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.