Introduction

This statement is submitted on behalf of the Association of Administrative Law Judges.

Background
 
For the April 23 2008 hearing before the House Ways and Means Committee on Clearing the Disability Backlog, Commissioner of Social Security Michael J. Astrue submitted a written statement and testified.  The Association of Administrative Law Judges (AALJ) believes significant portions of the Commissioner’s statements were incorrect, misleading or irrelevant to the backlog issue.  This statement is submitted in rebuttal. We thank the committee for this opportunity to address the Disability Backlog issue.

The GAO’s Assessment 

The Government Accountability Office (GAO), has produced the most thorough and unbiased analysis of the disability backlog in recent years.  It is recommended reading for those concerned with the current Disability Backlog.  The report, significantly titled Better Planning, Management and Evaluation Could Help Address Backlogs, sets out three primary causes of the backlog:  increased numbers of disability claims, staff shortages and “management weaknesses”. [1]

Support Staff in the Office of Disability Adjudication and Review (ODAR)

Since much of the disability problem involves staff shortages it is critical that members of Congress understand the role of staff in the disability claims process.  When case files arrive in a hearing office, they must be “worked up”, prepared for use in the hearing.  This is a significant task requiring skill and one to three hours of time.  The task is done only by Senior Case Technicians.  Whether a paper file or electronic file, the contents arrive in random sequence, unidentified, unpaginated, with duplications and without any numbered exhibits or table of contents to locate the exhibits.  The Senior Case Technician identifies and eliminates duplications, identifies exhibits from the same source, labels them, arranges them in chronological order, numbers and paginates the exhibits and prepares the List of Exhibits.  After it is worked up, the file goes to the assigned judge for review. 

It is critical to understand that currently, of the 758,000 total pending cases, 446,000 of them, 59% of the total backlog, are waiting in the hearing offices to be worked up for a judge to review.  This is the precise location of the blockage causing the backlog.   

That blockage in the flow, the lack of Senior Case Technicians, is upstream from the judges and the hearing process.  Adding hundreds of judges downstream from this blockage will have no effect on the blockage.  It will however decrease the productivity per judge; the number of cases worked up will not increase and will be divided among a larger number of judges. 

Further evidence of the importance of staff to judge ratios is found in SSA’s own OIG Reports.  OIG found a correlation between staffing ratios and dispositions.  “Hearing offices with lower staffing ratios had, on average, worse hearing office disposition rates.”[2] 

This year, as new judges are being hired, the already sitting judges in most offices are unable to get as many cases as they have scheduled to hear each month.  SSA’s response is “streamlined” case processing in which the Senior Case Technician is instructed to skip organizing exhibits, elimination of duplications, numbering of exhibits and the List of Exhibits.  The only way to find out what is in the file is to go through it taking notes so that one can refer back to the page.  This is true for the judge, the vocational expert, the medical expert, the decision writer and the claimant or the claimant’s representative.  If the case is later appealed to the Appeals Council, personnel there must do the same thing.  So-called “streamlined” cases merely shift the burden of organizing the material in the file from one clerical person to the judge, the expert witnesses, the decision writer and the claimant.  The work of the Senior Case Technician is transferred to not just one but repetitively to several people, all in higher pay grades than the Senior Case Technician. 

There are also serious questions of whether or not the “streamlined” file violates due process when the claimant is handed an unorganized mass of evidence and whether or not the “streamlined” file preserves an adequate record for subsequent reviews.

The Commissioner’s statement that since he took office in early 2007 he has increased the number of support staff from 4.1 to 4.4 is a surprising statement.  Of course any attrition in the number of judges would increase the ratio of staff to judge.  To increase the ratio to 4.4 would require a net addition of about 300 staff, or approximately 2 per hearing office.  It is quite possible that staff personnel have been added in administrative offices, not working on programs, but such personnel cannot legitimately be considered to be staff supporting the work of the judges.  This statement needs clarification and supporting data. 

Other Management Weaknesses 

A careful review of SSA’s plans to reduce the backlog discloses an over-reliance on future gains from technology.  Replacing paper files with electronic files (e-files), begun under former Commissioner Jo Anne Barnhart, is an initiative that the AALJ endorses and supports.  What is unacknowledged is that the system, like virtually all new systems, has difficulties.  It needs some additions and it is slower to use in conducting a hearing.   SSA’s expectation is that once the system has matured it will require fewer people to do the same work.  That may be true some day, but it is not yet true and rigid adherence to this expectation in failing to replace lost staff has resulted in serious shortage of staff.  When the system will be fully de-bugged and running smoothly is unknown. 

