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OVERSIGHT OF RISING SOCIAL SECURITY DISABILITY CLAIMS AND THE ROLE OF ADMINISTRATIVE LAW JUDGES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENERGY POLICY, 

HEALTH CARE AND ENTITLEMENTS 

OF THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

JUNE 27, 2013 

Serial No. 113–44 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 

(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

DARRELL E. ISSA, California, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

PATRICK T. MCHENRY, North Carolina 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

TIM WALBERG, Michigan 

JAMES LANKFORD, Oklahoma 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

DOC HASTINGS, Washington 

CYNTHIA M. LUMMIS, Wyoming 

ROB WOODALL, Georgia 

THOMAS MASSIE, Kentucky 

DOUG COLLINS, Georgia 

MARK MEADOWS, North Carolina 

KERRY L. BENTIVOLIO, Michigan 

RON DESANTIS, Florida 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

JOHN F. TIERNEY, Massachusetts 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

JACKIE SPEIER, California 

MATTHEW A. CARTWRIGHT, Pennsylvania 

MARK POCAN, Wisconsin 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

DANNY K. DAVIS, Illinois 

PETER WELCH, Vermont 

TONY CARDENAS, California 

STEVEN A. HORSFORD, Nevada 

MICHELLE LUJAN GRISHAM, New Mexico 

LAWRENCE J. BRADY, Staff Director 

JOHN D. CUADERES, Deputy Staff Director 

STEPHEN CASTOR, General Counsel 

LINDA A. GOOD, Chief Clerk 

DAVID RAPALLO, Minority Staff Director 

SUBCOMMITTEE ON ENERGY POLICY, HEALTH CARE AND ENTITLEMENTS

JAMES LANKFORD, Oklahoma, Chairman 

PATRICK T. MCHENRY, North Carolina 

PAUL GOSAR, Arizona 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

TIM WALBERG, Michigan 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

BLAKE FARENTHOLD, Texas 

DOC HASTINGS, Washington 

ROB WOODALL, Georgia 

THOMAS MASSIE, Kentucky 

JACKIE SPEIER, California, Ranking 

Minority Member 

ELEANOR HOLMES NORTON, District of 

Columbia 

JIM COOPER, Tennessee 

MATTHEW CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

DANNY K. DAVIS, Illinois 

TONY CARDENAS, California 

STEVEN A. HORSFORD, Nevada 

MICHELLE LUJAN GRISHAM, New Mexico 

(III) 

C O N T E N T S 

Page 

Hearing held on June 27, 2013 ............................................................................... 1 

WITNESSES 

The Hon. Tom Coburn, M.D., A United States Senator from the State of 

Oklahoma 

Oral Statement ................................................................................................. 2 

Written Statement ............................................................................................ 5 

The Hon. Drew A. Swank, Administrative Law Judge, Pittsburgh Office of 

Administrative Law Judges, U.S. Department of Labor 

Oral Statement ................................................................................................. 13 

Written Statement ............................................................................................ 16 

The Hon. Larry J. Butler, Administrative Law Judge, Ft. Myers Office of 

Disability Adjudication and Review, U.S. Social Security Administration 

Oral Statement ................................................................................................. 42 

Written Statement ............................................................................................ 44 

Mr. Glenn E. Sklar, Deputy Commissioner, Disability Adjudication and Review, Social Security Administration 

Oral Statement ................................................................................................. 57 

Written Statement ............................................................................................ 59 

The Hon. J. E. Sullivan, Administrative Law Judge, Office of Hearings, U.S. 

Department of Transportation 

Oral Statement ................................................................................................. 75 

Written Statement ............................................................................................ 77 

The Hon. Thomas W. Snook, Administrative Law Judge, Miami Office of 

Disability Adjudication and Review, Social Security Administration 

Oral Statement ................................................................................................. 100 

Written Statement ............................................................................................ 102 

Mr. Thomas D. Sutton, Board of Directors, National Organization of Social 

Security Claimants’ Representatives 

Oral Statement ................................................................................................. 112 

Written Statement ............................................................................................ 114 

APPENDIX 

A Chart Prepared by the Office of Disability Adjudication and Review Submitted for the Record by The Honorable James Lankford, a Member of 

Congress from the State of Oklahoma ............................................................... 166 

(1) 

OVERSIGHT OF RISING SOCIAL SECURITY 

DISABILITY CLAIMS AND THE ROLE OF ADMINISTRATIVE LAW JUDGES 

Thursday, June 27, 2013, 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENERGY POLICY, HEALTH CARE & 

ENTITLEMENTS, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

Washington, D.C. 

The subcommittee met, pursuant to call, at 9:32 a.m., in Room 

2154, Rayburn House Office Building, Hon. James Lankford [chairman of the subcommittee] presiding. 

Present: Representatives Lankford, Gosar, Jordan, Walberg, 

DesJarlais, Woodall, Massie, Speier, and Horsford. 

Also Present: Representative Kelly. 

Staff Present: Alexia Ardolina, Majority Assistant Clerk; Brian 

Blase, Majority Senior Professional Staff Member; Caitlin Carroll, 

Majority Deputy Press Secretary; John Cuaderes, Majority Deputy 

Staff Director; Linda Good, Majority Chief Clerk; Christopher 

Hixon, Majority Deputy Chief Counsel, Oversight; Michael R. Kiko, 

Majority Staff Assistant; Mark D. Marin, Majority Director of Oversight; Emily Martin, Majority Counsel; Scott Schmidt, Majority 

Deputy Director of Digital Strategy; Sharon Meredith Utz, Majority 

Professional Staff Member; Peter Warren, Majority Legislative Policy Director; Jaron Bourke, Minority Director of Administration; 

Nicholas Kamau, Minority Counsel; Adam Koshkin, Minority Research Assistant; and Safiya Simmons, Minority Press Secretary. 

Mr. LANKFORD. The committee will come to order. 

I would like to begin this hearing by stating the Oversight Committee mission statement. We exist to secure two fundamental 

principles: first, Americans have the right to know that the money 

Washington takes from them is well spent and, second, Americans 

deserve an efficient, effective Government that works for them. 

Our duty on the Oversight and Government Reform Committee 

is to protect these rights. Our solemn responsibility is to hold Government accountable to taxpayers, because taxpayers have the 

right to know what they get from their Government. We will work 

tirelessly in partnership with citizen watchdogs to deliver the facts 

to the American people and bring genuine reform to the Federal 

bureaucracy. This is the mission of the Oversight and Government 

Reform Committee. 

Before we proceed to our opening statements, I would like to 

hear from Senator Coburn. He is a guest of this committee today. 

2 

The Honorable Dr. Coburn is the Ranking Minority Member of the 

Senate Committee on Homeland Security and Governmental Affairs. He is also a fellow Oakie with me as well, and he has done 

extensive research on this issue, and I would like to ask Dr. 

Coburn to do a quick statement and then we will allow you to get 

back to your senatorial duties. You are recognized. 

WITNESS STATEMENTS 

STATEMENT OF HON. TOM COBURN, M.D., A UNITED STATES 

SENATOR FROM THE STATE OF OKLAHOMA 

Senator COBURN. Well, thank you, Mr. Chairman. I appreciate 

the opportunity to come before you. 

Several years ago we started, in the Permanent Subcommittee on 

Investigations, an in-depth study of the Social Security disability 

system, and we started that because what looks like the trust fund 

is now less than 15 months until those with true disabilities are 

going to see a reduction in the payments that they get from the disability trust fund. 

We looked at both the manner, the method, and the lack of oversight that Congress has had over the last 30 years over this program, and what we found were some significant flaws, both in the 

management and the valuation. We saw significant delay in bringing the factors with which you would make this decision up to date, 

and I am talking about the vocational grid program. 

What we know is 1 in 17 Americans today collect a disability 

check through the Social Security system, and for those that are 

truly disabled, their ability to survive on not a great amount of 

money is going to be further limited if in fact we don’t make some 

rather significant changes. 

Interestingly enough, our committee looked at 300, randomly selected by Social Security, cases from three different offices throughout the Country. One of those was Oklahoma City. I asked to have 

one in Oklahoma done so we would have the pressure to not be biased against the system, but yet see a reflection of what happens 

in Oklahoma as well. 

Through that assessment we found that 25 percent of the cases 

at the ALJ level were decided in appropriately. It could be note 

that Social Security’s own internal assessment is at 22 percent, so 

we weren’t far off, and we weren’t aware of that at the time. 

So there is a large agreement, both by Social Security Administration and the Permanent Subcommittee on Investigations in the 

Senate, Government Affairs Committee, that we have a real problem, and the problem is manifest in several ways. 

One is because of the extreme backlog, the requirements placed 

on ALJs to try to hit 500 to 700 cases a year is really an impossibility to do it properly; two, the default position is to approve 

rather then to find the facts, and it is to approve because it is 

much easier and quicker to write an approving decision than it is 

a disapproval decision. The average case has over 600 pages in it, 

so if you think about what a judge would have to do to actually 

truly look at the whole case, the whole file, you can see that doing 

700 cases a year, and doing it well, is an impossibility. 

3 

The second thing we found is judges actually changing dates of 

disability so they can use the grid, so they can get a case out, when 

in fact they would change the date at which an injury occurred so 

they could utilize the grid, so they wouldn’t have to make a determination. 

The other thing we found, and we can’t comment to a great extent now because it is going to the Justice Department for prosecution, is a tremendous amount of collusion between some ALJs and 

lawyers representing claimants. And you will see that come out in 

the future. But a pretty significant malfeasance in that area. And 

it is understandable because of the economic benefits to those that 

are representing those individuals who may in fact not be disabled, 

but in fact the economic benefit for those representing those that 

are not in fact disabled nearest to those that are representing 

them. 

Finally, significant decisions within Social Security to abandon 

the use of well-proven and well-recognized standards in the medical community to diagnose and ascertain malingering have been 

eliminated from ALJs. For example, the Minnesota Multiphasic 

Personality test, which is something physicians use all the time. It 

is a well known standard in the disability community, as well as 

in the medical community. Within the last two years that is no 

longer a tool available to ALJs, so the bias has shifted. 

The other points I would make for your consideration as you look 

at this is continuing disability review is a joke. It is not happening 

to any significant extent. 

And then the final point I would make is we need to reform the 

process. We have great people working in Social Security. They actually know their job, they actually read all the data, and they 

make a determination about whether somebody is disabled or not. 

When somebody comes before an ALJ, they have already been denied two times by professionals at Social Security who actually 

have looked at all the data, so when you have a nationwide approval rate of 60 percent after that, you have to ask yourself why. 

And the real answer is that ALJs don’t look at all the information and that there is nobody representing the taxpayer, i.e., Social 

Security in the courtroom to present the other side of the case. So 

you have a finder of fact and an ALJ, you have a claimant and 

their attorney, but you have nobody representing Social Security, 

who has actually gone through the fine twice to look at it. 

We also have a significant number of problems with gaming the 

system, where lawyers withhold real information and buy, through 

the medical community, the result they want. 

Now, I will just give you an anecdote. When I first went into 

medical practice, I had a very well known lawyer in my hometown 

send me a candidate that he was representing before an ALJ, and 

I used the guideline book to assess the candidate and the candidate 

was not disabled. I got a call after that from the attorney saying 

he could never refer any patients to me again because I didn’t find 

his patient disabled. So it tells you the bias is not to find fact, the 

bias is to find disability; and what we need to do is rebalance that. 

And I leave you with a final thought: We all know people who 

are truly disabled, and we have a system that is designed to really 

help them. That system now has been put at risk and the amount 

4 

of money those individuals will collect two years from now, if we 

don’t reform this, will be significantly less. We cannot move money, 

we do not have the capability to move money to this trust fund. 

Nor do we have the ability to draw money and borrow money for 

this trust fund. 

So what will happen is, about 17 months from now, people who 

are collecting a disability check are going to get a much smaller 

check. So the very people in the disability community who are worried about us reforming this, when they really think about it, what 

they really want us to do is truly reform it so that the people who 

are truly disabled. 

Last anecdotal story. Oklahoma had a significant winterized 

storm about five years ago, and in my home, which is loaded with 

trees, I lost big trees, snapped and everything else, and I made an 

agreement with an individual to come and clear those trees, trim 

those trees; and when I went to pay him, I asked him for his Social 

Security Number to pay him and he said, really, I really want you 

to make the check out to my mom, and I said, well, why? I said, 

I need to withdraw Social Security earnings and the FICA taxes on 

what I am paying you because this is labor. 

Come to find out three years prior to that he had fallen out of 

a tree and broken his ankle and was on full disability, but had 

been working the last three years after his ankle healed; and nobody from Social Security ever contacted him. He we was still collecting. He knew if he reported the income, and he was making 

about $50,000 a year trimming trees, that in fact he would not continue to collect this money. Well, he didn’t deserve the money; he 

was no longer disabled. 

So we have the problem of continuing disability that is not reviewed; we have the problem of putting people on disability that 

aren’t, all putting at risk the people who are truly disabled in this 

Country for what we have promised and should be there to supply 

to them. 

I thank you for hearing me. 

[Prepared statement of Senator Coburn follows:] 

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Mr. LANKFORD. Thank you. 

We will take a short recess to be able to reset the panel. 

Dr. Coburn, thank you for being here and the work that you have 

done on the Senate side on this issue for a very long time. 

[Recess.] 

Mr. LANKFORD. I recognize myself for an opening statement. 

The Social Security Administration oversees Federal disability 

programs, the Social Security Disability Insurance Program and 

the Supplemental Security Income Program. Over the past 25 

years, the number of people enrolled in the Disability Insurance 

Program has tripled and the number of people enrolled in the SSI 

program has doubled. 

Today’s hearing focuses on the large growth in Federal disability 

programs. Growth has implications for the national economy, national character, and, as has already been mentioned, for those 

that desperately need the help the most. The rapid growth in these 

programs corresponds to a period of time when a typical job became less physically intensive and the health of Americans nearing 

retirement improved. 

The consensus of expert, academics, and researchers from across 

the political spectrum attributes a large part of growth to a broader 

constituency attracted to the programs since claims are increasingly judged on subjective criteria. A large number of individuals 

who are able to work who are now receiving Federal disability benefits represents a large threat to disabled individuals who cannot 

work. 

When the Disability Insurance Trust Fund is insolvent, in three 

years or less, benefits will be cut by 20 percent across the board. 

According to a 2010 paper published jointly by the Liberal Center 

for American Progress and the left-of-center Brookings Institution, 

SSDI is ineffective in assisting workers with disabilities to reach 

their employment potential or maintain economic self-sufficiency. 

Instead, the program provides strong incentives to applicants and 

beneficiaries to remain permanently out of the labor force. 

Government policy that encourages permanent separation of an 

individual from the workforce is bad for the individual and for society. The Social Security Administration has failed to take steps to 

address the problem of the rapid disability growth, probably because the agency has failed to recognize many of these problems. 

At today’s hearing, four administrative law judges employed currently or formerly by the agency will testify about significant problems in the disability determination process at the appeal stage 

and how SSA rules and policies might be a part of the problem. 

First, it is important to emphasize that disability cases typically 

only reach ALJs after applicants have been denied at the local disability determination level twice. Despite this, many ALJs have 

historically approved a vast majority of cases presented to them. 

In 2010, the average rate at which ALJs awarded benefits in 

cases they decided was 67 percent. Nearly 100 ALJs awarded benefits in over 90 percent of the decisions, while 29 ALJs awarded benefits in over 95 percent of the decisions. The excessive approval 

rates by hundreds of judges over the past few years means there 

are probably millions of people receiving disability benefits who are 

able to work in this economy. 

10 

Second, it is important to emphasize the significance of the ALJs 

in the process. According to program expert Richard Pierce, as a 

practical matter, ALJs’ decisions that grant disability benefits are 

final and irrevocable commitments of taxpayer funds. Less than 1 

percent of individuals who are awarded benefits ever leave the rolls 

as beneficiaries. Part of the reason ALJ decisions are final is because the Social Security Administration has failed to prioritize 

continuing disability reviews since 2006. Despite its legal requirement to perform timely CDRs, the agency has allowed a backlog of 

over 1.3 million medical CDRs to develop. 

The ALJ role is complicated by the increasingly subjective nature 

of criteria used to award benefits. The emergence of a profession 

earning immense profits from enrolling people in disability programs and several outdated and unwise agency policies, including 

the fact that the agency has failed for 35 years to update a vocational and medical grid used to determine eligibility, despite the 

significant change in the economy, health care, and life span. A 

treating physician rule gives disproportionate weight to the applicant’s treating physician, even if the applicant has only seen that 

physician once. The agency does not require applicants and their 

representatives to include complete medical evidence. Almost all 

applicants are represented at hearings by attorneys or other advocates, while no one represents the Government or taxpayers at 

those hearings, so the ALJs only hear evidence from one side. The 

agency has failed to adequately address attorney misconduct that 

games the appeals process and the agency prevents ALJs from acquiring information about applicants from social media sources and 

other outside sources. 

Today’s hearing will examine these topics. It is also going to try 

to explore the effects of SSA’s decision to decide cases more quickly 

to try to reduce the growing backlog. 

