it takes that long, it just 

seems to me that we have to do a lot more up front and that principally means, not just at the examiner level, I would hope, and I 

know there have been some recommendations, that we talk about 

the collection of evidence. 

I would think that we could do a much better job at the administrative level of telling claimants, who are not claimants at that 

point, they are just hoping to be beneficiaries, what they need to 

do to get the process running. That means give them a better sense 

of what kind of evidence you all look at so they understand what 

they need to provide in terms of medical records; they understand 

that certain evidence that may be provided by non-medical individuals could be helpful in their case. 

It just seems that as you try to prepare a better record that we 

can do a lot more through the administration, on the government 

side, of helping prepare the case and giving claimants the information they need. Perhaps it is a brochure that tells them, ‘‘Get ready 

if you think you are qualified. This is also what you will have to 

go through if you have to appeal.’’

So, they know what they need to keep so they can remember the 

name of that one physician who said this or that, who never really 

did a document at a particular visit to an office or something along 

those lines. 

Time and complexity of cases. I wouldn’t go into because I think 

I just did. It seems to me that if you can’t get it resolved well at 

the examiner stage, you are in real trouble. It just seems that for 

216

most of these folks, many of whom are on fixed incomes, it is a 

travesty to expect them to now try to find an attorney and in many 

cases go without an attorney and make it through the process. 

Mr. Chairman, I see my light is on. Let me just have one last 

question. 

Should the government be a party in these ALJ proceedings? I 

know that has always been a question that is out there. I guess if 

you have a process in the sense that the government prosecuting 

its case and being seen as an opposing party to the claimant, it creates an adversity and it makes it difficult. 

At the same time, perhaps if we help rid ourselves of the frivolous cases because now you have the government prosecuting this 

matter to try to engage the claimant in a more robust collection of 

evidence. 

Perhaps what we do is also make the claimant better develop the 

case. Of course, if you have a claimant who is not prepared or 

doesn’t have good representation, you are now facing Goliath in the 

government. 

Is there any thought on what we should do in terms of that? 

Mr. HILL. Yes, I think at OHA one of the problems and one of 

the things that takes a lot of time is developing the case. The simple fact of the matter is cases are not as well developed as they 

should be coming up. 

Now, a lot of that may be due to the extreme time constraints 

the DDSs, the State agencies are under. The fact of the matter is, 

we get a lot of cases in OHA office that are not well developed. We 

also have a lot of cases that come in that when you have worked 

in the business long enough you look at it answer say, ‘‘This is 

probably a pay.’’

The evidence isn’t there. You have to go get it. There are a couple of ways to get it. One of the things that was done in the past, 

when we had the Senior Attorney Program, we reviewed these 

files. If it looked like a pay and the people were reported, we could 

make a call to the representative. When the representative at that 

point recognizes that these cases that we were looking at as probably pays, you would be surprised how fast evidence can come in 

under those circumstances. 

Mr. BECERRA. I agree. 

Mr. HILL. That is one way to handle it. One of the advantages 

to having somebody represent the government is they will be responsible for developing the case. Very quickly, I think what is 

really wrong with OHA is that cases sit and sit and sit. They are 

either in line, we are waiting for evidence or there are some time 

periods that have to run. 

The basic problem is they are sitting there waiting for somebody 

to do them. The quicker we get through them, the quicker we have 

somebody who can make a recommendation, ‘‘We should go after 

this real quick because it looks like pay,’’ the better off we are. 

Mr. BECERRA. In that regard, don’t we have funding that is 

going in the opposite direction of caseload? The SSA has less 

money today to administer these cases than it did before and its 

caseload is ballooning. 

Mr. HILL. It is going up and we need a better way of triaging 

those cases that don’t need to go to the judges because that is time 

217

consuming. Necessarily, it involves all kinds of assets. There are a 

lot of cases that they really shouldn’t be involved in. 

Ms. MCGRAW. I would suggest, if that case can be paid when 

it comes in the door, DDS didn’t do its job. It never should have 

gotten in the door. It should have been allowed earlier in the process. 

Mr. BECERRA. Thank you, Mr. Chairman. 

Mr. BERNOSKI. On the government representative, as Mr. 

Verkuil indicated, there is a definite probability that this could 

speed up the process. 

During last week’s hearings, it was demonstrated quite conclusively that the case doesn’t get active until the attorney from the 

claimant gets involved in the case. That unfortunately happens 

most generally at the Administrative Law Judge level. If the government also had an attorney involved in the case at that level, 

these two attorneys could more completely develop the case at an 

earlier time. There could be a resolution of the case, as Mr. Verkuil 

said, on a compromise basis or on a settlement basis as is normally 

done in the court system. 

I think that would be a beneficial aspect that would help the 

claimant in the process. 

Chairman SHAW. I think Ms. Ford wants to jump in here. 

Ms. FORD. Yes. We are opposed to having SSA represented. I 

think that changes the entire dynamic and the relationship between SSA and the claimant. 

Chairman SHAW. Yes. 

Ms. FORD. The SSA is supposed to be helping the claimant get 

that evidence. To put SSA in a position of being in an adversarial 

role against the claimant totally changes things. I think it would 

have to change the nature of an ALJ hearing. You couldn’t have 

SSA in two roles in that hearing. 

I think the perception of unfairness of the process would be tremendous. This Subcommittee actually has testimony, significant 

amounts of testimony from the government representation project 

in the early 1080s that was submitted on behalf of claimants. 

I would be happy to dig that out and resubmit it as it stands, 

but it is in the record, documenting the problems that claimants 

encountered in these types of very adversarial hearings. 

Mr. BERNOSKI. Mr. Chairman, I think a point has to be made 

that having the government represent itself helps expedite the 

case, but if it becomes a prosecutor, then Ms. Ford is correct. It becomes not only an adversarial process, but a process where most 

claimants won’t be able to hold their own. It would cost them additional money for the new attorneys that they would have to hire. 

We are trying to figure out a way to promote the full and expeditious development of the record without turning it into a strong 

prosecutor process. 

Mr. VERKUIL. Excuse me. Maybe the word ‘‘prosecutor’’ crept in 

when I drew an analogy to the criminal process. If so, Mr. Becerra, 

I withdraw the word. That is an inappropriate reference. Social Security attorneys do not do a prosecutorial function. There is a 

claimant helping function. It would still be that. 

218

We should focus on the fact that Social Security is the only ALJ 

setup where there is no government representation, or one of the 

few I can think of. 

In most cases, an ALJ presides over a formal hearing. So, that 

to bring an attorney in would not be an extraordinary act in terms 

of the ALJ’s experience. But surely, even if that happens, the nature of the process still would be different from formal ALJ proceedings. It wouldn’t be as adversarial. It might be more so in some 

contexts, but it would still be a claimant helping process and the 

statute wouldn’t change in that regard. 

Chairman SHAW. I want to refine a point. Mr. Becerra brought 

out a statistic which, on its face, appears to be startling, but it may 

not be as startling as it appears to be. That is that 58 percent of 

the cases appealed to the District Court are remanded back. That, 

by the way, is up from 48 percent in the year 2000. 

What percentage of the cases are appealed? We have to know 

that figure first before we know how startling that 58 percent is. 

Mr. VERKUIL. I think I can help you with that. There are approximately 120,000 decisions at the Appeals Council level and 

about 75 percent are denied, so that leaves you about 90,000 cases 

that come to the Appeals Council and have not been paid. Of that 

90,000, the Federal court only gets, say, 15,000. So, the percentage 

would be—we can do the math. It is 15 or 16 percent. 

Chairman SHAW. About 15 percent. 

Mr. VERKUIL. There is a lot of drop out. 

Chairman SHAW. Mr. Brady. 

Mr. BRADY. I agree with Mr. Becerra’s observations about improving the initial decision-making in this whole process. As to the 

panel, I really appreciate your testimony today because it seems 

like this process is just ripe for a major overhaul. Not only because 

between this and SSI we are talking about 5 percent of the Federal 

budget, not just because there are very tragic individual consequences for not doing this right, for cases. 

There are so many areas of improvement open in this whole process, it just cries out for a major change in how we handle all this. 

The more homework I do, the more I am becoming convinced that 

the process is legally top heavy in the sense that we have an emergency room full of non-emergency cases. All important, but many 

which could have been treated accurately, faster, better and sooner 

in the process. 

By its nature, the legal process in the courtroom is deliberate. It 

is complicated and it is expensive. My thought is that it ought to 

be reserved for, not only as part of our due process, but reserved 

for the cases that are the most complex, where the decisions of fact 

and prospective really are difficult. They require the expertise of a 

legal mind in going through that. 

The only way that works is if we dramatically strengthen the initial process. 

Many of you offered good ideas on how to do that. As to the issue 

of how do we create an appellate model that works well, that really 

applies those legal resources to those truly legal cases. What appellate models would you suggest we look at that this Committee or 

the Social Security Administration look at if we are to undertake 

a major overhaul in the appeals process? 

219

Mr. VERKUIL. Well, we have several alternatives. One, as an 

appellate model in the court system, Mr. Brady. 

Mr. BRADY. Well, within the whole process. 

Mr. VERKUIL. Oh, within the whole process. 

Mr. BRADY. Whether it is equivalent to the U.S. Department of 

Veterans Affairs (VA) or Workman’s Compensation. 

Mr. VERKUIL. We have a VA system which now has become 

much more formalized where there is a Court of Veterans Appeals 

and it reviews decisions. Then there is appeal on legal questions 

to the Federal circuit. 

We also have a Tax Court which as an Article I court, resolves 

most cases involving taxpayers even though there is a District 

Court option. That is, the taxpayer has a choice between an Article 

I or an Article III determination. The Article I is vastly preferred. 

About 90 percent of the cases go through an Article I court and 

then on to an appellate review in the Federal court system. So, 

that is another model. 

Mr. BRADY. Well, which one, in your opinion, works better in 

the whole process of fair, timely, accurate decisions as early in the 

process as possible, and then the legal system really gets to the 

heart of the more complicated matters? 

Mr. LUBBERS. It is a very hard question because there are so 

many levels in the process. I think that most of the comments from 

the panel today were that you want to try to resolve as many cases 

as you can at the beginning, when the stream of cases is at its 

widest. So, there are a lot of recommendations that have been 

made to improve the initial disability determination service review 

of cases. 

Then the stream narrows a little bit at the reconsideration level. 

Some people have suggested getting rid of that. You have the ALJ 

process, Appeals Council and court. So, you have a multi-stage 

process and when you change one process, it affects all the other 

processes. 

Mr. BRADY. Back to the question of which, in your opinion, 

which model ought we look at for significant improvement. 

Mr. LUBBERS. I think the basic structure of having an initial 

determination process at the State level is sound. I will consider 

perhaps not having a reconsideration level before going to the Administrative Law Judge system for the full hearing. Then the question is, do you need further review at the Social Security Administration Appeals Council? 

The panel has differed on that. I think the basic structure of 

maintaining an Administrative Law Judge hearing is something we 

can all agree on. 

So, I don’t have a major structural change of the process, but I 

think you have to look at each step and make changes. We think 

a Social Security Court could help. 

Mr. VERKUIL. The reason why, and I would say in response 

that we came out favoring an Article I, Social Security Court, precisely because in the current system, in the Article III system, 

there is no feedback loop. 

These Federal District judges get 15,000 to 20,000 cases a year. 

They remand more than half, as was pointed out. That remand is 

a total disconnect. It doesn’t even go back necessarily to the same 

220

decider. Nothing is learned and there is no education and uniformity gained from that kind of a process. 

