Good morning Chairman Rangel, Ranking Member McCrery and Members of the Committee on Ways and Means.  My name is Colleen M. Kelley and I am National President of the National Treasury Employees Union (NTEU).  NTEU represents over 150,000 federal employees in 31 agencies.  Among them are the nine hundred Attorney-Advisers and other staff members in approximately 110 Office of Disability Adjudication and Review (ODAR) Hearing and Regional Offices across the United States.  Our union has long been troubled by the unacceptable backlog of cases before ODAR and believes that prompt congressional action is needed to resolve this crisis in service to the American public, particularly those disabled Americans applying for earned social insurance benefits.   

Disability adjudication at SSA has a long and troubled history.  The current problems with the SSA disability program began in the early 1990s when the cases pending at OHA hearing offices rose from approximately 180,000 in 1991 to approximately 550,000 in mid-1995.  Currently over 750,000 cases are pending at ODAR hearing offices and processing times in 85% of all hearing offices are in excess of one year.  However, a quick review of the history of the number of cases pending at ODAR demonstrates that the backlog problem is not altogether intractable. 

The number of cases pending at OHA hearing offices declined from 1995 through 1999, and in fact by the end of FY 1999 there was no longer a backlog, since 300,000 cases was deemed to be the optimum number of pending cases for efficient adjudication.  The decline in pending during that time period is the direct result of the over 220,000 decisions produced by initiatives included in the Short Term Disability Program (STDP), the vast majority of which were produced by Senior Attorneys.  The Hearing Process Improvement program (HPI) ended the Senior Attorney Program.  The demise of the Senior Attorney Program and the rise of the backlog were not coincidental and are illustrative of the management deficiencies that have plagued the disability program. 

Over 750,000 cases are currently pending at ODAR hearing offices.  This translates into an average processing time of 510 days at ODAR.  Even this is somewhat misleading.  Currently, the average processing time for a case that proceeds through an ALJ hearing decision is 553 days.  In the Chicago Region the average processing time through an ALJ hearing decision is 727 days; 3 days short of two years.  Even these unconscionable numbers do not include the time the case was at the State Agency for an initial and reconsideration determination.  To further darken the picture is the specter of significantly increased receipts resulting from the aging “baby boomers” and the less than robust national economy.  Unless decisive action is taken now, the dysfunction of the disability system may lead to the public’s loss of faith in Social Security.

The salient fact about the current SSA disability adjudication process is that it is unconscionably slow causing untold harm to some of the most vulnerable members of society.  None will dispute that the public deserves far better service than SSA is presently providing.  The current situation is both a failure of adequate funding and of proper planning and management. 

Additional resources are very much needed as well as a reform of an inefficient adjudicatory process characterized by an insufficient number of adjudicators and the misuse of those adjudicators.  Requiring an Administrative Law Judge (ALJ) to adjudicate each and every case at ODAR hearing offices is grossly inefficient and extremely expensive.  Many cases (dismissals, fully favorable on-the-record cases, and requested closed period cases) can be disposed of without ALJ involvement. 

Given the underfunding of the agency, SSA is under an absolute duty to use what funding it has as efficiently as possible.  This year Congress has provided greater funding, and SSA has decided to use part of that increase to hire 175 new Administrative Law Judges; unfortunately, SSA has not seen fit to provide adequate staff to support these new ALJs.  Recently, SSA conducted the largest hiring of ALJs (135 ALJs) in this nation’s history, and intends to hire at least 40 more ALJs before the end of the fiscal year.  Certainly, the hiring of such a large number of new adjudicators will have an impact on SSA’s disability backlog.  However, the number of support staff for ALJs in ODAR was critically low before the recent hiring.  While it is not altogether clear how many additional support staff SSA intends to hire this year, even the most optimistic projections (143) are grossly inadequate.  Hearing offices were critically understaffed before the acquisition of as many as 135 new ALJs (and 40 more to be added this fiscal year) and are in far worse position now. 

In his recent response to questions from the House Appropriations Committee, the Honorable Ronald G. Bernoski, President of the Association of Administrative Law Judges, stated that a judge could not perform his/her work in isolation and the support of sufficient competent and trained staff is essential.   He further indicated that adequate staff included 2.5 attorneys and 2.0 clericals for each ALJ.  While hiring a large number of new ALJs “looks good”, unless they and the current ALJs are properly supported, a reasonable return for the expenses incurred simply will not happen. 

