I have very few no shows, although I also have few unrepped claimants. However, I do a rocket docket about once every quarter, and usually set 15 hearings of unrepped cases on that day. I will usually have 14 out of 15 appear. However, the SCT who does my scheduling makes an extraordinary effort to follow up after the notice of hearing with telephone calls. I agree with the earlier comments that the reduction of the backlog has lessen the problem with no shows. It also avoids a lot of the problems with stale CEs.
REP. HOWARD COBLE AND REP. SAM JOHNSON HOLDS A HEARING ON SOCIAL SECURITY LAW JUDGES - COMMITTEE HEARING 14528 words 11 July 2011 Political Transcripts by CQ Transcriptions CHTS English (C) 2011 CQ Transcriptions, Inc. All Rights Reserved.
HOUSE COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON COURTS, COMMERCIAL AND ADMINISTRATIVE LAW, HOUSE COMMITTEE ON WAYS AND MEANS, SUBCOMMITTEE ON SOCIAL SECURITY HOLDS A HEARING ON SOCIAL SECURITY LAW JUDGES
JULY 11, 2011
SPEAKERS: REP. HOWARD COBLE, R-N.C. CHAIRMAN REP. TRENT FRANKS, R-ARIZ. REP. ELTON GALLEGLY, R-CALIF. REP. TREY GOWDY, R-S.C. REP. DENNIS A. ROSS, R-FLA. REP. LAMAR SMITH, R-TEXAS EX OFFICIO
REP. STEVE COHEN, D-TENN. RANKING MEMBER REP. HANK JOHNSON, D-GA. REP. MELVIN WATT, D-N.C. REP. MIKE QUIGLEY, D-ILL.
REP. SAM JOHNSON, R-TEXAS CHAIRMAN REP. KEVIN BRADY, R-TEXAS REP. PAT TIBERI, R-OHIO REP. RICK BERG, R-N.D. REP. ERIK PAULSEN, R-MINN. REP. AARON SCHOCK, R-ILL. REP. ADRIAN SMITH, R-NEB. REP. DAVE CAMP, R-MICH. EX OFFICIO
REP. XAVIER BECERRA, D-CALIF. RANKING MEMBER REP. LLOYD DOGGETT, D-TEXAS REP. SHELLEY BERKLEY, D-NEV. REP. PETE STARK, D-CALIF. REP. SANDER M. LEVIN, D-MICH. EX OFFICIO
WITNESSES: MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY AT THE SSA
CHRISTINE GRIFFIN, DEPUTY DIRECTOR OF THE OFFICE OF PERSONNEL MANAGEMENT
[/li][li] COBLE: Good afternoon, ladies and gentlemen. The subcommittee on the Role of Social Security Administration Law Judges will be convened. It's good to have each of you here today. Let me give my opening statement here.
Mr. Johnson is on his way; otherwise, Mr. Becerra and Mr. Johnson are here. And the other Mr. Johnson, I am told, is already on his way down. (Inaudible) this statement. (Inaudible).
First, I want to thank Sam Johnson for his leadership on his issue. Thanks to the Chairman as well for his participation in this important hearing. If I may, I want to thank our witnesses for their testimonies and for their attendance today.
On average ALJ's make $153,000 per year including (inaudible) provisions that allow them to work often times from their homes. Becoming an ALJ is an appointment for life on good behavior comparable to an Article III federal judge. An ALJ can be removed on misconduct by the Merit System Protection Board. But often times, this is a lengthy process. Meanwhile, the ALJ will continue to earn his or her full salary.
No doubt many if not most ALJ are conscientious, hardworking people who process their dockets efficiently while giving each claimant the full attention he or she deserves. Commissioner Astrue I'm sure assures us on that fact.
But cases like the one recently reported from West Virginia, startlingly reveals how the near complete lack of accountability offers an abundance of chances for abuse. Meanwhile, it is the claimants who suffer, not to mention the American taxpayer, who like always gets stuck with the bill.
In addition to these larger questions on efficiency, accountability and professionalism in the federal ALJ corps, there remains the issue of SSA's backlog. Although, Commissioner Astrue assures us that the SSA is making progress on discharging this backlog, he adds that this progress will be jeopardized without full funding from the President's F.Y. 2012 budget request.
Whenever we in the Congress confront a problem, we should ask if it could be resolved without adding to the federal budget deficit. Instituting some kind of peer review among ALJs may well be one option to consider, creating tiers other than a career appointment would be option that could be made available, perhaps.
Improving the pool of applicants from which SSA has to choose when hiring ALJs also can go a long way it seems to me towards solving or resolving the problem. I'm sure Deputy Director Griffin can speak to this issue and apprise the subcommittee specifically what steps will, the OPM is taking or will take to address the issues raised in today's hearing.
I look forward to the witnesses' testimonies and reserve the balance of my time. And I'm pleased to recognize the distinguished gentleman from Texas, Mr. Sam Johnson, for his opening statement.
S. JOHNSON: Thank you, Mr. Chairman. I appreciate it and I am pleased to be co-chairing this hearing with my colleague, Howard Coble, and his subcommittee colleagues. And I thank you for hosting this important event.
Social Security and Supplemental Security Income Disability programs are the largest of federal programs that provide assistance to people with disabilities, both administered by the Social Security Administration, and only individuals who have a disability may qualify for benefits under either program.
Social Security Disability Insurance pays benefits to workers and their families if they work long enough and recent enough; generally, 10 years, five of which were in the last 10 and paid Social Security taxes. Supplemental Security Income or SSI pays benefits based on financial need and is funded by general revenue. According to the CBO, over $123 billion in disability insurance benefits were paid to 10.2 million disabled workers and their families in 2010.
Though the current system makes it difficult, if not impossible, to know that that's an accurate number of Americans who are truly disabled and truly deserving; nonetheless, these are the numbers we have. And CBO projects that by 2021, the number of beneficiaries will increase by close to 20 percent to 12 million and benefits will increase 57 percent to $193 billion.
In 2010, 6 1/2 million disabled SSI recipients received $41.8 billion in benefits. By 2021, CBO projects 7.1 million disabled SSI recipients will receive $56 billion of benefits.
Requests for benefits have increased with the aging of the Baby Boomers and the recession; the latter suggesting that people, in some cases file, for disability not because they are unable to work but because they're unable to find work.
Since 2007, disability insurance awards have increased 18 percent to 1.1 million people in 2010 while SSI disability awards have increased 28 percent to 938,000.
According to 2011 trustee's report, disability program revenue will only cover 86 percent of the benefits in 2018. At the center of the Social Security disability programs is the disability process that determines whether claimants are entitled to benefits. Pivotal to that process is a hearing before an administrative law judge or ALJ at which many of the difficult cases denied at early stages in the process are newly reconsidered and awarded benefits.
The Ways and Means Subcommittee on Social Security has long focused on ALJ and hearing office performance on a bipartisan basis. A September 2008 subcommittee hearing highlighted the agency and agency's inspector generals work to address hearing office and ALJ performance. Some progresses have been made.
Commission Astrue who is here today has implemented close to 40 initiatives to boost adjudication capacity, improve performance and increase efficiency. Also, agency hiring efforts have focused on increasing the number ALJs and their support staff.
The waiting time for a hearing decision has been reduced from a high of 500 days in August 2008 to 350 days in June 2011.
Now, 74 percent of ALJs are meeting the requested threshold of 500 decisions up from 47 percent when the request was first made. The appeals processing statistics are posted online.
Now, the public is rightly paying attention and raising questions about the integrity of the judges. And recent press articles have highlighted that judges awarding benefits of 90 percent or more of the time in comparison to national average that hovers around 60 percent. Judges who decide extremely high numbers of cases in comparison to their colleagues and awards that are made without a hearing based on whatever medical evidence may be in the file.
Disparities from office to office and state to state where an outcome can be predicted based on the ALJ's assigned case and assignment of cases outside of random rotation raises specter of inappropriate relationship. At the bipartisan request of this subcommittee, the agency's Inspector General is investigating the most egregious of these examples now.
At a minimum, these articles raise serious questions about the fundamental fairness of this appeal system. Our members have been provided of these press articles. And without objection, the articles will be inserted into the hearing.
So, why do these judges get away with this? Under the law, ALJs have judicial independence which seems to mean they operate with little or no accountability. Simply put, the agency can't question their decisions even if they grant approval in the most of their cases or deny most of them.
ALJs who produce extraordinary numbers of decisions or who do very little are hard to hold accountable. Their collective bargaining agreement affords ALJs additional layers of protection and the ALJ union has fought long and hard to keep those protections in place.
And while the laws that protect ALJs give the agency the ability to pursue the most egregious cases, it's a costly and time-consuming project.
No one should have to wait months or even years longer than their hearing decision because of the office or ALJ appeal it's assigned to nor the taxpayer have to put the bill. That's plain wrong.