An Article I process, however, with a Social Security Court who 

are experts in the field, could be more closely tied to educating 

what was wrong. If you have to remand a case, you want the decider to learn why the case was remanded and to get it correct the 

next time. 

An Article I system has a feedback loop that doesn’t exist in Article III because it is just two different worlds. If you create an Article I court with rule making and other powers that would be provided through the Agency, you could define issues more clearly. 

You could have more accountability at the administrative system, 

and there would be connections. 

So, that is the argument in favor of it. That is why we would say 

we think the case for Article I is worth reconsidering. 

Mr. PICKERING. The view of the ABA on this is that it may be 

time to revisit whether we change the system or judicial review between Article I and Article II courts. 

The real problem here, as you have identified, is getting the system right at the beginning. Everything else will fall into place if 

we have a much better intake system, much better development of 

the record and help given to these people, many of whom are not 

represented by attorneys and need the help of the tryers of fact as 

to what are the deficiencies in the record. The better the product 

is from the beginning, the more likely it is that everything else will 

fall in place. 

Mr. BRADY. Thank you. 

Mr. BERNOSKI. It is our opinion, as we indicated in our written 

statement and during the testimony, and I agree with the other 

panelists, that the first thing that must be improved is the initial 

intake, review and decision. It should be based upon the legal 

standard that the ALJs use. 

The case is then appealed to the next level, and that is where 

the government representative is important. The government representative would develop the case as needed and would compromise or settle the cases that could be settled at that point. 

After the Administrative Law Judges hearing, we are of the opinion that the next level of appeal, if there is going to be one in the 

Agency, should be, to a three judge Administrative Law Judge 

panel. That panel is based on the Bankruptcy Court model, which 

is working well. That would give a higher and more careful level 

of review. 

After that, we believe the case should go into the Federal District 

Court because that seems to be the preference of the bar. Congress 

also seems to be very comfortable with the Federal District Court 

review of Social Security cases. Although there seems to be an interest in exploring a change at that level. 

Mr. BRADY. Okay. Thank you, Mr. Chairman. 

Chairman SHAW. Ms. Ford, go ahead and then Mr. Matsui has 

some questions. 

Ms. FORD. First of all, I am in an agreement with the other witnesses who have said that the front end is the important place to 

be putting our time and effort—in case development and evaluaVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00224 Fmt 6633 Sfmt 6602 E:\HR\OC\A169.XXX A169
221

tion. From our perspective, the process needs to remain informal 

for the claimant because this is a very difficult process. 

Not all medical evidence may be available at all points along the 

process. We have to help that claimant put as much forward as 

possible. 

I think one point that keeps getting missed is the fact that submitting a new application is not a valid choice for many people. If 

you are applying for Title II benefits, you must apply for benefits 

for a certain period of time to keep your connection to the recency 

of work—you must have worked 20 out of the last 40 quarters before the period applied for. 

So, if your case has been denied, and then you are forced later 

to reapply, you may in fact lose eligibility permanently (res judicata) for benefits that you in fact should have been found eligible 

for. 

I am not sure that the question at higher levels of appeal should 

be, ‘‘What was wrong in the earlier decision so much as the question might be, what more do we know about the claimant now at 

this later stage of the process?’’ Thank you. 

Chairman SHAW. Well, Ms. Ford, just to expand on that 1 second, though, let’s assume none of these guys get into the case and 

the claimant is settled very, very quickly to everybody’s satisfaction 

and then several years later, perhaps someone who was 50 percent 

disabled becomes 100 percent disabled. They can go back, can’t 

they, at any time on that? 

Ms. FORD. The date of application is going to be important for 

the back benefits for a lot of folks. Also, in Title II their claim of 

when disability began has to be within that time period of having 

worked 20 out of the last 40 quarters. 

In Title II, there is the potential for waiting too long and losing 

benefits or losing eligibility. 

Mr. LUBBERS. I want to make a quick point, Mr. Chairman. 

Chairman SHAW. I am confused by that. 

Mr. LUBBERS. You mentioned a 50 percent disability. My understanding is that in the VA system you can be partially disabled, 

but in Social Security, you are either disabled or you are not. 

Chairman SHAW. That’s correct. 

Mr. HILL. There is another real misunderstanding, when you file 

an application for disability insurance benefits, you allege an onset 

date. That onset date is not the date you file the application. I 

could file an application today alleging I was disabled December 1, 

1988. If I have the evidence to show that I was disabled December 

1, 1988, I will be awarded benefits, provided my case is approved. 

Chairman SHAW. One of the disadvantages that we have, and 

it probably is obvious from some of the questions that we are asking. We are trying to help reform a system that we have never seen 

before, even though you are a lawyer, aren’t you? 

Mr. BRADY. No. 

Chairman SHAW. No? You plead not guilty? 

Mr. BRADY. Not guilty. 

Chairman SHAW. Bob and I are reformed lawyers, but neither 

one of us have been through this process. Most lawyers haven’t. 

Mr. Matsui? 

222

Mr. MATSUI. May I ask, Ms. Ford, because I did ask the Administrative Law Judges about the closing of the record, I would like 

your thoughts? Perhaps, Ms. Shor, if you want to add to it, if you 

have any new thoughts on this. 

Ms. FORD. Well, we think the record should remain open as it 

is allowed to be now. There are some limitations. I understand 

what has been said earlier, but as I understand it, there are some 

limitations on what new evidence could come in after the ALJ level 

or the appeals level. It depends on whether the new evidence relates to the period of time before the ALJ hearing. 

There are some limits on new evidence. There is, therefore, some 

pressure on the claimant and the representative to get evidence in 

early. 

This is so important for the claimant, I don’t think that we 

should be closing the record before it is absolutely necessary. 

If it can be handled by remanding—as it is now—or otherwise 

taking a look at the evidence, whatever is available that tells us 

more about that claimant and whether or not they have an impairment that is disabling ought to be looked at. 

Chairman SHAW. Did you want to add to that? 

Ms. SHOR. I think with the discussion earlier about Federal 

court, the statute provides that there has to be good cause and evidence has to be not cumulative and has to be new and material. 

The evidence that is going into Federal court cases is already quite 

tightly restricted. 

I don’t think you would want a situation where someone with 

perhaps diverse symptoms and an undiagnosed case at the time 

they appeared before an ALJ, and was subsequently given a diagnosis of Multiple Sclerosis, for example. This happens quite frequently because it is a condition that is so difficult to diagnose. It 

seems more administratively efficient to deal with that case on remand when in fact the policy of the Social Security Administration 

is to send Federal court case remands back to the ALJ who heard 

the case in the first place; rather than to tell that person to file 

a new application and go back to the front of the line. 

That is the important reality. People with new evidence are not 

going to disappear. If the door were slammed in their face immediately and they were told, ‘‘Under no circumstances and for any 

reason new evidence will not be accepted’’ the Social Security Administration is not free from dealing with that person. They will 

go back to the front of the process, file a new application and frequently will find themselves disadvantaged by that choice. 

Mr. MATSUI. Thank you. 

Chairman SHAW. Well, we have learned about a lot of problems. 

I think it is going to take, a lot of independent study. Professor, 

perhaps you will come in with some answers that we will have a 

hearing on at a later date with your study. Perhaps the American 

Bar Association might come in with some study and suggest recommendations. 

The problem really is going to have to be looked at by the people 

who are in the system and know the system well as to how to 

streamline it. 

223

One further question I do have, though, and I would like to ask 

this of both the judges. What is your current case backlog? I am 

concerned exactly as to where the delays are. 

Ms. MCGRAW. It varies widely from office to office. Within my 

office I am now processing cases, requests for hearing that have 

come in our office in February of this year. We are pretty caught 

up. Then there are other offices around the country that are woefully backlogged. 

Chairman SHAW. Is that because of the—I will try to put it delicately, but I am not sure I can—about the work ethic of the judge 

involved? 

Ms. MCGRAW. No, I can’t really tell you why that is. Mr. 

Bernoski, you may have a better understanding of it. I don’t know 

the reason. I know that that is the situation in our office. 

Chairman SHAW. In Federal courts the work ethic of the judge 

has a lot to do with it. 

Ms. MCGRAW. It does, there is no doubt about that. 

Mr. VERKUIL. It varies greatly at all levels, administrative law 

judges and District judges. 

Chairman SHAW. Some judges have a huge backlog just because 

they are not working enough. 

Mr. BERNOSKI. The overall backlog in the Agency, as we indicated, has grown. I believe it is around 490,000 cases or in that 

neighborhood at this point. 

As Ms. MCGRAW. indicated, that backlog does vary between individual offices for various reasons. Some offices just have more 

cases coming in. Some have more Administrative Law Judges. 

Some have more staff. So, to some extent, it is particularized in the 

offices. 

But the overall backlog for the Agency is growing. The HPI has 

hurt us to the extent that, as Ms. MCGRAW. testified, the confusion that has been caused by the API process has allowed fewer 

cases to be set up for hearings. That has caused backlogs to grow, 

together with the filings of more cases. 

Chairman SHAW. What is the average backlog in your area? 

Mr. BERNOSKI. In our office, we were relatively current, but it 

is growing now. There seems to be more cases coming in. 

Chairman SHAW. What is current—February? 

Mr. BERNOSKI. For us current is about 6 months. 

Chairman SHAW. I see. Thank you all very much. We very much 

appreciate it. It has been very enlightening. We are trying to build 

some knowledge in this area, which I think is tremendously important to the people we serve. 

Thank you very much. 

[Questions submitted by Chairman Shaw to the panel, and their 

responses follow:]

Consortium for Citizens with Disabilities 

Washington, DC 20006

August 9, 2002

The Honorable E. Clay Shaw, Chairman 

Subcommittee on Social Security 

U.S. House of Representatives 

Washington, DC 20515

Dear Chairman Shaw:

224

This is in response to your letter of August 1 requesting additional information 

regarding the Social Security disability programs’ challenges and opportunities. Specifically, you asked:

1. There have been suggestions that to improve the entire disability determination process, the claimant’s record needs to be better developed at 

the disability determination services (DDS). This would involve obtaining 

more complete medical evidence earlier in the case. SSA’s procedures include field office and DDS personnel advising claimants of the information 

needed to determine their eligibility for disability benefits. Are these procedures not being followed? Is the information that is now provided not 

adequate? If not, what else can be done to better gather and develop the 

evidence? 

I suspect that the ability of claims representatives and DDS staff to properly collect evidence would depend on a number of factors, including the workload of the 

individual and the tools available to assist in the process. Collection of better evidence earlier requires that SSA look carefully at all of the factors that currently 

hinder the effort. Applicants come to SSA with varied backgrounds. Some will not 

understand the process or the importance of the evidence; some may not have consistent treating medical sources in their history; and still others may not fully grasp 

their own impairments. SSA should look at all of the relevant factors, such as: 

whether the claimant needs assistance in understanding the process and the nature 

and importance of the material to be collected; whether the field offices and DDSs 

have adequate staffing and resources to thoroughly carry out evidence collection 

functions, including necessary follow-up with treating sources; whether physicians 

and others from whom evidence is sought are given enough guidance about what 

documentation is needed and the importance of a speedy response; whether consultative exams should be purchased earlier in the process for those without adequate 

medical treatment histories; and whether payment rates for consultative exams are 

adequate. 

It would be valuable for SSA to work with claimants’ representatives, including 

attorneys, who have proven their ability to collect otherwise unavailable evidence. 

SSA should identify the key differences in the approach to evidence collection between these claimants’ representatives and the SSA and DDS staff who have the 

statutory responsibility for evidence collection. It may be that the overall elements 

are the same (letters of request, follow-up phone calls, and etc.), but that the details 

or implementation differ (initial interview with claimant, content of the letter to 

physicians, number of follow-up calls, and etc.). I believe that such an effort could 

only result in useful, valuable information for SSA to use in assessing its own procedures. 

