Statement of The Honorable Frederick Waitsman, Administrative Law Judge, Social Security Administration, and Vice Chair, Social Security Section of the Federal Bar Association, Atlanta, Georgia Testimony Before the Full Committee of the House Committee on Ways and Means April 23, 2008
Chairman
Rangel, Ranking Member McCrery and Members of the Committee:
I am Rick Waitsman, Vice
Chair of the Social Security Section of the Federal Bar Association. I am an
Administrative Law Judge in the Office of Disability Adjudication and Review of
the Social Security Administration in its Atlanta North office. As an
Administrative Law Judge at SSA for the past fourteen years, I have heard and
decided well over 8,000 appeals. I also have served in the management
positions of Assistant Regional Chief Administrative Law Judge for Region
IV-Atlanta and Administrative Law Judge in Charge of the Medicare Division. I
have served in three hearing offices.
I am very pleased to be
here today representing the Social Security Section of the Federal Bar
Association (FBA). My remarks today are exclusively those of the Social
Security Section of the Federal Bar Association, and do not necessarily
represent the views of the FBA as a whole. Moreover, my remarks are not
intended to, nor do they necessarily reflect, the views of the Social Security
Administration.
Thank you for convening this hearing on a matter of
critical importance to the federal government’s delivery of effective services
to the American people. As you know, the Federal Bar Association is the
foremost professional association for attorneys engaged in the practice of law
before federal administrative agencies and the federal courts. Sixteen thousand
members of the legal profession belong to the Federal Bar Association. They
are affiliated with over 85 FBA chapters in many of your districts. There are
also more than a dozen sections organized by substantive areas of practice,
such as the Social Security Section.
Unlike other
organizations associated with the Social Security disability practice that tend
to represent the narrow interests of one specific group, the Federal Bar
Association's Social Security Section embraces all attorneys involved in Social
Security disability adjudication. Our members include:
·
Attorney Representatives of
claimants
·
Administrative Law Judges (ALJs)
·
Administrative Judges at the
Appeals Council
·
Staff Attorneys at the Office of
Disability Adjudication and Review
·
Attorneys at the Social Security
Administration's Office of General Counsel
·
U.S. Attorneys and Assistant U.S.
Attorneys
·
U.S. Magistrate Judges, District
Court Judges and Circuit Court Judges
The common focus of the FBA's Social Security Section
is the effectiveness of the adjudicatory process primarily with hearings in the
Office of Disability Adjudication and Review (ODAR), the appeal process at the
Appeals Council, and judicial review in the federal courts. Our highest
priority is to assure the integrity, independence, fairness, and effectiveness
of the Social Security disability hearing process for those it serves -- both
Social Security claimants themselves and all American taxpayers who have an
interest in assuring that only those who are truly disabled receive benefits.
We appreciate the concern that was expressed by this
Committee and the Social Security Subcommittee that resulted in the
Commissioner’s withdrawal of proposed rules that would have reduced the due
process rights of claimants and cut disability benefits by two billion
dollars. We strongly believe that the disability appeals backlog has not grown
out of an excess of due process. While there should be a constant quest to
improve the disability program, reforms should not arise out of procedural roadblocks
that cannot be navigated by claimants.
Furthermore, it is the Section’s collective view that
the Social Security disability program is under considerable strain. Current
delays in the processing of claims are unacceptable. The Federal Bar Association
previously urged Congress to increase funding for fiscal year 2008, and we
applaud the Congress for appropriating funds in excess of the President’s
request.
We thank the Ways and Means Committee for holding this
hearing and for shining the spotlight on this unconscionable problem and the
harm endured by hundreds of thousands of claimants who continue to wait for
years to receive a final agency decision on their disability claim. During the
painful wait, some appellants have lost their homes, others have been deprived
of medical care and necessary medication, some have undergone bankruptcy, while
others have suffered even the loss of custody of their children, and in perhaps
the most tragic of cases, suffered from depression so severe that it has resulted
in suicide. Sadly, it is no longer unusual to review a disability claim at the
hearing level in which the claimant has died from the disabling impairment or
taken one’s life from the stress of lack of resources, without the benefit of
temporary assistance from the Social Security Administration.