Those who aren't performing up to expectations must be held accountable. Social Security must work fairly for all Americans and protect their hard-earned taxpayer dollars. And we need to find out what's going on in this program and fix it. And if current law allows this to happen, we need to change the law. Preserving the public trust demands no less.
COBLE: OK. I thank the gentleman.
S. JOHNSON: Thank you, Mr. Chairman.
COBLE: Let's see. The chairman of the full committee is here, Mr. Smith. Then, I'll recognize Mr. Becerra and Mr. Johnson in that order. Mr. Smith, you are recognized for five minutes.
SMITH: Thank you, Mr. Chairman. I know the first thing to say is that this is the first joint hearing that the judiciary has held with any another committee this year and it's well-worth our doing so.
Today, Social Security is stretched to the limit. There is no margin of error for waste, fraud or abuse in our Social Security System. But administration law judges who work in the Social Security Administration apparently have little accountability for their performance. Last May, the Wall Street Journal reported on the administrative law judge in West Virginia who awarded federal disability benefits in every single case, 729 altogether, that came before him in the first half of fiscal year 2011. This judge is now on indefinite administrative leave but still draws his full salary while not doing any work for the American taxpayer.
This case raises serious questions about how ALJs are held accountable for their performance. Why did we need to wait for the Wall Street Journal to expose this case? Were there no red flags along the way? How can we be sure that this is an isolated case and not a symptom of a systemic problem for the entire federal ALJ corps, 85 percent of them work for the Social Security Administration.
In his written testimony, Commissioner Astrue describes another ALJ who also is working full time for the Department of Defense. Commissioner Astrue alludes to yet another ALJ who is arrested for domestic violence. Meanwhile, SSA continues to struggle to gain control of its backlog with 746,000 cases currently are pending.
Last month, it was reported that the number of pending cases increased by another five percent in just one month. I hope that today we can have a frank discussion about whether more money is the only answer or if other reforms would solve the problem more efficiently.
Commissioner Astrue insists that most ALJ are dedicated and conscientious public servants. But he acknowledges that there is a certain number who underperforms, approve or deny suspiciously high number of cases or, otherwise, misbehave in office.
Perhaps, the Office of Personnel Management can shed light on this issue. As Deputy Director Griffin explains in her testimony, the OPM accepts applications, administers the ALJ exam and maintains the register from which agencies hire their ALJs.
But, according to Social Security Commissioner Astrue, more than 1/4 of administrative law judges assigned to the Social Security Administration do not meet even their minimum annual benchmark of deciding 500 cases.
There may be progress from the abysmal levels recorded in 2007 when far fewer administrative law judges met their benchmarks and claim that sometimes they had to wait 46 months, almost four years, for their claims to be decided.
But the Social Security Administration has still not made enough progress. Last year, claimants still had to wait 27 months, well over two years. To hear the remaining backlog in cases, Commissioner Astrue states that he needs to increase funding to hire more administrative law judges.
Ms. Griffins states, quote, "It is the responsibility of the agency to hire ALJs, but agencies can only hire administrative law judges from OPM's register. It is incumbent upon OPM to properly screen applicants and maintain the administrative law judge register. Commissioner Astrue's agency will pay OPM $2.7 million this year for personnel services related to administrative law judges. The American taxpayer has the right to know whether the Social Security Administration is getting its money worth from OPM. Any human system is only as good as the people running it. If the wrong people become administrative law judges then we shouldn't be surprised when the system fails."
I want to thank Congressman Johnson, my Texas colleague and chairman of the Social Security Subcommittee for his efforts on this important issue, and believe me he has been talking to me about this issue for months if not years. And I also want to thank our chairman of this subcommittee, Mr. Coble, for trying to address the issue in today's hearing, and I yield back.
COBLE: Thank you, gentleman. The chair now recognizes the distinguished gentleman from California, Mr. Xavier Becerra, who I -- some have told you that was put assure (ph). He used to be an alumnus of the Judiciary Committee. Good to have you back with us, Xavier. You're recognized for five minutes.
BECERRA: Mr. Chairman, it was always a pleasure to be in this room and I am pleased that we are doing this hearing to you and to Chairman Johnson, the chairman of my subcommittee on Social Security. I say thank you to the two of you for this hearing. And I am pleased to join my colleague, the ranking Democrat on the committee on the judiciary side, Mr. Johnson, as well.
Mr. Chairman, Social Security Disability benefits are earned benefits that is vital -- it's a vital source of income for severely disabled workers in this country. Only workers who pay into the Social Security are eligible to receive these disability benefits. These benefits are modest, less than $13,000 a year for the average beneficiary. For more than 10 out of -- excuse me -- for more than four out of the 10 disabled workers who are getting the benefits, those benefits provide almost their entire income.
Three quarters of disabled workers live in families with total family income of less than $15,000. That's a statistic that's a little dated from 2001, one of the best measures that we have. And some 20 percent of those individuals are living below the poverty level. Although it often takes Social Security Administration longer than is reasonable to make a decision, our Social Security Disability Program generally ensures that disable workers get the benefits they have earned and that those who do not qualify are denied the benefits.
Social Security has extremely strict eligibility rules. Last year, SSA made the decision on approximately 3 million initial applications for disability benefits and reviewed 1.4 million appeals of denied claims, including 620,000 determinations by SSA's independent ALJs, the Administrative Law Judges.
About 35 percent of applicants were awarded benefits based on their initial application. Of those who are denied, historically, about half accept the decision and do not file an appeal and it ends there. Sixty-one percent of those who do appeal were able to present evidence providing -- proving that they were entitled to benefits. Without Social Security's independent appeals process, those individuals and their families would have been denied benefits that they had earned through their work. The remaining 39 percent were not awarded benefits. Of the people who apply for disability benefits each year, therefore, about half eventually are awarded benefits. Only about half of those who claim benefits get them.
As the backlog of disabled workers waiting for an appeal hearing shows, the budget cuts for SSA have consequences. The latest round of Republican budget cuts will have consequences, too. One particular problem area in the Social Security Disability program has been the long delays claimants experience while waiting to hear if they will receive disability benefits, particularly for those who appeal.
SSA has been able to use the resources of our Committee on Ways and Means side, worked on a bipartisan basis to provide starting in 2008 to significantly reduce waiting times for disability appeals. Waiting times have dropped from a high of 535 days delay in 2008 to an average of 354 days in May 2011.
Instead of helping SSA continue reducing waiting times, my colleagues on the Republican this year chose to cut SSA's operating budget by $1 billion below what the agency needed to keep up with incoming claims and continue its efforts to reduce wait time. I am increasingly worried that these cuts will undo the hard one progress and worsen the hardship and suffering of very ill and disabled people.
As this chart will show, already the Social Security Administration has had to abandon its plan -- excuse me -- to open eight new hearing offices this year. Offices that could've process thousands of appeals to ensure that deserving applicants are paid the benefits they are due. SSA is also losing personnel who help process approved claims because those budget cuts mean SSA can't replace workers who retire or otherwise leave.
We should be very cautious about making changes that might deny claimants due process especially since we have mechanisms in place that can address those ALJs who are found not to be compliant with SSA's rules and regulations. The SSA today has the authority to remove an ALJ who is not complying with the rules and regulations.
Commissioner Astrue has increased SSA's use of the Merit System Protection Board to remove judges that frequently violate the rules as is appropriate, and we applaud you for that, Mr. Commissioner.
Last month, Chairman Sam Johnson and I wrote to the Social Security Inspector General asking him to review SSA's management and oversight of ALJs with a particular focus on judges whose productivity or decision making appears to deviate greatly from their peers. Rather than rushing to judgment based on news reports, we should wait further results of that review.
We also ask the Inspector General to evaluate whether SSA is effectively using management controls to ensure that ALJs follow agency policy as they are required to do. I know we are all looking forward to receiving those recommendations on how we can remove the anomalies in an otherwise fundamentally effective Social Security Disability System.
Mr. Chairman, I look forward to the testimony of our witnesses. And I yield back the balance of my time.
COBLE: Thank you, gentleman. The ranking member for our subcommittee is not here, but Mr. Johnson, the distinguished gentleman from Georgia will fill in for Mr. Cohen. You're recognized for five minutes.
H. JOHNSON: Thank you, Mr. Chairman.
Social Security is the bedrock of the social safety net that Americans have been committed to providing for one another since the New Deal. That commitment reflects the kind of people we are and our long standing and fundamental values; that alongside our commitment to individualism and self-reliance is our belief that we are our brother's and sister's keepers.
The guarantees of social insurance, unfortunately, have come under attack, severe attack over the last 30 years by those who believed that all the risks in life should be borne by ordinary people, and that government has no obligation to mitigate those risks even to a minimal extent.