Without sufficient staff, SSA cannot prepare enough cases to fill the dockets of the ALJs or timely prepare and issue the written decisions.  More ALJs without more staff will mean even more unfilled dockets, decreased ALJ productivity and wasted SSA assets.  It is prudent, if nothing else, to use remaining funds to hire the necessary staff to make current ALJs productive. 

No doubt part of the reluctance to properly staff ODAR hearing offices is the Administration’s commitment to “contracting out” many inherently governmental activities.  Additionally, the Agency places a great deal of emphasis on the benefits of automation in improving Agency operations.  The GAO Report of December 2007 reported that many SSA senior managers and ALJs recommended a staffing ratio of 5.25 support staff to administrative law judge.  It also indicated that the recommended staffing ratio could change as SSA implemented planned automation initiatives intended to improve the hearing process and increase efficiency.   In many instances this emphasis on automation may well be justified, but in other areas experience has shown its relative merits are questionable.  Automation may improve the situation over time, but the fact of the matter is that SSA automation initiatives rarely, if ever, come in on time, and even more rarely deliver what was promised.

SSA is also committing funds to establishing “National Hearing Centers”.  The first is already operational in Falls Church, VA; the Commissioner recently announced a second to be situated in Albuquerque, NM, a city that already has a hearing office.  It is not clear what operational efficiencies are achieved through the establishment of these adjudicating entities that are not already and better served at hearing offices.  Certainly the capacity for conducting video-conference hearings already exists in nearly every current hearing office to facilitate conducting remote hearings and for adjudicating temporary excess workloads.  The centralized nature of National Hearing Centers will alienate the public and further damage the Agency’s credibility.  For more than seventy years SSA has strived to maintain face-to-face contact at the local level with the public it serves.  This is one of the factors that separate SSA from the majority of federal agencies.  National Hearing Centers would significantly weaken the bond between SSA and the public it serves.

The advent of the electronic hearing folders facilitates movement of cases to other hearing offices as easily as to a National Hearing Center.  There is no operational justification for the establishment of such centers.   Moreover, their unique staffing structure emphasizes the Agency’s commitment to achieving its political goals over providing high quality service to the public. 

Interestingly enough, in addition to hiring new ALJs, SSA has already commenced a program that if properly implemented will eliminate the backlog.  Commissioner Astrue has reinstituted a version of the old Senior Attorney Program that was responsible for eliminating the disability backlog in the 1990’s.  Not surprisingly, the current program, the Attorney Adjudicator Program, is proving to be a success in spite of some ill-founded limitations.  However, since its commencement, improvements have been authorized and its scope expanded.  Nonetheless, it is this program with further modifications and additions that shows the way to an adjudicatory process at ODAR that is both effective and fiscally responsible.

Judge Bernoski has noted on numerous occasions the necessity of reducing the number of cases that proceed to an ALJ hearing.  In his response to questions from the Appropriation Committee he stated, “Social Security can no longer have over 90% of its disability cases continuing on to a full hearing before an administrative law judge.”  Judge Bernoski further stated “nowhere in our judicial system is a judge required to take to hearing such a high percentage of cases compared to the total docket.”  NTEU absolutely concurs.

The simple fact of the matter is that neither a hearing nor an ALJ is needed to dispose of every case.  By relieving ALJs of the responsibility for adjudicating cases which do not require an ALJ, the ability of ALJs to focus on those cases requiring their expertise can be enhanced.  That is the rationale behind the Attorney Adjudicator Program. 

Attorney Adjudicators, who have limited decisional authority, augmenting the ALJ corps constitute an effective and fiscally responsible adjudicative process.  The one area of controversy involving the former Senior Attorney Program, decisional accuracy, is not a problem with the current program.  Initial accuracy figures for the Attorney Adjudicator Program show an accuracy rate of 95%. 

Experience has demonstrated that between 25-40 % of claims appealed to ODAR hearing offices could result in fully favorable decisions without an ALJ hearing.  Additionally, 15-17% of cases appealed to hearing offices are dismissed, many because of abandonment by the claimant or technical defects.  Very few of these cases require ALJ involvement.  Such dismissals should be handled by Attorney Adjudicators thereby freeing the ALJ to adjudicate cases requiring an ALJ decision.  Consequently, 40-50% of appeals to ODAR can potentially be adjudicated without the involvement of an ALJ.