I serve in the Atlanta North hearing office that was
profiled in the February 2008 CBS Evening News Report on the hearing backlog.
ALJs and appellant representatives who are members of the FBA’s Social Security
Section agree that the CBS report was an accurate depiction of the lives of
those who await final agency decisions in the Atlanta North office, as well as
other offices dealing with long waits. Some statistics about my office and its
caseload illustrate the crisis at ODAR. The Atlanta North office started fiscal
year 2003 with 3,104 pending cases and during that year disposed of 3,624 cases
with an average processing time of 302 days. In that same year, we successfully
reduced the number of cases pending. However just 4 years later, at the start
of 2007, our caseload had grown to 10,490 cases. And though we disposed of a
record number of cases, our pending caseload continued to grow to 11,922 cases.
That’s why our processing time for 2007 jumped from 302 days to 751 days,
despite a record- breaking number of decisions for the office and its ALJs. The
backlog in fact would have skyrocketed even more had the Atlanta North Office
not transferred over 1,000 cases to other offices. While productivity issues
can take their toll, the influx of new cases without additional resources was
the foremost cause of waits for claimants. During this rapid growth in cases,
we were able to dispose of about 2 cases per ALJ per day, but received about 4
cases per ALJ per day.
When fiscal year 2008 began, the Commissioner of
Social Security gave the Atlanta North office a numerical goal for the number
of case dispositions relative to the size of our ALJ and support staff. The
Commissioner’s national goal was to dispose of all cases that had remained
pending at ODAR for 900 or more days. Yet if we met our numerical goal, we
still would not have disposed of enough cases to have eliminated our 900
day-old cases because we had more 900 day-old or older cases than our disposition
goal. The goal did not even take into account claimants entitled to expedited
case handling, such as Veterans from Iraq and Afghanistan, terminal illness
cases, dire need, on the record requests, and court and Appeals Council
remands.
In the starkest and simplest of terms, we do not have
the resources locally to handle the cases we are assigned. The Commissioner is
providing help by sending in visiting ALJs, utilizing their support staff and
permanently transferring cases to other offices. But these measures by
themselves are insufficient. The bottom line is that SSA sorely needs a
substantial increase in its funding so that meaningful justice can be promptly
and fairly delivered to the hundreds of thousands of disability claimants who
await an answer to their appeals.
Social Security has an expression, “Put a Face to the
Case.” We are not dealing with just numbers or files, but real people and real
lives. Social Security at all levels has a dedicated workforce. It simply
doesn’t have enough employees to do the job the public expects and deserves. It
should be emphasized that the issue is the length of time claimants must wait
to receive a final agency decision. While the solution involves studying all
steps of the process, we should not lose sight of the fact that in addition to
the hearing backlog, the claimant waits approximately 103 days for an initial
decision and 242 days for the Appeals Council. Approximately, 40 states provide
a reconsideration step after an initial denial which results in additional
delays. In previous testimony, the Social Security Section of the Federal Bar
Association has urged that reconsideration be eliminated because the few cases
that are approved do not justify the delay and expense. Notwithstanding that
recommendation, additional funding is needed to increase the speed and accuracy
of all stages of the application and appeal process.
The Commissioner is faced with a daunting task and
limited resources. He has developed a number of initiatives to reduce the
backlog in offices with longer processing times. We have seen some of these
initiatives result in progress and congratulate him on these successes.
However, we believe even more can be accomplished with fiscal year 2009 funding
in excess of the President’s request.
Therefore we offer the following six recommendations:
1.
SSA Should Continue to Hire
Administrative Law Judges and Fully Staff Hearing Operations
2.
SSA Should Continue to
Fully Implement the Electronic Disability Process (eDIB)
3.
SSA Needs to Fund Capital Expenditures
to Add New Hearing Offices and Permanent Remote Sites
4.
SSA Should Test Initiatives
Before Full Implementation and Not Count on Their Success to Justify Reduced
Staffing
5.
SSA Should Realign the
Workforce and Staffing Components of the Office of Disability Adjudication and
Review, and
6.