Such a Darwinian view is easy to hold when one has the wealth and resources to mitigate one's own life risk. Most people, however, are not lucky enough to have such resources. Most people will need what we have prepared for them which is Social Security and other social insurance programs.
While the focus of today's hearing in on the role of administrative law judges or ALJs at the Social Security Administration, I fear that this hearing is really just the backdoor attempt to undermine Social Security by those opposed to having a social safety net.
The ALJs are being used as whipping boys and girls. We should see this hearing in light of the majority's broader, anti-social safety net agenda especially if illustrated by Representative Paul Ryan's budget that eliminates Medicare and by the majority's repeated attempts to push or cut the social insurance programs during the debt ceiling negotiations.
What these opponents of the social safety net may not accomplish outright they seek to do on a piecemeal basis, in this case by pushing to undermine the independence of ALJs from the political pressure to deny benefits, including those to deserving claimants. ALJs decide appeals from denials of Social Security Disability benefits, as such they are bulwarks against politically motivated, mistaken or otherwise unjustified denials of disability benefits by the SSA.
To ensure that claimants who appeal a denial of disability benefits are given due process, ALJs are insulated from potential political pressures to deny benefits. This insolate comes in the form of certain salary and tenure protections that are not afforded to other employees of SSA. It is for this reason that any attempt to undermine the independence of Social Security ALJs including proposals to replace them with less independence hearing examiners should be met with strong skepticism.
In addition to the measures designed to ensure their decisional independence, ALJs are distinguished from other SSA employees in other ways that ensure the quality and fairness of their decisions. For instance, ALJs must be licensed lawyers, have a minimum of seven years of administrative law or trial experience before local, state, or federal administrative agencies courts or other adjudicative bodies.
These professional qualifications, these requirements further help ensure that decisions concerning disability benefits are approached with analytical rigor and legal sufficiency, and are not based on politics or ideology. I also find it telling that the majority is training its guns on Social Security ALJ at the very moment that it is also seeking to undermine health and safety regulations. Like the regulation of workplace, environmental, food, drug, and financial safety insecurity potentially give rise to greater numbers of Social Security Disability claims.
If the majority has its way, people would be less protected from harm in the first instance because of a lack of adequate regulation and they would be let's protected should harm befall them because there would be a weakened safety net to catch them if they fail -- if they fall.
The majority's message to the American people is you are on your own if you get injured at work, get sick because of contaminated food, or lose your job because of reckless corporate behavior.
Finally, I'm deeply concerned that the minority was not given an opportunity to invite a witness. At a minimum, a representative of the Social Security ALJs should have been invited in order for members of our respective subcommittees to have a more complete picture on the issues before us.
The majority has been a little too cute with its claim that the witnesses represent the administration. With all due respect, the reality is that Social Security Commissioner Michael Astrue is a George W. Bush appointee serving out a fixed six-year term. His views reflect the political agenda of the Republican Party and others who are hostile towards the idea of a social safety net.
Everyone observing this hearing should bear those facts in mind. The backlog in disability benefits determination is troubling; this backlog, however, may stem more from a lack of adequate resources than from delinquent ALJs.
When congress has given SSA more resources, the backlog has been reduced. I feel that in the current political atmosphere, that -- that fetishes budget cuts above all else, cuts in resources of the Social Security administration will result, once again, in an increased backlog of cases.
Ultimately, no one wants bad ALJs who do not do their jobs. SSA, however, already has tools at its disposal to take adverse employment actions against ALJs for cause, and I wonder just how many times that has been done. I view the thrust of today's hearing with great concern for the reasons I've outlined and so should you.
I yield back.
COBLE: All of the witnesses -- all of the members may submit opening statements for the record. Mr. Johnson, I'm told that the Democrats were asked to invite a witness. But that was declined. And much of what you say, I don't embrace, but you and I can talk about that for another day.
The best laid plans of mice and men oftentimes go awry. Today's no exception. I did not know I was scheduled to chair this hearing until Friday afternoon. That was my fault, no one else to blame. But Mr. Smith has given me an excused absence when I have to abruptly depart subsequently.
REP. HOWARD COBLE AND REP. SAM JOHNSON HOLDS A HEARING ON SOCIAL SECURITY LAW JUDGES - COMMITTEE HEARING
And I'll thank the distinguished gentleman from South Carolina, Mr. Gowdy to assume the gavel when that time comes. We're pleased to have two outstanding witnesses before us today.
Michael Astrue is the commissioner of Social Security and has had a distinguished career in both public and private sectors. He's an honors graduate of Yale University and of the Harvard School of Law.
After law school, he clerked for judge Walter Skinner on the U.S. District Court in Massachusetts. Mr. Astrue has a lengthy career in public service, serving as Acting Deputy Assistant Secretary for Human Services Legislation at the U.S. Department of Health and Human Services, (inaudible) commissioner of Social Security, Associate Counsel to Presidents Reagan and George H. W. Bush, and General Counsel of the U.S. Department of Health and Human Services.
We welcome Mr. Astrue and look forward to his insights.
Ms. Christine Griffin is the Deputy Director of the U.S. Office of Personnel Management where she manages the Federal Government's 1.9 million employees. Prior to OPM, Ms. Griffin was a commissioner of the U.S. Equal Opportunity Commission and has worked in labor and employment law positions in both public and private sectors.
Ms. Griffin earlier served as the attorney adviser to the former Vice-Chair of the EEOC. Ms. Griffin earned her undergraduate degree from the Massachusetts Maritime Academy; and her law degree from the Boston College School of Law. Ms. Griffin is also a veteran of the United States Army.
We appreciate her willingness to share her expertise with the subcommittee today.
Commissioner, we'll start with you. And if you, witnesses, could confine your statements to as near to five minutes as possible. That will be a green light (inaudible) assures you that (inaudible) is thick (ph). The light then turns to amber and the (inaudible).
So, if you can wrap up when the red lights appear, we would appreciate that. Good to have you both with us.
Commissioner, you may proceed.
ASTRUE: Chairman Smith, Chairman Johnson, Chairman Coble, Ranking Member Becerra, and members of the subcommittee, thank you for this opportunity to discuss what the Supreme Court has called probably the largest adjudicative agency in the western world.
This year, about 1,400 administrative law judges will decide about 832,000 disability appeals. When I first testified before the Social Security subcommittee on my second day as commissioner, our backlog situation was bleak.
Backlog had risen steadily throughout the decade and the reform initiative I inherited known as disability service improvement or DSI was aggravating the problem rather than helping it. We took swift action to end the failures of DSI and to accelerate its few successes and then we went to work to manage our hearing operations, nearly 10,000 employees with unprecedented rigor.
As a result, we have reduced the time for deciding a hearing request from an average or 532 days in February 2008 to 353 days last month. We've achieved this success despite recent budget constraints and almost 1.5 million more applications for benefits caused by the economic downturn.
Hundreds of small but important initiatives including management information systems, uniform business processes, smarter use of support staff, better training, better allocation of resources and decisional templates have steadily brought us nearer our original goal of an average of 270 days to decide a case.
An essential element of our progress has an improved judicial productivity. Since 2007, when Chief Judge Cristaudo issued his influential memo establishing 500 to 700 decisions per year as our expectation for each judge, our judges have improved from 2.19 decisions per day in fiscal year 2007 to 2.43 decisions per day so far this fiscal year.
In fiscal year 2007, 46 percent of our judges met this expectation. In fiscal year 2010, 74 percent met it -- met it and we expect to do slightly better this year. Let me echo Mr. Coble and emphasize that most of our ALJs responsibly handle their cases.
However, recent Wall Street Journal articles by Damian Paletta have provoked constructive debate about an issue I have raised several times before congress -- the small number of judges who do not properly apply the statute.
It's critical that all members of Congress understand what our subcommittee understands. We have not taken actions against judges based strictly on allowance or denial rates because congress has put great weight on an ALJ's unqualified decisional independence.
The administration is open to exploring options for addressing these situations in consultation with ALJs, other federal agencies, and other stakeholders. Areas to explore to include examining statistical evidence, showing a very significant variation between the decisions of a small number of ALJ and the decisions of other agency L.J.s whether in the direction of approving or denying claims.
We're doing what we can under the current law. With the promulgation of our time and place regulation, we have eliminated arguable ambiguities regarding our authority to manage scheduling and we have taken steps to ensure the judges decide neither too few nor too many cases. By management instruction, we're limiting the assignment of new cases to no more than 1,200 annually.
On my watch, we have raised the standards for judicial selection. Four years ago, we had an OPM list of judicial candidates that was 10 years old and nobody was doing background checks on candidates. The 685 judges we have hired since 2007, using a more rigorous internal hiring approach, have been productive and respectful of the statute.