2. In your testimony of June 20 (page 4), you state that you believe a 

claimant’s record should remain open so they are not wrongly punished for 

events that may be beyond their control. Could your concerns regarding 

closing the record be mitigated if claimants were provided sufficient protections? If so, what protections would be needed for you to support closing the record? 

Some of my concerns regarding closing the record could be mitigated if claimants 

were provided sufficient protections. These protections would have to include a holdharmless provision for claimants whose late evidence is not accepted for purposes 

of reaching a decision. The claimant would have to be protected against application 

of the doctrine of res judicata—the period of time covered by a decision would need 

to be open for further decisionmaking in the future should late evidence become 

available. This must protect the claimant in at least two ways. The claimant should 

be able to apply again for the same time period and be able to receive any back 

benefits for that period without being negated by res judicata. Further, those claimants whose coverage has expired due to application of the recency of work test (insured status requires 20 quarters of coverage out of the last 40 quarters) must be 

able to apply again for that same time period, should late evidence be available, 

without being negated by res judicata. It is interesting to note that, in 1990, when 

Congress addressed the notices which SSA sends to beneficiaries and claimants, 

there was a clear recognition that re-application, under current policy and accepted 

legal doctrine, does not equate to an appeal. 

Another way to address this issue might be to allow a case to be reopened. However, the current regulations on reopening a case place time limitations on the reopening, leave the decision to reopen to the discretion of the Commissioner, and do 

not allow appeals on the decision regarding reopening. 

Even if the above concerns were addressed, I would be concerned about the potential delay in the process. Claimants with late evidence would be forced to begin 

225

again and go through the entire process. I would expect this to increase, rather than 

decrease, administrative burden. In addition, from the claimant’s perspective, the 

refusal to accept late evidence and the insistence on making a decision on a lessthan-complete record would create the appearance of arbitrary decisionmaking and 

government waste. 

As the process currently stands, late evidence is accepted under certain conditions, avoiding the appearance of arbitrary decisions and allowing a common-sense 

result of a decision made on the basis of all available evidence. Existing statutory 

and regulatory provisions recognize the need for the system to be flexible enough 

to admit such evidence on a limited basis. I believe that if the acceptance of late 

evidence were viewed in a common-sense way, there would be no problem with ensuring that all available evidence is brought into a decision. I believe part of the 

problem with late evidence is the perception that a remand to the ALJ from the Appeals Council or the district court is indicative of a bad or wrong decision. In many 

cases, it is merely indicative of late-arriving, but relevant, evidence. Quality assurance mechanisms should take this into account. 

3. The Social Security Advisory Board, in their testimony of June 11 

(page 8) recommended that the Social Security Administration (SSA) consider establishing a system to provide certification for claimant representatives and establishing a system to provide certification for claimant representatives and establishing uniform procedures for them to follow. What 

are your comments on this? What are the pros and cons of implementing 

these suggestions? 

I do not believe that certification is necessary, given the tools already available 

to SSA for ensuring proper behavior by representatives and the bureaucracy it 

would be necessary to establish for a certification process. The limited administrative funds available to SSA can be put to far better use in improving the disability 

determination process. 

In 1998, SSA issued final rules governing the conduct of all claimants’ representatives, ‘‘Rules Of Conduct And Standards of Responsibility for Representatives’’. 20 

C.F.R. 404.1740. These rules include both affirmative duties and prohibited actions, 

addressing, among other things, the duties to obtain and submit evidence and to 

comply with requests to submit evidence. The rules establish a procedure for filing 

complaints against representatives which are handled by SSA’s Office of Special 

Counsel. In addition, SSA has the capacity to reduce attorneys fees in any case. 

Thank you for this opportunity to provide comment on these issues. I would be 

happy to respond to any further questions. 

Sincerely, 

Marty Ford 

Co-Chair 

f Social Security Task Force.

National Organization of Social Security Claimants’ Representatives 

Midland Park, New Jersey 07432

August 21, 2002

Hon. E. Clay Shaw, Jr., Chairman 

House Ways and Means Subcommittee on Social Security 

U.S. House of Representatives 

Washington, DC 20515

Dear Chairman Shaw:

I am responding to your letter dated August 1, 2002, requesting additional information for the June 20, 2002 hearing on the Social Security disability programs’ 

challenges and opportunities. Specifically, you asked for a response to the following 

question: 

1. The Social Security Advisory Board, in their testimony of June 11 

(page 8) recommended that the Social Security Administration consider establishing a system to provide certification for claimant representatives 

and establishing uniform procedures for them to follow. What are your 

comments on this? What are the implications of implementing these suggestions? 

For the following reasons, I do not believe there is a need for certification of 

claimants’ representatives. 

First, the bureaucracy involved in establishing and maintaining a certification 

system would be a significant expenditure of limited agency resources. In any meaningful certification program, required tasks include:

• defining the area of practice 

226

• devising the applicable standards • writing the examination • administering the examination • grading the examination • providing an appeal mechanism for aggrieved certification candidates • maintaining the certification roster, and • providing for future re-certification.

Second, SSA already has adequate procedures to govern the conduct of representatives. All claimants’ representatives are subject to the agency’s Rules of Conduct 

and Standards of Responsibility for Representatives, which have been in effect since 

1998. 20 C.F.R. §§ 404.1740, et seq., and 416.1540, et seq. These rules include both 

affirmative duties and prohibited actions. They were designed to clarify the obligations of representatives by promoting competence, diligence, and timeliness. The 

rules establish a procedure for filing complaints against representatives with the Office of Special Counsel (OSC) at the Office of Hearings and Appeals. OSC has the 

responsibility to investigate complaints and to administer discipline (suspension or 

outright disqualification) where warranted. Should, for example, an Administrative 

Law Judge (ALJ) wish to file a complaint about the conduct of a representative, the 

procedures set forth in the regulations on the Rules of Conduct would address the 

ALJ’s concerns. 

Third, certification is not necessary because most representatives are attorneys 

and their conduct is already governed by state bar organizations. Each state bar 

promulgates rules of conduct and codes of professional responsibility. To the extent 

that a problem of misconduct by a claimant’s attorney exists, SSA has the discretion 

to address each instance by referring it to the state bar which holds the license of 

the attorney involved. 

Thank you for the opportunity to provide this information. 

Very truly yours, 

Nancy G. Shor 

f Executive Director

Federal Bar Association 

Washington, DC 20037

January 10, 2003

Hon. E. Clay Shaw, Jr., Chairman 

House Ways and Means Subcommittee on Social Security 

U.S. House of Representatives 

Washington, DC 20515

Dear Chairman Shaw:

1. The Social Security Advisory Board has stated that the Federal-State 

relationship should be strengthened. Do you agree? If so, why do you 

agree? How can that relationship be strengthened? 

Out of concern for the variations in State Agencies in areas such as staff salaries, 

hiring, qualifications, training and quality assurance procedures—all of which have 

a major impact on quality of work product—the Advisory Board has asserted that 

the Federal-State relationship needs strengthening. While the Advisory Board has 

not advocated Federalization of the State programs, it has recommended implementation of guidelines for disability examiners vis-a ́-vis experience, training, background and salary. 

The Social Security Section of the Federal Bar Association (FBA) appreciates the 

point being made by the Advisory Board. The Social Security disability program is 

a national program and a person living in New Hampshire should expect his claim 

to be adjudicated in a comparable manner to the person living in Texas. While Federal guidelines in the areas mentioned above are a good idea, it is more important 

that the Social Security Administration (SSA) strengthen its oversight of the quality 

of State Agency decisionmaking. It can do so by implementing a strong and con- sistent quality assurance (QA) program within SSA that monitors State Agency 

work. The component that currently does this job is known as the Disability Quality 

Branch (DQB). It wields significant power over the States’ work but it does not appear to have effectively fulfilled its mission. As GAO indicated in its report ‘‘Social 

Security Disability: Disappointing Results from SSA’s Efforts to Improve the Disability Claims Process Warrant Immediate Attention’’ (GAO–02–322), SSA needs to 

develop a quality focused culture and it needs to implement a comprehensive quality 

assurance program. Such a program at the State Agency level needs to focus not 

only on favorable decisions but also on unfavorable decisions and adequate development of the record. To date, there is no evidence that this has been done. 

227

As just one example, SSA has a treating physician rule set forth at 20 C.F.R 

404.1527 and further explained in Process Unification Ruling SSR 96–2p. This rule 

is applicable at all levels of adjudication. Yet, State agencies repeatedly fail to apply 

this rule and the perception is that DQB condones and sometimes even encourages 

this practice. The actions of DQB have a profound impact on the work of the State 

Agencies, and we suggest that SSA focus on the function and performance of its 

quality assurance component as a means of strengthening the Federal-State relationship. 

2. You state that claimants’ subjective complaints are not evaluated at 

the DDS level, but are when the cases reach OHA. Why is this? What could 

be done to improve the evaluation of subjective complaints at the DDS? 

Evaluation of subjective complaints, i.e., symptoms, such as pain and fatigue is 

a very difficult task because it requires an assessment of a claimant’s credibility. 

Subjective complaints are not measurable by means of clinical tests or lab findings. 

Under SSA law, if a person has a medically determinable impairment that could 

cause subjective complaints of the type alleged, then the extent of those complaints 

must be evaluated. Reports from both claimant representatives and ALJs indicate 

that it is fairly standard that State Agency reviewing doctors will inevitably conclude that a person with a bulging lumbar disk that impinges on a nerve is capable 

of light exertional work. Yet, because this medically determinable impairment has 

the potential to cause debilitating pain in any given individual, SSA law requires 

that a number of factors beyond the objective clinical findings be considered in evaluating the person’s ability to function. At 20 C.F.R. 404.1529, seven factors are set 

forth and they include: activities of daily living; location, duration and intensity of 

pain or other symptoms; precipitating and aggravating factors; type, dosage, effectiveness and side effects of medications; treatment other than medication for alleviation of the pain or other symptoms; measures used to alleviate pain or the other 

symptoms such as lying flat on one’s back, sleeping on a board, changing positions; 

and other factors concerning one’s functional limitations due to pain or other symptoms. These factors are elaborated upon in SSR 96–7p. 

Given the time and resources available to State Agency examiners, evaluating 

subjective complaints is a daunting task. Moreover, consideration of subjective complaints can lead to what appear to be inconsistent results in cases involving identical or similar objective findings. Yet, SSA regulations and rulings require that subjective complaints be assessed at all levels of adjudication. 

We submit that examiners who attempt to perform this kind of individual assessment may be taken to task by State Agency medical consultants, as well as SSA’s 

quality component, as they tend to focus almost exclusively on objective clinical findings. It is much easier, more predictable, and less time-consuming to make decisions 

based solely on objective findings. As prototype States are discovering, if the State 

Agencies are going to evaluate subjective complaints they need more resources—

more time per case, more employees, more training and better retention of trained 

employees. This means one thing—more money. 

3. During the hearing, you seemed to indicate that the DDSs needed to 

better evaluate claims. What suggestions do you have for improving case 

evaluation by the DDSs? 

The answer to this question is inextricably entwined with the response to the previous question. In addition to my previous response, however, there are steps that 

can be taken at the DDS level to better evaluate claims. First, there needs to be 

better development of the record. All sources of relevant medical evidence need to 

be identified and contacted. Where medical evidence is scant, appropriate consultative examinations must be obtained. Too often, a claimant with an orthopedic problem is sent to an internist or family practitioner rather than to an orthopedist or 

physiatrist and the examination is not particularly enlightening. Yet, it is relied 

upon to decide the claimant’s eligibility for benefits. In addition, the old saw, ‘‘you 

get what you pay for’’ certainly applies to CEs, and DDSs do not pay a competitive 

fee to the doctors performing these examinations. 