In November 2011, The Wall Street Journal reported the agency 

was pressuring and incentivizing doctors to conduct quicker medical reviews. One doctor was quoted that the implication was that 

you really didn’t have to be that careful to study the whole thing. 

Some reforms to correct the broken disability determination process will need congressional action, but there are many steps the 

agency can unilaterally take to better protect American taxpayer 

dollars and those most in need, the truly disabled who will suffer 

most from a continuation of the excessive growth in disability 

claimants. I look forward to hearing about some of those steps 

today and try to find some resolution and ideas of how we are able 

to move forward. 

With that, I recognize the gentlelady from California, Ms. Speier. 

Ms. SPEIER. Mr. Chairman, thank you, and I thank the witnesses 

for being here today to participate in the hearing. 

Disability insurance benefits are a lifeline program for people 

who can no longer work because of a serious disability. It is an all 

or nothing program; either you can work doing something, not necessarily what you used to do, or you can’t work at all. It is not a 

generous program. Average benefits are about $1,130 for an individual and $1,915 

if you have a spouse and children. You are in or you are out. This 

is a benefit that American employees pay for through their FICA 

11 

taxes, and when disabled workers reach full retirement age they 

switch to Social Security and stop drawing disability insurance. 

Again, these are benefits that are earned. 

For many years this was a system with poor leadership and no 

accountability. In 2007, more than 63,000 disabled claimants had 

to wait more than 1,000 days to have their claims adjudicated. The 

average wait time for a hearing in 2007 was 512 days. People died 

waiting for a decision. Many of these were the sole bread winners 

of their families. 

In response to criticism from members of Congress who were 

hearing horror stories from their constituents, and some additional 

funding, the Social Security Administration undertook a massive 

task to improve its performance. They hired hundreds of additional 

administrative law judges and other support employees, utilized 

new technology and video hearings, and set preference goals to reduce the enormous backlog and processing time for claims. 

There have been significant improvements. The backlog has been 

reduced and the average wait time is now down to 375 days. That 

is still too high, but certainly an improvement. At the same time, 

hearing level approval rates have gone down, from a high of 61 percent in 2008 to 47 percent in 2013. 

Mr. Chairman, these numbers are significant. And there are a lot 

of numbers that we are throwing around. I think it would be helpful to us as a committee to get the actual numbers. If in fact the 

numbers have dropped to 47 percent, that is something for us to 

applaud. If they are still at 61 percent, then we have a problem. 

But from my understanding it has dropped to 47 percent. 

The national approval rate for disability claims is the lowest it 

has been since the 1970s. I have been a vociferous critic of the VA 

for its backlog, and I think the SSA still has work to do to lower 

the current backlog and time delays. However, it must have the 

support of this body to do it. 

The committee of jurisdiction, the Ways and Means Committee, 

held four hearings in the past year examining these changes and 

improvements, and approved of them. Now, some have decided 

months ago that the Social Security Administration was allowing 

the widespread, improper payment of disability insurance benefits. 

I don’t think it is proper to make up our minds before we hold 

a single hearing or initiate an investigation in this matter. Now, 

some have already stated the Federal disability claims are often 

paid to individuals who are not legally entitled to receive them. 

Well, there is fraud and abuse in virtually every system. Our job 

is to make sure we reduce it to the smallest amount possible. 

Now, I am sure that there is some fraud in the system. In fact, 

the Social Security Administration had 1400 convictions in fraud 

last year. Continuing disability review to ensure that those receiving benefits are still eligible must be performed on schedule and 

the Social Security Administration must have the resources to do 

it. This is where I think we need to spend a lot more time. Many 

people are justifiably disabled for a period of time and then become 

capable of doing other work, and I don’t think we have enough accountability on the back end, and that is where I think we should 

be spending a great deal of our time. 

12 

No one wants to hold any agency of Government accountable to 

the taxpayer or to uncover fraud and abuse more than I do, but I 

wish the committee would actually perform its oversight role by 

asking questions and considering answers before asking loaded 

questions or drawing such broad conclusions. If we did that, we 

would listen to the testimony of witnesses today and consider what 

they have to say in light of some facts. We would also recognize 

that some of the issues under discussion today are the subject of 

ongoing litigation. And I remind the members of this committee 

that we are prohibited from interfering in ongoing litigating. 

There are some basic facts we should acknowledge before we 

begin. It is a fact that more people are applying for disability benefits than ever before. That is true in the veterans system as well. 

When we have a downturn in the economy, there is typically more 

access made to these programs. Those collecting disability insurance is also larger than ever before. 

Is that evidence that the system is broken? Not necessarily. Because it is also true that it was known more than 20 years ago that 

the number of applicants and beneficiaries would significantly increase by 2016. An actuary already predicted this some 20 or 30 

years because of us, the baby boomer, who have been growing 

older, and as we grow more feeble we need to access some of these 

services. 

It is a fact that most ALJs meet or exceed the goals established 

by management’s work plan, 79 percent of them, and there are few 

repercussions for ALJs who do not meet their targets. There are no 

performance reviews and they are appointed for life. Nobody is telling an ALJ how to decide a case, and I think it is important to 

point out that these ALJs are appointed for life. There are no performance reviews; there is no judicial council, as most States have 

for their judges, and that is something I think that is worth looking 

at as well. 

It is also a fact that funding for the Social Security Administration has fallen dramatically in the past two fiscal year and we are 

likely to see backlogs grow again if this continues. Drawing conclusions before evaluating the evidence, before even asking any questions is not a credible way to conduct an oversight and Government 

reform. 

I respect the work that administrative law judges do every day, 

as well as the work of State hearing officers, claimant representatives, and the management of the Social Security Administration, 

but I think accountability is part of this. And while there has been 

a lot of discussion and we are going to spend a lot of time today 

on the workload and the so-called goals that each ALJ is to make, 

let’s make it very clear: they have the ability to handle as many 

cases or as few cases, and nobody, nobody can remove them from 

their position unless they conduct themselves in a manner that is 

immoral. 

With that, I close. 

Mr. LANKFORD. With that, we will have your admonition there to 

let’s ask questions first, before we assume what the ALJs are going 

to say on it, and I definitely agree that the CDRs are an important, 

that is why I included it in my opening statement as well. We have 

a series of issues that have to be dealt with here. This is also not 

13 

the first hearing that has ever been done on this; we are joining 

a stream that is in motion. We are building on several hearings 

and then there are several more still to come. 

Members may have seven days to submit opening statements for 

the record. 

We will now recognize our panel today. Thank you for being 

here, all of you. 

The Honorable Drew Swank is an administrative law judge for 

the Pittsburgh Office of Administrative Law Judges for the Department of Labor; the Honorable Larry Butler, the only one without 

an S in your last name, I may say, so you stand out there today 

on our panel, is an administrative law judge for the Ft. Myers Office of Disability Adjudication and Review for the Social Security 

Administration; Mr. Glenn Sklar is the Deputy Commissioner for 

the Office of Disability Adjudication and Review for the Social Security Administration. Thank you for being here, sir. 

The Honorable J.E. Sullivan is an administrative law judge for 

the Office of Hearings with the Department of Transportation; the 

Honorable Thomas Snook is an administrative law judge for the 

Miami Office of Disability Adjudication and Review with the Social 

Security Administration; and Mr. Thomas Sutton is the past President and current member of the Board of Directors of the National 

Organization of Social Security Claimants’ Representatives. 

Thank you all for being here. 

Pursuant to committee rules, all witnesses will be sworn in before they testify. Ironically enough, I need to ask all the witnesses, 

including the judges, to stand to be sworn in. 

Please raise your right hand. Do you solemnly swear or affirm 

that the testimony you are about to give will be the truth, the 

whole truth, and nothing but the truth, so help you, God? 

[Witnesses respond in the affirmative.] 

Mr. LANKFORD. Thank you. 

Let the record reflect the witnesses answered in the affirmative. 

You may be seated. 

In order to allow time for discussion, we would ask you to limit 

your testimony to about five minutes. If you have not testified before, there is a little clock in front of you which we ask you to pay 

attention to, and we will sometimes pay attention to as well in the 

times ahead. That will count down from five to zero. You will see 

the lights go from green to yellow to red. If you get as close to five 

minutes as you can. You get bonus points for getting under five. 

And then we will allow the conversation to go after that when we 

do a round of questioning. 

With that, I would like to recognize Judge Swank for the first 

statement. 

STATEMENT OF THE HONORABLE DREW A. SWANK 

Judge SWANK. Thank you, Mr. Chairman. I thank you for inviting me and the other honorable members of the subcommittee for 

inviting me to be here today. 

I spent six years as an administrative law judge with the Social 

Security Administration. Based on questions of law and public policy I encountered, I wrote a series of Law Review articles. I have 

been asked to come here today to share some of the results of my 

14 

research and analysis. I would like to make clear that I am testifying in my personal capacity and my views do not necessarily reflect those of the Administration or the Department of Labor. 

In my research, I discovered two reoccurring themes: first, the 

agency’s overriding priority is to reduce the massive backlog of 

pending disability applications; second, the Social Security Administration has been going about this, at least in part, by improperly 

awarding benefits. 

From 2000 to 2010, the number of disability applications grew 

over 25 times more than the growth of the Country’s population. 

A common explanation for this has been the dismal state of the 

economy. Social Security disability programs were designed to assist adults who are unable to work due to a physical or mental impairment. They were never designed to be a substitute for unemployment insurance compensation. 

Furthermore, there is an inherent inconsistency with the notion 

that a person can switch back and forth between working when the 

economy is good and collecting disability benefits when the economy is bad, irrespective of any disability. With this huge influx of 

disability applications from people who were working and lost their 

jobs just due to the economy, awards of disability benefits should 

have plummeted in the last few years. Instead, they have risen by 

28 percent between 2007 and 2010. 

Since 2009, twice as many people have applied for disability benefits as have started new jobs. Despite improvements in health care 

and shifts towards less physically intensive labor, the percentage 

of Americans receiving disability benefits has risen in the last 20 

years. Something other than being disabled is encouraging individuals to apply for Social Security disability benefits. Working or not, 

disabled or not, people are increasingly seeing Social Security disability benefits as a relatively easy means of earning a lifetime of 

Government payments and a gateway to a host of other Government entitlement programs. 

Because of this, a variety of observers have concluded that the 

agency’s disability programs have become unsustainably generous. 

Furthermore, the agency’s leadership, being most concerned with 

the ever-growing backlog of disability cases, has prioritized the 

speed of processing cases over accuracy. It has become increasingly 

clear that the agency, instead of only awarding benefits to adults 

who are unable to work, is effectively handing out money for free. 

By even the agency’s own analysis, 15 percent, or $21 billion 

worth a year, of its administrative law judge decisions are improperly granting disability benefits. Even by Government standards, 

$21 billion a year is real money. 

Of course, the agency does not care if undesired benefits are 

granted; it is not the agency’s money. If a claimant is paid, the case 

disappears, the backlog shrinks, and nobody ever complaints. This 

is obviously not true if a case is denied. Denials lead to appeals or 

new applications, both of which increase the backlog. 

In a shortsighted approach to the backlog problem, the agency’s 

command climate is to pay the case so it goes away. This approach 

not only makes a mockery of the administrative disability adjudication process that Congress has created, but it harms the disabled 

public the agency is supposed to serve. 

15 

These problems are not merely academic. The trust fund that 

pays for the Social Security disability programs will exhaust its 

money in 2016, only three years away. Furthermore, improperly 

paying disability benefits harms the economy as a whole. Once 

awarded disability benefits, individuals will almost never return to 

the active workforce. 

Beyond the cost to the taxpayer and to the economy, improperly 

paid disability benefits undermine the integrity of the entire system and stigmatizes the people who truly deserve their disability 

benefits, as the validity or degree of their disability will undoubtedly be called into question. The agency’s improperly awarding disability benefits harms the very same people the agency is supposed 

to be helping and the taxpaying public that supports them. 

Thank you. 

[Prepared statement of Judge Swank follows:] 

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Mr. LANKFORD. Thank you. 

Judge Butler? 

STATEMENT OF THE HONORABLE LARRY J. BUTLER 

Judge BUTLER. My name is Larry Butler, and I am very pleased 

and honored to have the opportunity to be invited to talk to you 

today. 

I agree with Judge Swank, for the most part. I think you have 

to keep in mind, when you are talking about this program, some 

important facts. One, every decision that I make or any Federal 

ALJ makes as a judge, a disability judge, has been valued at probably $300,000. So when I make 500 decisions in a year, I am dealing with $150 million worth of taxpayer funds. And I don’t look at 

them exactly as just a general tax; these are FICA funds that are 

paid by people who are working out there day after day, that is 

where the money is coming from. 

The second thing you have to realize is right now Social Security is paying out almost $2 billion a year for attorney and representative fees. This program has changed. When these regulations and 

grids and everything were put in place originally, this was supposed to be an informal program where a person could apply for 

disability and not have to go to an attorney or anybody else to figure out how to do that. We don’t have that anymore; that is not 

the reality. Two billion a year for attorney fees and non-attorney 

representatives are withheld from the claimant’s benefits. 

The third thing you have to realize is that just about everybody 

out there, except that person paying that FICA tax, wants to see 

this claim paid. Now, the ranking minority member mentioned that 

an average award may be worth $1500, approximately, or whatever. I am not sure of the exact amount myself, but the point is 

that is just the tip of the iceberg. Like Judge Swank said, we are 

talking about payment after two years on Medicare, or earlier than 

that on Medicaid with the SSI, Supplemental Security Income, program. Those monies go to doctors, they go to hospitals, they go to 

clinics, and all these third parties are interested in seeing that 

claim paid. Nobody is representing the person paying the FICA tax 

that supports this entire program. 

There have been recommendations made for a long time, including Senator Coburn mentioned this morning that we need a representative in these hearings. We need a representative not to represent the Government, represent the taxpayers. It would stop 

some of these paid out billion dollar judges who have paid these 

cases, a number of them, I can go through them, if you want me 

to, one by one, pay thousands of cases. 

One of them that was mentioned by Senator Coburn was a judge 

in Oklahoma City. He is 87 years old. He paid 5,000 cases in less 

than two years, I believe it was, over $1 billion worth of claims. 

Paid 90 percent of the cases the agency put before him to review. 

Now, he got those cases from the agency. If you take a look at his 

testimony when they took the judge’s interview by the staff with 

the committee took his interview, those cases were provided by the 

agency from all over the Country 

And the one I remember was 500 cases from Little Rock, Arkansas, because that is a whole year’s work for an average judge, even 

43 

by the standards the agency applies. The agency sat there and let 

him pay those cases. You don’t have a judge problem. You have 

1400 judges out there, and 9 out of 10 of them are great judges; 

they work hard, they do the best they can. The ones that are not 

should have been dealt with years ago. Years ago. 

There is an action pending in New York, a class action involving 

five judges at a particular office up there. The claim is that these 

judges have been generally biased against claimants, I guess, because general bias, I don’t even understand exactly what that 

means. The original complaint was back to 2005. Well, my question 

is if they have been doing that, if that is true, where was the agency? Why are those judges even sitting there for somebody to bring 

a class action against them? 

I have run out of time, very close to it. 

Two points: I think you need to look at this issue of paying down 

the backlog. It has been called in testimony over here by agency 

personnel anecdotal and innuendo. That is what is behind it. It is 

media hype. It is not media hype; it is real. And for six years it 

has been going on. 

The second thing I think you need to focus on is not disclosing 

evidence. The agency has allowed these attorneys to take the position, and the agency has done nothing about it, that they can conceal evidence if it doesn’t support a claim for disability. I don’t need 

a judge or anybody else to tell me that is fraud. I don’t care what 

the agency says or what Chief Judge Bice says. If you are going 

to sit there and let somebody withhold evidence from me, and I pay 

a claim worth $300,000 that some taxpayers have paid for to a person who is not disabled, that is fraud. To me, I can’t see anything 

clearer than that; and this agency has perpetuated that for years. 

Thank you. 

[Prepared statement of Judge Butler follows:] 

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Mr. LANKFORD. Thank you. 

Mr. Sklar? 

STATEMENT OF GLENN E. SKLAR 

Mr. SKLAR. Chairman Lankford, Ranking Member Speier, and 

members of the subcommittee, my name is Glenn Sklar. I have had 

the distinct honor to work for Social Security for over two decades 

now. In January 2010, I was asked to serve as the Deputy Commissioner for the Office of Disability Adjudication and Review. In this 

capacity I currently oversee the hearings and appeals levels at 

SSA. While I have previously held various other posts during my 

21-year tenure at SSA, including leadership posts in the anti-fraud 

component, policy component, and quality component, I will limit 

my testimony today strictly to the hearings and appeals process. 

Our disability program has been described as one of the largest 

adjudication systems in the free world. This year we will handle a 

staggering 800,000 requests for hearings. To accomplish this, highly trained adjudicators follow a complex process for determining 

disability according to the requirements in the law as designed by 

Congress. 