The Correct Decision Should
Be Made as Early As Possible in the Claim Review Process To Reduce Processing
at the Hearing Level
Now let’s take a look at each of these
recommendations:
1.
SSA Should Continue to Hire
Administrative Law Judges and Fully Staff Hearing Operations
The Commissioner has announced plans to hire 175 ALJs
this fiscal year, with offers accepted by 135. The first group will be
reporting to training soon. Studies have shown that to have an effective hearing
operation, it is necessary to have approximately 4.5 staff for each ALJ. The
new hiring plan does not apply the 4.5:1 staffing formula to new ALJs or
significantly address the continuing shortage of staff in the offices. The
current staffing is well below the target and largely negates much of the
potential productivity of the ALJs.
While hiring additional ALJs is important, it should
be noted that the hiring of approximately 135 ALJs is not an absolute increase
in ALJs from prior years. It is only a down payment on the attrition that has
taken place and does not come close to matching the phenomenal increase in
pending cases. To hire ALJs without appropriate staff, however, is like hiring
pilots to solve the problem of an airline not flying on time. The lack of
support staff for an airline will still result in delays in boarding
passengers, refueling, loading and unloading luggage, and necessary
maintenance. It is the same with hiring ALJs without adequate staffing. Without
adequate staff the cases will not be entered in a timely fashion into the
computer system, the written evidence in cases will not be associated and
placed in evidence, hearings will not be promptly scheduled, medical and school
records to be utilized as evidence will not be ordered, inquiries from
Congress, claimants and their representatives will not receive timely
responses, consultative examinations will not be ordered, and decisions will
not be timely drafted and mailed.
Experience has shown that the loss of an ALJ in an
understaffed hearing office does not usually result in a large percentage of
his or her case production being lost. The support staff can only prepare so
many cases to be heard and can draft only so many decisions. The other ALJs who
were previously underutilized with the existing staff will pick up most, if not
all, of the cases the departing ALJ would have produced. My office lost two
ALJs to retirement during the last year, yet disposed of more cases than ever
before. It is often said that hiring more ALJs without staff is just slicing
the pie into more pieces without increasing the size of the pie.
There is another worrisome concern, owing itself to
the attrition of valuable support staff. The Commissioner has offered early
retirements to ODAR employees and others. In addition, many of the newly hired
ALJs were formerly either Hearing Office Directors, who are the highest non-ALJ
in the office, or attorneys, who were either group supervisors or senior
attorneys. This means that ODAR will be losing many of its best and most
seasoned support staff. It is critical that these staff positions and others be
filled. If SSA only hires ALJs, total productivity will rise only marginally,
as the total number of cases will just be split more ways. Also there will be a
loss of productivity as we use ALJs and senior staff to train the new ALJs and
staff hired or promoted to new responsibilities.
2.
SSA Should Continue to
Fully Implement the Electronic Disability Process (eDIB)
SSA is strongly committed to a paperless file – called
eDIB -- but it is a work in progress and needs to be fully funded to be
successfully implemented. Improvements need to be made to assure the system can
support this growing workload or we risk a slowdown or even a crash of the
system, which contains several hundred thousand electronic files.
SSA is experimenting with National Hearing Offices in
Falls Church and Albuquerque, in which ALJs will hear electronic cases from
across the country by video. Since the two National Hearing Offices will only hear
cases by video and not conduct in-person hearings, we are concerned that
claimants will not have a realistic choice regarding their entitlement to an
in-person hearing. Many of our members do
not regard video hearings to be sensitive
enough to decide close disability cases. It is often difficult to decide
issues of pain, mental health, or veracity in person. A mere video image
of a claimant may not promote the accurate resolution of such
subtleties. For some claimants, appearing before a video camera makes
them nervous, confused or otherwise unable to properly present their
claims. We believe it may be a Hobson's choice to have a video
hearing now, or an in-person hearing a year-and-a-half from now. Video
hearings can help reduce the backlog provided the claimant always
retains the right to an in-person hearing in the not distant future. We urge the Commissioner to provide real protection
for the right to opt out of a video hearing without the punishment of
additional significant delays. We caution that the amount of resources
dedicated to electronic hearings not cause the Administration to lose sight of
the claimant who has been waiting years to be heard on his paper
file.