Obtaining medical evidence is not always easy to do. Sources can be dilatory and 

uncooperative. If SSA could facilitate cooperation from hospitals and doctors, it 

would go a long way to improve the process. In addition, involvement early on at 

the DDS level by claimant representatives could facilitate the gathering of evidence. 

Unfortunately, such involvement at the State Agency level tends to be viewed as 

interference rather than assistance and thus may be discouraged. 

Claimants need to be provided a rational explanation for why they have been denied benefits. The determinations issued by the DDSs can best be described as 

uninformative. They are crammed full of standard language but they are very short 

on explanation as to why the claimant is being denied. A typical explanation reads 

something like this: 

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You said that you are disabled because of chronic obstructive pulmonary disease, 

bursitis and depression. The available medical evidence shows that your condition 

or combination of conditions is not severe enough to be disabling. The evidence does 

not show an impairment that would prevent you from performing some work-related 

activities. It has been decided, therefore, that you are not disabled according to the 

Social Security Act. We have concluded that you are able to return to your past 

work as it is usually done in similar jobs. 

This sheds little light on how this decision was reached. A real explanation for 

the denial could result in fewer appeals if claimants understood why they don’t meet 

the standard for disability. 

In 1996, SSA embarked upon a process unification initiative to assure that the 

same standards are used at all levels of adjudication. State Agencies were expected 

to assess subjective complaints and provide a reasoned rationale in their determinations. At the OHA level, ALJs would then be expected to give deference to those 

rationales. Other than in prototype states, this has not happened and it appears 

that SSA has quietly abandoned this initiative. 

4. In your testimony, you question the need for an Appeals Council. You 

give as an example that the substantive legal correctness of the decisions 

of the Appeals Council has been frequently challenged. Do you suggest an 

alternative to the Appeals Council? If so, what? 

In theory, the role of the Appeals Council is a good one—a final review in the administrative process before a claimant reaches Federal Court. Where an ALJ has 

erred or failed to provide a full and fair hearing, the Appeals Council can remand 

the case for a new hearing and decision. In this way, the Appeals Council acts as 

a filter for the Federal Court system weeding out many cases that might otherwise 

be filed in court. 

Unfortunately, however, of late the theory has been far better than the reality. 

In recent years, the Appeals Council has been overwhelmed and unable to provide 

timely, effective review. Yet, to its credit, when faced with the overwhelming workload, the Appeals Council has implemented strategies that have reduced average 

processing time by over 200 days since early 2000. Moreover, the pending request 

for review workload has been decreased from nearly 156,000 to below 58,000 as of 

December 2002. 

Nonetheless, as at all levels within the disability process, there is need for improvement within the Appeals Council. I offer a few suggestions. First, there must 

be a better way to maintain the recording of the hearings. Far too many cases are 

remanded solely because the hearing tape has been lost at the Appeals Council. Second, SSA should consider the suggestion set forth by the Supreme Court in Sims 

v. Apfel, 530 U.S. 103, 120 S.Ct. 2080 (2000), that SSA impose an exhaustion requirement, i.e., that the Appeals Council will limit review to those exceptions raised 

in the request for review whenever the claimant is represented. Third, consideration 

should be given to setting a time limit by which review must be accomplished or 

the claimant is afforded the right to proceed to Federal Court. Fourth, as noted earlier, SSA needs a quality assurance program at all levels. At the Appeals Council, 

this should result in a reduction in the large number of cases where the Appeals 

Council has affirmed an ALJ decision and, after a complaint has been filed in district court, the Appeals Council agrees to seek a voluntary remand finding the same 

record it had earlier reviewed to be now legally insufficient. It should also result 

in more meaningful feedback and direction to ALJs in the remand orders. 

Sincerely, 

Hon. Kathleen McGraw 

Chair 

f Social Security Section

Benjamin N. Cardozo Law School, Yeshiva University 

New York, New York 10005

Washington College of Law, American University 

Washington, DC 20016

August 15, 2002

Hon. E. Clay Shaw, Jr., Chairman 

Chairman 

Subcommittee on Social Security 

House Committee on Ways and Means 

Washington, DC 20515

Dear Chairman Shaw:

229

This is in response to your follow-up question from the June 20, 2002 hearing. 

Your question, and our response, follows:

1. You stated that the SSA’s ALJ hearings are the only hearings processes 

that you know of where the agency is not represented. Would you explain 

what makes the ALJ hearings in SSA unique from other agencies’ administrative hearings? 

Although we haven’t completely researched the issue, we believe that SSA ALJ 

hearings are the only ones where the agency is, as a rule, unrepresented. This has 

been the case since the beginning of the disability program, (except for the shortlived government representation experiment in the 1980s). In such cases the Administrative Law Judge (ALJ) has been relied upon to ‘‘wear three hats’’—(1) neutral 

adjudicator; (2) protector of the claimants’ rights; and (3) trustee of the Social Security Trust Fund. 

This makes the SSA adjudication process unique from other adjudications presided over by ALJs. Of course there are many different types of ALJ adjudications—

benefit claims denials, benefit revocations, initial license denials, license revocations, civil money penalties, etc. In agency enforcement cases, the agency is, of 

course, represented since it is, in effect, the ‘‘prosecutor’’ in the case. In initial benefit or initial license denial cases, there might appear to be less reason for an adversary proceeding since nothing is being ‘‘taken away’’ from an applicant. Nevertheless, someone from the agency normally is charged with defending the agency’s decision to deny the benefit or license if the case is contested before an ALJ. 

SSA disability cases are the exception to this rule. This obviously places a great 

responsibility on the ALJ. It may have been more understandable for the government to not be represented in the early days of the program when most claimants 

were also unrepresented. As late as 1977, less than half of all claimants were unrepresented (by either a lawyer or non-lawyer) at the ALJ hearing. Now, however, the 

figure is about 87% (70% by lawyers and 17% by non-lawyers). 

Sincerely, 

Paul Verkuil 

Professor of Law 

Yeshiva University

Jeffrey Lubbers 

Fellow 

f American University

[Questions submitted by Mr. Matsui to Ms. Ford and Ms. Shor, 

and their responses follow:]

Consortium for Citizens with Disabilities 

Washington, DC 20005

July 12, 2002

The Honorable. Robert Matsui, Ranking Member 

Subcommittee on Social Security 

Ways and Means Committee 

U.S. House of Representatives 

Washington, DC 20515

Dear Representative Matsui:

This is in response to questions in your letter of June 27 requesting additional 

information following the June 20 hearing in the Subcommittee on Social Security 

regarding challenges in the Social Security disability programs. 

1. How would closing the record force workers at SSA field offices, DDSs, 

and OHA to do a more complete job of developing all evidence necessary 

to make a well-considered disability decision, since this does not always 

happen under current procedures? 

I do not believe that closing the record earlier than is required under current law 

would improve the performance of workers at SSA field offices, DDSs, or OHA in 

collecting evidence. The penalty, closing the record to evidence that comes in late, 

falls only on the claimant. 

It does seem clear that ensuring better development of evidence earlier in the 

process would help at all later stages of the process. Collection of better evidence 

earlier requires that SSA look carefully at all of the factors that currently hinder 

the effort now. Applicants come to SSA with varied backgrounds. Some will not understand the process or the importance of the evidence; some may not have consistent treating medical sources in their history; and still others may not fully grasp 

230

their own impairments. To fill these gaps will require addressing such things as: 

whether the claimant needs assistance in understanding the process and the nature 

and importance of the material to be collected; whether the field offices and DDSs 

have adequate staffing and resources to thoroughly carry out evidence collection 

functions, including necessary follow-up with treating sources; whether physicians 

and others from whom evidence is sought are given enough guidance about what 

documentation is needed and the importance of a speedy response; whether consultative exams should be purchased earlier in the process for those without adequate 

medical treatment histories; and whether payment rates for consultative exams are 

adequate. Improving the whole range of factors that result in slow development of 

evidence will be necessary to ensure any significant improvement. 

2. How would SSA obtain the resources necessary to provide agency representation, given the severe constraints on its budget and the rising backlog of claims awaiting decisions at the DDS, ALJ, and Appeals Council levels? In your opinion, would this be the best use of additional resources, 

should they be provided to the agency? 

Providing agency representation at the ALJ hearings would be very costly. As reported by Nancy Shor of the National Organization of Social Security Claimants’ 

Representatives, the SSA government representation project of the ‘80s was very 

costly. I do not believe that the cost can be justified, especially since agency representation has proven to change the nature of the hearings to an adversarial process. In addition, agency representation is likely to add processing time (based on experience with the project in the ‘80s) and, certainly, does nothing to ensure that 

overall processing times are reduced or better evidence is developed earlier. 

Any additional resources available to SSA should be targeted to the better development of evidence earlier in the process, as discussed above. 

Thank you for this opportunity to provide comment on these issues. I would be 

happy to respond to any further questions. 

Sincerely, 

Marty Ford 

Co-Chair 

f Social Security Task Force

National Organization of Social Security Claimants’ Representatives 

Midland Park, New Jersey 07432

July 12, 2002

Honorable Robert T. Matsui, Ranking Member 

Subcommittee on Social Security 

Committee on Ways and Means 

United States House of Representatives 

Washington, DC 20515

Dear Representative Matsui:

I am responding to the questions in your June 27, 2002, letter to provide additional information for the record of the June 20, 2002, hearing before the House 

Ways and Means Subcommittee on Social Security. 

1. Proponents of having a ‘‘government representative’’ represent the 

agency claim that this change would result in better development of evidence. Why would a ‘‘government representative’’ do a better job of developing a claimant’s case and the evidentiary record than the existing cadre 

of field office personnel, Disability Determination Service workers, attorneys at the hearing offices and Administrative Law Judges? 

SSA’s duty to develop the evidence is well established in its own regulations and 

the case law, a duty that exists even it the claimant is represented at the ALJ hearing level. In the past, OHA staff developed cases at the hearing level. However, in 

most cases where claimants are represented, the ALJ will rely on the representative 

to obtain updated evidence, as ALJ Kathleen MCGRAW. testified before the Subcommittee on June 20, 2002. If the claimant is unrepresented, OHA staff develops 

the evidence. Even if there is a representative, the ALJ may nevertheless decide to 

obtain evidence, for example, a consultative examination. 

Existing DDS and OHA staff can do an adequate job of developing the record, if 

provided with sufficient resources and staffing. As discussed below in response to 

question 4, the government representatives did not adequately assist in development of the evidence during SSA’s mid-1980’s ‘‘Government Representation Project 

(GRP). Based on testimony before this Subcommittee in March 1986, the cost of the 

GRP was nearly $1 million per year for the 5 OHAs participating in the Project. 

Given the enormous cost of providing government representation at the more than 

231

100 OHAs that currently exist, we believe that the limited dollars available to the 

agency could be put to better use by assuring adequate staffing at the DDS and 

OHAs and developing better procedures to obtain evidence, including reasonable 

payment for medical records and examinations. 

2. If the agency is represented at a hearing only when the claimant has 

his or her own representative, wouldn’t the agency representative unavoidably be placed in the position of opposing the claim and defending the 

agency’s prior decision? 

