Statement of Gary Flack, Chairman, Social Security Section, Federal Bar Association, Atlanta, Georgia

Testimony Before the Subcommittee on Social Security
of the House Committee on Ways and Means

June 15, 2006

Chairman McCrery, Representative Levin and Members of the Subcommittee:

The Social Security Section of the Federal Bar Association (FBA) welcomes this opportunity to share our thoughts about the new final regulations changing the disability claims process, the “Disability Service Improvement” (DSI) initiative.  This testimony is submitted on behalf of the Social Security Section of the FBA.  I am the chair of the Social Security Section of the Federal Bar Association, and this testimony does not necessarily represent the views of the national organization.

As you know, the FBA is the foremost national association of private and government lawyers engaged in practice before the federal courts and federal agencies. Sixteen thousand members of the legal profession belong to the FBA. There are also within the FBA over a dozen sections organized by substantive areas of practice, including the Social Security Section.  The FBA’s Social Security Section is unlike other organizations of lawyers associated with a particular constituency of Social Security disability lawyers.  Our members include attorneys involved in all aspects of Social Security disability adjudication, including attorney representatives of claimants, administrative law judges, Appeals Council judges, staff attorneys in the SSA Office of Hearings and Appeals and Office of General Counsel, U.S. Attorneys and U.S. Magistrate Judges, District Court Judges and Circuit Court Judges.

Social Security Administration Commissioner Jo Anne B. Barnhart issued a final rule establishing a new disability determination process on March 31, 2006. 71 Fed. Reg. 16424 (Mar.  31, 2006).  This rule is the culmination of much analysis, thought, and hard work.  The Commissioner is to be congratulated for recognizing that the administrative process she inherited failed to efficiently and accurately identify many disabled claimants.  She conferred with representatives of many groups, including our Section, that are interested and involved in the agency’s disability determination process.  The final rule reflects the input from almost 900 individuals and groups; their comments were made in response to the Commissioner’s proposed rule.

This Subcommittee is also to be congratulated for its oversight role in conducting hearings on the problem and now the solution. Today, we focus our testimony on four aspects of the final rule:

• Will the reviewing official delay proceedings or become an institutional hurdle claimants must overcome?
• How should the success of DSI be measured?
• Will Region I predict how well DSI will function elsewhere?
• Will the Decision Review Board undermine the independence of ALJs?

WILL THE REVIEWING OFFICIAL DELAY PROCEEDINGS OR BECOME AN INSTITUTIONAL HURDLE CLAIMANTS MUST OVERCOME?

The Reviewing Official (RO) replaces the Reconsideration level of review.  It appears to be  a more informal, but federally-controlled decision maker.  The FBA is concerned that the RO will be quickly overburdened and delay the process of developing accurate decisions. The RO is likely to need updated information, outside consultative examinations, and (if the RO contemplates paying benefits) the opinion of the new medical and vocational expert system. Unless there are as many ROs as there are Administrative Law Judges (ALJs), the caseload of each RO will soon equal or exceed the average ALJ caseload.  Too large a caseload will not only delay decisionmaking, but also interfere with accurate decisionmaking.  The RO may become a bottleneck, particularly since the RO must write his own detailed decision.  Accordingly, we believe there should be more ROs than ALJs to move cases expeditiously.

There also may be undue delays associated with consultative examinations and permitting claimants to share these consults with their treating physicians.  This process may work well with represented claimants.  However, it is unclear how pro se claimants who are illiterate or computer-illiterate will handle electronic files or view the new consults.  DSI does not specifically address these claimants in its new rules.

In addition, there may be a tendency for the RO decision to become an institutional standard in disability determinations. Some ALJs may utilize it to deny benefits.  Other ALJs may regard it as a hurdle to overcome.  If an ALJ reverses the RO’s decision, the Decision Review Board (DRB)  may question that decision based on the RO decision.  The DSI must provide procedural guarantees to assure the independence of ALJs decisionmaking.  It is the fair hearing that is the centerpiece of the disability adjudication process, not the RO.