3.
SSA Needs to Fund Capital
Expenditures to Add New Hearing Offices and Permanent Remote Sites
A hearing office is an office where ALJs and staff are
permanently assigned and hear cases. A permanent remote site is a location that
SSA controls through ownership or lease where ALJs hold hearings, but no ALJs
or staff are assigned. In the absence of permanent remote space, SSA uses
temporary space, such as hotel conference rooms on an as needed basis, to hold
hearings. Both the current and the prior Commissioner approved several new
hearing offices based on the pressing need for the facilities. However, when
the budgets were awarded, it was determined that adequate funding was not
available. Two of the offices were Tallahassee and Ft. Myers, Florida. The need
for permanent sites is even more important in an eDIB environment where computers
are needed for each of the participants. An ideal situation provides for a
permanent location so the equipment does not need to be stored, transported and
set up for each day of hearings. Tallahassee not only does not have a hearing
office, despite being approved by two Commissioners, but does not even have a
permanent remote site. The option of video hearings does not exist in temporary
remote sites because there is no place to install video communication lines and
equipment. We believe additional funding is needed to establish permanent
hearing offices at appropriate sites. Utilizing 2006 census data, Florida (with
a population of 3.6 million people per office), Georgia (with 2.3 million
people per office) and North Carolina (with almost 3 million people per office)
have an extremely low number of offices relative to their population. By
contrast, the other Region IV states have less than 1.5 million people per
office. Undoubtedly, SSA needs additional funding to establish hearing offices
and permanent remote sites within reach of the claimants they are mandated to
serve.
4.
SSA Should Test Initiatives
Before Full Implementation and Not Count on Their Success to Justify Reduced Staffing
Late last year the
Government Accountability Office issued a report that found that some of the
key reasons for the backlog were the increase in applications, losses of key
personnel, and management weaknesses. (Social Security Disability: Better
Planning Management and Evaluation Could Help Address the Backlogs, December
7, 2007, GAO-08-40) Management weaknesses
were compounded by the implementation of new initiatives without sufficient
preliminary testing. The Disability Service Improvements initiative (in the New
England region) and the Hearing Process Improvement initiative were severely
criticized by GAO for lack of adequate testing.
We are similarly concerned that SSA’s current
implementation of new initiatives – like e-scheduling and other software
improvements -- without sufficient testing in pilot demonstrations will not
offer promised productivity that SSA is counting on, and even possibly
contribute to a larger backlog. For example, one new initiative -- e-scheduling
-- is a centralized and computerized process of scheduling hearing
participants: representatives, claimants, vocational experts, medical experts,
and contract hearing reporters. Currently, a clerk calls these individuals to
schedule and assure their availability. On the other hand, e-scheduling is
more primitive in that it does not take into account the many variables that
are involved in scheduling hearings. For example, many attorney
representatives of claimants practice in multiple hearing offices, and the
e-scheduling software does not know their Federal or state court schedule, the
amount of time it takes to get from one hearing office to another if they are
being scheduled for two offices in a day, how close an ALJ usually is able to
keep on schedule, and other factors. While e-scheduling may work in some
locations, it should be thoroughly tested before widespread implementation.
More important, it should not be prematurely counted as a success that
justifies a staffing reduction until it has been successfully implemented on a
widespread basis. We have similar concerns regarding plans for the development
of software to select and number medical evidence and eliminate duplicate
exhibits. We believe ODAR should hire temporary employees to reduce the backlog
until these initiatives are proven worthwhile.
5. SSA Should Realign the Workforce and Staffing
Components of the Office of Disability Adjudication and Review
ODAR’s workforce is not sufficiently balanced – in
terms of the locations of ALJs and staff – to deal with the rising case
backlog. For example, four offices have less than 300 cases pending per ALJ,
while 26 offices have over 1,000 cases pending per ALJ. A realignment can be
accomplished by a combination of case transfers and the realignment of service
areas. Although the Commissioner plans to actually reduce case transfers, this
approach had proven largely successful, though used only sporadically. We urge
the Commissioner to continue these transfers until there is roughly the same
processing time throughout the nation.