In Salling v. Bowen, 641 F. Supp. 1046 (W.D.Va. 1986), the court held that SSA’s 

previous effort to have the agency represented at the ALJ hearing in the 1980’s was 

unconstitutional and permanently enjoined SSA from holding further proceedings 

under the GRP. The court found that ‘‘[t]he mere presence of a government advocate 

at the hearing renders it adversarial—The government advocate is under no obligation to try to ascertain the truth but, rather, he is there to state the SSA’s position 

in the case.’’ 641 F. Supp. at 1070. The court noted that while the 1982 GRP regulations baldly stated that the project would not be adversarial, all the evidence presented in the case established otherwise. 

It is difficult to see how a representative for the agency would be anything other 

than adversarial. Otherwise, there would not appear to be any reason to have a government representative. As the Salling court noted, the ‘‘mere presence’’ of the government representative makes the proceedings adversarial. 

Another matter to consider, which could add to the cost of establishing government representatives, is that the agency would be liable to pay attorneys’ fees in 

some cases under the Equal Access to Justice Act (EAJA). EAJA provides that the 

federal agency must pay fees where its position was not substantially justified in 

adversarial administrative and judicial proceedings. These fees are paid by the 

agency, not the claimant. Under current law, EAJA fees are paid in appropriate 

court cases involving Social Security and SSI claims, but not for ALJ hearings since 

they are not adversarial. 

3. Some have argued that a ‘‘government representative’’ would be able 

to facilitate the claims process by offering to ‘‘settle’’ a claim. What does 

‘‘settle’’ a claim mean in the context of disability decisionmaking, and in 

what fraction of cases would ‘‘settlement’’ be an option? Do existing staff 

have any ability to offer to ‘‘settle’’ a claim? 

Although it is unclear what the other witnesses mean by ‘‘settling’’ a case, for 

NOSSCR members, settling a case could include the following:

• Requesting an on-the-record decision without the need for a hearing 

• Amending the onset date to a later point in time 

• Agreeing to a period of disability, rather than ongoing benefits, if the claimant has returned to work or otherwise is no longer eligible for benefits at the 

time of the hearing 

• Agreeing to accept SSI benefits and withdrawing a Title II disability claim 

if there is a remote date last insured

I do not have statistics, however, this is a procedure our Members frequently use 

under the current process by dealing directly with the ALJs, either through pre-or 

post-hearing letters or at the time of the hearing. SSA has recognized the value of 

screening cases for on-the-record decisions by recently including it in recently announced OHA initiatives. ALJs also may issue fully favorable on-the-record decisions or offer to settle the case on their own initiative. 

We have serious concerns whether a government representative would facilitate 

settlements beyond the current number. Based on NOSSCR members’ experiences, 

the procedure currently works smoothly in most situations, without the need for a 

government representative. Based on past experience, the government representative may actually impede the settlement process. This was the case with the GRP, 

described in more detail in the answer to question 4, where settlements were often 

impossible. The GRP statistics showed that government representatives did not request on-the-record decisions in appropriate cases and further, challenged eligibility 

in cases where the evidence was overwhelming. 

4. What was SSA’s experience with the previous effort at having the agency represented at the ALJ hearing? Did it improve benefit decisions? Did 

it speed up or slow down processing times? Were cases better prepared? 

Was the representative perceived as someone who assisted the claimant, or 

rather as someone who was there to oppose the claim? 

Shortly after the 1986 decision in Salling v. Bowen, SSA abandoned the GRP. Information obtained by the plaintiffs during the course of that case provides objective 

evidence that the project did not achieve its stated goals. In addition, testimony at 

Congressional hearings in March 1985 and March 1986, the latter before this SubVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00235 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
232

committee, corroborated the findings of the court, providing first-hand experiences 

from claimants’ representatives involved with the GRP. 

Processing times were lengthened. The Salling court found, based on the evidence presented in the case, that: (1) the time for hearing dispositions greatly increased; (2) there was a longer delay between requesting a hearing and holding a 

hearing; (3) the number of ALJ dispositions decreased; and (4) more cases were referred to the Appeals Council for its own-motion review by the government representatives, ‘‘many of which should not have been sent,’’ causing further unwarranted delay in receipt of benefits by duly entitled claimants. 641 F. Supp. at 1060–

1062. 

One of the attorneys in Salling, Martin Wegbreit, Esq., submitted testimony to 

this Subcommittee for the March 1986 hearing. His written statement (a copy is attached) provided specific statistics, based on SSA’s own information, about the 

lengthened processing times. 

A witness at that hearing, Dennis W. Carroll, Esq., offered first-hand testimony 

about dealing with the government representatives. His testimony and written 

statement (a copy is attached) describe extensive delays in individual cases. 

The quality of decisionmaking did not improve. The Salling court found, 

based on evidence in the case, that ‘‘there has been a remarkable decline in decisions.’’ 641 F. Supp. at 1062. 

SSA’s own statistics indicate that government representatives did not assist in 

making recommendations to the ALJ that a favorable decision be issued without the 

need for a hearing. Mr. Wegbreit’s March 1986 statement to this Subcommittee 

states that although 56.7% of all claimants in the project won at the hearing level, 

the government representatives opposed 92.2% of the claimants. Mr. Carroll’s testimony describes individual cases with strong evidence of disability where the government representative argued against an award of benefits. 

Cases were not better prepared by the government representatives. Current proponents of having the agency represented maintain that the duty to develop 

cases would be taken away from the ALJs so that they could devote time toward 

making decisions. This also was put forward as a reason for the project in the 

1980’s. However, the Salling court concluded that the goal of the program to assist 

the ALJ in the development of the evidence has not been achieved. When the ALJ 

was in control of development, ‘‘[t]here was better development of the record than 

has been shown under the current procedures.’’ 641 F. Supp. at 1069. 

According to affidavits from the plaintiffs’ attorneys in Salling, the court noted 

that the government representatives ‘‘had done very little in developing the files. 

If the [government representatives] found that the claimant’s case was weak, they 

left it alone; but if the claimant’s case was strong, consultative examinations were 

sought.’’ 641 F. Supp. at 1063. Martin Wegbreit’s March 1986 written statement for 

this Subcommittee’s hearing noted two key conclusions based on statistics provided 

by SSA:

• In 45.54% of the cases, government representatives offered no pre-hearing development at all. 

• In 59.8% of the cases, government representatives did not contact treating 

sources.

Government representatives generally acted in adversarial roles. In 

Salling, the court found that ‘‘[t]he mere presence of a government advocate at the 

hearing renders it adversarial and indeed, he proceeds so to act on through the appellate process . . . [T]he government advocate is under no obligation to try to ascertain the truth, but, rather, he is there to state the SSA’s position in the case. 

. . . [A]ll of the evidence in this case shows that the [Government Representation 

Project] is an adversarial process.’’ 641 F. Supp. at 1070–71. 

Mr. Carroll’s March 1986 testimony to this Subcommittee provides examples from 

actual cases supporting the view that the government representatives were adversarial:

• They sought to have cases dismissed for technical reasons unrelated to the 

merits, even after the ALJs indicated they would not dismiss and would hear 

the merits; 

• They cross-examined claimants, often attempting to establish they were lying 

and asking personal information unrelated to their claims; 

• They would not agree to settle a case, despite overwhelming evidence of disability. In one case, the government representative refused to settle a case, 

even though the ALJ stated during the hearing that the case should not have 

required a hearing. The government representative called witnesses and the 

hearing lasted 3 hours. The ALJ found the claimant disabled.

233

5. Why did Congress establish a non-adversarial hearing process? What 

have courts found on the matter of Congressional intent regarding whether 

hearings should be adversarial? 

Only 1 month ago, SSA published proposed regulations where it reaffirmed the 

nonadversarial, informal nature of its proceedings:

Our administrative process was designed to be nonadversarial. See [20 C.F.R.] 

§§ 404.900(b) and 416.1400(b) of our regulations; Richardson v. Perales, 402 

U.S.389, 403 (1971); Sims v. Apfel, 120 S. Ct. 2080, 2083–85, 2086 (2000).

67 Fed. Reg. 39904, 39905 (June 11, 2002). This interpretation is consistent with 

Supreme Court decisions over the last thirty years that discuss Congressional intent 

regarding the SSA hearings process, with the most recent just 2 years ago:

The differences between courts and agencies are nowhere more pronounced than 

in Social Security proceedings. Although many agency systems of adjudication 

are based to a significant extent on the judicial model of decisionmaking, the 

SSA is perhaps the best example of an agency that is not. . . . Social Security 

proceedings are inquisitorial rather than adversarial. It is the ALJ’s duty to investigate the facts and develop the arguments both for and against granting 

benefits . . . .

Sims v. Apfel, 530 U.S. 103, 110 (2000) (citations omitted). The Court relied on 

another decision that was then nearly 30 years old, Richardson v. Perales, 402 U.S. 

389 (1971). In Perales, the Supreme Court rejected a challenge that would have imposed a formal evidentiary rule into Social Security hearings. In Perales, SSA argued against adopting such a rule, stressing the need to keep the system informal, 

rather than becoming a ‘‘full blown adversary procedure.’’ Adopting the SSA’s arguments and emphasizing Congress’ intent to keep the process informal and nonadversarial, the Court stated:

[I]t is apparent that (a) the Congress granted the Secretary the power by regulation to establish hearing procedures; (b) strict rules of evidence, applicable in 

the courtroom are not to operate at Social Security hearings so as to bar the 

admission of evidence otherwise pertinent; and (c) the conduct of the hearing 

rests generally in the examiner’s discretion. There emerges an emphasis upon 

the informal rather than the formal. This, 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 attorney, 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 fair.

Some have argued that it would be appropriate for SSA to adopt an adversarial 

system because other Federal agencies have one. However, countering such arguments, a number of noted law school professors, who have studied the Social Security process, have concluded that an informal and nonadversarial process is the only 

effective way that the Social Security hearing system can function, thus agreeing 

with the position taken by SSA in the Perales case:

While Federal regulatory agencies have largely chosen adversarial adjudicative 

systems, federal benefactory agencies typically employ inquisitorial models. Professor Jerry Mashaw has observed that ‘‘[v]irtually all mass justice systems 

have decided that they are unable to function effectively without the active-adjudicator investigation, informal rules of evidence and procedure, and presiding 

officer control of issue definition and development that characterize an inquisitorial or examinational approach.’’ The SSA, the largest ‘‘mass justice’’ Federal 

benefactory agency, while employing most APA adjudication requirements, fits 

this pattern.

Jon C. Dubin, Torquemada Meets Kafka: The Misapplication of the Issue Exhaustion Doctrine to Inquisitorial Administrative Proceedings, 97 Columbia L. Rev. 1289, 

1301–1302 (1997) (footnotes omitted), quoting Jerry L. Mashaw, Unemployment 

Compensation: Continuity, Change, and the Prospects for Reform, 29 U. Mich. J. L. 

Reform 1, 16 (1996). Professor Dubin’s article was cited with approval by the Supreme Court in the Sims case. 

Finally, the Court’s reasoning in Perales formed a basis for the court’s decision 

in Salling v. Bowen, 641 F. Supp. 1046 (W.D.Va. 1986), that SSA’s effort in the 

1980’s to implement government representation violated due process:

The greatest lack of fundamental fairness as required in the Perales test is that 

the proceedings which have heretofore been deemed to have been informal and 

234

nonadversarial are now formal, stiff, strict and adversarial. . . . Congress did 

not intend it to be an adversary proceeding. . . .

641 F. Supp. at 1070. 

Thank you for the opportunity to provide this additional information for the hearing record. 

Sincerely, 

Nancy G. Shor 

Executive Director

[The Subcommittee on Social Security Hearing Print # 99–63 is being retained in 

the Committee files.]

[Whereupon, at 12:03 p.m., the hearing was adjourned.] 

