Statement of Judge Ronald G. Bernoski, President, Association of Administrative Law Judges, Inc., Sussex, Wisconsin Testimony Before the Subcommittee on Social Security of the House Committee on Ways and Means June 15, 2006 Mr. Chairman and Members
of the Subcommittee:
I.
INTRODUCTION
Thank
you for the opportunity to testify before you today. My name is Ronald G.
Bernoski. I am an Administrative Law Judge (“ALJ”) who has been hearing Social
Security disability cases at the Office of Disability Adjudication and Review
(ODAR) of the Social Security Administration (“SSA”) in Milwaukee, Wisconsin, for over 25 years.
I
am the President of the Association of Administrative Law Judges (“AALJ”). Our
organization represents the administrative law judges employed in the Social
Security Administration and the Department of Health and Human Services
(“DHHS”). One of the stated purposes of the AALJ is to promote and preserve
full due process hearings in compliance with the Administrative Procedure Act
for those individuals who seek adjudication of program entitlement disputes
within the SSA. The AALJ represents about 1100 of the approximate 1400
administrative law judges in the Federal government.
I.
STATEMENT
The
Association of Administrative Law Judges supports the Commissioner’s reform
plan for the Social Security disability system. We have endorsed the plan and
we have worked with Deputy Commissioner Martin Gerry to improve it during the
developmental phase of the plan. As a result, some of our proposals have been
included in the final regulations. We have an agreement with the Commissioner
to work closely with her during the implementation of the reform plan which
will begin in Region I. We have both made a commitment to have frequent
meetings during this initial phase to look for problems areas and to ensure
success of the “start-up”. We will continue to work, in a like manner, with
Deputy Commissioner Lisa de Soto (ODAR) to achieve success as the plan starts
in Region I and expands across the nation.
However,
we believe that the changes included in the reform of the Social Security
disability system can not occur in a vacuum, and that assistance will be required
from outside sources. The major outside support must come from Congress as the
reform plan must be fully funded. The failure to completely fund the changes
will lead to catastrophic results including unprecedented backlogs. As a
result, the American people will suffer by having to wait even longer for their
critically important hearings.
Federal
Reviewing Official
The
Federal Reviewing Official (FRO) will require new funding. We agree with the
Commissioner that the FRO is the “center piece” of the reform and if it fails
the entire reform plan will fail. We are of the opinion that at least two
FRO’s, plus support staff, will be required for each administrative law judge
(judge). The primary function of the FRO is to ensure that cases will be
completely developed and ready for hearing. The FRO will have the further
responsibility to identify the claims that meet the standards for SSA
disability and award those claims as early as possible in the process. This
function is an extremely time consuming task, because it requires the FRO to
work closely with both physicians and attorneys in the preparing the hearing
files. Physicians and attorneys are both extremely busy professionals and
frequently multiple contacts are needed to obtain requested information. As we
all know, it takes time to prepare a case for trial. It will be a serious
error to place an unreasonable production requirement on the FRO’s. The
production number which has been whispered in the halls of ODAR of two fully developed
cases per day will ultimately result in poor quality work and remands back to
the FRO from the judge. In our view, a production requirement of this level
could not be met under normal sustained working condition and would not yield
the quality work product expected and needed from the FRO’s. We must remember
that the high production requirement of two cases per day, was one of the major
factors leading to the failure of the piloted Adjudication Officer program in
the 1990’s. The Adjudication Officer had many of the same functions and
responsibilities of the FRO and we should acknowledge the reasons for the
failure of that program and learn from our past mistakes. If the FRO fails to
perform as expected, the judges will receive poorly developed case files. This
failure will leave us in a worse condition than we now experience. The reform
plan anticipates that judges will have fewer support staff. If a failure in
the reform results in the same workload for the judges, and we have fewer
support staff, we will never be able to hear and decide our cases in a timely
and high quality manner. The result will be an increase in the case backlog
which will be to the detriment of the American people. High production
requirements for the FRO also carry with it the potential of resulting in too
many claims being awarded or the wrong claims being paid. We are certain that
this is not the result intended by the Commissioner in developing this reform
plan.
Attorneys
as FRO’s
The
reform plan requires that the FRO position will be staffed by persons who are
trained as attorneys. We are of the opinion that this is a vital component of
the plan. The skill and training of an attorney is needed to adequately
perform the responsibilities of this position. An attorney is best qualified
to provide high quality legal analysis and legal writing required to
completely perform the responsibilities of this position, as well as similar
positions in the hearing office.