We have not had a single case of serious misconduct by any of these new judges. Insistence on the highest possible standards in judicial conduct is a prudent investment for taxpayers especially since these are lifetime appointments. Our efforts continue.
I understand that later this month we expect to file a termination action with the Merit Systems Protection Board based on the poor performance of an ALJ who is deciding very few cases. I know that you understand that I cannot comment on pending investigations in personnel actions, but I'm happy to answer any other questions that you may have.
Thank you very much.
COBLE: Thank you, Commissioner. You beat -- you beat the red light, kudos to you.
ASTRUE: I find it very hard, Mr. Chairman.
COBLE: Ms. Griffin, good to have you with us. You may proceed.
GRIFFIN: Thank you. Chairman Johnson, Chairman Coble, Ranking Member Becerra, Mr. Johnson, and members of the subcommittee, I'm pleased to have the opportunity to appear before you this afternoon to discuss OPM's role in the hiring process used for the administrative law judges.
The administrative law judge function was created by the Administrative Procedure Act of 1946 to ensure standards in administrative proceedings before federal government agencies. The federal government employees administrative law judges called ALJs in a number of agencies across the federal government.
As of December 2010, there were 1,704 ALJs assigned to federal agencies across the federal government. According to statistics compiled by OPM, the Social Security Administration employs 85 percent of all the ALJs.
Consistent with the Administrative Procedure Act in civil service law, OPM is responsible for establishing ALJ qualifications, establishing classifications standards for determining ALJ pay, developing and administering the ALJ examination and maintaining a listing of qualified ALJ candidates for ALJ employment by federal agencies. OPM also approves non-competitive personnel actions affecting current ALJs such as promotions.
By law, OPM cannot delegate the ALJ examination to any other agency. The qualification standard developed by OPM prescribes minimum requirements for ALJ position. In order to be considered, an applicant must need the licensure and experience requirements and place among the more highly qualified applicants at the conclusion of the first segment of the examination.
Applicants who are among the more highly qualified group must then complete additional components of OPM's ALJ competitive examination. The current qualification requirements which were updated in 2007 are defined in the qualification standard for administrative law judge positions.
Periodically, open periods for the ALJ examinations are posted by a job opportunity announcement on OPM's website. The examination has been administered three times since 2007. The last general administration of the ALJ examination occurred in 2009 to 2010.
Further, OPM continues to periodically administer the examination to 10-point preference eligible veterans upon request. It is the responsibility of the agencies to ultimately hire the ALJs.
Agencies must make selections from the certificate that are consistent with the applicable merit principles and veterans preference rules, regarding the order of selection.
However, it is OPM's responsibility to ensure that the ALJ register maintains the sufficient number of qualified ALJ applicants that meet the projected hiring needs of agencies, including giving agencies an adequate number of choices for each position to be filled. Once an ALJ is appointed by an agency, the ALJ receives a "career appointment" and is not subject to a probationary period.
The hiring agency is further prohibited by statute and regulation from rating the job performance of the ALJ, including from awarding the ALJ monetary awards, honorary awards, or any other kind of incentive. The restrictions on agency performance ratings are in place in order to ensure that the ALJs are not influenced by an agency when performing their judicial functions.
Nonetheless, ALJs are not unaccountable to their agencies. Misconduct by an ALJ is subject to sanctions. And an agency may take action against an ALJ for good cause as established and determined by the Merit Systems Protection Board.
Members of the subcommittee, thank you for having me here to explain the role of OPM in the selection of ALJs. And I'll be happy to address any questions you may have.
COBLE: You even (inaudible). GRIFFIN: Just going fast.
COBLE: (inaudible) giving up for (inaudible) that. And ladies, gentlemen, witnesses, we (inaudible) comply with the five-rule against ourselves as well, so if you could keep your questions terse (inaudible).
Commissioner, it gets one's attention when an ALJ is granting on the one hand, or denying on the other hand, a disproportionate number of claims in his or her cases. How do you track this, a, and b, what do you with the data?
ASTRUE: Mr. Chairman, we have better tracking than we have before because we use more precise management data than we did in the past. And we use this primarily for training initially and then for counseling if the training does not work. Our hands are substantially tied in terms of using a lot of that data for discipline by 1998 regulation that my understanding was done, in large part, at the insistence of the Congress at the time.
So I can't use statistical deviation very easily as a basis for removal or even to look more closely at a judge. So we use that data now, with the best way we can, which is, we're training and then for counseling. And I think, it's been somewhat effective.
COBLE: I thank you for that. Since 85 percent of ALJs in the federal government are employed by SSA, would it be helpful if, to you, in your opinion, sir, if OPM created a simple exam and ALJ register for SSA?
And you can weigh in on this, too, Ms. Griffin after the Commissioner responds.
ASTRUE: I don't think a separate exam is necessarily necessary. I do think that there needs to be better consultation between OPM and SSA than in the past. It is better under Director Berry.
But at the staff level, when you try to engage, typically, we hear, "Well, there's litigation risk and we're not allowed to discuss those things." And it is frustrating, historically, to have 85 percent of the Administrative Law Judges and have essentially no input into how they're rated and selected.
COBLE: Ms. Griffin, you want to be heard all that?
GRIFFIN: I would just say too, I don't think it's-it's necessary to have separate exam. I think, what we're looking for is really a register of really good people that can be used across a variety of central agencies.
And-and as the Administrative Procedure Act stated and was passed, it was the support of the fact that we could have independent decision-makers at the agency so that we were being fair. So I agree that I don't think it's necessary.
And I -- and I do know that-that Director Berry and Commissioner Astrue have-have had several talks since Director Berry has been there and he is committed as I am to continuing the sanctions.
We do -- every time the exam is open, and we go through a process-process of trying to evaluate and get really better at job analysis of ALJs so that we are making sure the exam reflects what is needed. We have consulted with the Commissioner and other people of Social Security, and we'll continue to do so.
COBLE: Thank you.
GRIFFIN: And we're in the process of doing that again right now.
COBLE: Thank you for that. Ms. Griffin, let me ask you this, would an ALJ, if placed on administrative leave, why would it not be fair for him or her not to be paid during this time but rather to receive back-pay including interest, maybe even attorney's fees if he or she prevails before the MSPB?
GRIFFIN: I actually, don't -- I don't know the answer to that question. I -- it was interesting to note that the ALJ is on -- in question that you referred to is being paid while on administrative leave -- I don't know exactly why that is, and what rule governs that, but I'd be happy to find --
COBLE: You all think about that and get back to us.
ASTRUE: If I could -- If I could just address that briefly, Mr. Chairman. I actually, would have been qualms about taking cellar way on administrative leave. Administrative leave, in this situation, is usually for brief period of time, when you're trying to get a handle on --
ASTRUE: --if this is the problem, and you're trying to freeze the situation to decide what to do. And it is not uncommon for someone to be put on administrative leave and then discover it's a false alarm.
I do think, something that the committee should be considering very closely is that once we've done that and we've made a decision that someone should be reviewed, for judges by not for other employees, the whole time an MSPB process is continuing, which can take two to three years, full salary is paid even after a removal order at the first level determination.
COBLE: I thank you sir.
I want my colleagues to know I just barely missed the red light. I almost (inaudible) set a good pattern.
The gentleman from-- distinguished gentleman from Texas, Mr. Johnson is recognized for five minutes.
S. JOHNSON: Thank you, Mr. Chairman.
Commissioner Astrue, it's my understanding that the Administrative Procedure Act protects what an ALJ decides to do because of judicial independence. So whether a judge grants approvals, in most cases, or denies most claimants, or handles too few or, and some cases, well above the average, APA prevents Social Security from questioning their decision-making, is that true?
ASTRUE: Mr. Chairman, I think it's a somewhat debatable proposition. I think that our authority is not a hundred percent clear. And in fact, as a technical matter, APA decisions in the court don't apply to us because we're not under the APA.
The courts have ruled in the past that the APA was modeled under the Social Security Act, that to a large extent, the systems are parallel, the same rules should apply. But our decisions are made under the Social Security Act.
S. JOHNSON: OK. You and I have talked about my concerns about low-producing and overly generous ALJs for a long time. And our staffs have been working together to determine the impact on the disability insurance program.
Judges who allowance rates are above 85 percent, and judges that allowance rates below 20 percent. Would you discuss your staff's findings and tell me what effect the union has on that.
ASTRUE: Sure, Mr. Chairman. So we have -- and I apologize for the lateness of this. We had some technical issues and we just, right before the hearing, our office, the actuaries, completed those numbers in response to your request. So we'll be attaching those for the record.
But by the standards that you indicated, the 40 and the 85 percent, roughly, the savings to the taxpayers on the less generous side, is about 200 million dollars a year -- the cost on the more generous side is approximately a billion dollars annually.