[Submissions for the record follow:]

f Statement of the Federal Managers Association, Alexandria, Virginia 

Mr. Chairman, thank you for the opportunity for the Federal Managers Association—Social Security Conference to submit written testimony on the challenges and 

opportunities facing the Social Security Disability Program. 

The Federal Managers Association (FMA) represents the interests of over 200,000 

executives, managers and supervisors in the Federal Government. The FMA–SSA 

Council represents executives, managers and supervisors in all Social Security Program Service Centers, the Office of Central Operations and the Office of Hearings 

and Appeals (OHA). 

We have read, with significant interest, the testimony of all of the Social Security 

Disability Program stakeholders who have testified to date. FMA supports a number 

of positions expressed on June 11th and again on June 20th. Briefly, FMA supports 

testimony on:

• The Due Process Hearing 

• The recommendation to closing the record following the decision by the Administrative Law Judge (ALJ) 

• Accelerating the use of electronic disability folder (eDib), video teleconferencing, digitally recorded hearings, and a strong management information 

system 

• The need to aggressively address the staffing issue in the Social Security Administration (SSA) 

• Agency efforts to correct problems with the OHA process 

• The need for Agency representation at the hearings

FMA does not support:

• Moving the hearing process to Disability Determination Services (DDS) 

• Assigning clerical duties to paralegal specialists 

• Combining OHA and SSA field offices

Testimony submitted to date has covered issues ranging from providing greater 

autonomy to the ALJs, to turning the ALJ process over to DDS, having skilled paralegal specialists performing clerical duties, and ALJs performing routine screening. 

In addition to the many divergent views, testimony further differed on what led to 

the purported failure of the Hearing Process Improvement (HPI) initiative. The vast 

majority of views laid the blame on the process rather than the initiative’s implementation. With HPI, the devil was truly in the initiative’s implementation. 

There are several barriers that prevented successful implementation of the HPI 

initiative. At the top of the list was not giving management the ability to replace 

the hundreds of clerical workers who were promoted from clerical positions they performed very well, to positions with steep learning curves. Much of the failure in the 

early stages of HPI can be attributed to our inability to prepare cases for ALJs because of severe staffing imbalances. From implementation until the present, this inability to backfill for lost clerical support has had a far more serious impact on OHA 

than senior attorneys losing signatory authority. The ability to backfill clerical positions, coupled with a balanced MOU and time to mature could have dramatically 

changed the results of the Hearing Processing Improvement initiative. 

For SSA to meet the challenges and opportunities facing our disability programs, 

it will require staffing levels that will permit us to handle the anticipated retirement wave. In addition, we will need the technology necessary to accomplish the 

work in today’s digital age, and tools to hold individuals accountable for the work 

they perform. We would like to focus on these three critical issues that are essential 

235

to meeting the challenges, and comment on three that would help, but to a lesser 

degree. 

Top Three Issues 

1. Meaningful Performance Management system 

2. E-Dib and other automation enhancements 

3. Addressing the staffing imbalances in OHA 

Additional Areas Requiring Attention 

4. Elevating the Federal manager’s ability to hire on equal footing with private 

sector 

5. Short term initiatives 

6. Consistency between DDS and OHA

We feel that it is important to note that action on the top three will have short 

and long term positive impact on the disability process regardless if any other issues 

are addressed. Action on the additional areas will have marginal impact without action on the top three. 

Meaningful Performance Management System 

The success or failure of any of these initiatives will be directly related to management’s ability to hold all employees accountable for their work. Without meaningful performance measurements, we can realize only limited success at best. 

The deterioration of the disability process has run parallel to the deterioration of 

our performance management system. Our performance management system began 

to decay in the late 1980s and has steadily gotten worse. Group-based accountability, under HPI, only moved us further from individual accountability. The current Pass/Fail appraisal system does not provide incentives for high performance 

and we are seeing the consequences of that. 

Each year the Social Security Administration presents its Government Performance and Results Act Annual Performance Plan. This plan describes specific levels 

of performance and outlines the means and strategies for achieving those objectives. 

The objectives are supported by indicators, which are used to measure the agency’s 

success in achieving the objectives. The performance indicators are translated into 

goals that are shared with SSA executives. These goals are then clearly presented 

to managers and supervisors as expectations for performance. At OHA for example, 

the indicators are expressed in terms of dispositions per day per ALJ, processing 

time, percent of aged cases, etc. As noted above, SSA holds managers and supervisors responsible for communicating performance goals to agency employees. However, when the goals are communicated to the employees, managers are required to 

communicate in very generic terms due to the absence of numeric standards. 

Our current Performance Management system in SSA addresses these elements, 

but at an organizational rather than an individual level. We certainly have set performance expectations (Planning), but these are agency goals, not individual goals. 

As directed by the system, progress reviews are held (Monitoring), but since there 

is no individual measurement, the discussions are generic. Ideally, we would spend 

time training (Developing) our employees, but in reality, most of our offices suffer 

from significant staffing imbalances and struggle just to accomplish our most basic 

missions. We rate (Rating) our employees on a Pass/Fail appraisal system, which 

fails to distinguish individual performance. And finally our reward (Rewarding) 

system is essentially a ‘‘do it yourself’’ process. 

According to a White Paper published by the U.S. Office of Personnel Management in April 2002, ‘‘(I)n the current Federal white-collar pay system, performance 

does not matter very much . . . In any given year, Federal employees receive more 

pay increases for remaining on the rolls than for meeting or exceeding performance 

expectations. The dominance of these performance-insensitive pay increases can 

make performance-oriented tools appear trivial.’’ While this paper, in addressing the 

issue of pay for performance, goes beyond the scope of our immediate concerns, 

many of the principles addressed apply readily to performance management at SSA. 

Our current performance management system sends the message that performance does not matter. Because the standards are so generic, performance cannot be 

measured on an individual level. The labor-management contract requires that data 

focus on the process, not the individual. For all intents and purposes, the system 

is one of non-accountability. In spite of an employee’s best effort, the employee will 

simply ‘‘pass’’. Award money is distributed on a formula based on the number of employees on the payroll. This distribution is completely devoid of any recognition for 

performance, even at an office level. Since we have no individually measurable 

standards (numerics) that can be taken into consideration, overtime/credit hours/

flexiplace must be given to anyone interested. 

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It is our belief that it is imperative that our employees are provided with clear 

goals. These goals must be measurable, understandable, verifiable, equitable, and 

achievable. According to an Associated Press article on 5/27/02, The Department of 

Veteran’s Affairs slashed their backlog of pending claims. Secretary Anthony 

Principi was quoted, ‘‘We decided to really declare war on that backlog and took 

some rather bold steps to address it. We’re really getting this backlog under control, 

and we did it through sheer focus and discipline, performance measurements, and 

production goals.’’ When employees know what is expected of them, they are better 

able to focus their efforts. 

The National Council of Social Security Management Association (NCSSMA), who 

previously testified, clearly stated the difficulties in addressing this issue earlier 

this year. They cite ‘a dysfunctional merit promotion process, overly restrictive performance improvement procedures, lack of objective performance criteria, and an impractical awards process . . . ’ We agree with this assessment and believe in fact 

that these problems all relate back to the weaknesses of our current performance 

management system. 

There is an old adage that states, ‘‘What gets measured, gets done.’’ Implementing 

an effective performance plan within SSA given the current culture will be difficult. 

But if the Agency expects to meet its objectives it must be done. OPM has prepared 

A Handbook for Measuring Employee Performance. This Handbook outlines the 

guiding principles for performance measurement as follows: 1) performance management must be viewed as a valuable tool, not as an evil; 2) acceptance of the process 

is essential to its success; 3) we must measure what is important, not what is easy; 

4) the plan must be flexible enough to allow for changes in goals to keep the process 

credible; 5) we must rely on multiple measures; 6) employees must perceive that 

performance measurement is important; and 7) management must demonstrate that 

performance is critical to organizational and individual success. These are the principles, which must guide efforts to reform the current system. 

A strong performance management system will go a long way in restoring the Social Security Disability Program to the status of a premier program. Our current 

leadership is committed to reforming our performance management system, but it 

will take several years to have a system in place. Any initiative implemented prior 

to having a meaningful performance management system will have minimal impact. 

E-DIB and Other Automation Initiatives—

Potentially, this will have the greatest impact on productivity and would significantly alter the way we do business. All necessary resources need to be devoted to 

E-DIB, as we will virtually eliminate case preparation (not to mention savings on 

mail and storage). 

As we move closer to this reality, we need to look at the entire structure of the 

field office and the positions within. We cannot start too early on this project considering the impact on the senior case technicians (SCTs) and the potential to easily 

distribute work to where the resources are. 

That said, there are a number of automation initiatives that are currently available, and FMA feels that the Agency should fast-tract rollout for: 

Voice Recognition software—When the initial learning curve period is over, 

this will save time both with writing decisions and eliminate the need to type decisions. Many offices have a limited number of typists and must ship cases to other 

offices to type. The time involved could be eliminated. The software is very inexpensive ($200.00 per office) and would not tax the budget. 

Video Teleconferencing—This technology can also have very positive impact on 

both production and the budget. The Agency has made a decision to fast track the 

rollout and this is commendable. However, FMA feels the rollout should be further 

accelerated. 

Reminder Pro Software—This is currently being piloted as a way to reduce ‘‘no 

shows’’ for our hearings. Offices using it find it very useful. Again, all OHA offices 

need this technology. Although Reminder Pro comes at a greater cost than Voice 

Recognition ($2500.00), FMA feels that the overall savings realized from not rescheduling so many ‘‘no show’’ hearings will significantly offset the initial expense. 

Local Systems Support 

As we move to new technology it will be extremely important to ensure that OHA 

has qualified, competitively graded employees in systems positions in each field office and in Central and Regional offices. The need for enhanced position descriptions 

(PD) has been apparent for some time, but any forward momentum to enhance our 

computer specialists has stalled. The Hearing Office Systems Administrator position 

description no longer meets our needs, and the Agency needs to address this critical 

need as soon as possible. 

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Addressing Staffing Imbalances in OHA 

As previously noted, the hundreds of promotions from the clerical ranks during 

the transition to HPI have left OHA with severe staffing imbalances. OHA does not 

have the clerical support necessary to adequately support our Administrative Law 

Judges. The Agency is currently looking at ways to ease the problem without additional staffing, but these types of fixes will not hold up as more and more Baby 

Boomers begin to retire. We need the ability to replace the personnel that we lost 

to promotion if we are to be in a position to handle the claims anticipated over the 

next decade. Social Security has worked hard to try to ease its staffing losses by 

at least replacing the people who retired in recent years. The problem stems from 

not replacing highly trained technical staff until after they have left! Many positions 

within our Agency require three or more years of training/experience before a person reaches journeyman status. We must have the ability to hire additional staff 

before we are faced with the retirement wave so we do not slip as new, inexperienced employees are trained. As with performance management, we can expect only 

marginal improvement with any initiative implemented without the staff to perform 

the tasks. 

Elevating the Federal Manager’s Ability To Hire on Equal Footing With the 

Private Sector 

The Federal Government still hires following OPM rules established in 1948. We 

still use the outdated ‘‘Rule of Three’’ which has been in existence much longer. 

Some Federal Agencies have the ability to hire locally, but at SSA we ask potential 

applicants to inquire at OPM and we then must go through the labor-intensive process of OPM certificate of listings. Often, it takes months to complete this process 

and usually means that the most qualified of our potential candidates have usually 

accepted positions with Federal departments or private companies with greater hiring flexibility. 