In 2007 there was widespread dissatisfaction with backlogs and 

delays at the appellate levels. The numbers were pretty stark. The 

average wait time for a hearing was over 500 days. Over 60,000 

people waited over 1,000 days for a hearing decision, with the most 

extreme cases being waits of nearly four years. The cause could be 

directly tied to decades of chronic under-funding and under-investment. There was an urgent call to action. As we all know, justice 

delayed is justice denied. 

We developed an operational plan that focused on the gritty work 

of truly managing the unprecedented hearings workload. We made 

dozens of critical changes, such as improving our IT infrastructure, 

enhancing quality checks and feedback, simplifying policies, standardizing business processes, establishing clear expectations and expanding our use of video hearings. With the support of the Congress, we committed the resources to get this job done. 

The plan has worked exceptionally well. We have significantly 

improved the quality and timeliness of our hearing decisions. Our 

appropriators offered the following words of encouragement in Senate Report 112–176: ‘‘The committee applauds the work SSA has 

done in recent years to reduce the disability backlog and the time 

it takes to process disability hearings. SSA has reduced the average time it takes to process a disability hearing from 532 days in 

2008 to 354 days in 2012, despite a record increase in disability 

hearings over that period. SSA has also greatly improved the parity of processing times across the Country. In fiscal year 2008, 

some hearing offices that averaged processing times over 900 days, 

but this year no hearing office had a processing time over 475 

days.’’ 

Additionally, we have enhanced the quality of our decisions over 

the last several years. The rate at which our reviewing body, the 

Appeals Council, is remanding cases to our judges for re-review has 

declined. The percentage of Federal Court review requests is also 

declining. 

58 

So how did we approve our quality while moving more work? We 

improved our quality by, among other things, hiring over 800 highly skilled ALJs, all of whom have received in-depth national training; emphasizing and reemphasizing the need for policy compliance; hiring attorneys, support staff, and decision writers to help 

ALJs obtain and organize evidence and write decisions; providing 

quarterly training on error-prone topics for all adjudicators at the 

hearing level and annual training for a significant percentage of 

the ALJ corps each year; giving ALJs access to real-time data that 

highlights where they might be making mistakes and encouraging 

them to self-correct; standardizing business processes and encouraging all ALJs to work electronically; establishing a brand new Division of Quality that reviews a statistically valid sample of favorable determinations for accuracy and policy compliance before the 

money goes out the door; reducing the maximum number of cases 

that our ALJs may decide each year to less than 1,000 per ALJ; 

and, finally, collecting substantial amounts of national data to determine how we can get better in the hearings process each and 

every day. 

Making disability decisions for Social Security is a challenging 

and complicated task. I am truly proud that our ALJ corps rises 

to the challenge each and every day, making timely and legally sufficient decisions for the American public. 

Thank you for inviting me to be here today, and I stand ready 

to answer any questions you may have. 

[Prepared statement of Mr. Sklar follows:] 

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Mr. LANKFORD. Thank you. 

Before I recognize Judge Sullivan, if anyone else has their microphone on, you might want to turn it off, because we are getting a 

little bit of ringing feedback. It will change a little bit when we do 

the questions, but during the opening statement just have one at 

a time on. 

Judge Sullivan, pleased to recognize you. 

STATEMENT OF THE HONORABLE J. E. SULLIVAN 

Judge SULLIVAN. Thank you, Chairman Lankford, Minority Member Speier, members of the committee for holding this hearing and 

for the opportunity to testify before you. 

From April 2008 to June 2011, I served as a United States administrative law judge in the Social Security Administration’s Disability Program. My testimony today is in my individual capacity 

and not as a representative of the United States Department of 

Transportation, where I am currently employed as a judge. 

In my testimony today, I want to focus on the SSA management’s 

mistaken emphasis on production goals and speed of production 

within the adjudication offices. 

Production is the code word for when a judge signs a disability 

decision. Speedy and high volume production by a judge in a short 

period of time, i.e., ‘‘making goal,’’ is the prism lens through which 

all SSA management decisions regarding adjudication of disability 

are made. 

A judge’s production, or ‘‘making goal’’ is SSA management’s singular and exclusive focus in its administration and oversight of 

SSA’s disability hearings process. For SSA management, ‘‘making 

goal’’ is more important than the adjudicatory process, the quality 

of a judge’s work, and any considerations in making that decision. 

Instead of managing a meaningful Federal adjudication program, 

SSA management has substituted a factory-type production process. Judging is not a factory work process, but SSA has taken that 

approach for speed and high volume results. 

As a result, SSA management can present to Congress and the 

American people with some impressive production statistics, but 

these statistics have been achieved by causing incalculable damage 

to the adjudication process at SSA. 

You will be hearing today and in the future from a wide variety 

of individuals who can give you statistics, formulas, production 

numbers, mathematical calculations, and other such material. My 

testimony today is focused on two things: my personal experiences 

working for three years as a Social Security administration law 

judge and interacting with local, regional, and national SSA managers during that process; and, number two, my 24 years of State 

and Federal service as a trial and hearings judge. 

My resume is attached to the back of my materials, but I just 

want to highlight that before I joined the SSA family, I had already 

served as a judge for 19 years in the State of Washington; 10 years 

as a State trial court judge part-time on the Court of General Jurisdiction, 9 years as a State industrial insurance appeals judge. I 

had also five years of experience working both as a criminal defense lawyer and as a deputy prosecuting attorney, so I brought 

76 

with me my experience, and that basically addresses why I have 

reached the opinions I am presenting today. 

There are seven primary points in my testimony that I want to 

make sure that I get out before my time is up. 

Number one, SSA management measures the adjudication program solely by a judge’s speedy issuance of a very high number of 

decisions, and that I would be calling ‘‘making goal.’’ 

Number two, the SSA’s high volume and speedy production goals 

result in management perceiving that the only value to a judge’s 

work is that final decision; nothing else matters. 

Number three, the process of a judge’s work, which I call meaningful adjudication, takes time and involves complex, difficult work 

processes. 

Number four, the SSA management’s prism lens of management, 

which is ‘‘making goal,’’ is incompatible with a judge’s meaningful 

adjudication work. 

Number five, the SSA management’s high volume and speedy 

production goal agenda results in management pressuring judges 

to stop all meaningful adjudication work. 

Number six, the high volume and speedy production goals result 

in production of a large number of disability decisions that have 

not been properly reviewed, analyzed, or decided. 

Number seven, the production mandate by SSA management and 

the pressure for high volume and speedy disability decisions results 

in high rates of error in judicial decisions. As a result, you see the 

loss of billions of dollars incorrectly expended from the trust fund 

and in hardship for countless American citizens. 

My time is up, sir. Thank you. 

[Prepared statement of Judge Sullivan follows:] 

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Mr. LANKFORD. Thank you. 

Judge Snook? 

STATEMENT OF THE HONORABLE THOMAS W. SNOOK 

Judge SNOOK. Thank you. Chairman Lankford and Ranking 

Member Speier, thank you for inviting me to present testimony to 

the subcommittee. I am honored to report to you what has happening in the trenches from the perspective of one who has been 

a Social Security line judge for 16 years. 

Although I feel the majority of line judges share my views, I am 

testifying in my individual capacity. I paid my own expenses to attend the hearing and am on personal leave. 

Shortly before I was appointed a Social Security judge, I represented an uncle who had applied for disability benefits on his 

own. He was awarded benefits posthumously, five years after he 

applied. I think I understand how the system does not work. 

I am going to focus on the authority of the judges and the disability hearing itself from the perspective of a line judge. 

I am a judge in Miami. I hear many SSI cases; I only hear about 

two or three disability insurance benefits cases a month; I hear 

some concurrent cases. So the cases that I am talking about the 

taxpayers are paying for. 

Mr. Chairman, I want to congratulate you on the quality of your 

staff. I have been very impressed with their knowledge and dedication. However, Mr. Chairman, what if Speaker Boehner selected all 

your staff and you could not direct them to do any work, you could 

only request that they perform a task because they all worked for 

the speaker? That is my position as a judge with the Social Security Administration. Although we also have excellent staff, nobody 

works for me. I have no authority over the staff, nor can I direct 

them to do anything. 

Not only do I not have any authority over the support staff, I 

have no authority over the attorneys who appear before me. I cannot direct them to submit evidence before the hearing. I cannot direct them to submit all relevant evidence, not just evidence favorable to the claimant. I can impose no sanctions when they withdraw the day of the hearing. I can impose no sanctions when they 

show up at the hearing with hundreds of pages of new evidence, 

even if the hearing has to be postponed because the medical expert 

does not have time to read the new evidence. 

Let me shortly describe what happened to three judges in Cleveland who had the temerity to issue a prehearing order 10 years 

ago. 

It was a typical generic order using all judicial systems to make 

the hearing run more efficiently. However, the order directed the 

evidence be submitted before the hearing to a staff supervisor. The 

judges were charged with insubordination because they had no authority to direct the supervisor to accept the evidence. 

The resulting litigation lasted several years. While the case was 

on appeal, one of the judges died. Let me tell you how compassionate this agency is with regard to insubordinate judges. They 

made his widow a party to the lawsuit. To her credit, when Commissioner Barnhart learned about the facts, she immediately had 

the widow dismissed from the lawsuit. 

101 

Now, I don’t want a misunderstanding with regard to the attorneys representing claimants. We have outstanding attorneys representing claimants. My remarks are directly mainly towards these 

mega-firms. The Wall Street Journal has had several articles about 

that and Binder and Binder was bought out by a hedge fund. Now, 

is this really what Congress intended, that disability law firms be 

owned by hedge funds? 

Let me make some proposed recommendations. I propose five 

procedural steps to make the hearings more efficient, reduce staff, 

and save taxpayer money. They are based on the Disability Service 

Improvement plan proposed by former Commissioner Barnhart, except I propose a Trust/Treasury Representative as recommended by 

the American Bar Association in 1995. 

One, require that the claimants develop the record. They are 

making probably $2 billion. The last data was $1.7 billion. 

Two, require claimant’s attorney to submit all relevant evidence. 

Unlike other judicial systems, under Social Security regulations 

they only have to submit evidence favorable to the claimant. 

Require the claimant’s attorney to timely submit evidence and to 

timely withdraw. It is the only judicial system where the claimant’s 

attorney may submit hundreds of pages of new evidence the day of 

the hearing or withdraw the day of the hearing. 

Close the record after the disability hearing. You can’t have a 

moving target. I make mistakes, but I have one of the lowest remand rates in the corps. I don’t mind a judge telling me I made 

a mistake on my record, but if the record changes and it is remanded. 

Lastly, appoint a trust or public representative. How many companies would issue a check for $300,000 without having two signatures? Having a representative in the hearing room will solve many 

problems. One, let’s abandon pay and chase. CDRs aren’t the answer. Making the correct decision at the beginning of the process 

is a correct answer. That is where the money should be put. A trust 

representative would also prevent abusive judges. We know there 

are some abusive judges, there are articles about them. These are 

secret proceedings, and having two government officials in the proceedings would be beneficial. 

And let me just end with a phrase attributed to President 

Reagan: Let judges be judges in the Social Security disability system, sir. 

Thank you, ma’am. 

[Prepared statement of Judge Snook follows:] 

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Mr. LANKFORD. Mr. Sutton. 

STATEMENT OF THOMAS D. SUTTON 

Mr. SUTTON. Thank you, Mr. Chairman, Ranking Member 

Speier, members of the subcommittee. My name is Thomas D. Sutton and I am here as a member of the Board of Directors and a 

past President of the National Organization of Social Security 

Claimants’ Representatives. I represent the disability claimants before Social Security and in the Federal courts, and I have done so 

for 25 years. I appreciate your invitation today so that I may bring 

the perspective of claimants, the people who should be the focus of 

our concerns here, to the witness table. 

We believe the Social Security disability program is fundamentally sound in that it implements a strict but fair standard of disability established by statute. Individuals claiming benefits must 

prove that their severe medical impairments prevent them from 

performing not only the work they have done in the past, but any 

other work which exists in significant numbers in the economy. 

The severity of this standard is illustrated by the fact that one in 

five men and one in six women who are awarded disability benefits 

die within five years of the award. 

While no system is perfect, Social Security’s administration of 

the disability program is not broken and the system is not in crisis. 

Unfortunately, some of the proposals for change, while well meaning, would not improve the system and, in fact, would cause real 

harm to deserving individuals who are unable to work and have 

nowhere else to turn. Some of these proposals are in fact based on 

myths which need to be exposed as such. 

The primary myth here is that Social Security is awarding disability at high rates to people who are able to work. In reality, approval rates for disability applicants have fallen significantly over 

the last few years. In fact, while the ALJ union has complained in 

court that the production goals which Social Security has attempted to impose on them have caused them to cut corners and 

award benefits to undeserving claimants just to ‘‘keep up with the 

flow,’’ the facts simply do not support this idea. The national average allowance rate at the ALJ level has declined, from 62 percent 

in 2007, the year in which the agency announced its production 

goals, to 52 percent in fiscal year 2012, and appears to be declining 

even more so far this year. 

A study by Dean Harold Krent for the Administrative Conference 

of the United States found no evidence of any bias toward allowance of cases caused by the agency’s production goals. Moreover, 

Dean Krent’s study revealed that the ALJ corps contains more 

outliers, defined as two standard deviations above or below the 

mean, in the low range of allowance rates, 3 percent of judges 

awarding fewer than 24 percent of claimants, then there are 

outliers in the high range, 2 percent awarding more than 82 percent of claimants. 

Our experience in the representation of claimants informs us 

that there is no rush to award benefits to claimants in response to 

increased applications or production goals. If anything, the actual 

data is trending in the opposite direction. This is tragic for claimants whose claims are allowed by the State agencies less than oneVerDate Aug 31 2005 15:25 Aug 07, 2013 Jkt 000000 PO 00000 Frm 00116 Fmt 6633 Sfmt 6633 C:\DOCS\82276.TXT APRIL
113 

third of the time and who have always relied on the ALJ court to 

provide a fair hearing with consideration of all the evidence, much 

of which was never obtained by the State agencies as it should 

have been from the start, and some of which has emerged later in 

the process when new illnesses have arisen and more tests have 

been done to confirm their severity. 

Understood in this context, it should not be surprising that ALJs 

reach different conclusions than State agencies, who never lay eyes 

on a claimant and often fail to obtain all available evidence before 

denying claims. 

A second myth that has been repeated incessantly is that the 

standards for disability have been loosened over time, resulting in 

higher numbers of beneficiaries. Nothing could be further than the 

truth. For example, Social Security has abolished its listing of impairments for conditions like diabetes and obesity, leaving claimants suffering from such conditions at a serious disadvantage. Regulatory criteria for other impairments such as liver disease have 

not been abolished outright, but have been changed to make them 

virtually impossible to meet. 

The increase in applicants and awards is due almost entirely to 

two demographic factors, the age of the population and the advent 

of women as full participants in the labor force who have achieved 

the insured status they lacked historically. These factors obviously 

have nothing to do with the standards contained in the statute and 

regulations or the judges applying those standards. 

I see that my time is about to expire. I will conclude to say this: 

The disability adjudication system of Social Security provides a 

thorough and fair means of determining, through face-to-face hearings conducted by ALJs with assistance from vocational and medical experts, whether claimants meet the strict definition of disability in the Social Security Act. Claims that the system is ‘‘rife 

with corruption’’ and ‘‘biased toward allowing claims’’ are ill-founded and not supported by the evidence. 

We urge the subcommittee to ensure that any changes it contemplates are based on facts and evidence, not conjecture and supposition. The disability program is too important to the American 

people, both those it currently serves and those it will help in the 

future, to make wholesale changes which could deprive truly disabled people the benefits they have paid for with payroll taxes all 

their working lives. 

Thank you for your consideration of our views. 

[Prepared statement of Mr. Sutton follows:] 

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Mr. LANKFORD. Thank you to all of you for bringing the testimony. What I would like to have is a conversation that will happen. There will be several of us that will come in and out and be 

able to ask questions. We will have about five minutes apiece. We 

will probably do a couple rounds of questions just to be able to answer them, and we will have that ongoing dialogue and try to see 

whether we can be able to pull the facts out as we walk through 

this process. Today is not a day to try to determine everything; 

today is the day to get as much information as we can out, and 

then we will follow up in the days ahead to say what do we need 

to do to be able to resolve some of these things. 

Judge Swank, let me ask you a question. You began all this. You 

mentioned that ALJs have felt some pressure before to approve disability requests, and several of you have mentioned that. 

Judge Sullivan, you also mentioned the production goals and 

such. 

How is that manifested? How is there a sense that there is a 

push to produce approvals rather than denials? 

Judge SWANK. If I may, Mr. Chairman, if I can slightly change 

the question. 

Mr. LANKFORD. Sure. 

Judge SWANK. Because in the articles that I wrote and published, 

my focus was more on systemic factors with the program that encourage approvals. 

Mr. LANKFORD. Okay. 

Judge SWANK. And, secondly, restrictions on the judges that limit 

their ability to serve as judges. 

Mr. LANKFORD. Okay, so let’s talk through a couple of those. 