We have in all its complex glory for you. And we will attach it for the record. But if there is the short version is that there is a substantial cost to the trust funds, if you look at it with the standards that-that you asked us to look at it at.
S. JOHNSON: OK. Since people don't appeal awards, there's no way to know which appeals were wrongly awarded, is there?
ASTRUE: Well, we do, as of fairly recently, we are looking at them. And we're using that data, as I mentioned before, for training and counseling. But in terms of reversing decisions, you're correct, Mr. Chairman.
S. JOHNSON: Do you look at every decision?
ASTRUE: Not me personally. S. JOHNSON: I mean, review it.
ASTRUE: We look at a statistical sample for the -- from -- for the point of view of trying to identify patterns of disconnect with the law.
But again, that's fairly recent. And we only look at a relatively small sample. We don't have the resources to look at very many. But we do look at it to try to find the most extreme cases of non-compliance with the statute and try to address it through training. And then if training doesn't work, through counseling.
S. JOHNSON: When a new judge is hired, can you put them on probation? If not I want to--
ASTRUE: No. The statute doesn't allow me to do that, Mr. Chairman.
S. JOHNSON: Does OPM do background checks on candidates before they're placed on the register for you to interview? And have you ever asked them to do that?
ASTRUE: The answer to the first question is, no, they don't do it. Yes, we've asked them to do it in the past. We've gone ahead and done it on our own.
S. JOHNSON: What's their responses?
ASTRUE: We've actually used contractors to do it, as opposed to having agency officials do it.
S. JOHNSON: Well, what was their response to you?
ASTRUE: They've declined to do it.
S. JOHNSON: You want to respond?
GRIFFIN: This is in preparation for this hearing. This is something that we looked at.
And we have right now, I think this, you know, approximately, 900 ALJs on the list. So in order to do a suitability background check on every single one of these people, when the majority of them aren't going to end up being ALJs -- given the number that are hired each year, is cost-prohibitive. And it would -- it would actually cost the Commissioner and other agencies that (inaudible) disturb us a lot more.
But what we do suggest, and what we do with all federal employees, is that they have a suitability check when they're offered the job. So the offer is always conditional on a background check of some type, depending on the level of work they're going to be doing all the way up to, you know, depending on the type of clearance that we need. So, you know, I think the appropriate time to do it is -- is when they're offered and -- and before they actually begin the job.
ASTRUE: I actually (inaudible) just to be clear, we do not -- in the agency, check on everyone on the list. It's only when they're sent to us by OPM for potential higher. It is at that point that we do the (inaudible).
S. JOHNSON: Thank you, my time has expired.
Thank you, Mr. Chairman.
COBLE: I thank the gentleman from Texas.
The chair would now recognize the gentleman from Georgia, Mr. Johnson.
H. JOHNSON: Thank you, Mr. Astrue. There have been a number of or there has been some additional funding provided by earlier Congresses and based on that additional funding and very hard work by SSA judges and hearing office staff, the wait times have gone down from a peak of 18 months to -- and that was in 2008 to just below the one year mark last month, is that correct?
H. JOHNSON: And unfortunately, Republicans this year chose not to continue helping SSA bring down wait times by cutting the agencies budget by $1 billion below what was requested to keep up with incoming claims and drive down waiting times. What would be the impact across the agency of this kind of cut?
ASTRUE: Well, certainly, this year, half way through the fiscal year, we started implementing.
H. JOHNSON: Well, this is -- this is going to hurt, isn't it? In terms of the ability of quickly ...
ASTRUE: I'm -- I'm -- I'm trying to get to that Mr. Johnson. Yes, it's going -- it has started -- so we -- one of the members I don't remember who mentioned, we've canceled a -- I guess, it was Mr. Becerra -- eight offices. We've closed the -- the McLean (ph) Case Assistance Center.
H. JOHNSON: Yeah.
ASTRUE: And that's in the area which is our number one priority. I've heard complaints for many of you because we've closed remote offices (inaudible).
H. JOHNSON: (Inaudible), yeah, OK, I don't want to go there for now because I only have five minutes. And I don't want you to filibuster me.
ASTRUE: Well, I'm not filibustering you. I'm trying to be responsive, Mr. Johnson.
H. JOHNSON: All right, well -- well, let me ask this question. Have -- have you noticed a tsumani of ALJs recently who seemed to go too far in allowing awards or who are non-productive in terms of low- producers?
ASTRUE: We are actually as (inaudible) ...
H. JOHNSON: Has there been an avalanche or has it been just a trickle?
ASTRUE: Well, in fact, there's been slight improvement on both categories. And I think a lot of that is we've hired 685 -- 695 ALJs on my watch. And if you look at the performance of those 695, there were fewer of them at the extremes in decision making and there are few of them at the -- on the non-productive end, so it I think it bears out what I said in my testimony, committing to excellence (inaudible) ...
H. JOHNSON: And on the service (ph) -- and I'm sorry ...
ASTRUE: It's a better product.
H. JOHNSON: I'm sorry for interrupting. But I -- I -- I did want to just continue with my questions. So we're having a hearing on ALJs today and it appears to be no real problem that we should be having a hearing on. Is that fair to say?
ASTRUE: My -- I -- I don't think that it -- I think if you look at this historically, this is an issue that's been periodically before the Congress for 35 years.
H. JOHNSON: So it is (inaudible) ...
ASTRUE: This is not (inaudible) source of concern of members of -- in good faith on both parties for a long period of time.
H. JOHNSON: But we -- yeah, but we should not cause any panic among the public insofar as the abilities of our ALJs is concerned handling these Social Security claims. There is no -- no real need to make them a whipping boy or a girl, is it?
ASTRUE: Well, I don't -- I've never made anyone a whipping boy or a whipping girl. I think what's important is judges perform an important public function. They should work hard. They should behave themselves properly. And they should decide cases in accordance with law.
H. JOHNSON: How many of those types of judges who have not met that benchmark have you had to compel to go into what, training, or counseling during your tenure?
ASTRUE: Well, in my tenure, we've disciplined 58 judges.
H. JOHNSON: Fifty-eight have been disciplined out of 85 percent of 1,704?
ASTRUE: Well, started, when I first heard it, we had about a thousand, we're up at about 1,400.
H. JOHNSON: Were they -- and they were disciplined for not -- for being excessive in terms of one way or the other which way they ruled.
ASTRUE: No, we haven't disciplined any judges for that any event -- any judge's (ph) conduct.
H. JOHNSON: (inaudible) because of a failure to decide cases.
ASTRUE: We have had some discipline for failure to decide cases, yes.
H. JOHNSON: About how many?
ASTRUE: After repeated warnings. One certainly that comes to mind, I'll answer it for the record, how many of the others fell in that category.
H. JOHNSON: And the others would put things other than the substance of the cases that they decided.
ASTRUE: We haven't disciplined any judges yet on the substance of the case.
H. JOHNSON: Thank you.
COBLE: I thank the gentleman from Georgia.
The chair would now recognize the gentleman from Nebraska, Mr. Smith.
SMITH: Thank you, Mr. Chairman.
Commissioner, you've asked the ALJs to make approximately 500 to 700 decisions every year. And why would you say that it was necessary to establish that expectation?
ASTRUE: We came and decided that you can't do everything by rules and directive, that part of change is cultural change. And so, one of the interesting things about this very effective memo is that there are no sanctions attached to it.
So the combination of saying, this is what we expect. And being much more open about performance, I think a significant number of judges to their credit say -- I'm being challenged by the commissioner to do better and I'm going to do better. And I applaud those judges who've done that.
SMITH: So how would you describe the analysis that the agencies used in deciding on that number -- on those numbers?
ASTRUE: We had old data that I don't think was very relevant to suggest to -- the number a little bit, below 500 might be appropriate, but we did is we relied on the professional of our management judges saying among the people who are doing the best. What are they doing? What's the reasonable expectations relied heavily on former Judge Cristaudo and decided that 500 to 700 cases is the benchmark with a fair and reasonable benchmark.
SMITH: OK. So -- and -- and if my math is correct, approximately 350 judges are not meeting the expectation?
SMITH: And what do you think is necessary to ensure that we can bring the -- the expectations (inaudible) -- that the expectations can be met?
ASTRUE: There are some judges who haven't met the 500 but seemed to be trying in good faith and are close. There are some that have had health or other issues where it's a reasonable excuse.
We have -- I believe it's 118 judges who are eligible for reduced time because they're union representatives. If you look at the judges who -- apart from those categories, I think there's a really -- you'd look at it and say they're not fully carrying their weight, it's a relatively small number.
But we will be taking an increasing amount of action there. We've clarified our regulatory authority with the time and place regulation as I indicated in my testimony. We'll be filing shortly against the judge, surely for non-performance of job based on the total lack of productivity.
SMITH: Now -- their -- their compensation is based on a salary schedule type of approach.