Variances in waiting time are due to inadequate
staffing, high growth of new cases, and the misaligned boundaries of service
areas. While lack of productivity is sometimes used to explain long waits, the
data shows that 35 offices receive less than two cases per ALJ per day, but
eight offices receive over four cases per day per ALJ. Since average ALJ
productivity is less than 2.5 cases per day, the misalignment of ALJs and cases
in those eight offices contribute to the backlog. Until these underlying
reasons are addressed and successful action taken to correct the problems they
create, an aggressive case transfer process is needed. Historically, case
transfers have been short term efforts, but they need to be viewed as an
integral part of the business process until the inequalities in waiting times
are resolved.
6.
The Correct Decision Should
Be Made as Early As Possible in the Claim Review Process To Reduce Processing
at the Hearing Level
There is great disparity among the various state
agencies that make the initial and reconsidered determinations on disability claims.
In fiscal year 2006, the national average of initial claims allowed was 35%.
Yet, Georgia allowed 25%, Tennessee allowed 23%, Kansas allowed 28%, Ohio
allowed 27% and South Carolina allowed 23%, while New Hampshire allowed 59%,
District of Columbia allowed 54%, Hawaii allowed 53% and Virginia allowed 44%.
Congress has held hearings on this issue and there is still no compelling
explanation of the disparity. One of former Commissioner Barnhart’s proposals
in the Disability Service Improvement initiative was to create a federal
quality assurance program involving centralized review of cases from all over
the country by the same federal office. This is currently being carried out on
a localized or regional basis when the reviewing entity and respective review
standard are known by the state. We believe there should be a quality assurance
process that applies a national and uniform policy of review. Such a policy
should address the sufficiency or completeness of medical evidence before a
decision is made. We support further inquiry to better to determine the reasons
for the wide disparity in allowance among the states and at different levels.
If SSA continues the current process of excessively
denying eligible claimants initially, the administrative costs will naturally
escalate as more cases continue to be appealed and waiting times increase.
Obviously, wrongful initial denials cause great hardship to citizens who have
paid their Social Security taxes to obtain insured status and do not receive
the benefits to which they are entitled.
Eleven years ago, GAO testified to the
House Social Security Subcommittee that “Despite
SSA attempts
to reduce the backlog through its STDP initiatives, the agency did not reach its goal of
reducing this backlog to 375,000 by December, 1996.” (Social Security
Administration: Actions to Reduce
Backlogs and Achieve More Consistent Decisions Deserve High Priority, April 24, 1997, GAO/T-HEHS-97-118) The backlog at that time was defined as cases
pending for more than 270 days, and the goal was to reduce pending cases to the
375,000-mark. Today, the backlog has exploded to more than 750,000 pending
cases. Last year, SSA targeted adjudicating aged cases of 1,000 days at ODAR
and this year is targeting 900-day-old cases. GAO has issued other reports
addressing the lack of an effective quality assurance program and the failed
effort of improving consistency between the initial decisions and hearings at
the appeals level. (See, e.g., Social Security Administration: Disappointing
Results from SSA’s Efforts to Improve the Disability Process Warrant Immediate
Attention, February, 27, 2002, GAO-02-322) SSA needs to be sure its national criteria are
applied as uniformly as possible at all levels and in all states.
While the experience of the members the FBA’s Social
Security Section is associated more directly with ODAR and the Appeals Council,
we have noticed a significant decrease in service at the district offices, the
teleservice center (800-number), the payment center, and the disability
determination services. Essential workload such as continuing disability
reviews and age 18 redeterminations to determine whether beneficiaries continue
to qualify for benefits appear to be receiving less attention. It has been
shown that continuing disability reviews (CDRs) save over $10 of program funds
for every $1 spent in administrative costs of conducting CDRs. We urge the
Congress to appropriate sufficient funds so that the backlog of CDRs and
redeterminations can be significantly reduced and bring about service increases
in all components.
Mr. Chairman, thank you once again for the opportunity
to appear before you today. The Social Security Section of the Federal Bar
Association looks forward to working with you and the Social Security Administration
in improving the disability process. I would be happy to answer any questions
you may have.
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