Judge SWANK. Sure. I think one of the most glaring, and it was 

the focus of the article that American University Law School was 

kind enough to publish, deals with the Social Security administrative law judges’ inability to report attorney misconduct to their 

State bars. 

Per Social Security regulations, a Social Security judge is prohibited from reporting attorney misconduct to their State bar. They 

can only report it to agency management, and the Office of General 

Counsel of the Social Security Administration then will determine 

whether or not to pursue the misconduct. 

It creates a situation in which an administrative law judge, who 

is required to be a member of a State bar, and I went through in 

my article, looked at every single State bar’s requirements, whether you are in judicial status or attorney status, to report misconduct, because the legal profession is self-policing. And it puts 

the administrative law judge in some States, as I cite in my article, 

in the position that they are conducting misconduct themselves by 

not reporting attorney misconduct to the bar. And since the administrative law judge cannot even report it to the Office of General 

Counsel, it has to go through the filter of management, whether or 

not to pursue the attorney misconduct. 

Mr. LANKFORD. So it is basically an oversight issue. It is the 

same thing Judge Snook was mentioning; you don’t actually oversee your own staff, which, by the way, just to let you know, Judge 

Snook, everyone here does work for Speaker Boehner, so that is a 

whole different issue as well. 

131 

[Laughter.] 

Judge SWANK. But it also, sir, is something that goes a little bit 

beyond that from the standpoint that the administrative law judge 

can’t police his own courtroom. 

Mr. LANKFORD. Are other courts run that way? Is this run different than a typical court? 

Judge SWANK. Well, again, sir, I am here in my personal capacity, but, for instance, in the Department of Labor, an administrative law judge can report misconduct directly to the bar, and they 

do. Misconduct I don’t want to say is rife, but the odds of an attorney being suspended or removed as their ability to appear before 

the Social Security Administration is the exact same odds of any 

given service member in the United States Army, Marines, Navy, 

Air Force, and Coast Guard, of winning the Congressional Medal 

of Honor. 

The Social Security Administration, as shown by my articles and 

as the minority member stated, there are many statistics. My articles have 788 footnotes combined. You can check my statistics, and 

if you draw as different conclusion from them, great. I have documented everything from open source documents. But the agency 

pursues misconduct against attorneys 16 times fewer than State 

bars do, on average, and State bars are very hesitant to remove 

someone’s law license. 

Mr. LANKFORD. Let me ask you several questions, as well, because we are running out of time and I want to be able to honor 

everyone’s time to go through the questions. 

What is the best way to determine if someone can work? It seems 

that ultimately you have had two reports that have come in to you 

that this person has been denied for disability saying, no, this person is capable of working somewhere in the economy. Then they 

are standing in front of you with counsel there and additional documents. What is the best way to determine if this person can work? 

Judge SWANK. The regulations are actually very good. The agency has done a good job creating the regulations. You have to have 

the complete record, and not merely those pieces of the record that 

people want you to see. 

Mr. LANKFORD. Do you feel confident you are getting the complete record? 

Judge SWANK. No, sir. 

Mr. LANKFORD. Can you subpoena additional records or additional requests? 

Judge SWANK. Luckily, sir, when I was serving as an ALJ, I have 

a partial photographic memory, and I can go through the records 

that the doctor provided and the records that the attorney provided, and if there are records missing there is a problem there, 

and also from the attorney’s records I would note that the visit 

from September of 2009 wasn’t in there because the doctor said I 

saw him in September 2009. You subpoena that. And I also had instances where attorneys and non-attorney representatives actually 

changed records. 

Mr. LANKFORD. Just a quick statement. Do you have the ability 

to be able to ask people when is the last time you did work and 

what was that work, or do I have records from every doctor you 

132 

have seen? Is that a typical question or are you only getting the 

information in from the last doctor that approved everything? 

Judge SWANK. I would always ask that question, and I always required the attorneys, I asked them provide the rest of the information; and if they chose not to, I would subpoena. 

Mr. LANKFORD. Okay. Thank you. 

Judge SWANK. Yes, sir. 

Mr. LANKFORD. Ms. Speier. 

Ms. SPEIER. Thank you, Mr. Chairman. 

First of all, thank you all for your service and thank you for your 

testimony this morning. I think we have so many issues here that 

we could spend a couple of hearings on them. 

First of all, I want address this issue of the backlog and the impression that is being given that somehow you have to pay it down, 

and that you are pressured to take on between 500 and 700 cases 

a year. I am just going to read from fiscal year 2010, because that 

is the last year that all of you were in the Social Security Administration as ALJs. 

Judge Swank, you disposed of 604 cases that year and your denials represented about 78 percent. Judge Sullivan, you handled 158 

cases that year and you had an 83 percent denial rate. Judge 

Snook, you handled 111 cases that year and you had a 39 percent 

denial rate. Judge Butler, you had a 68 percent denial rate and you 

handled 659 cases. 

So two of you handled a workload that exceeded what was the 

goal; two of you did not. And your denial rates, for the most part, 

were very high. Judge Snook was the only one where yours was 

very low. 

So one of the statements made by Chairman Issa in March of 

2013 stated that Federal disability claims are often paid to individuals who are not legally entitled to receive them. 

And I guess my question to you, Mr. Sklar, is it true that most 

applicants for disability are declined? 

Mr. SKLAR. Let’s talk a minute about what happens at the State 

agency level. And I think it has been noted earlier that three out 

of four cases that are paid happen at the State agency level, so 75 

percent of all allowances happen before you even get to the administrative law judge level. Their actual allowance rate at the State 

agency is about 33 percent right now. For fiscal year 2013, when 

cases do get to the administrative law judge level, the allowance 

rate has been less than 50 percent. So I think the data kind of 

speaks for itself. 

Ms. SPEIER. All right. 

Can we put up on the screen there? 

[Slide.] 

Ms. SPEIER. Here is the other problem I see. Since 2007 the number of support staff added for ALJs has dramatically increased. The 

ALJs do not write their own opinions, their staff does, attorneys on 

their staff do. They have support staff. 

Judge Snook suggested that he can’t appoint the staff, but he 

does have 3 to 4 staff persons at his disposal, is that correct, Judge 

Snook? 

Judge SNOOK. I don’t think that is correct, Congresswoman. 

Ms. SPEIER. Well, how many staff do you have? 

133 

Judge SNOOK. I have one clerk that does the exhibits and such 

for my cases. The writers are pooled, so we submit our decision instructions and then they go with management and sometime later 

we get them back. But I have no control on how long it takes to 

get my draft decisions back to me, ma’am. 

Ms. SPEIER. But you don’t write the decision or the opinion, 

someone else does. 

Judge SNOOK. Normally not. Normally somebody else does, Congresswoman. 

Ms. SPEIER. All right. 

If you look here, we have a situation where the total claims are 

up dramatically and we in Congress have reduced the funding dramatically. So, on the one hand you have ALJs saying, you know 

what, we are being pushed to handle more claims and we shouldn’t 

have to do that, and on the other hand we are saying we are going 

to continue to reduce your funding. We can’t have it both ways, in 

my view. 

I think that we have augmented funding dramatically since 

2007. Mr. Sklar, is that correct? 

Mr. SKLAR. There was an infusion of funding around 2010, 2011, 

and that was incredibly helpful in helping us get down the backlog 

and improve quality throughout the organization. 

Ms. SPEIER. And has that been steady or has that now been declining, as this suggests it is? 

Mr. SKLAR. Unfortunately, since October 2011 we have been declining, and nationwide at Social Security we are down about 

10,000 employees. 

Ms. SPEIER. So you are down 10,000 employees, the amount of 

revenue that you have to operate has declined, and the number of 

claims that are being processed are increasing. Is that correct? 

Mr. SKLAR. Yes. 

Ms. SPEIER. Is that a recipe for disaster? 

Mr. SKLAR. Again, I prefer not to offer an opinion on the disaster 

point. We are trying to do the best we can with what we have, but 

we are in a really tough spot. We have made tremendous progress 

bringing down the backlog and improving quality, and I do believe 

our progress is somewhat jeopardized and the numbers reflect that, 

and processing times are going back up and we are trying to hold 

the line on quality, but it has been really tough. 

Ms. SPEIER. Thank you. 

Mr. Chairman, my time has expired, and I realize that we have 

very few members on the minority side here, so I am hopeful that 

you might allow me to be someone else at some point in time to 

ask some additional questions. Thank you. 

Mr. LANKFORD. Mr. Walberg. 

Mr. WALBERG. Thank you, Mr. Chairman, and thank you for this 

hearing; it is illustrative of a number of things that we have to deal 

with. 

Let me ask a question going back to Mr. Sutton, just to make 

sure that I understand where he is coming from in relationship to 

the work that is being done and concerns about involvements. 

Is the executive director of your organization, Nancy Shore, married to Charles Binder? 

134 

Mr. SUTTON. Congressman, I believe the answer to that is yes, 

but I am really not at all clear why I am being asked that question. 

Mr. WALBERG. Well, the only reason I am asking the question is 

that what we are hearing today about ALJs and their ability to get 

accurate information. We want to make sure that there is not only 

accurate information, but the process is appropriate. I understand 

that Charles Binder is a partner in the firm of Binder and Binder, 

which made $88 million in 2010, supplying claimant representatives for ALJ hearings. He personally, according to The Wall Street 

Journal, made over $22 million in that year. 

Doesn’t it financially benefit your organization, and you personally, to keep the system functioning, or malfunctioning, the way it 

is now? 

Mr. SUTTON. Again, I don’t really accept the premise of the question, Congressman. 

Mr. WALBERG. Well, you may not accept the premise of the question, but the fact of the matter is there seems to be some involvement for personal gain, significant gain, with policies that are promoted that really don’t give the taxpayer an opportunity to benefit 

by having information put out. 

Mr. SUTTON. Well, let me put it this way: I have been involved 

with the National Organization of Social Security Claimants’ Representatives, a membership organization of over 4,000 attorneys 

nationwide, since 1997 as a member of the Board of Directors and 

as a past president. I have never seen any influence by the firm 

you reference or any other particular individual or firm that is 

undue or improper, in any way, shape, or form. 

Mr. WALBERG. Thank you. I appreciate that. And, for the record, 

we have the record. 

Mr. Sklar, are claimants and claimants’ representatives required 

by law to provide complete and accurate evidence, medical, financial or other that bears on the case, whether or not the information 

is adverse, unfavorable to their claim? 

Mr. SKLAR. Congressman, right now there is some ambiguity in 

that area. That is why we have asked the Administrative Conference of the United States to take a look at this very tricky issue. 

There have been prior attempts at regulatory reform, and we ran 

into fierce congressional opposition. This is at least two prior commissioners. For the third time we decided to go to the experts, and 

the experts have actually written up a very thoughtful roadmap for 

how we can begin to regulate in this area. We are taking their recommendations very seriously and we are certainly going to be putting something together in fairly short order. 

Mr. WALBERG. What was the basis for the fierce opposition that 

you indicated? 

Mr. SKLAR. Actually, I was certainly not in this position at that 

time, but I suspect it was highly controversial, and there was certainly push-back from Congress as well. 

Mr. WALBERG. If claimants and their representatives don’t represent all relevant evidence, I guess the question is how are ALJs 

expected to fully develop the record to make a fair decision. 

Mr. SKLAR. Again, I think a lot of these points are very legitimate. I think the regulations right now are ambiguous and I think 

they need to be fixed, and we will be moving to fix them. We 

135 

haven’t decided precisely which route we are going to take, we are 

discussing them back at Social Security with my boss, the acting 

commissioner of Social Security, and you can be sure we are going 

to take that recommendation very seriously. 

Mr. WALBERG. Well, I appreciate that. On the issue of malingering, why is it the policy that the testing for malingering isn’t allowed? 

Mr. SKLAR. It is our thought that there is no magic bullet, so to 

speak, that can determine whether a person is actually malingering, so it really goes to the validity of the test. Those particular 

tests are also not available for individuals with low IQ or lower 

education levels, so our current position is that if it is in the file, 

the judge can certainly look at it and consider it as one piece of 

evidence, but we are not going to pay for that test. 

Mr. WALBERG. I see my time has expired. Thank you. 

Mr. LANKFORD. Mr. Horsford. 

Mr. HORSFORD. Thank you, Mr. Chairman. Thank you for scheduling this very important topic around Social Security benefits. 

And I want to thank Mr. Sutton for his opening statement because, for me, it is really about focusing on the beneficiaries first, 

and then making sure that the system, which is there to serve the 

beneficiaries, is doing the right thing and has the resources necessary to do it. So this is a very important topic. 

In Nevada, I hear from my constituents all the time that their 

Social Security disability claims take months, even years, before receiving a determination. Applying for disability is a great hardship 

for many people. The family who has lost an income source, so 

their money is tight. People, in my opinion, want to work, but are 

unable to do so. The disability application process becomes even 

more disheartening when you find out how long Social Security 

takes in the processing of these claims. 

And I know in our backup it indicated that in 2007 63,770 disabled workers had to wait 1,000 days or more for a determination 

on their disability claims. 

So, Mr. Sklar, I want to ask you is that the proper pronunciation? 

Mr. SKLAR. Yes. 

Mr. HORSFORD. Okay. First is, based on the investments by the 

Obama Administration and the hiring of 550 support staff and the 

additional administrative law judges since 2009, what is the current number of people, disabled workers, and what is the current 

amount of time people are waiting for a claims determination? 

Mr. SKLAR. Okay, in terms of wait times, they have dropped from 

an average of about 530 days back in 2007 to roughly 375 to 380 

days today. So it is about a 30 percent reduction in processing 

time. And, yes, the infusion of resources was absolutely critical. We 

hired over 800 judges; we actually hired a lot of support staff, actually, more than 400 or 500, quite a bit more; and it has really made 

a difference in turning the ship around. And we did take a good 

bit of those resources and pump them right back into quality, making sure we are getting the right answer, making sure we are looking at both pay cases and deny cases, because otherwise you get 

some very weird distortions in the system, and we didn’t like that. 

Mr. HORSFORD. So what accounts for the backlog generally? 

136 

Mr. SKLAR. SSA has developed backlogs on multiple occasions, 

and typically it is directly tied to the funding levels we received. 

If you do graph out how we fared compared to the President’s 

budget, and that spans over multiple administrations, typically we 

did not receive the level of funding recommended in the President’s 

budget, and in some years, like the last two years, we were hundreds of millions of dollars below that level. 

Mr. HORSFORD. So what is currently being done now to address 

this, and are there regional places where you see improvement over 

others? We have been focused on the veterans backlog issue and we 

are starting to see some improvement there now based on our 

focus, so have you seen areas of the Country or centers that have 

historically done a better job than others? 

Mr. SKLAR. One really nice thing is that we have invested a lot 

in IT and we have a fully electronic system, so we really move our 

work around a lot. So if you have an office that has really high 

processing times, we will send their work out to a different office 

so that they can begin to work down those cases. So we really 

smoothed out the variations, and if you do look at the chart in my 

written testimony you will see that there were only a handful of 

offices with processing times over 475 days, and that is largely a 

function of having a fully electronic workload, which is really, really important for us. 

Mr. HORSFORD. So by the time it gets to the administrative law 

judge step, there are steps before that. 

Mr. SKLAR. Correct. 

Mr. HORSFORD. So what is the bottleneck? Because today we are 

talking about really the third and last step, but it is the steps prior 

to it that, if we are making progress and improvement, then by the 

time it gets to the administrative law judges, some of the issues 

that are being raised today should be addressed, or at least aware. 

Mr. SKLAR. Typically they are very efficient, the State agencies, 

but they suffer from the same realities we do in that SSA funds 

the State agencies at 100 percent level, and if our budget is cut, 

effectively their funding is going to be cut too. So right now those 

State agencies are also starting to build up backlogs in stage cases. 

That basically means they have cases that they really can’t work 

that they logged in. So if you look ahead down the road, they are 

going to be having problems too, and it is just beginning. 

Mr. HORSFORD. Thank you, Mr. Chairman. I know my time is expired. I just want to say that I know the Social Security Administration is facing a lot of difficulties in ensuring that no one is gaming the system, and I know that that is the intent with the hearing 

today, but we need to find a way to address the backlog issue because there are honest, hardworking Americans waiting for their 

disability claims to be processed in order to provide for themselves 

and their families, and I just hope that throughout this process and 

the subsequent ones that we will keep the beneficiaries of SS programs at the forefront. These are people with disabilities, some of 

them young, some of them older; they are people who have paid 

into the system and they are entitled to these benefits. So we 

shouldn’t be setting up an unnecessarily burdensome process for 

them to get the benefits that they have earned. Thank you. 

Mr. LANKFORD. Thank you, Mr. Horsford. 

137 

Dr. Gosar? 

Mr. GOSAR. I appreciate the gentleman’s comments and kind of 

want to take along that because we are tasked with looking at the 

flawed process. 

Judge Sullivan, I want to ask you a number of questions because 

I am very process oriented. I am a dentist; I like process. Were you 

told to look through cases to pay them without a hearing? 

Judge SULLIVAN. No. 

Mr. GOSAR. Were you told to set an egg timer so not to spend 

so much time with any one case? 

Judge SULLIVAN. Yes. 