ASTRUE: Yes, that's right, (inaudible)
SMITH: And so it's conceivable that some judges would be paid the same as those they supervise?
ASTRUE: Yes, that's right. There is compression there. And I think that's an issue that OPM and the Congress should be considering, because right now, there's no incentive to be a management judge. And believe me, there's a lot of heartache. You know, I was the general counsel for over 10 years in government and outside government.
There's a lot of heartache managing lawyers in any area. And I think that some differential for the added management responsibilities is an appropriate issue to consider.
SMITH: And what specifically do you think would work that we could implement via a statute or -- or however?
ASTRUE: I -- I -- I think we -- that my understanding is it may require statutory changes. So that's one of the things where we'd like to work with OPM and with -- with you, the members of Congress, to see if there is a better way of moving forward.
SMITH: OK. All right, thank you. I yield back.
(UNKNOWN): Sure, thanks, the gentleman from Nebraska and recognizes the gentleman from California, Mr. Becerra.
BECERRA: Thank you for your testimony here.
Commissioner, thank you for the work that you've been doing to try to address this issue of outlier judges. And I hope that we're able to hear soon the results for some these investigations and examinations that are underway, so we can deal with that.
I also know that a lot of these judges are under extreme stress. They are dealing with a huge number of cases on a daily basis that they must dispose of and do so in a -- not just reasonable way, but in a legal way.
I know that you're saying in your testimony -- your written testimony, you mentioned that your number one priority is trying to relieve this backlog. And I know you've made some progress. You -- you state specifically, I'm quoting you, "Eliminating our hearings backlog and preventing its reoccurrence remained our number one priority."
You go on to cite on page four of our testimony, "Due to the economic downturn and the aging of the baby boomers, our workloads have been skyrocketing. We received a 130,000 more hearing requests in 2010 than we've received in 20 -- in 2008. And we expect to receive 114,000 more request in F.Y. 2011 than we did in F.Y. 2010. Without our hearing backlog reduction plan, our national average process -- processing time would be approaching at least 600 days, and we would be well on our way to 1 million people waiting for a decision."
Now, we all remember the bad old days back in 2005, 2006, 2007, in your testimony, you go on to say, "In 2007, we had claimants who waited for a hearing decision of as long as a staggering 1,400 days. I don't think any of us wants to go back to those days again.
You then go on in your testimony on page six to say, "However, to continue our progress, we need Congress' help. We must receive full funding of the F.Y. 2012 President's Budget request. You go on to say, "Unless Congress provides us with the budget -- the president's budget, we will not be able to meet Congress's goal and our commitment to the American public to eliminate the hearing backlog in 2013. The gains that we achieved will vanish. The additional funding we received in recent years was critical to achieving our success to date."
Now, I mentioned previously that you got more money in 2008. You got more money, much of it through the -- the economic recovery package in 2009, for 2010 as well.
But last year, your budget was cut from what you needed, a billion dollars less. Now, you've done -- I don't know how -- but an admirable job of doing without that billion dollars that you needed.
I know you're hearing -- I'm hearing you now that you're saying, "We got to get what the president said, 12.5 billion." Now, I know you had to spend some of your reserve money in order to boost up the amount that you got from Congress for 2011 funding. That means you have less money in reserve to do some of those things that sometimes you're able to do because you have a reserve.
ASTRUE: Actually, Congress took the reserve money away so we don't have that anymore either.
BECERRA: That's correct. The -- the 2011 budget also took from you several hundred million dollars. The result -- well, you've mentioned the eight offices -- (inaudible) offices that you were planning to hire -- open, no longer.
I suspect that if you don't get the money that the president has requested on your behalf, you likely will have to look at a hiring freeze.
ASTRUE: Yeah, we -- we've been in a full hiring freeze for this entire fiscal year. We actually started a substantial hiring freeze even before the start of the fiscal year being concerned.
BECERRA: Furloughs -- well, you have to consider furloughs.
ASTRUE: Well, we were very close. In April, we believed that we were looking at 8 to 12 furlough days.
BECERRA: Have you not used some of your reserves to cover some of your expenses? Would you have to consider furloughs?
ASTRUE: Let -- let me -- I -- I don't want to make a mistake on an important question. Let me -- let me supply that analysis for the record.
BECERRA: OK. Is it possible for you to tell us today that you will continue to make progress in reducing the backlog, backlog that obviously impacts the workload of each one of those administrative law judges and certainly it impacts the American workers who are making the request for the benefit that they believe that they believe they're entitled to? Does not getting the money that the president and you have requested impacts your ability to meet that? ASTRUE: The Congress has quite -- understandably wanted to verify that we were making the progress that we told you we're making. The GAO told you a couple of years ago we were 78 percent likely to make the goal. More recently, the IG said that we're on target, but we were very fragile that 1 percent either way and -- and we would miss the goal.
Right now, with the -- the budget members that I'm hearing now -- which are another absolutely reduction in numbers -- I can guarantee you that we will miss at that level. I also close (ph) to guarantee you that we will make it with the president's budget. We're still in the game on that.
So really, you know, my view is it's up to the Congress to decide how important is backlog reduction. I came here to do this five years ago and said I would do it. Not many people believe me, OK?
We're on the verge of getting there. And if we miss it, not because I failed, not because any of the people sitting behind me or any of the 85,000 people who work for us have failed, because Congress chose to fail and it's up to all of you.
BECERRA: Thank you, Mr. Chairman.
Thank you for your testimony.
COBLE: I thank the gentleman from California.
The chair would now recognize the gentleman from Texas, Mr. Brady.
BRADY: Thank you, Mr. Chairman. I appreciate you're all holding the joint hearing today.
Just to sort of correct the record, it sounds like the 2011 budget was devastating Social Security. I would personally have to ask which president signed that bill. It was President Obama if I recall. And which -- which Senate passed that bill? I'm like, "It was the Senate Democrat."
If I recall -- Commissioner, just hold on.
BRADY: If I recall, it passed that funding bill -- bipartisan passed 260 to 167 with 81 Democrats in the House including the ranking member of Ways and Means supporting that bill. It was a bipartisan effort to try to get this terrible deficit under control.
And I'd also point out in the past decades Social Security administrations (inaudible) over $1.3 billion in the information technology fund reserve fund in the bipartisan way. Congress agreed to rescind about less than a half that $500 million of the unused fund.
Clearly, resources matter. But it is not the only portion of the Congress that's being made at SSA. I think looking overall that you're making process and speeding up the hearing time is increasing productivity of judges. And that's to be commended in a major way.
But a lot of concerns still remain. The variations between the states (inaudible) still question the value of the reconsideration process at the (inaudible) level. And I would be curious to hear what the 10 prototypes say toward the impact of skipping that have been.
I was hoping too many cases go to the ALJ hearing levels. It increases cost by three times, lengthens (inaudible) dramatically. So there has to be a better way of resolving new cases before they get to that level.
There continues to be variance -- dramatic variances between offices, some in the same community. In the eastern area, the (inaudible) between our downtown office and our (inaudible) office is dramatic.
And I still heard over the holidays two complaints from claimants about their representatives who they believe was actually slowing down the process of resolving their claims. And still I'm concerned we don't have the right (inaudible) in place to move for the claimant's representatives to help resolve these processes sooner rather than later.
So, Commissioner, starting with getting -- making sure we have a good candidate and a good registry for our administrative law judge, I disagree with the thought that we not have a specific test that has specific substantial knowledge of the technical aspects of Social Security disability.
So I would ask you, Commissioner, have you found candidates who perhaps (inaudible) to make a register but who aren't suited to handle a high case load or aren't suited to dealing with the public?
ASTRUE: Oh, absolutely. And we've had people with criminal records, failure to pay taxes. We find -- I mean, the reason we spend a substantial amount of money on the background check is that it's cost beneficial. It's much better to screen up the bad actors early and not allow them on the bench than to chase them down four years later, spending millions going before the Merit Systems Protection Board. So as I said, the background checks that we do on judges are one of the most cost-efficient thing that we do in the entire agency.
BRADY: Since we are -- we (inaudible) the majority of those on the registry, have you asked OPM for a separate test (inaudible) the SSA disability to those candidates?
ASTRUE: No, I have not.
BRADY: Will you?
ASTRUE: I would like the testing of the judges to be more of a partnership than it's been in the past. And I think that Mr. Barry (ph) is trying to move in in that direction, but were not where I would like to see (inaudible). And I don't -- I think that's more important than a separate test.
Deputy Director Griffin, why does an OPM have a separate performance management system for ALJs when it obviously based on law, applies to all, you know, within the -- the system but it helps us identify those performance measures quicker and more clearly?
GRIFFIN: Well, I know that OPM is very interested in performance -- performance management, in getting good federal employees higher than -- and -- and have them performed appropriately and -- and do their job very well while they work at the federal government.