We stand to lose a considerable degree of our accumulated knowledge over the 

next 7 years, and we must have the ability to fill this void with the best and brightest if we are to effectively serve the American public and ensure an experienced 

workforce. As with our earlier discussion on performance management and staffing 

imbalances, we need to address all of these issues if any new initiative is to be met 

with success. A change or an initiative implemented without the staff to carry it 

out and/or a performance management system that does not give managers the tools 

to effectively lead and manage is doomed from the beginning. 

The New OHA Process Initiatives Recently Announced 

FMA fully supports the Agency as we work to correct problems discovered following our transition to HPI. Our concern is that the first series of initiatives will 

have only marginal impact without addressing issues within the Agency and government such as performance management and hiring roadblocks that that would have 

a far greater long term impact than surface issues such as new process initiatives. 

Ending the Certification Process—

Any impact on eliminating certification will, in large part, be determined by the 

number of offices still actually doing them. It is our understanding that many offices 

ended certification when the ‘‘flexibilities’’ were introduced last year. Some offices 

never began certification to begin with. The idea of an initial review by a higher 

graded employee is still a good idea and is worth considering, in some format, as 

long as we have sufficient writing resources to absorb the additional duties without 

appreciable reductions in our writing production. Accelerated distribution of voice 

recognition software may allow some review with current staffing levels. It was just 

not viable in the formal way HPI designed it, and certainly not without some additional resources or relief for our writing staff. FMA does not support prior testimony 

asking that clerical duties be added to a paralegal’s position description. This would 

only serve to further impact productivity and would devalue the position. 

Ending Rotational Assignments—

Again, many offices have already eliminated rotations either fully or partially. We 

asked for the elimination of rotations shortly after Phase II was implemented. However, once rotation officially ends, what will replace it? Many offices have few, if 

any, case technician’s (CT) so the burden of doing the mail and reception duties fall 

to the SCT’s. Logic would suggest the hiring of a mail clerk and receptionist at a 

lower pay than a GS–8 SCT. FMA previously submitted an enhanced receptionist 

PD for consideration. We are pleased to learn that our proposal is receiving strong 

consideration by the Agency. Even with the addition of an enhanced receptionist position, we will still be forced to rotate to some extent unless without an infusion 

of FTEs and additional positions to handle scheduling. 

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In the end, this will have a minimal impact on production without an infusion 

of FTEs. We still need to have someone do the clerical work. 

Extend Early Case Screening to ALJ’s—

In order for this initiative to succeed we would have to make the following assumptions:

• The ALJ’s would have time to conduct this review • The ALJs would be willing to do it, and • There are a significant number of On the Record decisions available

Unfortunately we have no empirical data that would support these assumptions. 

The anecdotal information we have would indicate that:

• The ALJs will not have time to go through significant numbers of unpulled 

files given the number of cases they must schedule, hear and decide to meet 

ever increasing budgeted goals. • Although there are some ALJs willing to review raw files, it has been our experience that most will not, and • Although there are cases that can be paid prior to a hearing and with minimal development, these are the exceptions. A significant number require extensive development. 

Short-Form Favorable Decision Format—

We must have agreement with the Appeals Council and OQA on an acceptable 

format. Once that is achieved, it could result in significant production increases. 

We can reduce the number of cases sent to writers and thus reduce processing 

time on unfavorable cases. We could potentially free-up writers to perform other 

tasks. 

The ALJs should be encouraged to complete the form. It should be simple enough 

for them to complete via speech recognition, typing, or by writing. We must keep 

the writer out of the workflow. If the case has to go to a writer, to edit or elaborate on the ALJ decision, then the new format’s effectiveness would be greatly diminished. Although the Agency could mandate the use of a short-form, receiving 

ALJ buy-in would be the most effective method if we want a successful initiative. 

Bench Decisions—

The ‘‘bench’’ decision is the same idea as the short-form reversal. It is all part 

of the idea to have the ALJ make the complete decision and by-pass the writer. 

Whether the ALJ does it by voice recognition at the end of the hearing (a so-called 

bench decision) or typing later (or even handwriting it so an SCT can type the decision) is not material. Whatever format the ALJ feels most comfortable with should 

be the one to go with. The buy-in can come by giving them the option as long as 

it meets ALJ needs and is acceptable to everyone. We can’t emphasize enough the 

fact that if the case goes to a writer, to add to the decision, then we defeat the purpose of the process. Once again, the Agency can mandate its use, but ALJ buy-in 

is the key. 

Folder Assembly Service Contract—

This was an excellent idea to get more cases pulled quickly. The initiative should 

fit well with the short-form reversal since, in theory, we will have more cases to 

write. 

We need enough ALJ’s who are willing to hear the additional pulled cases. There 

is no point in pulling more cases if the ALJ’s are not willing to hear them and we 

have no other means to dispose of the cases. It was mentioned that a new Code of 

Conduct for ALJ’s would be issued. Perhaps a minimal standard on the number of 

cases scheduled and heard per month could be part of the code. 

Contracts would be best utilized at the local level. Local management should have 

the authority to find, train and pay the contractor in the same way as we pay the 

Hearing Reporters. Payment, by case, seems to make the most sense since that will 

guarantee a level of production. There appears to be a sufficient pool of recent retirees from SSA that might be interested in this. Although FMA is fully aware of the 

competitive sourcing initiative, and believes there are functions that can be competitively sourced, this is a case where we believe we would be better served with personal service contracts controlled locally. 

Another benefit of these contracts is that it will free up our experienced SCTs so 

they can devote more time to maintaining their analytical skills. E-DIB will virtually eliminate the ‘‘shuffling’’ paper exercise of the work up process and the analytical skills of the SCTs will be used to a higher degree. Maintaining these skills 

now by not spending time on lower graded work, will pay dividends when OHA 

transitions to the electronic folder. 

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Consistency Between DDS and OHA 

Process Unification Training was supposed to bring consistency between OHA and 

DDS decision making in disability cases. Consistency has not happened for several 

reasons.

1. DDS and OHA speak different languages. DDS speaks in a language focused 

on diagnosis while OHA is focused on credibility. Thus, DDS decision makers 

focus on objective medical findings and whether complaints are proportionate 

to objective medical findings. OHA judges focus on concepts in the 1996 Social Security Rulings (SSR), such as whether a treating source’s medical 

opinion is well supported (96–2p), whether an impairment could reasonably 

be expected to produce the alleged symptoms (96–3p, 96–7p). Rarely, if ever, 

do DDS decision-makers address credibility concepts in the 1996 SSRs. 

2. DDS decision-makers rarely, if ever, address the concept of sustainability 

whereas (SSR) 96–8p requires such consideration, and such consideration is 

important at OHA. 

3. DDS decision-makers often do not resolve conflicts between their opinions 

and opinions of consultative examiners or treating physicians. For instance, 

a treating physician (physical medicine) will submit specific Sit/Stand/Walk 

limitations, which preclude performance of sustained work. However, DDS 

will check a block on form SSA 4734–U8, p. 7 stating that there is no treating source statement regarding the claimant’s physical capacities in file, or, 

if the block is checked yes, will reject the treating sources statement on the 

basis of lack of objective evidence. Similarly, with regard to mental impairments, frequent are the cases where a consultative examination provides evidence of a severe impairment but DDS reports No Severe Impairment on a 

Psychiatric Review Technique Form (PRTF). The exigency of time (DDS medical consultants have only 15 minutes to review an unpulled file and make 

a decision) brings about these failures of DDS to resolve conflicts between 

their opinions and opinions of consultative examiners or treating sources. 

OHA must, and attempts to, resolve these conflicts. 

4. DDS, unlike OHA, has no person who looks at a case as a whole. DDS bifurcates consideration of an individual’s mental and physical impairments, 

sending the case first to one specialty and then to the other. Once both specialties have reviewed the case and made a decision, there is no decision 

maker who has authority to look at the decisions of both specialties and act 

like a judge at OHA, who has the authority to accept, remand, or overrule 

medical determinations.

The Social Security Administration is an agency that affects the lives of millions 

of Americans, particularly in its disability services. With increased staffing and 

funding, the Agency would be able to improve its service to its customers—the 

American public. The missions performed by SSA could be completed at an even 

higher level of proficiency if a meaningful performance management system were 

instituted within the Agency. These changes would allow SSA to provide to the public the level of service that is both expected and needed by taxpayers. 

FMA would welcome the opportunity to act as a sounding board for any initiatives 

that this Subcommittee, as well as SSA would like to create to further enhance the 

mission of the Social Security Disability Program. We thank you, Mr Chairman and 

the Subcommittee, for your hard work and interest on this very important topic.

Statement of Larry Jacks, Public Employees Federation, New York, New 

fYork 

Major changes are required in the national disability program if we plan to meet 

the needs of the disabled and ensure the solvency of the disability trust funds. I 

offer the following steps to simplify the program and process. 

1. Establish the age 50 medical severity test. Under the current process an applicant may be found disabled at any age due to a less than sedentary Residual Functional Capacity. 70% of all Administrative Law Judge awards are made using this 

restriction. This finding is HIGHLY subjective and cannot be measured. Under the 

new process applicants under age 50 MUST meet or equal the level of medical severity as published in the the Listing of Impairments to be found disabled. For applicants age 50 and older, consideration will still be given for diminished RFC as 

the vocational outlook is reduced by age. This approach is simple to understand and 

administer. Program and administration costs would be reduced by 35% at all levels. 

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2. Replace the current determination process and medical improvement standard 

with Diary Decisions with Recertification. Under the current process, decisions are 

reached on average in 100 days at the DDS and appealed denials may take as long 

as 500 days until heard by the ALJ. In addition under the current program FEWER 

than 5% who are put on the disability rolls are ever removed or leave. This results 

in a slow and costly program. Under the new process decisions, will be determined 

much faster because we combine the age 50 severity application and a Diary Decision. Decision-makers will make faster approvals because decisions will be based on 

projected medical limitations such as cancer with chemo, heart surgery with rehab, 

severe fractures with physical therapy etc. The diary approval will then allow the 

applicant to ‘recertify’ his/her disability 90 days prior to the end diary date if the 

condition remains severe. The medical improvement standard WILL NOT apply 

since recertification will be a de novo decision. Decisional timeframes will be reduced for DDS decisions by 20% and future program and administration costs will 

be significantly reduced while improving customer service and payment of benefits. 

Citizens will receive much needed benefits quicker and exit the rolls earlier. 

3. Intake of disability applications will be done by the DDS and not SSA. This 

will result in an immediate savings of 7–10 days in process time. State public libraries can be utilized as a gateway for applications. 

4. Replace the Reconsideration appeal step with a DDS pre-hearing review. Upon 

review the DDS will process any case that can be found fully favorable. Cases that 

cannot will not be redetermined but rather moved forward to the Office of Hearings 

and Appeals and the ALJ decision. 

5. Close the record after step 4. 

6. Regulations are needed to standardize the educational requirements, training 

programs and quality procedures within the DDS system. DDS decision-maker turnover and subsequent erractic decisions are due to woefully inadequate salaries. The 

disability decision is a complex decision that requires medical, legal and technical 

expertise. In order to recruit and retain a quality DDS workforce, salaries must be 

raised by regulation not left to the States and administrators to do it on the cheap. 

Only the American public is shortchanged. 

7. Create a Social Security Court to provide a uniform review of SSA decisions. 

8. Revise the Administrative Procedure Act to give requisite authority to manage 

OHA. 

I appreciate the opportunity to discuss these ideas with you and applaud the leadership of the committee in trying to resolve the problems with this critical national 

program.

Chairman Shaw, Ranking Member Matsui, members of the subcommittee, I am 

Statement of Philip A. Robinson, Framingham, Massachusetts 

f an individual non-attorney claimants representative. 