Mr. GOSAR. How much time were you supposed to spend on a 

typical case? 

Judge SULLIVAN. I received special training in January 2010 

within a month of being taken off caseload. 

And just as an aside, Congresswoman Speier, the statistics you 

have about my particular caseload are slightly incorrect. I did not 

work on adjudication for most of the fiscal year 2010; I was off 

caseload as of February 2010. So what you have identified as a full 

year’s caseload is actually less than a half year’s caseload for me, 

and it does not count all the cases that were taken out of my calendar before final decision was reached. So it is a little bit, the reality of my work and other judges’ work is different from the statistic you have. 

In terms of your question, Congressman, I was given special 

training in January 2010, set up by the regional chief of the region 

in which I was working, and a special judge in his regional office 

provided training for me and two other judges in my office so that 

we could increase our goal, and I was told at that time that I 

should spend no more than 20 minutes reviewing all the medical 

evidence in the file on a regular case and no more than an hour 

reviewing any file, regardless of how much evidence was in that 

case, including cases that included over 4,000 pages of medical reports. 

Mr. GOSAR. So were you told to put 50 exhibit pages on a single 

screen to quicken your review? 

Judge SULLIVAN. Yes. 

Mr. GOSAR. Were you told that the only thing that mattered was 

whether you produced and met agency goals, correct? 

Judge SULLIVAN. Repeatedly. 

Mr. GOSAR. Were you told that the careful review of applicants’ 

files were not necessary? 

Judge SULLIVAN. Yes. 

Mr. GOSAR. Were you told not to spend more than one hour reading any applicant’s file? 

Judge SULLIVAN. Yes. 

Mr. GOSAR. Were you told you could ignore primary care physicians’ notes? 

Judge SULLIVAN. Yes. 

Mr. GOSAR. Wow. You received the same direction in West Virginia and Oregon? 

Judge SULLIVAN. I did not receive that direction in Oregon because by that time I was off adjudication caseload, but I was also 

138 

told, when I moved to Oregon, that I was not welcome and not valued as a member of the office because I was not making goal. 

Mr. GOSAR. So were you told not to continue a case even if an 

attorney filed lots of new medical evidence at the last minute? 

Judge SULLIVAN. Yes, repeatedly. 

Mr. GOSAR. Were you told to hold hearings without evidence? 

Judge SULLIVAN. Yes, repeatedly. 

Mr. GOSAR. Were you threatened by senior management that if 

you didn’t meet goals, that you would likely not be able to transfer 

to a preferred office? 

Judge SULLIVAN. That was one of many threats, yes. There is tremendous pressure on judges to avoid all meaningful adjudication in 

order to make the numbers. 

Mr. GOSAR. Were you told by senior management that judges 

who failed to meet the quota were lazy? 

Judge SULLIVAN. Yes, all the time. Let me just say that that is 

a very, very common response by SSA management officials to any 

complaint that a judge who is trying to do meaningful work, that 

the judges are lazy, they don’t care, they are not hardworking, they 

are not efficient, they are not productive, and so forth. There is this 

tremendous vision by Social Security management that the only 

thing that matters in the adjudication process is signing that final 

decision, and if you do not make those numbers, then all negative 

labeling begins to occur, and other things too. 

Mr. GOSAR. So kind of going along this—— 

Ms. SPEIER. Mr. Chairman? 

Mr. GOSAR. I do not yield. 

Ms. SPEIER. Mr. Chairman, I have a point of order. 

Mr. GOSAR. When judges that met productivity goals would find 

it easier to schedule travel? 

Judge SULLIVAN. Yes. 

Mr. GOSAR. This is to all the judges. 

Mr. LANKFORD. Can we hold on the time for just a moment? Excuse the gentleman there. 

What is the point of order? 

Ms. SPEIER. Mr. Chairman, isn’t it true that if a case is in litigation, it should not be the topic of discussion at a committee hearing? 

Mr. LANKFORD. The conversation as a whole here doesn’t imply 

that we are trying to gain additional evidence. These are things 

that are also all out there, and we not trying to litigate a case at 

this point, we are trying to deal with what are the realities for 

judges, what are the pressures that are there. So I think it was the 

line of questioning. We are not trying to gain anything for litigation. 

Ms. SPEIER. Well, but the questions that were being asked of the 

judge would suggest that it was on point for the issues that are before the court in litigation right now. So I would like to suggest 

that we be a little more introspective about raising questions and 

asking questions that would impact ongoing litigation, because that 

is not something that we should be engaged in doing. 

Mr. LANKFORD. No, I would agree that we should not try to impact any kind of litigation; we should try to get to the facts of what 

do within a typical work day with an ALJ and how they function, 

139 

and is that an operation that is helping them get to the end goal 

of actually helping the disabled. 

I yield back to Dr. Gosar. 

Mr. GOSAR. And I would agree this is about process, and we have 

a problem with process; and any time you want to have a fix, you 

need to understand the process. 

To all the judges, I would like to have your answers. Would you 

agree that the agency has actually curried ALJs to decide cases 

based on a flawed case file? Judge Swank? 

Judge SWANK. Yes, sir. As I wrote in my articles, that is actually 

quite common in that, statistically, 93 percent of the cases came 

before me were incomplete. So to be able to make a determination 

on an incomplete file is very difficult. In all fairness, though, because you are having to wait on doctors and the records aren’t instantaneously available, sometimes if a person saw the doctor a 

month ago, those records might not be available, and that is understandable. 

But many times, sir, it is the same exact evidence that was before the State disability determination service that denied it one 

time and two times, done by professionals using the exact same 

rules and regulations that the administrative law judge must follow. So it calls into question why are there so many reversals of 

those State agency determinations if there is the same exact evidence, unless the individual crossed a grid line, in case a new impairment has come, which would justify a later onset determination. 

But if it is the same exact evidence, granted, there would be 

some times when the State determination system was wrong, and 

I saw it. I did over 4,000 cases; I saw it. But for the most part they 

are right on, so, if there is no new evidence, how could you have 

a different determination unless they were wrong or something else 

has changed. 

Mr. GOSAR. Mr. Chairman, I would like to have the other judges 

please respond. I think it is important to the hearing. 

Mr. LANKFORD. Quick response. 

Mr. GOSAR. Judge Butler, would you agree with Judge Swank? 

Judge BUTLER. Yes, it is true. Part of the problem, as we have 

discussed before, I don’t get complete information, and I have letters, responses from attorneys where they have told me that Judge 

Bice and different agency representatives have formed NOSSCR 

and other groups in meetings, conferences that they don’t have to 

produce evidence. That leaves me in a difficult position. A lot of the 

evidence, for instance, will deal with worker compensation records, 

and they don’t want to produce them. Personal injury type cases, 

they don’t want to produce them for various reasons. 

But when you talk about using a subpoena to subpoena records, 

we can’t enforce our subpoenas. And if you are doing with anybody 

who has an attorney or has some idea how this program works, 

they totally ignore you. So you don’t have any avenue to close this 

gap. If you don’t put an obligation on attorneys to participate in 

this system openly and honestly, and not conceal evidence, you are 

in a very difficult situation, and that is why, one of the reasons, 

you have had so many people possibly put on disability that 

shouldn’t be there. 

140 

Mr. GOSAR. Judge Sullivan? 

Judge SULLIVAN. The answer to the question in terms of the 

medical record file is I was encouraged and pressured to decide 

cases without medical evidence in the file. 

I would also amend my answer to your earlier question, Congressman. No one ever suggested to me or told me to pay a specific 

case, but I was strongly encouraged, in my recommended 20 minutes of review, to look for evidence in which I could pay the case 

and then stop reading it. I was also encouraged by management to 

simply pay cases. 

Mr. GOSAR. Judge Snook? 

Judge SNOOK. The answer is yes, Congressman. And with regard 

to incomplete files, we also get cases where the DDS has insufficient evidence. They will say the claimant didn’t attend the 

consultive examination; incomplete evidence, pass it on to the ALJ. 

Now, I have to develop the entire record, and I don’t understand 

why they send it to the ALJ. There is a regulation that says if the 

claimant doesn’t cooperate, you can dismiss the claim. These type 

cases should never come to the ALJs; the DDS should handle it 

themselves, and if they don’t attend the CE, dismiss the case. 

My colleague Judge Butler, it might be good to ask Commissioner Sklar how many subpoenas have been enforced. None of my 

subpoenas over 16 years have ever been enforced. 

Mr. GOSAR. I thank the chairman’s indulgence because I think it 

was very valuable to the testimony. 

Mr. LANKFORD. Mr. Woodall. 

Mr. WOODALL. Thank you, Mr. Chairman. You know, one of the 

great responsibilities and, really, privileges that we have is going 

to bat for folks who are going through this process too. I think 

about your work. Mr. Sutton, I confess that at most town hall 

meetings I tell folks don’t call an attorney, call your congressman, 

because you have already paid our salary ahead of time. So trying 

to take some business away from you, but knowing that business 

is good already, and I consider that a failure that business is good. 

Business shouldn’t have to be good. 

But I am thinking about Judge Swank’s concern that he couldn’t 

get a full picture of the case. Why can’t we ask our attorneys operating before these ALJs to give us both sides of the story? You can 

advocate for your client without concealing the truth from the 

judge. Tell me about that. 

Mr. SUTTON. Absolutely, Congressman. I appreciate the question 

and a chance to respond. The statute that Congress wrote requires 

that all material facts be disclosed and that no material fact be 

withheld from the tribunal. Judge Swank talked about seeing cases 

where his partial photographic memory told him that a page was 

missing or he averted to altered records. 

I will tell you that any attorney who would do such a thing 

should not only be barred from practicing before the Social Security 

Administration, they should be disbarred in their home State. In 

my State of Pennsylvania, that attorney would be disbarred for 

such activity. 

Mr. WOODALL. Well, I want to focus on those things on which we 

agree, because so often here we end up focusing on things we disagree about. But I think you are absolutely right. Judge Swank 

141 

would agree those folks ought to be disbarred; you would agree 

those folks ought to be disbarred. 

Mr. Sklar, why is it that we can’t report those, why your judges 

can’t report those things directly to the State bars? Is that something we have done wrong in Congress? Is that a Social Security 

regulation? What is the reason that we can’t move directly from a 

judge’s learned opinion directly to a State bar? 

Mr. SKLAR. Okay, to sort this out, to be clear, if the allegation 

is some type of criminal allegation, it is going to go right to the inspector general; if it is a State bar type allegation, those typically 

will be routed through our general counsel’s office. They are very 

experienced; they look at the full breadth of referrals. 

Mr. WOODALL. But is that a Social Security Administration decision to route them that way or have we directed you to route them 

that way? 

Mr. SKLAR. No, that is our decision, and part of the reason is if 

everybody is sending cases, claimant information and other potentially privacy unprotected material over to the State bar, it is really 

dangerous both to claimants and the judges; and in many ways it 

is for the protection of individual privacy of claimants and to make 

sure that judges don’t run afoul of the Privacy Act. I mean, we 

have had situations where people just turn things over to the State 

bar and they give them the whole case file, and they can’t do that; 

that is a Privacy Act violation, with potential criminal and civil violations. 

Mr. WOODALL. As a good conservative from the south, Judge 

Swank, I am always concerned when someone tries to protect me 

from myself, even if they do in the best possible sense of the word. 

I think that Commissioner Sklar is absolutely right, I think he is 

protecting some judges from themselves. Do we need to protect you 

from yourself? 

Judge SWANK. Well, if I may, Congressman, I worked directly on 

this topic in my article before with the American University published the Social Security Administration’s condoning of and 

colluding with attorney misconduct, and with all due respect to 

Deputy Commissioner Sklar, we are not talking about reporting information on claimants to the State bar. And I wrote about this 

very explicitly in my article. 

We are talking about the conduct of an attorney; and that is not 

protected by the Privacy Act. I can merely report to the State bar 

saying this is what has occurred in a case before me, and I meet 

my requirement. But I can’t do that because of their regulation. 

Nor can I report it to the Office of General Counsel. 

Mr. WOODALL. Commissioner Sklar, I tend to be sympathetic 

with Judge Swank. I have those same obligations to my State bar. 

Certainly, he would not be allowed to turn over things that implicate Privacy Act issues, but does have an obligation to report behavioral issues as they relate to attorneys that appear in his court. 

Does the Social Security Administration regulation intend to prevent attorneys, folks with bar obligations, like Judge Swank and 

myself, from fulfilling those obligations, or would you support a 

change in the regulation to allow us to fulfill those bar obligations? 

Mr. SKLAR. I believe any administrative law judge that informed 

whatever appropriate authority that the disclosure is made 

142 

through the General Counsel’s Office would hardly be in jeopardy. 

I do think it is a complicated issue, because we have seen instances 

in the past where folks are not as thoughtful as you are representing, and in a perfect world it would probably be fine, but 

sometimes judges are frustrated and they decide I am just going 

to send the whole file over, and then the disaster starts and nobody 

is happy. 

Mr. WOODALL. I know my time has expired, Mr. Chairman, but 

I hope in the next round I will be able to pursue why it is we have 

judges on the bench who aren’t thoughtful enough to at least make 

an accurate reporting to the bar. That may be a secondary issue 

that we need to confront. 

I thank the chairman. 

Mr. LANKFORD. Thank you. 

Dr. DesJarlais? 

Mr. DESJARLAIS. Thank you, Mr. Chairman. 

And thank you all for being here today. Let’s shift gears just a 

little bit and talk about the priority of continuing disability reviews. The law requires that the SAA perform regular continuing 

disability reviews for people who are expected to be able to return 

to work. 

Coming to Congress from a 20-year primary care practice, I have 

seen a lot of various disability claims cases and what-not from the 

physician standpoint, and I will tell you I know that every year I 

will have a patient who comes in who is a quadriplegic in a wheelchair that we have to go through the paperwork and renew the application for his disability or her disability. To me it is painfully obvious that they are never going to work again, but we can’t seem 

to expedite that process. But then there are other cases, too, where 

I don’t see the same people who went in for their disability and 

they seem to get lost in the system. 

Judge Swank, you were very critical of the Social Security Administration for allowing a huge backlog of medical continuing disability reviews to compile. Can you explain why CDRs are so important? 

Judge SWANK. Yes, sir, and thank you for the question. First and 

foremost, as I wrote in my Hofstra University Law Review article, 

pursuant to the Social Security Administration’s own statistics 

from the inspector general reports, for every $1 spent on a continuing disability review, it saves $15. That is a great return. 

I worked specifically at childhood continuing disability reviews 

and, for instance, in 2002, 163,768 childhood disability reviews 

were done by the agency. In 2007 the agency did 4,440. The inspector general of the agency has pointed out that the Administration 

is not doing what is required by law; not by choice, it is required 

by law. 

And the agency and Deputy Commissioner Sklar had referenced 

this earlier. In all due respect to him, he refers to it as being a 

budgetary issue, and I point out in my Law Review article that 

since 2009 Congress has given additional money merely for continuing disability reviews, $1.4 billion worth through the date of 

my article; and yet the agency was doing 87 percent fewer with 

more money than they did in 2003 when they had no additional 

funding. 

143 

Mr. DESJARLAIS. I think that would be a good point to stop and 

ask Commissioner Sklar does the Social Security Administration 

decide how much of its resources to allocate to medical CDRs? 

Mr. SKLAR. I guess the answer to that really is it depends. At 

times there has been dedicated funding exclusively for CDRs, and 

that has been incredibly helpful. In fact, we got caught up, so I 

would say maybe about 10 years ago there was dedicated funding. 

We are very happy to do the CDRs, in fact, we want to do the 

CDRs, and we had the money and those were completed. 

More recently, from fiscal year 2007 through fiscal year 2012 we 

have increased the number of CDRs we have done, but our budget 

has been cut severely. We lost over 10,000 employees and it is becoming exceedingly difficult to stay on pace with all the continuing 

disability reviews in light of the lack of adequate and sustained 

funding. 

Mr. DESJARLAIS. So he is saying that there is a $15 return for each $1 spent. Do you disagree with that? 

Mr. SKLAR. I wouldn’t want to get into a jousting match with the IG or the actuary, but I have heard about nine to one for each $1. 

Mr. DESJARLAIS. Sounds like a money maker. 

Mr. SKLAR. Yes. Yes, indeed, and we agree, and we think it is 

really, really important for Congress to fund these important activities. 

I will say in our fiscal year 2014 budget proposal, there is a pro- posal to increase our funding by $1.5 billion. 

Mr. DESJARLAIS. But you can divert resources now to this, so 

why don’t you divert some of those resources? He just said there 

was extra resources allocated. 

Mr. SKLAR. Sir, when our Acting Commissioner Colvin testified 

before our appropriators, she brought some pictures with her, and 

they were pictures of folks in Florida, elderly folks standing outside 

a field office in the heat with a line like opening day for a Harry 

Potter movie. It was unbelievable, two blocks long. We have just 

unbelievable lines outside our field office now. 