There is a program (e-pulling) being written to perform many of the work up chores.  When it becomes a mature program it may very well significantly reduce the Senior Case Technician duties, but it could be several years before it is a mature program.  Meanwhile, the backlog blockage remains at the work up of cases.

Smoke and Mirrors 

Many of SSA’s highly publicized “Initiatives to Reduce the Backlog” in fact can have little if any effect on actually reducing the backlog.  A few examples:

The National Hearing Center took five judges from several offices and put them together in a new office in Falls Church.  Moving five judges does nothing to reduce the backlog.

As explained above, hiring 175 new judges without adding adequate staff is a hollow gesture.  It is equivalent to purchasing 175 new trucks and fuel for 20.

SSA has expended approximately 50,000 hours of overtime to aid ODAR in getting its work done.  The faults are that the money was spent on non-ODAR personnel who do not know the ODAR work and the overtime was viewed as a benefit and thus rotated among field office personnel.  The personnel who learned the job this week were replaced the following week by new personnel who did not know the job.  With time lost for on-the-job training plus overtime premium, the cost to SSA has been excessive and the production sub-standard.

Even the initiative to clear out all cases more than 1,000 days old, while commendable, did not reduce the backlog.  Dozens of pages in releases and reports have been devoted to hailing this as reducing the backlog when in fact it merely shifted the production effort from one group of claims to another.

SSA’s Public Relations machine is endeavoring to convince Congress and the public that it is reducing the backlog but a review of the initiatives discloses that, while they may give the appearance of reducing the backlog, in fact they do not.

Administrative Law Judges

The judges are not the problem.  The judges did not cause the backlog and as a group have worked hard, with ever-decreasing resources, to contain the backlog.  The Commissioner has at times acknowledged that the judges in Social Security are “producing at record levels” as they have year after year.  Nonetheless criticisms are being leveled at SSA’s judges.  It is undisputed that judges work at different levels of efficiency and varying levels of diligence.  That is equally true of any group of working people including SSA employees generally.  The AALJ has asked SSA to supply the names of those judges with low production so AALJ officers can work with those judges to try to assist them to be more productive.

The Commissioner argues that there must be accountability for the judges.  The judges accept accountability but not simply measured by the number of decisions produced.  Judges are accountable to the claimants to ensure they get a full and fair hearing.  They are also accountable for the trust fund to ensure that it is not abused.

The AALJ has repeatedly recommended that SSA adopt the American Bar Association’s Model Code of Judicial Conduct for the judges, but this has been ignored.  Instead, SSA makes up infractions to suit the moment as in the current use of the undefined “conduct unbecoming an administrative law judge.”

The Administrative Procedures Act (APA) seeks to insulate administrative law judges from their agencies’ dictating their decision-making to satisfy a certain goal du jour.  We saw this in the early 1980’s when SSA wanted to cut people off the rolls and we have seen it again in recent years when various measures have been taken which create a perverse incentive to pay cases to get them out the door as quickly as possible without regard to the effect on the trust fund.  In both periods the judges have been a moderating influence in not rigidly adhering to SSA’s policies, but rather trying to judge each case on its merits.  This has created tension between the judges and SSA management, with management complaining that the judges do not follow SSA’s current policies.  This was precisely the aim of the APA and it is precisely why the APA must not be stretched or cut to permit federal agencies to impose policies on their administrative law judges which would affect decisional independence and deprive claimants of their right to due process under the law.

Respectfully submitted,

Ronald G. Bernoski

President

Association of Administrative Law Judges

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The Association of Administrative Law Judges (AALJ) represents the administrative law judges employed at the Social Security Administration and the Department of Health and Human Services.  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 approximately 1400 administrative law judges in the entire Federal government. The AALJ President, Ronald G. Bernoski, may be reached at rbernoski@wi.rr.com.

[1] Social Security Disability, Better Planning, Management and Evaluation Could Help Address Backlog, Government Accountability Office, December 2007, http://www.gao.gov/highlights/d0840high.pdf .   

[2] Reducing the Disability Backlog at the Social Security Administration, Statement before the House Committee on Appropriations, Subcommittee on Labor, Health and Human Services, Education, and Related Agencies, Office of the Inspector General, Social Security Administration, February 28, 2008.