Finally, we understand that initially all the ROs will be located in Falls Church, Virginia. This might make sense with the participation of one small region as a pilot project.  However, as the DSI expands and the RO workforce grows to a size of at least 1100 ROs, we believe RO dispersal throughout the country should be considered. They could still review claims nationwide.  There is likely to be a better pool of qualified applicants available if the Commissioner were to place them at regional locations. There are also less expensive places to live than Falls Church.  In short, whatever the advantages of initially housing ROs in one location, we believe that decentralization of the RO workforce around the country should be pursued after the completion of the pilot project phase. 

HOW SHOULD THE SUCCESS OF DSI BE MEASURED?

There are two primary measures of the success of DSI, involving the payment of claims by the Reviewing Official and the dynamics of judicial review.

Payment of Claims by the Reviewing Official

The purpose of the RO is to make the correct decision sooner. Accordingly, more claimants cases should be approved at the initial and RO levels than are currently approved through the reconsideration level.  Fewer cases should appear for adjudication at the ALJ level.  DSI can be regarded as a success if relatively more claims are paid initially at the RO level.

Dynamics of Judicial Review

After the DRB approves an ALJ decision, there are several other measures of the success of DSI.

• Do voluntary remands of federal complaints decrease after the abolition of the Appeals Council?
• Are there fewer technical errors? (For example, lost files, blank CDs etc.)
• Are there fewer obvious substantive mistakes than before?  (For example, failures to follow the treating physician rule, improper uses of vocational experts, etc.)
• Is there a reduced percentage of substantive court decisions in favor of plaintiffs?
• Are there fewer “sentence 6" remands because "new and material evidence” is appropriately added to the record via the discretion of the ALJ? 

Even with a faster administrative processing time, it is likely to take at least a year for cases to work their way to a final administrative denial.  It will probably take another year for the first cases to proceed through federal District Court review.  Thus, it is likely to take an additional two years to get one full year’s worth of substantive decisions from the district courts of Region I.  If the DSI process starts in August 2006, it will be approximately August 2009 before we have a year’s worth of substantive judicial decisions.  We wonder whether the Commissioner will delay extending the new regulations to other regions for three years, i.e. until there is one year’s worth of substantive decisions from Region I.

WILL REGION I PREDICT HOW WELL DSI WILL WORK ELSEWHERE?

Region I of the Social Security Administration is comprised of the States of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island and Connecticut.  We are concerned that Region I may not be typical of how Social Security disability claims are processed in the rest of the country. We believe, based on anecdotal and empirical evidence, that: more Region I claims are favorably decided at the initial and reconsideration levels; the ALJs are efficient and more likely to make accurate decisions; relatively few cases are appealed to federal court.  Thus, we conclude that the pilot project may work well in Region I, but poorly elsewhere.

Region I is one of the smaller regions in the country in the number of ALJs (approximately 50) and in the number of new cases ALJs receive.  In a recent quarter, Region I ALJs disposed of almost 1300 more cases than it received.  Only Region III, a much larger Region, disposed of a greater number of cases than it received. Region III handles many more cases, absolutely, and presumably with more ALJs.  Most of the other Regions disposed of fewer cases than each received, i.e., the ALJ caseload of most Regions increased.

Region I handles approximately 3% of the total number of new applications filed throughout the country.  While we applaud the concept of DSI, very few claimants will obtain any benefit from the new rules so long as they are applied only in Region I, despite the increasing numbers of claimants in the system with claims awaiting evaluation.

We have attached the state-by-state allowance rate for initial and reconsidered claims (See Appendix 1).  New Hampshire has initial allowance rates in excess of 60%.   Massachusetts and  Rhode Island initially allows about 46% of initial claims and 54% of reconsidered claims;  Vermont allows about 45% of initial claims.  Maine and Connecticut are somewhat lower at 38% and 19% respectively for initial and reconsidered claims.  However, the favorable initial and reconsidered decision rates for Connecticut and Maine (the lowest of the Region I States) appear to be higher than national average.

Perhaps for these reasons, relatively few cases in Region I historically have gone to federal court: only 322 in the entire Region I.  (See Appendix 3, statistics from the Administrative Office of the U.S. Courts regarding Social Security law from the Region I States in the most recent 12-month period, ending March 2005). The District Court outcomes in Region I may not be statistically significant because of the small caseload.  It is not self-evident that this is the most typical region to try out the DSI reforms.