Mr. DESJARLAIS. Okay, so it is more important to get more people on than to get people back to work. I just want to tell you, as 

a physician, I have seen a lot of people who are handicapped and 

become dependent on this system. The chairman was saying that 

only one percent leave Social Security disability. I have a seen a 

lot of young people who have an injury and there is no doubt they 

can get back in the workforce, but the longer they are on this disability insurance, they become dependent on the system; and I 

have seen it ruin marriages, lives, and careers, and I think it is 

very important that we do that. 

Mr. Sutton, you seemed very frustrated as Judge Sullivan was 

talking about the pressures that are put on judges. Do you think 

her testimony is inaccurate? 

Mr. SUTTON. I wouldn’t say that any judge’s testimony is inaccurate, but I would say this: I note, not just with Judge Sullivan, 

but all the judges here, the answer to the direct question from any 

of the members have you ever been told to pay a case, the answer 

is no. I would say that the actual data, the statistics about allowance rates at every level, at the State agencies, the initial decisions 

and re-considerations, and the ALJ considerations, over the last 

144 

five years has shown a significant decline in the number of allowances. 

Mr. DESJARLAIS. Well, what she is saying has got to be very 

alarming to you. It is to me. If that is happening at all, that is 

wrong, isn’t it? 

Mr. SUTTON. Dr. DesJarlais, I do not know all the ins and outs 

of this. I do know that the union, of which I guess all these ALJs 

are a member, has filed a lawsuit making allegations along these 

lines, and I assume that the court is going to resolve those allegations. 

Mr. DESJARLAIS. I guess you have probably gone to the court and 

at sat with some of these judges and watched their typical day to 

get this opinion you have. Have you spent quite a bit of time in 

the courtroom watching them? 

Mr. SUTTON. Not these particular ALJs, but I am before ALJs 

many days of the week, all the time. I work in their courtrooms. 

They do an excellent job, by and large, of adjudicating these cases. 

They do make some mistakes on either side of the line, but they 

are doing yeoman’s service. And as Commissioner Sklar has pointed out, the backlog has come down very significantly in the last 

five years with the additional resources they have been able to 

throw at the problem. People really need decisions on these cases 

and they need the right decisions. 

Mr. DESJARLAIS. And I think we have established that your drive 

is to get more people on the disability than to possibly get them 

off and get them back to work. 

Mr. SUTTON. I would tell you that, for myself and for our organization, doing CDRs, continuing disability reviews, is appropriate 

and should be done. Some people do improve. In fact, some people 

do go back to work. Other people are disabled so significantly that 

they pass away from their conditions. 

Mr. DESJARLAIS. Right. And I have seen them both, but I want 

you to agree with me that it is essential to do these CDRs, because 

we are handicapping these folks by not doing them. 

And I yield back. Thanks for the extra time. 

Mr. LANKFORD. Thank you. 

Let’s start a second round of questions in just conversation as we 

try to walk through some of these things as well. 

Mr. Sklar, let’s talk a little bit about the grid. It has come up 

a couple times. I am sure there is an ongoing process to be able 

to evaluate the grid. My understanding is that the grid has not had 

a major redo since the 1970s. What is the process right now to be 

able to evaluate some of the issues on how do we evaluate disability, and is that current; deal with age, occupations? There have 

been a few changes that have happened since the 1970s. 

Mr. SKLAR. That is a fair assessment. We have partnered with 

the Department of Labor and the Bureau of Labor Statistics to try 

to get the grid updated. They are collecting occupational information. They are doing some testing. But it will be a little bit longer 

before they are done. It is a very complicated task. As you well understand, anything we do is subject to scrutiny both from Congress 

and from the legal community. 

Mr. LANKFORD. I have noticed, yes. 

145 

Mr. SKLAR. And the commissioner is probably the most sued person in America, sustaining 10,000 lawsuits annually. So we know 

as soon as we do it, we will be challenged, so we want to make sure 

that we do it right and we do it with a good research base. 

Mr. LANKFORD. Sure. But there are obvious changes in occupational abilities there that have happened since the 1970s, so it is 

well past updates. Just a couple questions as I run through it. It 

hasn’t really changed dealing with age. Obviously, life expectancy 

is longer now than it was in the 1970s. Working age is typically 

longer now. 

The type of occupations are more sedentary occupations than 

they were in the 1970s, a lot more computer driven with this wonderful thing called the internet that has come onboard. There is a 

lot of economic activity. It also has a listing for English proficiency 

as one of the issues, whether you have proficiency in English, you 

get a different score with a disability. Is that true in Puerto Rico 

as well, by the way? Because I know we have benefits all over. Is 

that true whether you are in the 50 or in one of the territories as 

well? 

Mr. SKLAR. There are two parts to your question. Can I just take 

each piece, if I may? 

Mr. LANKFORD. Sure. 

Mr. SKLAR. The first part was about the age grids and perhaps 

the need to bump up the age categories. 

Mr. LANKFORD. Just to evaluate them. 

Mr. SKLAR. Sure. Sure. And I would just offer that was attempted back in 2005. There was not a research base under it and 

it was highly controversial and was pulled back at the time. 

On the second issue, nobody gets paid because they can’t speak 

English. That is correct, it is one of the factors; age, education, 

work experience. Overall, in the grand scheme of things, it is a 

very small number of cases, probably less than 5 percent, maybe 

even less than 2 percent. We could try to pull the figures for you. 

But, yes, that is a factor that in some cases does tilt somebody’s 

way as a claimant. 

Mr. LANKFORD. Is that true of Puerto Rico as well? 

Mr. SKLAR. Yes. 

Mr. LANKFORD. In Puerto Rico there are a lot of folks who don’t 

speak English, a lot there. So obviously employment is fairly easy 

in Puerto Rico if you are speaking a non-English language. Is that 

something that can be evaluated and changed fairly soon or is this 

a broader piece, everything has to be done all at once? 

Mr. SKLAR. It really all hangs together. There is a second work 

stream. We are talking to a different group, research group, the 

Disability Research Consortium, and we asked them to look at age, 

education, work experience, and so on. 

Mr. LANKFORD. Okay, so give me a guess on time. Are we talking 

about six years or are we talking about six months? 

Mr. SKLAR. Somewhere in between, I would say. 

[Laughter.] 

Mr. LANKFORD. Five and a half? 

Mr. SKLAR. Probably closer to the six months, but maybe about 

two, three years for the full grid. It is a massive project. It is a 

huge amount of work. 

146 

Mr. LANKFORD. Sure, I understand that. How can we help in that 

journey for that? Because that is obviously important. That has 

hung out there through multiple administrations. That is something that needs to be done over time. How can we help in the 

process? Is there a way that we can engage to get draft documents 

of that and to be able to evaluate time lines? Is there a time line 

that has been set with metrics to say we are going to have this 

part of it done by this, this part of it done by this, we are going 

to put it out to comment by this point? Has that time line been established? 

Mr. SKLAR. There is a very fair offer. I should add that our oversight committees have been incredibly helpful in joining us with 

the Department of Labor. For a while we were going down different 

paths, and now those paths have come together and I think we are 

making much faster progress, and I would hope it is closer to the 

six months than six years. 

Mr. LANKFORD. Is there a way that we can request to get the 

time line of those and the metrics of what are the standards, what 

are you trying to accomplish by when so at least we will have a 

good, accurate time line? 

Mr. SKLAR. Again, my day job is running the hearings and appeals operation, and the policy component is a little closer to the 

details as to where they are on time frames. But I generally have 

awareness because it is very important to the job we do and I know 

there is a lot of frustration about the fact that Internet jobs and 

anything modern is not included in the DOT. 

Mr. LANKFORD. And we will follow up with the Administration to 

be able to make that request formally of them by letter so we can 

get the time lines and the metrics and what you are trying to 

achieve by that. 

Here is part of my struggle on it, and everyone has their own biases and issues as they approach this: I have a very close family 

member that lost her leg to cancer in the early 1980s. She retired 

a month ago, after working another 30 years. She is blind in one 

eye. She lost her right leg and has been confined to a wheelchair. 

But you won’t find anyone that works harder than her. It is not 

possible to find anyone that works harder than her. By every part 

of the grid she would have qualified. The challenge that she has 

is she has a passion to actually be productive and to set the tone. 

I want people that are disabled and can’t work to be able to get 

disability. We have a safety net for a reason, and we have intense 

compassion for people, and that is what sets us apart from many 

nations around the world. But if the criteria is they can work in 

any part of the economy that we can transition into it, I don’t want 

to lose what that person brings to the economy and to their family 

and to the next generation. 

My family member’s example will never be forgotten by her children. Never. Will never be forgotten by me. And we will pass that 

on year after year, generation after generation, and tell our children, because my children have watched her. There is no doubt 

that will be a part of our family conversation for a long time. 

I want that gift to be given to other individuals, but I also want 

to make sure we, as a Nation, still stand by people and have the 

safety net. Reforming the grid becomes very important to me beVerDate Aug 31 2005 15:25 Aug 07, 2013 Jkt 000000 PO 00000 Frm 00150 Fmt 6633 Sfmt 6633 C:\DOCS\82276.TXT APRIL
147 

cause I want that safety net to be there. But I also don’t want people to be automatic, to be able to go through the process. 

And you have articulated extremely well that only a third of the 

individuals that come through the State process are actually approved, and you said just under half that go through the ALJs are. 

We understand it is not automatic, which is another part of our 

conversation that we can have if possible we have a moment as 

well, and that is to try to figure out how do we keep so many people from getting in the pipeline that it clogs up the pipeline. If it 

looks like the pipeline is wide open and go ahead and give it a shot, 

you may have a good shot to get this, go ahead and try. 

We are discouraging people from working because immediately 

their counsel will say, well, the first thing you need to do if you 

are going to get disability insurance is don’t work now, stop working and wait. Don’t work. And then once you get to that spot, then 

we will go before the judge and tell them you are already not working. If you stand before the judge and say I am working already, 

that is going to be a whole different issue. So we have some issues. 

Mr. Sklar, you wanted to be able to mention something as well? 

Then I need to move on. 

Mr. SKLAR. First, thanks so much for sharing that story, and it 

is a story we hear every day about folks with disabilities really 

wanting to work and not wanting to be on the disability rolls. 

Second point that is really important, we really want to get to 

a place where everybody has an opportunity, and what we don’t 

want to do is clog up the rolls with folks who shouldn’t be going 

through the system. And one area where this committee could be 

helpful, we do have States actually giving out finder’s fees to bring 

people to us. 

Mr. LANKFORD. That is a problem. 

Mr. SKLAR. In other words, if you can’t cost shift from State government, sometimes there are finder’s fees for bringing—— 

Mr. LANKFORD. Do you have recommendations on how we fix 

that? 

Mr. SKLAR. I do not, but I think your point of a lot of people 

showing up to apply for benefits, a lot of people later abandon 

those claims. 

Mr. LANKFORD. Right. But it just clogs up the system as we go. 

Mr. SKLAR. But we share the same goal that you do, that only 

the right people get on and that we do get a quality decision as 

well. 

Mr. LANKFORD. Thank you. 

Ms. Speier. 

Ms. SPEIER. Thank you, Mr. Chairman. 

I would like to have each of you express whether you support a 

more robust continuing disability review. And just very briefly, if 

you would. 

Judge SWANK. Yes. I will elaborate a little bit. 

Ms. SPEIER. I don’t have time for that, so yes will be great. 

Judge BUTLER. Yes. 

Ms. SPEIER. Mr. Sklar? 

Mr. SKLAR. I am sorry. I apologize, I thought that was a question 

for the judges. 

Ms. SPEIER. No, I am asking you as well. 

148 

Mr. SKLAR. I am sorry. Could you please re-ask the question? 

Ms. SPEIER. Sure. So do you believe that we should have a more 

robust continuing disability review? 

Mr. SKLAR. Absolutely. 

Judge SULLIVAN. Congresswoman Speier, I am so sorry, I am not 

quite sure what that question encompasses. Are you talking about 

just the adjudication review or the program as a whole? 

Ms. SPEIER. I am talking about whether, after someone has been 

on disability for a period of time. 

Judge SULLIVAN. Okay, after the decision to grant benefits. 

Ms. SPEIER. Whether or not there should be a review to see if 

they still qualify. 

Judge SULLIVAN. I would say, wholeheartedly, yes. 

Ms. SPEIER. Okay. 

Judge Snook? 

Judge SNOOK. Absolutely. 

Ms. SPEIER. Mr. Sutton? 

Mr. SUTTON. Yes. With funding, of course. 

Ms. SPEIER. Okay, so, Mr. Sklar, let’s talk about that a little bit 

more. How would we make it more robust in terms of making it 

effective? Because, as I understand it now, it is fairly catch-ascatch-can or kind of informal in nature. 

Mr. SKLAR. Well, the first part really is the funding part. We 

have been funded about a billion below the President’s budget for 

the last few years, so it really has to start with funding. We do do 

these reviews; we like to do them timely, and we do need sustained 

funding to make it happen. In the past, when we have had dedicated funding, we have done the reviews. 

Ms. SPEIER. So what would dedicated funding amount to? 

Mr. SKLAR. I believe, again, the Administration is asking for $1.5 

billion next year to get us caught up. I think that would buy about 

a million CDRs and get us back in the game and get us pretty close 

to up on track, and I think everybody certainly at Social Security 

would be very happy to get caught up. 

Ms. SPEIER. Is that one year funding, is that what you are referring to? 

Mr. SKLAR. I know it is in the fiscal year 2014 budget. I believe 

it is $1.5 billion. 

Ms. SPEIER. $1.5 billion would give you sufficient funding to do 

the kinds of reviews we are talking about, or is that more inclusive 

of everything that you want to do? 

Mr. SKLAR. No, no, that is for CDRs, to get us caught up to 

where we need to be. 

Ms. SPEIER. Okay, so that would be just for CDRs, $1.5. Now, in 

your experience historically, when CDRs are done, what percentage 

of those who have been receiving disability no longer quality? 

Mr. SKLAR. It is actually quite small. Once you actually get 

through the entire process, I believe it is somewhere between 4 and 

7 percent. They do have multiple levels of appeal and in the end 

it is a fairly small number, but it is still absolutely cost-effective. 

And, as mentioned earlier, the return could be somewhere in the 

neighborhood of $9 to $1 or so. 

Ms. SPEIER. Okay, so it would be prudent to do it. 

149 

Mr. SKLAR. It is certainly cost-effective, prudent, and it goes to 

good government and integrity of the process. 

Ms. SPEIER. All right, great. So that is something, certainly, we 

can get our arms around and in a bipartisan fashion probably support. All right. 

Secondly, final date for evidence. I mean, it makes sense to me, 

but let’s hear from each of you very quickly. Final date for evidence. 

Judge SWANK. I would not make a decision, ma’am, until I did 

get all the evidence, so if I didn’t have all the evidence at the time 

of the hearing, I was going to hold the record open until I did get 

it, whether it was from the attorney or from the doctor. It is certainly more cost-effective to have it before the hearing, all the evidence. 

Ms. SPEIER. Judge Butler? 

Judge BUTLER. At least five days. I think NOSSCR wanted 75 

days. Excuse me, I am sorry. At least five days, maybe two weeks. 

There is no reason you can’t put that information together and get 

it to the judge so the judge has an opportunity to look at it before 

they go and have a hearing, and that is important. 

Ms. SPEIER. And you can always ask for a continuance. 

Judge BUTLER. Well, that is a problem. It costs a lot of money 

to continue these cases. 

Ms. SPEIER. I see. 

Judge BUTLER. And there is no reason, generally, for an attorney 

that is doing their job, and they are getting paid a lot of money to 

do this job, to get that information to the judge and in the record 

so we can make a decision. 

Ms. SPEIER. All right. 

Mr. Sklar? 

Mr. SKLAR. I am really not in a position to offer a formal agency 

position, but I will say we are running a pilot in our Boston region 

where we do have soft closure of the record five days before the 

hearing, and it appears to be working reasonably well. We have 

asked the Administrative Conference to study that and report back 

sometime over the summer, and they will do that. 

Ms. SPEIER. All right. 

Judge Sullivan? 

Judge SULLIVAN. Thank you. I would say two to four weeks before the hearing. And I will adopt Deputy Commissioner Sklar’s 

language a little bit, to have a hard closure, which means that that 

is a final closure of the record. And I would simply also say that 

records should be summarized by the proponent, the person who is 

moving, so that the records are identified as why they are relevant 

and probative to the issue before the court, as opposed to, for example, just dumping into the electronic file 2,000 to 4,000 pages of 

material and saying, here you go, good luck, which is what is happening now. 

Ms. SPEIER. Judge Snook? 

Judge SNOOK. I would say 10 business days, Congresswoman. 

The Disability Service Improvement Act for formal rulemaking 

came up with the five business day rule, but most of the medical 

experts in Miami testify by telephone. So it is not just a question 

of the judge reviewing the record, we have to get the record to the 

150 

medical experts and the vocational experts. Most courts require 

more than 10 days before, but my recommendation is 10 business 

days. 

Ms. SPEIER. Mr. Sutton? 