But there are little (inaudible) with regard to the ALJs and what is allowed by -- by law and what our role could really be. Our role is actually to develop the list yet good, qualified people that is the best that we can find to put on that list so that the other agencies can hire them. It's really the agency's responsibility to then develop what the -- the measures of performance should be for whoever their federal employees are.
BRADY: Wouldn't you think it'd be helpful to know as you're developing that registry who and who's not worked out so that you're screening and you're testing and your application process can better reflect those who are likely to succeed?
GRIFFIN: Oh, we -- we have a process by which we try to do exactly that. So we try and make sure that we have people that are qualified to do this work, that have experience and license -- licensing to do the work.
We have -- every time we change (inaudible), we do engage with Social Security. And again, we just began in the last few months to do that. That was one of the recommendations in the GAO report that we do another analysis, job analysis.
Every time I think we do that, we -- we do get better at -- at providing an examination that's -- that really hopefully gives us the best ALJs on that list that the other agencies can choose from.
However, again, you know, the specific criteria by which someone could be judged as whether they're doing their job well or not is really left up to the agency. We're developing a list that's available to 27 different agencies that -- that hires ALJ. So we're trying to find the best people that have the best legal skills to do that work.
BRADY: Sure. Thanks.
I yield back (inaudible) my time.
COBLE: I thank the gentleman from Texas.
The chair will now recognize the gentleman from North Carolina, Mr. Watt.
WATT: Thank you, Mr. Chairman.
I came back early for this hearing because I think this is perhaps among the most important areas that we do work in. There's nothing more frustrating for me as a member of Congress than looking at a -- an applicant for Social Security or Social Security Disability in particular and telling him or her that she's got -- he or she's got to wait 18 months, three years sometimes give them a cue to -- because we can't get decisions.
I though this hearing was going to be about trying to diminish that waiting time further and that we -- I'm -- I'm encouraged to -- to hear that we are moving in the right direction. I'm discouraged to hear that we may be in the process of blaming the backlog and the failure to diminish the backlog on some bad apples in the administrative (inaudible).
I think that is a problem and if it is a problem, we certainly need to address it. I'm not sanctioning bad decisions, disproportionality (ph) in -- in outcomes. But if -- if we are -- if Congress is making decisions to diminish the funding for this agency and then turning around and blaming the increase in the backlog on what 50 some judge -- administrative law judges ahead of 1,400 that may not be performing up to standards then I'm disappointed that -- that that's where this hearing has headed us.
So I -- I'm hopeful that out of this won't come out -- going out and saying that the reason that we had this massive backlog in Social Security disability claims is because we got bad judges and, you know, we've got some bad judges and I think we need to deal with that. But if anybody is telling the American people that that's the only problem we've -- we've -- that's creating our backlog then I think we are doing a disservice to -- to -- and if we are going to walk out of there and say, you know, we -- we cut the budget by $1 billion and we're getting to ready take the reserves and cut the budget even further.
And all of a sudden the -- the -- the problem is we've got some bad judges over there. I can't help you message (ph) that if you want to deal with the bad judges, I want to help (ph) the message that we need to deal with the bad judges but we've got to step up and -- and -- and live up to our responsibilities, too.
I heard Mr. Brady say that there's a disparity within inner cities and Bel-Air that probably means the people out in Bel-Air are getting better medical care and better decisions from their doctors about what -- what their problem is than -- and that's the real problem in this process.
So I -- I stayed here to -- to try to clarify the record. I don't have a dog in the fight between whether if -- if the budget issue or bad judges, I think it's both of them. And I think it's -- it is inexcusable to have people who are eligible, qualified for Social Security disability die before they can get the -- the determination made because of this backlog.
And I'm a lot more concerned about that aspect of -- of the disparity, you know, in our system than I am about the -- the judges that are not performing although I'm not excusing them and I think we need to deal with that, too. But we need to be honest with the American people that we are not doing what we need to do to -- to solve this backlog and not blaming it on somebody else.
We've got to step up to the plate and give these people their hearings by good judges who work. And we've got to find (ph) more judges to get this backlog down so I didn't ask a question but I -- I got that all from my (inaudible) and I thank you, Mr. Astrue, for getting this back all down and continuing to work on it and being straightforward in your testimony -- written testimony -- about the fact that you need this funding if you're going to keep moving it in the right direction because if we don't move it in that direction, we'll be back here blaming somebody else for -- for what we didn't do.
Mr. Chairman, I yield back. Thank you.
COBLE: Thank you, gentleman from -- from North Carolina.
The chair will recognize himself for questions. The gentleman from North Carolina made a reference to fair hearings and I want to ask you about that, some systemic things that ideally could be done to streamline and approve the system. The adversarial system seems to work for everything from shoplifting cases to capital murder cases, why not here?
ASTRUE: It's been tried and it was extremely expensive and not very successful. It was a government rep (ph) project that was actually terminated when I was working for the commissioner almost 25 years ago. It didn't change outcomes very much. You'd need to add another 1,500 employees or so at the time when we don't have the resources to do that.
And I think that we, in the agency, and I think the Congress at least implicitly at that time agreed that the non-adversarial model given the nature of disability while not perfect was the best way to proceed. And that -- that's what I believe.
COBLE: Who cross-examines the physicians that assign some level of disability to a claimant?
ASTRUE: That's what the judges do.
COBLE: They cross-examine the physician or they cross-examine an affidavit?
ASTRUE: No, it - it's (inaudible) and the first two levels are the -- or first level (inaudible) I'd say that's an entirely paper process at a hearing and the judges latitude and they do it.
COBLE: What's the standard of proof required at the first two stages, preponderance?
ASTRUE: I -- I believe that's correct. Let me -- let me -- I don't want to make a mistake (inaudible) supply more information on the -- on the record but yes. COBLE: So -- so it's approved (ph) that the initial stage, can it ever be reversed in one of the three subsequent (inaudible) stages?
ASTRUE: No, not under the current process.
COBLE: And there -- and there are four stages by which it can be granted, correct? ASTRUE: Substantially true. We have 10 states one of the member, I forget which, mentioned before that there are 10 prototypes state with a reconsideration -- I believe that was Mr. Brady -- has to drop (ph). But in most of the country, yes, there are four levels.
COBLE: So there are four stages at which it can be granted. And one stage at which you can be denied.
ASTRUE: Well, it can be denied any (inaudible) people bring denials up.
COBLE: But nobody appeals it?
ASTRUE: Yes, that's right. If -- if you're saying is there a tilt in the system in the direction (inaudible).
COBLE: Yeah, sort of -- sort of what I'm suggesting.
ASTRUE: Yeah, that's right.
COBLE: So judges are in the unique position of both being questioner and final arbiter. Is there any other system, justice system, administrative system, I'm not familiar with that model where the judges, the questioner and then ultimately the finder of fact.
ASTRUE: I'm a -- I'm a little bit away from my hardcore (ph) administrative law where I believe that there are parallel systems, some of the continental systems but it is unusual system here in the United States.
COBLE: All right. There are four levels of appeal, why so many?
ASTRUE: I think -- mean it's a decision by the Congress.
COBLE: Would you support a decision to shorten it to two?
ASTRUE: Well, I have to get (inaudible) first. And I think that it -- in recent years, I've generally been supportive of bringing recon back because I think that the first level wasn't accurate enough to get rid of recons. But I do think there's some reason to hope that after I'm gone, that you may decide that's it's appropriate to do that.
And a couple of things are changing. We've got much better systems in the DDSs our quality rate because we are very dedicated to quality was plateaud at about 94 percent but the DDSs we've climbed up to 98 percent largely because of these expert systems that are queuing (ph) largely inexperienced examiners of what they need to know, what they need to do.
But I think the next step -- and this is really important for us -- is when health IT comes. We spent an enormous amount time, money and energy and we make a lot of our mistakes because of incomplete medical record. It's going to take a while for it to come. It will take a while to get the kinks out of the system. But I think with the combination of the quality improvements that we've made, when the health IT comes in about two - three years, I think it will be realistic to talk about eliminating recon at that stage.
COBLE: And I got about 30 seconds, are private attorneys used and in what percentage of the cases?
ASTRUE: About 80 percent of -- about 75 percent of the claimants use attorneys, about another 10 percent use lay representative.
COBLE: And how ere their attorneys compensated?
ASTRUE: They take -- it gets a little complicated but basically, up to a certain limit, they take a percentage of the -- of the back (ph) to payment from the -- from the claimant.
COBLE: But the claimant needs that money, right, for medical bills or expenses?
ASTRUE: Yes. And these kinds of things are a trade-off between access to the benefits.
COBLE: Right. And the other trade-off is despite the fact that we may not think it is fiscally responsible to have another person in the room advocating on behalf of the taxpayer, that would be another fiscal trade-off wouldn't it?