We have no information about whether Region I adjudicates an “average” range of cases including sickle cell, mental impairments, mental retardation, illiteracy?  SSA will need to track this.

WILL THE DECISION REVIEW BOARD UNDERMINE THE INDEPENDENCE OF ALJs?

The Commissioner intends the DSI to provide quality assurance throughout the Social Security disability adjudication process. The DSI is to be neutral in that the same number of applicants will be entitled to benefits at the end of the new DSI reforms as under the current system.  The means to assure that the number of new claims granted remains the same must be the quality controls and the Disability Review Board (DRB). 

The precise mechanism for quality assurance of the DRB is the “computer-based predictive model.”  We understand the Commissioner will soon sign a contract to hire outside help to devise this model.  After initially evaluating 100% of all ALJ decisions, the computer-based predictive model will tell the DRB which cases to more closely evaluate.  Even at the beginning, we understand that not all cases will be evaluated equally closely.

We fear that the DRB will intrude on the traditional independence of ALJs and undermine the benefits of a fair hearing.  ALJs worry that the benefits of a fair hearing will be overturned by a review board that did not see the claimant or attend the hearing.  Private practitioners worry that the computer program, not the individual ALJ, will become the de facto decision maker.  The computer-based predictive model probably will not be as blunt as the discredited Bellmon review^[1], but will

shape ALJ decisions.

The computer-based predictive model must be a screening tool. It must be merit-based, not budget-based.  It cannot be utilized to deny claims so that DSI is budget neutral. DSI may result in some increase in costs.  (If claimants are paid earlier, some of the denied would die or not appeal their denial even though actually disabled. This especially applies to those with mental impairments.)

The computer-based predictive model must also be transparent.  ALJs and attorneys of claimants alike are entitled to know which cases will be more closely reviewed.  Presumably the case of an elderly person with lung cancer, whom an ALJ finds disabled, need not be reviewed as thoroughly as a younger individual with a bad back.  However, the independent decision of the ALJ as to each must stand.  Quality assurance is an admirable goal, but not at the cost of ALJ independence.

Some of our members are concerned that the predictions of a computer model will replace the judicious weighing of evidence.  Others worry that this computer review will be utilized to discipline ALJs whose decisions are too different from the norm.  The computer-based predictive model must not be utilized to assure that the same number of people will be entitled to benefits at the end of the new DSI reforms as under the current system.  This would be a gross misuse of a quality assurance program.

Finally, at the Subcommittee’s hearing on the SSA’s proposed regulations last September,  the Honorable Judge Howard D. McKibben, chairman of the Judicial Conference Committee on Federal-State Jurisdiction, testified about the potential increase in the number of complaints filed in federal court due to the abolishment of the Appeals Council.  It is not assured that the DRB will eliminate unfortunate ALJ errors. The Commissioner has not really addressed Judge McKibben’s comments.

CONCLUSION

Thank you once again for the opportunity to appear before you today. The Social Security Section of the Federal Bar Association looks forward to continuing to work with you and the Social Security Administration in improving the disability hearing process. I would be happy to answer any questions you may have.

^[1]"[T]he agency [SSA] instituted the ‘Bellmon review,’ a surveillance program of judges thought to be granting too many disability claims. The effect of the Bellmon review on judicial independence was chilling." Christine M. Moore, SSA Disability Adjudication in Crisis! 33 Judges' J. (No. 3) 2, 9 (1994). It should be emphasized that this Social Security Administration process of "own-motion review" of ALJ decisions resulted from stated Congressional concern [expressed in the 1980 Social Security Disability Amendments, Pub. L. No. 96-265, known as the "Bellmon Amendment" after Senator Henry Bellmon (D-Okla.). See Association of Admin. Law Judges v. Heckler, 594 F. Supp. 1132 (D.D.C. 1984) for an explanation of the legislation] at the high rate of ALJ reversal of state-level denials of claims and the variance of rates among ALJs.  http://review.law.mercer.edu/old/46201ft.htm