Mr. SUTTON. I don’t agree with Judge Swank on a lot of things, 

but I agree with him on this. The record should close when the 

record is complete. That is how we do business now. We endeavor 

to get all the records well in advance of the hearing, but even with 

lots of resources in terms of my staff’s time and lots of money paid 

in cost to medical records providers, there are often cases where 

they simply are not provided on time. 

I will also tell you that medical providers decide when my client 

is going to be sent for an MRI, and if that happens to be 10 days 

or two weeks before the hearing has been scheduled, we are just 

not going to have that report by the day of the hearing. So there 

has to be some understanding that the full record, if meaningful 

adjudication is the standard, to use Judge Sullivan’s term, we have 

to have a complete record. 

Ms. SPEIER. Well, Mr. Sutton, this is someone who has been 

through the process. This is not like an initial case. This is a case 

that has been reviewed twice before within the Social Security system, has now come up to the ALJ. There has been a long period 

of time to cull together the information necessary. 

Mr. SUTTON. Congresswoman, if I may, remember that when the 

case is coming up to the ALJ, on average, it is 380 days since the 

last determination was made by a State agency. That is over a 

year. Things change in people’s medical portfolio, in their medical 

file, and often these are people with multiple conditions, physical 

and/or mental. They may be seeing five, six, seven different providers, specialists; they may be being sent for tests all over the 

place. We have filed where we have 12 and 15 different providers 

to try to get updated records on. It is not an easy process. We want 

to provide all the relevant and probative evidence of disability as 

soon as possible. 

Ms. SPEIER. All right, thank you. My time has expired. 

Mr. Sklar, one last question. Attorney misconduct. Makes sense 

that you should be able to report attorney misconduct. Can you 

comment on that? 

Mr. SKLAR. So we do have procedures for handling attorney misconduct. We are looking at those at this time as well. I know there 

is some degree of frustration about evidence not getting into the 

record quick enough or right before a hearing. I suspect if you do 

travel around the Country talking to judges, you would find that 

there is tremendous frustration about evidence coming in late. 

I actually met with the NOSSCR group, 1,000 representatives 

from across the Country, and basically begged and pleaded and 

said we need the evidence in, we need the evidence before the hearing, and please don’t drop 600 pages on us the day before the hearing, it is just not fair. So we have a little bit of work to do. I am 

hoping we can do it voluntarily. I am hoping Mr. Sutton and others 

can help us get to the right answer; otherwise, we do have a code 

of conduct and certainly that is something we think about. 

Mr. LANKFORD. I am going to go to Mr. Woodall in a second, but 

I want to make a quick follow-up question. Can you define your 

151 

term soft closure that you used before, that you are experimenting 

with? Because I am still struggling with the responsibility to get 

your paperwork in. 

Mr. SKLAR. Right. In classic administrative law practice you have 

hard closure of the record; there is a date, boom, that is it, you 

can’t submit any more evidence. But the closure provision up in the 

Boston region that we are working with right now gives the judges 

in Boston a little bit more discretion to allow in critical pieces of 

evidence that they think should come in, so it is not the classic administrative law closure, it is a little bit softer than that; and it 

seems to be working out pretty well. 

Mr. LANKFORD. But the judge is making the decision at that 

point whether this is relevant and needs to be added in, rather 

than just it is an automatic, it gets dumped in, is that what you 

are saying? 

Mr. SKLAR. There is actually some legal language. And if anybody wants to jump in and rescue me on this, what the exact provision says, you are welcome to. 

Mr. LANKFORD. Well, the concern for me is that in the past SSA 

has allowed this to come in, that there is not a rule that has been 

set. Obviously, you see what is going on as well. You are beginning 

to move on it, that is good. But it is disconcerting to me to say that 

decisions have been made when hundreds of pages of documents 

have landed the day of, or even after, the hearing was done. 

Mr. SKLAR. Typically, those cases wind up getting postponed and 

everybody is frustrated. The claimant is frustrated with us, they 

think we are the responsible party. Often the representative 

doesn’t even self-identify as the person who dropped the records at 

the last minute and the records were from two years ago. It is a 

problem we need to work on together and I have really tried to join 

forces with the attorney groups to fix this problem, and I am hopeful we can get there. 

Mr. LANKFORD. Thank you. 

Mr. Woodall. 

Mr. WOODALL. Thank you, Mr. Chairman. I am sympathetic to 

what Mr. Sutton said about cases coming up a year later, new medical records have appeared. You absolutely want a thorough and 

complete record. 

Judge Butler, let me ask you, because I can feel your frustration. 

You care about the tax dollars who are paying in, you care about 

the needy folks who would be getting these dollars. As Senator 

Coburn laid out, we are really at risk in less than a year and a 

half from now. What is the challenge with scheduling that we can’t 

require the record to be complete before we schedule the hearing? 

Is there something special about the process that we have to schedule those hearings so far out in advance? Why can’t we ask Mr. 

Sutton’s folks to have the record complete before you all schedule 

the hearing? 

Judge BUTLER. The hearings are scheduled months and months 

in advance; the notices go out. They are entitled to a 20-day notice 

according to the regulation in most parts of the Country. In prototype areas they have a 75-day notice that they have allowed, and 

NOSSCR likes the additional time. But, in my opinion, in most situations, there are going to be unusual ones where somebody is sent 

152 

for an MRI or something, and there is no problem dealing with 

that. 

Mr. WOODALL. Well, I guess I want to demand even more accountability from my folks who are getting paid a hefty sum of 

money to represent me and my constituents. What is the reason we 

can’t refuse to schedule a hearing until that record is complete? 

Now, I try to respond to constituents who ask me a question. Now, 

sometimes I get 20 days behind, but the same number of inquiries 

come in. If I could respond to them all on day one, if I respond to 

them all 20 days later, it is the same number of inquiries coming 

across my desk. What is the metric that we are trying to achieve 

by not going—— 

Judge BUTLER. Let me make sure I understand your question. 

You are asking me, as a judge, could I refuse to schedule that case 

until I feel like that record is complete and the case is ready to 

hear? Well, in my opinion, yes, I could do it, but the practical matter is, if I did that, I would have some real difficulties with this 

agency, who focuses on moving the cases, moving the cases, and to 

use the term pay down the backlog, I think that is what has driven 

a lot of these. It has gotten the backlog down, but you have paid 

a tremendous number of people, in my opinion, who are not disabled. The APA I think gives a judge that discretion, but, as a 

practical matter, if I did that, I would have real problems. 

Mr. WOODALL. Absolutely. We are talking about two different 

things. You are talking about using your discretion on which folks 

are going to bring pressure to bear on you. I am not. I am talking 

about changing the way we do business to tell folks that we want 

you to get your money as fast as you can, and we want you to get 

your money, if you deserve it, in the most timely fashion possible; 

and the way we are going to improve the system is by saying we 

are not going to bog down the system with attorneys who are doing 

what Mr. Sutton and I would both agree they should not be doing, 

serving their clients poorly. We are going to schedule those cases 

for those attorneys and those clients who are doing it right first, 

and not delay those with the process. 

Let me ask you, Mr. Sklar, I remember Senator Coburn testified 

that his research showed about a 25 percent error rate. He quoted 

a Social Security report quoting about a 21, 22 percent rate. Is that 

granting benefits when they shouldn’t be granted, or does that include both benefits denied that should have been and benefits 

granted that should have been denied? 

Mr. SKLAR. I see the challenge. It is very difficult to articulate 

that report precisely, so let me try. So you are correct, the statistic 

was 22 percent ‘‘error rate’’ in fiscal year 2011, and that was cited 

PSI minority report basically citing Social Security’s own internal 

report on pay cases. 

Now, let’s take a minute and talk about what is in error, per se. 

A lot of the items classified as an error were not necessarily outcome-based, they were really about technical issues. Let me give 

you a good example. Let’s say a judge finds somebody disabled as 

of October 2011 and it was really November 2012, the onset date. 

Not that they weren’t disabled; maybe they got the onset date 

wrong, something like that. 

153 

So some errors fall into that category. Others are a reviewing 

body basically looking at the case and saying, you know, the judge 

probably should have gotten a vocational expert here, they 

shouldn’t have paid this case without a vocational expert. The 

judge will go get a vocational expert and still wind up paying the 

case. 

Mr. WOODALL. And did they then cite a number for cases that 

were paid that shouldn’t have been paid, or the entire report was 

on these—— 

Mr. SKLAR. I think we are pretty close to that now. Obviously, 

we recognize Senator Coburn’s enduring interest in that report and 

the ideas expressed therein, so we have been tracking those cases 

to see what happened, and, again, don’t hold me to this number, 

but I would say probably the true wrong case rate would be less 

than 10 percent. 

Mr. WOODALL. And thinking about Ms. Speier’s question about 

going back and doing that aggressive re-certification, if our re-certification reviews are only denying 4 to 7 percent of cases, yet we 

have an 8 or 9 percent error rate in granting cases, I wonder why 

those numbers wouldn’t come into sync. 

I know my time has expired, Mr. Chairman, but I just wanted 

to ask one more question of Mr. Sklar. 

I don’t know if you remember a November 2011 article on The 

Wall Street Journal cover talking about the Baltimore office and a 

great shakeup among physicians there working for Social Security. 

Do you recall that article? 

Mr. SKLAR. I think I do, yes. 

Mr. WOODALL. Or that episode even less than the article. In that 

article they quoted doctors as saying they had been pressured, doctors who were being paid by Social Security, but they were being 

pressured to change their medical opinion in order to meet some 

of the Social Security Administration’s goals. Do you recall that 

statement and can you speak to that? 

Mr. SKLAR. The best I recall, representative, is that there was a 

shift from an hourly wage to a paper case model, and I believe the 

State agencies largely follow a paper case model, and now the Federal unit moved to a paper case model and there was quite a bit 

of unhappiness there. 

Mr. WOODALL. Absolutely. Though, in expressing that unhappiness, some of those physicians said they were pressured, and I will 

quote it: ‘‘Pressured by a supervisor to change his medical opinion 

and award benefits to someone he didn’t believe had disabilities 

that would prevent the person from working.’’ Two other doctors 

said they were pressured to award benefits in cases where they 

were reluctant. Those were front-page accusations on The Wall 

Street Journal. Do you know if SSA investigated those doctors’ 

statements that they had been pressured by Social Security officials? 

Mr. SKLAR. Actually, I would be very surprised if that was the 

case. I don’t have first-hand knowledge. 

Mr. WOODALL. Surprised if it was the case that it was investigated or surprised if it was the case that it happened? 

Mr. SKLAR. Surprised if it actually happened. 

154 

Mr. WOODALL. Well, do you know if it was investigated? Because 

it is a serious accusation. 

Mr. SKLAR. Again, that is certainly outside of the purview of my 

operational area, so I don’t know the answer to that question. 

Mr. WOODALL. Could you direct me who to ask or ask that question on my behalf and get an answer for the record? 

Mr. SKLAR. For the record, we will certainly get you the appropriate person to send that information to. And I will obviously go 

back and talk to the IG and try to find out whether they have ever 

gotten a formal referral. 

Mr. WOODALL. I appreciate that. 

Thank you, Mr. Chairman, for your indulgence. 

Mr. LANKFORD. Mr. Horsford. 

Mr. HORSFORD. Thank you, Mr. Chairman. 

You know, I have to say I am rather frustrated by the prior 

speaker and the gentleman from Tennessee. Somehow the discussion went from how do we make this work better to how do we prevent people who are entitled to benefits from getting them. And as 

the chairman shared his experience with a family member, let me 

share mine. 

My grandmother, who had a stroke in her fifties and came out 

of a coma and was paralyzed on the left side of her body relied on 

Social Security disability benefits to live in a nursing home for 27 

years of her life, until she passed away. 

While we want to encourage those who can return to work to return, there are some people who cannot, and that is what Social 

Security disability benefits are about. So if we are here to create 

some adversarial role between administrative law judges and the 

beneficiaries, then I think we have to question what the purpose 

of this is to begin with. 

I would like to point to the facts. I would like to request that a 

chart be displayed which shows, in fact, in aggregate, ALJs have 

approved fewer disability claims since they were expected to decide 

500 to 700 cases a year. Sometimes the judges talked about feeling 

pressure to award benefits to claimants that are not actually injured. But the facts, however, show a different picture. 

Judge Butler, I am sure you would concede the cases of poorly 

decided disability eligibility determinations do exist, correct? 

Judge BUTLER. Yes, they do, a lot of them. 

Mr. HORSFORD. Do you believe that it is a widespread practice 

among administrative law judges to intentionally engage in professional malfeasance and fraud by awarding disability benefits to 

people who they don’t believe are in fact disabled, yes or no? 

Judge BUTLER. No. 

Mr. HORSFORD. That would be a violation of the law, subjecting 

them to termination and disbarment, wouldn’t it? 

Judge BUTLER. Yes, it would. 

Mr. HORSFORD. So improper decisions do happen. But you do not 

believe that there is a systematic problem of illegal eligibility decisions. 

Judge BUTLER. Not with the judges. 

Mr. HORSFORD. So, Mr. Sklar, can judges avoid review of their 

decisions by rubber-stamping applications for disability benefits, 

since those cases are not appealed. 

155 

Mr. SKLAR. We recently started a statistically valid nationwide 

sample of favorable cases. We started that about two years ago. It 

is certainly not going to sweep up 100 percent of the cases, but it 

gives us enough information to determine where the problems 

might be; and we do feed that information back to the judges. 

Mr. HORSFORD. So there is a quality review process that is not 

dependent upon a claimant appealing a decision alone? 

Mr. SKLAR. Correct, as of 2011. 

Mr. HORSFORD. So can we administer disability insurance better? 

Mr. SKLAR. Absolutely. There are always opportunities to get better, and one of the areas where we have really spent a lot of time 

is on communication. And we do have new electronic tools, actually 

tools called How Am I Doing?, where the oversight body, the Appeals Council looks at the statistically valid sample, then they feed 

the data back right to the judges, and they can go right into this 

tool and see why their case was remanded; and they can actually 

get training right on the spot. We also do that for unfavorable 

cases that came up to the Appeals Council that the Appeals Council is remanding back. 

So we are trying a lot of different things. We are looking at a 

lot of data to try to find areas where there might be systemic problems or policy weaknesses. And the fact that we do have this electronic folder gives us lots of opportunities. So we are really trying 

to bore down into why cases are improperly decided. 

Mr. HORSFORD. And that is where I hope that we can focus. The 

ranking member, Ms. Speier, talked about three things that we 

could work on in a bipartisan manner to give administrative law 

judges and the system tools to better do your job. That is what I 

am here for. I am not here to come up with rationale to justify my 

position about how to keep someone in or out of a program. The 

program is here, people are entitled to it, and we need to make it 

work better. But the evidence before this committee refutes Chairman Issa’s assertion of a widespread, systematic problem. The evidence we have received would not support a wholesale dismantling 

of the disability system and the laws that created it. I hope that 

we can focus on making it work, and not tearing it down. 

Thank you, Mr. Chairman. 

Mr. LANKFORD. Mr. Horsford, I would agree with you that this 

is designed, was written in by Congress and is to be carried out by 

the Social Security Administration to take care of people that qualify and that need it, and that is the right position for us to do as 

a Nation. 

But when we have any increase in anything, we have to be able 

to ask the questions the why and the what, and is it something we 

can fix and process, and things we have already spoken about, 

things like the grid not being updated since the 1970s. That is 

something that is already in process and we can try to figure out 

how we can evaluate that and what can we do; the CDRs that we 

have spoken about. 

We have to find out if we are not funding those correctly or if 

there is a different shift that needs to occur. Some of the studies 

that have been done to try to evaluate why so many people are included in—the Federal Reserve Bank of San Francisco put out a 

statement about Social Security disability insurance and tried to 

156 

list—and I will add this to the record. I don’t think I added your 

chart earlier to the record, your chart. Let me include that as well, 

unless there is any disagreement. There is not. Let’s include that. 

Mr. LANKFORD. But to be able to include some of the facts of the 

case, and it is very difficult to get the numbers here because there 

are so many different studies and so many different reviews and 

so many years and qualifications. 

But this particular piece tried to evaluate is it because we have 

more people that are senior adults? Is it because we have more 

women in the workforce? They broke down all those different factors and by the end of it they said they can break down all those 

different factors, but they still have about 44 percent of the people 

they actually could identify why there was the increase. 

So those are just questions I think that are reasonable questions 

to ask and say how can we try to resolve this. The last thing I want 

is, three years from now, Social Security disability to struggle with 

insolvency and the people that need it have a reduced payment because we have people that don’t qualify in the system. 

Let me just run through a couple questions. I think we need to 

close out, unless there are any additional final statements here as 

well from anyone else. 

I want to try to resolve just a couple other things. 

Mr. Sklar, a couple years ago it looked like there was some intent to go to high-producing judges and to send them additional 

cases, some of them up to over 2,000 cases in a year. You had mentioned in your earlier statement you are trying to limit that now, 

to set a cap of how many cases can actually head to them. Are you 

familiar with that process in the past and what happened with so 

many cases being directed towards judges that are putting out a 

tremendous number? 