The success of the former Senior Attorney Program in eliminating the backlog of the 1990’s and the very favorable beginning of the current Attorney Adjudicator Program render arguing the merits of the concept of attorney adjudication unnecessary.  Management has recently announced a significant increase in the number of Senior Attorneys that will further increase the capacity of the current Attorney Adjudicator Program. 

Nonetheless, despite the promise of the Attorney Adjudicator Program, the current crisis is of such magnitude that additional changes are required if SSA is to get control of the backlog problem within an acceptable timeframe.  Recently, the Agency announced an increase in the number of Senior Attorneys to 450; a net increase of 81 positions.  However, the time allocated to case adjudication is typically 25% or less.  At this rate, the Agency expects approximately 30,000 fully favorable adjudications this fiscal year.  While this may temporarily stem the increase in the pending cases, its long term effect, even considering the augmentation of the ALJ Corps to 1,250 ALJs, will not eliminate the backlog. 

By increasing the number of Senior Attorneys to 700 and permitting them to spend 50% of their time reviewing every disability case appealed to ODAR and adjudicating the 40-50% of cases that do not require ALJ participation, SSA can immediately reduce its pending cases by well over 100,000 cases a year in spite of the increased receipts expected.

The Attorney Adjudicator Program does involve decreasing the availability of the attorney advisers for their traditional role of drafting ALJ decisions.  However, several other efficiencies are promoted by the Attorney Adjudicator Program.  Attorney Adjudicators work on “unpulled” or “unassembled” files.  Those that result in fully favorable decisions do not have to be “pulled”.  The benefit from not having to “pull” these cases cannot be overstated.  Today there are approximately 442,000 cases pending pulling; a workload that will require over 200 days to complete if no new cases were received by ODAR during that 200 days.  Most ALJs will not hold hearings on “unpulled” cases and ODAR’s difficulty pulling sufficient cases to maintain ALJ dockets is a significant factor in the creation and maintenance of the current backlog.  Each disposition by an attorney adjudicator is one less case that must be pulled.

Attorney Adjudicators would continue to draft ALJ decisions in addition to handling their own adjudicatory dockets.  Skilled decision drafting remains a vital component of the ALJ adjudicatory process.  Retaining ODAR’s most skilled staff to perform that duty is essential if ODAR is to continue to produce quality decisions.  Assigning decision making duties to attorneys whose primary duty now is to advise ALJs and draft decisions is obviously going to result in a decrease in decision drafting capacity.  SSA now has the assets to hire an additional 200 attorneys to maintain sufficient decision drafting capacity and 100 additional technical staff to process the increased number of decisions.  Even considering the cost of the promotions of current employees consistent with their new duties, the total expense is far less than that involved with hiring the massive number of ALJs and the staff that would otherwise be necessary to support the ALJs. 

In addition to increasing the number of attorney adjudicators, small procedural adjustments would further enhance operational efficiency.  Currently, Attorney Adjudicators may conduct pre-hearing conferences.  Currently they can issue interrogatories to secure vocational and medical expert input.  Often this is all that is required to perfect the record and allow for a fully favorable decision.  While written interrogatories significantly expand the number of cases for which Attorney Adjudicators can issue fully favorable decisions, they can be cumbersome and time consuming.  ODAR should authorize the attendance of medical and vocational experts at the pre-hearing conference thereby increasing decisional accuracy while decreasing processing time. 

If the current Attorney Adjudicator Program is expanded as detailed above, ODAR attorneys could dispose of 100,000 fully favorable decisions and dismissals or more each year, while still spending nearly half their time drafting ALJ decisions and advising ALJs.   These cases would not require the expenditure of any ALJ resources and would involve relatively little staff time.  This would allow the Agency to commit a greater amount of its resources to the cases that required ALJ adjudication.

Let me also address the situation with OFEDRO.  SSA has suspended further expansion of the Office of Federal Reviewing Officer (OFEDRO).  OFEDRO has the potential to meaningfully help with the disability determination backlog if properly implemented.  If SSA intends to resume hiring of new staff for FEDRO, it should give preference to the existing, high qualified and experienced staff at ODAR.  In order to recruit the best and brightest staff for any expansion of the program, it should provide relocation allowances for all new hires recruited from elsewhere in the agency.  This is a common recruitment tool in the federal sector for highly qualified professionals and has been underused by the agency. 

Mr. Chairman, I thank you for this opportunity to present NTEU’s statement on this important matter.  NTEU remains ready to work with the Ways and Means Committee to do all that we can to address the crisis in the disability determination backlog.  Thank you.