ASTRUE: It's reasonable to take a look at but again, I would urge you to go back. We've run this experiment once before and the agents, I believe, in '87 terminated it. And I think there were some valid reasons for why...
COBLE: The -- the Supreme Court just decided that there will be attorneys at all magistrate level criminal cases with the most you can get is a fine. And the counties in the states have to provide for public defenders in magistrate level cases. So apparently justice has no price tag and I -- I couldn't help it -- I can't help but think that an adversarial process might result in something other than 100 percent approval rate like the one we had in West Virginia.
I have a colleague who is on his way. I -- would ask you for your -- the gentleman from Florida, Mr. Ross?
ROSS: Thank you, Mr. Chairman. I appreciate your patience there.
Commissioner Astrue, these are not adversarial proceedings, right? So the judges--
ASTRUE: Correct. ROSS: And-and so the judges really take the role of almost being an advocate for the petitioner?
ASTRUE: Yeah, correct.
ROSS: Interesting, I guess the specifics are such that in 2010, almost 22 percent of cases appeal to the Appeals Court, were remanded back to the hearing level. And 45 percent of cases appeal to the Federal Court repealed -- appealed what remained and back. It doesn't sound like the best batting average for them, does it?
ASTRUE: No, I-I-I agree. We've been working to try to reduce the remand rate at both levels. I have -- we haven't made the partnership that I would like to see.
ROSS: And what has been the basis for the remand? I mean, is it a -- been just a misapplication of law?
ASTRUE: Well, it seems -- I mean, we believe that the standard seems to have changed. The federal district court judges aare not hearing as many of these cases -- they're being delegated to magistrates.
And they seem to be applying a different standard than historically. And they seem to be much more likely to remand cases than Article three, district court.
ROSS: (inaudible) close to 50 percent being remanded, not a good -- not a good record. Now I understand also, that the ALJs are unionized. I mean, they have their own union.
Have there been any conversations with the Unions -- with the Union as to probably, performance assessments, things of that nature to try to enhance or at least, increase the performance level of the ALJs?
ASTRUE: My understanding is, we're statutorily barred from doing that.
ROSS: Why is that? You know, you've -- you're statutorily barred from having any performance evaluations or whatever?
ASTRUE: (inaudible) yes, that's correct. That's your decision, not mine.
ROSS: OK, because I get -- I was here for the openings, and Ms. Griffin commented that the accountability that, I guess are -- how do you create accountability, Ms. Griffin, I mean--
GRIFFIN: There's a -- there's a variety of ways we can do it. And I think you can look at some of the other agencies that have ALJs, that look at -- they look at error rates.
And-and I think, some of what Commissioner Astrue is doing is looking at a variety of things, giving people training, giving them chances to become better ALJs. And then at some point, if somebody can, you take the actions that are appropriate.
ROSS: But has the Union made any comments on-on how to enhance performance? Have they come up with any suggestions?
ROSS: It's really not about -- obviously, you know, I'm not--
ASTRUE: They've made suggestions about adopting certain ethics rules and things like that. But in terms of actual performance reviews, my understanding has always been is they're opposed to that.
ROSS: And what's Flexi-place -- Flexi-place, that's one of the options where they can work out of the home?
ASTRUE: Yes, that's an option that they have now.
ROSS: So, how would that work? Would they still conduct hearings out of their home, like video conferencing?
ASTRUE: Right now, as I understand it -- if I'm making a mistake on the collective bargaining agreement, I apologize and we'll correct it for the record.
But they're entitled, under the collective bargaining agreement that I inherited, to do a minimum of four hours of Flexi-place each week. And possibly have more than that, depending on the negotiation within the hearing office.
ROSS: I guess there's 26 - 26 percent of the ALJs who are not meeting the minimum performance standard, is that correct?
Has the Union offered, in any way, whatsoever, to help correct that?
ROSS: Has it even been a topic of conversation within the Union?
ROSS: Don't you think that that's something that ought to be addressed? I mean, if the efficiency and performance of the ALJs really is at issue here, would not it be, in the best interest of the Union to represent them to want to, at least, suggest and even advocate such a process?
ROSS: But nothing's coming about?
ROSS: Could you -- I mean -- 27 months for a hearing seems to be (inaudible).
ASTRUE: Well, not-not-not now. I mean, we've brought that down, so we're under 12 months now, 353 days, as of June of this year.
ROSS: And your goal is for cases to be decided within 270 days?
ASTRUE: 270 is the goal, yeah.
ROSS: And again, I have to ask with regard to the Union's position to this. Did-did they have any position on your timetable of getting it out in 270?
ASTRUE: Well, I-I think for a long time, they've been denying that we've been succeeding and backlog reduction at all through a rationale that I have to be candid, I don't understand.
ROSS: I appreciate that because that helps me understand too, because I don't understand why it's that way.
Ms. Griffin, any comments with regard to whether you feel that the Union is doing anything to help the ALJs meet the minimum performance standard?
GRIFFIN: I couldn't actually speak to that whatsoever because I have no knowledge of Mr. Astrue's and Social Security's relationship with the Union.
But I would say that if the ultimate goal was to actually reduce the backlog and-and-and actually, Chairman Johnson alluded to it in his opening, about people having -- some people getting long roles because it's -- it's not because they don't want to work, because they want to work and there aren't opportunities.
We have the ability in the federal government, here in Congress to hire more people with disabilities. We have a president that actually signed an Executive Order last July, saying, the federal government should hire more people with disabilities.
And frankly, if we did a better job of this overall, in society, and gave people more opportunities, we wouldn't have that many people applying for Social Security. Either SSIR (inaudible)--
GRIFFIN: So we need to do that.
ROSS: All right. I yield back. Thank you.
S. JOHNSON: I thank you, gentleman from Florida. I thank both of our witnesses, all of us do on both sides of the aisle. I know our colleague, Mr. Berg, wanted very much to come back. He has been detained in another hearing.
So, with that, let me thank our witnesses. And without objection, all members will have five legislative days to submit to the chair additional written questions for the witnesses, which we will forward and ask the witnesses to respond to this promptly as they can, so their answers may be made part of the record. Without objection, all members will have five legislative days to submit additional materials for inclusion of the record.
With that, again, thank both of our witnesses. The hearing is adjourned.
Now you all should know what it feels like to have red co centric rings painted on your foreheads. Way too much emphasis on ALJ's and not nearly enough on systemic problems. Where was the union at this goat rope? We need to be part of this.
Exactly. I noticed that Congressman Johnson pointed out the problem with the absence of that point of view in his opening statement, but there really wasn't any response.
Last Edit: Jul 17, 2011 9:05:47 GMT -5 by observer53
Post by masondixon on Jul 17, 2011 17:47:17 GMT -5
Mr. Astrue's references to the improved quailty of DDS accuracy and quality in its decision making was very telling. He is unwilling IMO to take a long good look at a major structural problem in the disability adjudication process if he talks about the DDSes improving anything other than shoveling cases out their back doors. I do think the ALJ corps is being scapegoated to some degree at the hearing last week. A few bad apples don't spoil the whole bunch.
Post by propmaster on Jul 17, 2011 21:37:30 GMT -5
My understanding is that the APA is in a large part based on SSA's preexisting procedural and due process safeguards, but does not expressly apply to SSA, although the provisions are essentially identical. I recall researching years ago that it had to do with the order of passage one way or another, but I might be rusty.
Finally, I'm deeply concerned that the minority was not given an opportunity to invite a witness. At a minimum, a representative of the Social Security ALJs should have been invited in order for members of our respective subcommittees to have a more complete picture on the issues before us.
Here's a link to the AALJ's president's testimony in a different hearing before a different committee. This testimony clearly would be useful to the current committee. It also illuminates what the Commissioner probably was referring to in saying "old data that I don't think was very relevant to suggest to -- the number a little bit, below 500 might be appropriate".
My understanding is that the APA is in a large part based on SSA's preexisting procedural and due process safeguards, but does not expressly apply to SSA, although the provisions are essentially identical. I recall researching years ago that it had to do with the order of passage one way or another, but I might be rusty.
There's a 2002 article about this that you can read on the AALJ site if you're a member, or get off Lexis.
I hope someone took note of deltajudge's observation of the Commiish's assertion that the APA doesn't apply to SSA ALJ hearings. If folks don't believe this is not only a relevant but material (Hope you all understand the difference) assertion, please recognize that without the protection of the APA, the Commish can interpret the "statute" (SSA Act) to rationalize whatever action he darn well pleases; note also his assertion that ALJs are bound by SSA policies without any limitation. So I guess he figures ALJs are now bound by the POMs. When will this nonsense end and AALJ find the guts to go to Court. This APA issue has been festering the past 16 years after the GC opined the Commish's assertion.