Mr. SKLAR. I guess my comment would be not on my watch. I 

started in this position in January 2010 and that certainly has not 

been my position. And I would add that first we dropped the cap 

down to 100 cases a month, and then this fiscal year it is 80 cases 

a month. And some of the judges are actually upset because they 

like to do large numbers of cases, and we had taken a hard look 

at the data and said, you know what, quality starts to suffer when 

you get up over about 1,000 cases. 

Mr. LANKFORD. Is that something you could share with us as 

well, just the metrics that you all used for that and how you evaluate as far as setting the number, the low number and the high 

numbers? Is that something that our committee could request? 

Mr. SKLAR. Again, part of this is, let me just parse the question. 

Your first question on the high cap, absolutely. The second part I 

would have to consult with counsel because, again, this is an interesting panel where four of the people at the table are on one side 

of the litigation and the agency is on a different side. 

Mr. LANKFORD. All right. We will follow up with a letter. We will 

both get a chance to visit with counsel. But I would like to know 

just the metrics of how that decision is made. Obviously, you all 

put a lot of research and study into it, and it would be helpful to 

us to be able to see some of that and to be able to know the process. 

157 

Mr. SKLAR. And just to give you a really quick answer, too, previously, the study by ACUS that Dean Krent from Chicago-Kent 

Law School had done, they looked at this issue of when does quality begin to deteriorate, and basically their cut point was the top 

1 percent of what we call super-producers, actually. 

Mr. LANKFORD. Yes. Two thousand cases in a year seems to be 

a super-producer on that one. 

Let me run through a couple things here. We mentioned before 

the treating physician rule and this issue about basically putting 

a higher priority on a treating physician or maybe other physicians 

or a family physician. Is that something that is under conversation 

right now, to be able to evaluate the effectiveness? Several folks 

have made comment on that. Outside research has made comment 

on that as well. 

Mr. SKLAR. Right. There was an outside research stream going 

right now. The Administrative Conference also recently rendered a 

report on that issue, and we can be sure to get you a copy. 

Mr. LANKFORD. Agree or disagree with that report, for you? 

Mr. SKLAR. Again, too early to take a position; we are analyzing 

it. We just received it. In fact, it just made it out of the full committee of ACUS. 

Mr. LANKFORD. Okay. Can we also get the timing on that, when 

that is going to move? We will follow up with a letter to request 

that as well, formally, but we will get the timing on when that is 

moving. 

We talked about updating the grid and already where we are on 

that. 

We talked about trying to get complete medical evidence as a big 

issue. You are already experimenting in Boston with doing a soft 

close on that and trying to work through that. Those are things we 

need to try to correct in the process. 

I mentioned earlier about the issue of social media and allowing 

judges to be able to pull up, for instance, a Facebook page of the 

person that is in front of them to evaluate are they working, do 

they have pictures. Is that under consideration at all? 

Mr. SKLAR. Not at this time. It is really mostly about our computer network. We are really worried that somebody might introduce malware into our system. We are a fully electronic body, one 

of the largest recordkeeping system probably in the public or private sector. 

Mr. LANKFORD. So they don’t have Internet access at all? 

Mr. SKLAR. They do, but not to go onto social media sites. And 

we are very nervous about that. The other issue is it does compromise the role of the judge as the judge, and now they are judge 

and investigator; and we would prefer that those allegations go 

right to the IG. 

Mr. LANKFORD. Okay. Yes, the challenge still is another person 

to try to figure out how to advocate for this to be able to get full 

evidence. The full evidence is still the need. We can have an ongoing conversation about that, but some way to be able to garner full 

evidence and to make sure that we actually have that, getting complete files on it. 

The mention of subpoenas came up earlier. We didn’t really have 

a conversation about that, but how many subpoenas are enforced 

158 

by the U.S. attorney that come out? Is that a common practice, are 

there a lot of subpoenas that are coming out? When they do come 

out, are they enforced? 

Mr. SKLAR. I will have to get back to you on the record for that, 

it is really outside my domain. I will say, though, that the U.S. attorney’s offices are really, really busy, and enforcing subpoenas 

from us is not their highest priority. 

Mr. LANKFORD. I understand that. 

Mr. Sutton, you had a quick comment on that? 

Mr. SUTTON. Yes, Congressman. The issue of enforcement doesn’t 

even arise if the subpoena by the ALJ is complied with by the medical provider or whomever it may be, and many of these subpoenas 

are complied with. So it shouldn’t just be focused on enforcement 

by the U.S. attorney’s office. 

Mr. LANKFORD. If one is not complied with, though, we do have 

enforcement issues. 

Mr. SUTTON. It is an issue for the U.S. attorney’s office and a 

workload issue. And if they don’t have the horses to take care of, 

enforcement is not going to happen. 

Mr. LANKFORD. And that is part of our issue on this and why I 

come back to Mr. Sklar on it as well, is the issue of trying to reduce 

people in the pipeline. That is the great unknown. Are there recommendations that you have? I mentioned that before, but if there 

are ideas that are out there that we can have an ongoing conversation, whether it is legislation we need to fix or whether it is regulations that are out there in the process. 

But we want people that qualify to get in the pipeline, but people 

that are clogging up the pipeline that don’t quality, and it is clear 

and they are just trying to take the shot because it is free to take 

the shot, we need to find someway to make it clear from the beginning you don’t have a shot on this and you are slowing down the 

whole process for everybody. So we can have an ongoing conversation. 

Then the issue of dealing with inappropriate conduct from counsel and how we are going to resolve that. We will follow up on that 

as well in the days ahead. 

Ms. Speier? 

Ms. SPEIER. Thank you, Mr. Chairman. 

A couple of peripheral questions. Who pays for the attorney? 

Judge SNOOK. The claimant does, Congresswoman. And if I may 

expand on that, one of the basic problems with the whole system 

is the attorneys get paid on past due benefits. They have no incentive—let me stop for a moment. Mr. Sutton and I work together on 

the ABA. I am not talking about attorneys. But for some of these 

large firms they sign that 1696; it is money in the bank if they win. 

They don’t start working on the case until they get the notice of 

hearing. Why? That is profit. I mean, you are not going to update 

a case if it is going to take a year or two to get to the judge. So 

somebody should look at a different formula, because we do need 

attorneys to assist us. They do a tremendously good job. 

Ms. SPEIER. All right, let me just ask this. What percentage of 

the cases, when they get to the ALJ level, are represented by attorneys? 

159 

Judge SNOOK. In Miami, I would say more than 80, close to 90 

percent. 

Ms. SPEIER. Mr. Sklar, what is it countrywide? 

Mr. SKLAR. Nationwide, if you include both attorneys and nonattorney representatives, probably somewhere between 80 to 90 

percent. 

Ms. SPEIER. And non-attorneys are typically persons in a law 

firm providing that service, whether it is a paralegal, or it could 

be the next door neighbor? 

Mr. SKLAR. They have to pass a test administered by SSA, but 

they are non-attorneys. 

Ms. SPEIER. All right. And who pays for the doctor consult? 

Mr. SKLAR. Typically, if there is a consultative exam, the agency 

would pay for that. 

Ms. SPEIER. So I would like to learn more about that, and I think 

it would be advantageous to the committee; how much money we 

spend on physician consults, how they range, and how comprehensive they are. I think unless you have doctors that have been approved by the Social Security Administration, you could have wildly different kinds of reports being provided. You could have 

boilerplate reports. I mean, we just need to make sure we are getting our money’s worth from those physician consults. 

Mr. SKLAR. Just for the record, to be clear, we do have a fairly 

stable cadre of consultative examiners, and we do do oversight. 

There is a professional responsibility group that goes out, they will 

visit and they will make sure that they do it in a format that is 

useful to the agency. 

Ms. SPEIER. But you don’t limit how much they can be paid? 

Mr. SKLAR. Actually, they are not paid very much, to be honest. 

There is a set fee for a consultative exam. 

Ms. SPEIER. Oh, there is? 

Mr. SKLAR. Yes. 

Ms. SPEIER. All right. Okay. 

Mr. SKLAR. When we are paying. And, again, also recognize that 

representatives could go out and introduce additional medical evidence at their choice. They would then pay for that. 

Ms. SPEIER. All right, so Social Security pays for one consult. 

Mr. SKLAR. Typically. 

Ms. SPEIER. And it is typically a set fee. 

Mr. SKLAR. That is correct. 

Ms. SPEIER. All right. Okay, that takes care of that. 

All right, performance review of ALJs. 

Mr. SKLAR. Can’t happen. Not legal under the Administrative 

Procedures Act. 

Ms. SPEIER. Okay, that is a problem. 

Mr. SKLAR. That is the law. 

Ms. SPEIER. That is the law that Congress has passed? 

Mr. SKLAR. Yes, indeed. 

Ms. SPEIER. It wasn’t done by regulation; it was done by Congress? So if you really have someone who is showing malfeasance, 

isn’t doing their job, there is nothing you can do because they are 

appointed for life? 

Mr. SKLAR. Okay, let me be a little bit more precise. In terms of 

an actual performance review where you sit down with somebody 

160 

and say, hey, you are doing a great job or this is an area you need 

to work on, we can’t do that. But, there are avenues for both potentially misconduct cases brought before the Merit Systems Protection Board, as well as performance cases for somebody. Under certain circumstances that could happen, but all these cases must be 

processed by an entity outside of SSA. We do not impose discipline 

directly on judges; we can’t. It has to go to a second agency on the 

Merit Systems Protection Board. 

Ms. SPEIER. Does that operate like a judicial counsel, then? 

Mr. SKLAR. It is a second set of administrative law judges, yes, 

presiding over those proceedings. 

Ms. SPEIER. So do you feel comfortable that if there are bad performers, that there is a process by which they can be terminated? 

Mr. SKLAR. It does take a long time. 

Mr. SPEIER. So how many judges have fallen into that category? 

How many have been recommended to this board? 

Mr. SKLAR. I can get the number for the record. I don’t want to 

guess, but somewhere in the neighborhood of 25 to 35. 

Ms. SPEIER. A year? 

Mr. SKLAR. I think in the last five years, since fiscal year 2007. 

Ms. SPEIER. What percentage of the ALJs are retired judges? 

Mr. SKLAR. I would have to get that information for the record. 

I am sure we have it in our personnel files, but I don’t know it offhand. 

Ms. SPEIER. Could you provide that for us? 

Mr. SKLAR. Yes. 

Ms. SPEIER. So this one judge in Oklahoma, I guess, who was 

handling 2,000 cases a year and was approving 90 percent of them, 

or more, at any point in time was there any effort made to have 

him reviewed by this independent board? 

Mr. SKLAR. I will just add for the record that he no longer works 

for the agency. 

Ms. SPEIER. No, I understand that. We want to make sure we 

have competent people providing services, and there should be a 

means by which, if someone isn’t competent or isn’t doing their job, 

that action can be taken. So I am just interested in making sure 

we have a robust system to do that. So are you suggesting we have 

one? 

Mr. SKLAR. I am suggesting there is a system. Whether it is robust, speedy, and efficient is another matter. 

Ms. SPEIER. Judge Snook, you raised your hand. 

Judge SNOOK. Yes, Congressman. The reason why the APA says 

no performance appraisals for judges is not for the judges, it is to 

protect the American public. If this agency said, judge, get your 

production up, there is a history of the Government directing, before the APA was enacted, the result, and Congress, after it took 

many years to pass the Administrative Procedure Act, made a determination: no performance appraisals so the agency couldn’t influence our decisions. 

Ms. SPEIER. Judge, are you a retired judge? 

Judge SNOOK. I was the chief trial judge of the Coast Guard, so 

in that sense, yes, I am a retired judge. 

Ms. SPEIER. Because I think at some point we have to assess 

whether we want this to be a full-on judicial environment that is 

161 

adversarial or is this an administrative procedure that works differently. And I think we have historically felt that this was different and, as such, is not going to have the adversarial relationships and is not going to be a full-on judicial proceeding. So that 

is why I was asking those questions. 

I want to thank you all again for your participation, and I have 

concluded my questions. 

Mr. LANKFORD. Thank you. 

I am going to allow anyone just to make a quick statement if 

they need to be able to close up anything on that as well. 

One thing. Mr. Sklar, we had mentioned about numbers earlier 

in my conversation with Mr. Horsford, about how difficult it is to 

be able to get numbers together. Is there a record of the regional 

local office production goals for the different judges or the different 

groups? Is that a scheduled record that has existed in the past? 

Was that a formal or was that an informal kind of production goal? 

Mr. SKLAR. It is fairly informal. Again, we do have a national 

goal for the agency, and typically that is just chopped into pieces. 

Mr. LANKFORD. If we can get a copy of that for as far back as 

you may have, let’s say 10 years or so, if that is out there. I know 

that is prior groups as well, I get that, but that would help us get 

accurate numbers, because a lot of what we are looking at are different numbers and types, and to see the ebb and the flow, that 

would be helpful; and any kind of schedule to heard ratio that is 

in that as well, so that we get a feel of how that is actually ebbing 

and flowing, and we will know it is the accurate data coming from 

you. That would be extremely helpful. 

Any final closing comment? You don’t have to make a comment, 

but any final closing comment from anyone? Yes, Ms. Sullivan. 

Judge SULLIVAN. Thank you, Congressman. I would simply 

thank, again, everyone here on the committee and encourage you 

to pursue that agenda that Congresswoman Speier talked about in 

terms of making a decision about what kind of system we want to 

have for our people in terms of addressing and reviewing disability 

applications on appeal. And I would urge all members of Congress 

to consider reimplementing a meaningful adjudication system into 

the Social Security Office of Disability Adjudication to replace what 

I consider to be an incredibly failed experiment of a factory-line 

production process that is in the offices now. 

Thank you so much. 

Mr. LANKFORD. Judge Snook? 

Judge SNOOK. Mr. Chairman, I wholeheartedly agree with what 

you said recently about I want to get to the worthy claimants in 

a timely manner. 

Mr. LANKFORD. Right. 

Judge SNOOK. Several years ago, a very good staff member asked 

me, judge, do you know what the problem with the system is? And 

I said, no, Buddy, what is the problem? We have so many unworthy 

claimants filing, we can’t get to the worthy claimants in a timely 

manner. 

So that is why I think you need to look at how the attorneys are 

compensated. Some of the large firms, once the claimant signs a 

1696, they have it filed. They don’t do any work on the case until 

they get the notice of hearing, and then if it is a bad case, they 

162 

withdraw the day of the hearing; if it is a good case, they bring in 

new evidence. Something has to be done at that end, rather than 

why isn’t the judge moving along. 

Mr. LANKFORD. Okay. 

Mr. Sutton? 

Mr. SUTTON. Mr. Chairman, you talked about your relative, and 

I have relatives like that too, and I get calls from clients frequently; they have been out of work a year, two years, they have 

been hurt, they have been ill. Whether because they are feeling a 

little better or because they are completely desperate, they want to 

try to go back to work, and I encourage them to do so, without fail. 

That is my position; that is my firm’s position. That is any attorney’s position. We are fiduciaries for our clients. They are better off 

working; not just theoretically or not just in terms of a work ethic, 

but because they can make more money in the economy working. 

And there is no guarantee that I am ever going to be able to win 

their disability case. So we encourage people to go back to work. 

But what I will tell you about your relative is she is heroic. That 

is why she is a role model for your whole family for generations to 

come. And there are people like that, but they are unusual. And 

this system has to be calibrated toward average folks. That is just 

the reality. Not everybody who is confined to a wheelchair with the 

kind of impairments it sounds like your relative has can really 

manage to work. She did and God love her, and we need people like 

that, and we should all look up to them. But I don’t think we can 

calibrate a system for millions of people that is predicated on heroes, because they are off the distribution. 

Mr. LANKFORD. And I will pass on your word of relic to her in 

the most encouraging of ways. 

I made that comment earlier because I talked this week with 

some family members back in Oklahoma that are going through 

the process and asked them personally how is this going, because 

it is an awful long wait. I mean, everybody here knows that; it is 

a terrible process for them. They said consistently to me that they 

were advised at the very beginning make sure you are not working; 

live off relatives, live off family individuals, don’t work. 

Because if you work, you are going to have to walk in and explain why you are asking for disability while you are still working. 

And I am glad you are counseling people like that. I said that from 

family members that I talked to them; that it wasn’t them applying, it was their family member, and their family member was living off of them. 

Mr. SUTTON. Look, there may be bad advice going on, but it 

doesn’t really make sense to tell anybody that. If they are able to 

work, they should. And if they try and can’t do it, that becomes an 

unsuccessful work attempt; it tends to prove that they really meet 

the definition of disability. 

Mr. LANKFORD. The issue is just systemic reform, if it is needed. 

Let’s fix it and make sure it is clear and it is what you are talking 

about on that. 

Ladies and gentlemen, thank you for being here. It is a long 

morning and I really appreciate your time and all the effort. 

Mr. Sklar, we gave you a tremendous amount of homework. For 

that, I apologize, but you will help this committee tremendously as 

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we try to pursue the facts, and we are here to help you in this process. This is not adversarial for us; we want to help in the process 

because this is going to be right of people for a long time. 

With that, this hearing is adjourned. 

[Whereupon, at 12:15 p.m., the subcommittee was adjourned.] 

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