I work with a former agency employee with a wealth of experience and we represent disabled persons before SSA who have problems with the admittedly complicated system that is SSDIB and SSIDIB in place today. Our purpose is to ensure 

that the people we represent have an opportunity to present their claims for disability and other matters before SSA in a cogent manner. It is our goal to ensure 

that claimants receive fair treatment and due process at all levels of the system. 

I applaud the desire of the members of the subcommittee to make the disability 

process work better and am pleased that Commissioner Barnhart has quickly begun 

the process of examining the more disastrous experiments that have been in effect 

for the past years to the detriment of claimants, all of whom are your constituents. 

I am happy that the Commissioner and the subcommittee have begun the process 

of listening. I would add to your expert panelists a number of employees of the OHA 

’s across the country. Not just the ALJ Association President, not just the Union 

heads or area Union representatives and not just the DDS state Commissioners, but 

the real people who do the work every day in every DDS and Social Security Field 

Office across the country. The real workers. You should travel to them, listen to 

them out of the spot light and seek the larger truths which only they know. Even 

the upper level managers at OHA and SSA (deputies and associates) only speak of 

what you wish to hear, not often of what you should hear. 

A brief history of the immediate past. 

For the purpose of these comments, the recent past is 1996 to now. The agency 

budget has been reduced substantially as has the number of employees. Many senior and well trained employees throughout the agency have left and many more are 

ready to retire. Tele-service centers originally designed to handle basic retirement 

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questions and related matters have been expanded to handle many tasks that well 

trained CRs in the Field Offices used to handle. Budget cuts and reductions in staff 

caused the agency to make unrealistic promises, to the Congress and this and prior 

administrations, about this change to the tele-service mission. The agency has not 

and cannot now keep those promises. 

Training money has been cut to such an extent that videos are used to substitute 

for what previously were many hours of direct class training and employee monitoring in the field over many months. Field office personnel are expected to handle 

the rising applications for DIB with fewer employees and no work year credits in 

the budget for this added work load. 

The DDS partnership between the agency and the states does not work because 

training is inadequate and insufficient budget money for payroll has led to lower 

standards and higher turnover. Add to that the cultural and regional differences 

and the disconnects between the agency and the DDS and there is a formula for 

disaster. 

The process unification rulings, which were designed to improve the process of developing claims are not followed by the DDS components in the individual states. 

The uniformity of decision making expected in this program has never happened. 

HPI plans implemented at the OHA offices across the country have been a disaster, 

as you are aware, for claimants and the agency. 

Emphasis has been placed on speed rather than quality at all levels. We have 

been told that the average Disability Examiner in a DDS has about 20 minutes of 

actual time spread over 2–4 months to make an initial disability determination and 

that decision is usually problematic. The agency policy to examine approvals only 

for quality lets horribly unjust decisions pass through to claimants. 

The OHA offices have old outdated computers for use in processing their work. 

A simple examination (without prior announcement) will find DOS based systems 

running on computers so old that school children would not use them. Employees 

at OHA are expected to produce outstanding work with outmoded and inadequate 

computers and programs because there is no money to purchase modern computers 

with compatible programs and provide the needed training and technical services. 

I have been in the State offices of a number of Congressional Representatives and 

found the newest and best PC systems money can buy. That grade of equipment 

would be perfect for the agency. We do not believe that the Congress has ever appropriated and the agency has not requested the funds for this type of upgrade. The 

purchasing systems, which are based on distrust, and take years to complete, ensure 

that outdated equipment is all that is purchased. 

A small start has been made. 

Fortunately, HPI has been halted but the problems created by this ill-conceived 

program have had a detrimental effect on the OHA staff, promotions and the career 

tracks of dedicated employees. This may not be able to be undone. 

What proper funding and training can buy. 

1. DDS disability examiners should be adequately trained and instructed to follow 

the law as written. The goal of a uniform interpretation of the laws will not be met 

unless and until the DDSs in every state use the same interpretations of the law 

as the agency. Denials of claims should be examined for errors by DQB offices and 

returned with instructions for corrections. If the error rate for approvals is xx% then 

it is logical that the error rate for denials would at least be the same or even higher. 

2. The reconsideration process at DDS should be more than a pro forma scan of 

the records and a quick denial. Doing away with reconsideration and extending the 

time an examiner has to handle an initial claim would almost provide the same result as the 2 step system at DDS does now. SSA considered the experiment in this 

prototype a failure because more claims were paid and more denials were appealed 

to OHA. A local elected representative once described the disability process as follows: ‘‘You apply, you get denied, and then you go away’’. The public perception of 

the process is disastrous. I believe that DDS management is overreaching in attempting to expand the role of DDS in the disability hearing process. However, I 

also believe that with proper training and funding for employee work years and 

more competitive pay scales that the DDS work product can be improved to the 

point where approvals and denials will be more realistically arrived at and the number of appeals to OHA will decline. 

3. OHA has substantial numbers of very experienced staff people, ALJs and attorneys. Moral is low because of the HPI problems. A lack of respect between professional staffers and support staff is obvious to all. Productivity has suffered because 

of management failure at highest levels. Accountability is lacking and numbers are 

over emphasized. Utilization of staff is poor. Many attorneys function well above 

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their level of competence while others are not competent in their present positions. 

All are rewarded for time in grade. 

4. An institutional attitude to ‘save the money’ is fostered by senior management. 

The term ‘not cost effective’ and variations of same appear often in reviews of programs tried and dropped. Generally the body of comments describing end results 

seems to be that too many claims were paid. If this is what the Congress really 

wants, if this is to be the goal of every administration then the simple solution is 

to do away with the disability program. Payroll and payout will drop to zero. We 

do not believe that is the intent of either the administration or the Congress. It is 

most assuredly not the desire of the public. 

Looking to the future. 

Please do away with the idea of an SDM at any level. No matter how experienced 

a claim manager or SSA employee may be or is expected to be the experience of 

those of us who work representing claimants in states where SDM has been tried 

have been disastrous. DDS and SS employees fear face to face conferences with 

angry claimants and telephone interviews have usually been used to convince the 

claimant not to pursue a claim. The DDS claim managers are not doctors or vocational experts, yet the SDM model places them in that position. I and other claimants representatives have found that communication with our local Field Offices 

where CRs’ are knowledgeable about the program is more productive. That is a 

place where staffing can and should be increased so that more career track employees can be hired and trained as the agency used to do and individual claimants can 

be encouraged to use the experienced people there for information instead of the 

Tele-service centers where lack of knowledge leads to errors and incredibly wrong 

information being provided to people in distress. 

The tele-service centers should be used as originally intended, processing retirement information for citizens and legal residents whose retirement age is rapidly 

approaching and who will tax the systems across all areas. This may mean reductions in the numbers employed in the centers, but that money can be more productively used in the FOs’ to hire career track employees as the agency used to do. 

Plans for increased technical and computer use including electronic filing and 

processing and file maintenance is not in the agencies immediate future and neither 

are televised hearings. The proper equipment is not on hand at this time. The idea 

is wonderful and should be implemented, but it cannot be done with yesterday’s 

technology and equipment or can this activity be set up incrementally. To work the 

system needs to be set up in advance in each region on a rolling basis from DDS 

to FO to OHA and AC and for every employee expected to use the system. Not one 

machine, but at every work station and every front desk. The equipment exists in 

embryonic form in the market now and can be purchased with simple specifications 

and off the shelf programs. The purchasing process will need to be changed in order 

to do this. Proper equipment including up to date computers (this is one area where 

individuals use free standing PC’s) and well trained and well paid technical backup 

for OHA would enable that component to do its intended job. 

Changes in the laws and listings and definitions used to define ‘disability’ to reflect our modern post industrial society and changed work habits should be a priority and can improve the process. Millions of our citizens have jobs and work in 

industries that did not exist 10 years ago. Skill levels required for even the most 

mundane jobs are constantly rising 

Millions more have illnesses that are controlled or whose effects are reduced to 

an extent that part time work is a possibility. But millions more never have that 

relief available to them. High school students working part time after school can, 

and often do, earn more than the dollar amount specified as the threshhold for ‘substantial gainful activity’. 

Each ALJ should be responsible for her/his case load and the HOCALJ should not 

only be the titular head of the office, but should be able to manage the entire office. 

Who is in charge at the agency? 

The simple answer is every one and no one. No one has any responsibility for 

what goes wrong and no one has the authority to say stop. The CALJ should be 

responsible directly to the Commissioner of Social Security. The CALJ should have 

an ACALJ for DIB who is an administrator and an Senior Executive Service career 

manager for operations, both responsible for the day to day functions of OHA and 

answerable to the CALJ. 

Myths and excuses to explain shortcomings in the process. 

Social Security Advisory Board which you all know is a Congressional created 

agency to examine the way SS operates and offer suggestions for improvements has 

recently issued a commentary that suggests that there are lawyers and representaVerDate Jan 31 2003 04:28 Mar 08, 2003 Jkt 084169 PO 00000 Frm 00246 Fmt 6633 Sfmt 6621 E:\HR\OC\A169.XXX A169
243

tives who cheat by delaying the submission of helpful medical or other evidence to 

build up the amount of the fees payable. The Board also noted that some physicians 

fudge or cheat on the medical reports they submit to the agency to help their clients 

secure benefits. This has become a part of the ‘one size fits all’ explanation on why 

the system is dysfunctional. 

Like all the stories of welfare cheats there is little beyond anecdotal evidence. Legitimate claims are denied at every DDS office in the country. Medical reports are 

read by MEs’ who never see the claimants or examine them, who miss important 

points in the records and opine that people with long-term illnesses will recover in 

the immediate future and become productive members of society. These are errors 

which are difficult to correct in the process and they represent a healthy majority 

of claims that are brought before OHA and allowed. However in order to overcome 

the prior errors more records must be obtained, more statements elicited to rebut 

the errors made. Claims that end up in the District and Circuit Courts are remanded less than 25% of the time and they are occasionally paid but usually returned for further development because the agency violated its own rules or ignored 

critical evidence. 

We all know that medical records are often delayed. Physicians dealing with lawyers are like oil and water. They fear the lawyers, they fear the representatives and 

clients who ask for records and written statements to explain the physical and mental problems of their patients. OHA itself and the FO’s treat requests to copy the 

claimant files as impositions on their limited resources. Although regulations exists 

instructing OHA and FOs to forward files to the OHA or FO office closest to the 

claimants’ representatives because of distance or explain why in writing as part of 

the record, some OHA offices refuse to do so causing additional expenses in the of 

100s of dollars for copy and shipping fees to be taxed to the claimant. The alternative is a lost claim at OHA and a potential remand from the AC because the 

claimant was deprived of due process all other matters being properly presented. 

‘‘Experts’’ for DDS ‘are created’ by regulations which describe the expertise in the 

rules and laws gained by several weeks of training by SSA employees in classroom 

settings. These experts are not provided with the time to properly examine a medical file or paid any reasonable sum of money. There is a myth that representatives 

‘purchase’ favorable medical reports from physicians and/or others in order to win 

a claim. The medical and vocational expert ‘vetted’ by each states DDs and used 

throughout the process do not meet any legal definition of ‘expert’. Most are alive, 

they breath, they walk, they talk, but they are not what SSA says they are with 

extremely rare exceptions. 

There is no benefit to either the claimant or the representative to withhold 

records or reports. Fees are limited by law and also are part of the Federal Code. 

A final comment. 

1SSA’s problems can be solved with trained, adequate staff, money and proper 

equipment. 

Mr. Chairman and members, thank you for the opportunity to present this testimony in writing.

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