Interaction
Between the Judge and the FRO
As
stated above, the primary responsibility of the FRO is to develop the evidence
in the case and prepare the case for hearing. The judges must receive a
complete work product from the FRO for the new process to be a success. When
preparing the written hearing decision the judge should not be required to
comment on elements in the decision of the FRO that differ from the decision of
the judge. The case is not before the judge on appeal from the FRO. Instead,
the judge conducts a de novo hearing on the claim and makes a finding
based on the evidence produced for the record during a face-to-face hearing.
In fact, this is the only time in the entire SSA disability process (including
Federal court) where the claimant is given an opportunity to appear and “state
his/her case” to a government official. It is thereby vital that the decision
be based on the evidence in the hearing record with the judge weighing the
evidence and making credibility findings. This decision should not be
encumbered by requiring comments on the FRO decision, which are not relevant to
the hearing evidence. Any required commenting only provides an opportunity to
claim error on appeal.
The
Administrative Law Judge Hearing
We
are of the opinion that the administrative law judge hearing must become more
structured and formal in the new process. This will require that more
sophisticated medical and vocational expert witness testimony be produced at
the hearing and that a well written decision be prepared by the decision
writer. The most frequent complaint that we hear from the judges, and the United States District courts, relates to the poor decisional quality. Regrettably, this
result obtains in many cases because of the poor quality of the writing from
our non-legal writing staff who, for the most part, have no formal education
beyond high school. It is of little value for the judge to conduct an
excellent hearing with sophisticated evidence if the same is not captured and
correctly analyzed in the written hearing decision. In administrative law, the
written decision remains a vital part of the case record, and the most common
criticism we receive from the Federal courts relates to the lack of an adequate
rationale in our decisions. Since under the new process, most of our cases will
go directly to the Federal courts on appeal we will be required to perform at a
level expected by the Federal courts. If we do not meet this expectation, the
agency will receive severe criticism from the courts and will suffer lasting
embarrassment. A significant part of this problem can be addressed by
requiring that all decision writers be trained as attorneys, but the hearing
process must also be improved. Writing templates which have been developed by
the agency could never substitute for the training and education received by
attorneys. Legal training equips them with the necessary tools to correctly
analyze and write legally defensible decisions.
The
Electronic File, e-DIB
The
Commissioner should be given credit for her leadership in converting the SSA
paper file system to an electronic process. This has been a large undertaking
and it moves SSA into a modern system of record keeping. e-DIB, or the
electronic file, must also be fully funded both for its implementation and
subsequent needed improvements. Funds must be available to provide sufficient
electronic equipment for the judges, staff, hearing rooms, claimant use and
remote hearing sites. Hearing rooms must also be increased in size to allow
space for the installation of the new electronic equipment. The hearing rooms
must be designed for safety with measures taken to “build in” or conceal the
numerous wires that are now lying on the floors in the currently retrofitted
hearing rooms. The current retrofitted undersized hearing rooms, with wires
lying about, create a dangerous environment for both claimants and SSA
employees.
Experience
with e-DIB has shown that use of the electronic file slows the work process at
all levels, including both the DDS and administrative law judge levels. We
have also received information from our judges indicating that the current
e-DIB system reacts very slowly to user commands. This poor response time
slows down the user of the equipment and reduces the amount of work that can be
produced. The result of both factors will be an increase in the case backlog
because fewer cases will be heard and fewer decisions will be written. We have
discussed this problem with agency officials, and they have assured us that
they are aware of this problem and are working to have it corrected. We are
of the opinion that funding must be provided to correct this soft ware problem
and to increase the speed of the e-DIB system.
Rules
of Procedure
We
are the only adjudicative body in this country that does not have established
rules of procedure. About five years ago the agency and the AALJ formed a
Joint Rules Committee to developed proposed rules of procedure. The Committee
worked for several years developing an excellent proposed code consisting of
rules of procedure that were in a large part based on the existing rules of the
Department of Labor. The proposed rules were given to the Commissioner and she
incorporated some of the rules into the new process, but many have not been
implemented.
We
are of the opinion that the remaining rules should be implemented by the
agency. These are not substantive rules and do not require “notice and
comment” under the Administrative Procedure Act. Since most SSA claimants are
represented, these rules are needed to provide structure to our hearing
system. The rules can provide for a relaxing of the procedural rules for pro
se claimants.
The
proposed rules will are provide the formality and structure required by the
Federal courts. We have pledged to work with the Commissioner on developing
these rules, and we are of the opinion that it will be a serious error not to
promulgate these rules.
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