SPEAKERS CONTENTS INSERTS Tables
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43–586 CC
1998
OVERSIGHT OF THE DISABILITY APPEALS PROCESS
HEARING
before the
SUBCOMMITTEE ON SOCIAL SECURITY
of the
COMMITTEE ON WAYS AND MEANS
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
APRIL 24, 1997
Serial 105–11
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Printed for the use of the Committee on Ways and Means
COMMITTEE ON WAYS AND MEANS
BILL ARCHER, Texas, Chairman
PHILIP M. CRANE, Illinois
BILL THOMAS, California
E. CLAY SHAW, Jr., Florida
NANCY L. JOHNSON, Connecticut
JIM BUNNING, Kentucky
AMO HOUGHTON, New York
WALLY HERGER, California
JIM McCRERY, Louisiana
DAVE CAMP, Michigan
JIM RAMSTAD, Minnesota
JIM NUSSLE, Iowa
SAM JOHNSON, Texas
JENNIFER DUNN, Washington
MAC COLLINS, Georgia
ROB PORTMAN, Ohio
PHILIP S. ENGLISH, Pennsylvania
JOHN ENSIGN, Nevada
JON CHRISTENSEN, Nebraska
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WES WATKINS, Oklahoma
J.D. HAYWORTH, Arizona
JERRY WELLER, Illinois
KENNY HULSHOF, Missouri
CHARLES B. RANGEL, New York
FORTNEY PETE STARK, California
ROBERT T. MATSUI, California
BARBARA B. KENNELLY, Connecticut
WILLIAM J. COYNE, Pennsylvania
SANDER M. LEVIN, Michigan
BENJAMIN L. CARDIN, Maryland
JIM McDERMOTT, Washington
GERALD D. KLECZKA, Wisconsin
JOHN LEWIS, Georgia
RICHARD E. NEAL, Massachusetts
MICHAEL R. McNULTY, New York
WILLIAM J. JEFFERSON, Louisiana
JOHN S. TANNER, Tennessee
XAVIER BECERRA, California
KAREN L. THURMAN, Florida
A.L. Singleton, Chief of Staff
Janice Mays, Minority Chief Counsel
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Subcommittee on Social Security
JIM BUNNING, Kentucky, Chairman
SAM JOHNSON, Texas
MAC COLLINS, Georgia
ROB PORTMAN, Ohio
JON CHRISTENSEN, Nebraska
J.D. HAYWORTH, Arizona
JERRY WELLER, Illinois
KENNY HULSHOF, Missouri
BARBARA B. KENNELLY, Connecticut
RICHARD E. NEAL, Massachusetts
SANDER M. LEVIN, Michigan
JOHN S. TANNER, Tennessee
XAVIER BECERRA, California
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public hearing records of the Committee on Ways and Means are also published in electronic form. The printed hearing record remains the official version. Because electronic submissions are used to prepare both printed and electronic versions of the hearing record, the process of converting between various electronic formats may introduce unintentional errors or omissions. Such occurrences are inherent in the current publication process and should diminish as the process is further refined. The electronic version of the hearing record does not include materials which were not submitted in an electronic format. These materials are kept on file in the official Committee records.
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C O N T E N T S
Advisory of April 17, 1997, announcing the hearing
WITNESSES
Social Security Administration, Carolyn W. Colvin, Deputy Commissioner, Programs and Policy; accompanied by Rita Geier, Associate Commissioner, Hearings and Appeals, and Arthur Fried, General Counsel
U.S. General Accounting Office, Jane L. Ross, Director, Income Security Issues, Health, Education, and Human Services Division; accompanied by Cynthia Bascetta, Assistant Director, Income Security Issues, Health, Education, and Human Services Division
Association of Administrative Law Judges, Inc., Hon. Ronald G. Bernoski
National Association of Disability Examiners, Debi Gardiner, and Tom Christopher
National Council of Disability Determination Directors, Douglas W. Willman
National Organization of Social Security Claimants' Representatives, Nancy G. Shor
National Treasury Employees Union, James A. Hill
SUBMISSIONS FOR THE RECORD
Allsup, Inc., Belleville, IL, James F. Allsup, statement
American Bar Association, John H. Pickering, statement
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Fusco, Victor, Scheine, Fusco, Brandenstein & Rada, P.C., Woodbury, NY, letter
Mooney, Michael J., Mooney & Park, Cincinnati, OH, letter
Public Employees Federation, New York, NY, Larry Jacks, statement
OVERSIGHT OF THE DISABILITY APPEALS PROCESS
THURSDAY, APRIL 24, 1997
House of Representatives,
Committee on Ways and Means,
Subcommittee on Social Security,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9:04 a.m., in room 1100, Longworth House Office Building, Hon. Jim Bunning (Chairman of the Subcommittee) presiding.
[The advisory announcing the hearing follows:]
ADVISORY
FROM THE COMMITTEE ON WAYS AND MEANS
SUBCOMMITTEE ON SOCIAL SECURITY
CONTACT: Ari Fleischer or
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Scott Brenner (202) 225–8933
FOR IMMEDIATE RELEASE
April 17, 1997
No. SS–3
Bunning Announces Hearing on
Oversight of the Disability Appeals Process
Congressman Jim Bunning (R–KY), Chairman, Subcommittee on Social Security of the Committee on Ways and Means, today announced that the Subcommittee will hold a hearing on oversight of the disability appeals process. The hearing will take place on Thursday, April 24, 1997, in the main Committee hearing room, 1100 Longworth House Office Building, beginning at 9:00 a.m.
In view of the limited time available to hear witnesses, oral testimony at this hearing will be from invited witnesses only. However, any individual or organization not scheduled for an oral appearance may submit a written statement for consideration by the Committee and for inclusion in the printed record of the hearing.
BACKGROUND:
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The Social Security Disability Insurance (DI) program provides cash benefits to insured, severely disabled workers. Applications for disability benefits are filed with one of the Social Security Administration's (SSA's) more than 1,300 field offices. Applications, along with supporting medical evidence, are then forwarded to State disability determination services (DDSs), which make the initial medical determination of disability according to SSA's policy and procedures. Applicants who are dissatisfied with an initial determination may request reconsideration by different staff at the DDS. Applicants who disagree with a reconsideration denial have the right to appeal the decision to the Office of Hearings and Appeals (OHA), where cases are heard by administrative law judges (ALJs).
A steadily increasing number of appeals has caused workload pressures and processing delays, particularly for OHA. In the decade ending in 1995, the number of disability cases appealed to OHA had increased by about 140 percent. Despite SSA's attempts to manage this workload, between 1985 and 1995, its inventory of appealed cases increased from about 107,000 to almost 548,000. The case inventory was reduced to 511,000 at the end of 1996. However, some individuals who appeal their disability claims report unsatisfactory public service after waiting over a year for their appeal to be processed.
In addition, decisional inconsistency between DDSs and ALJs continues to lower public confidence in the disability program. In 1996, approximately 75 percent of individuals who were denied benefits by DDSs appealed their decisions to an ALJ. On average, ALJs are reversing DDS decisions 67 percent of the time. Last year, Chairman Bunning asked the General Accounting Office (GAO) to report on factors that contribute to differences between DDS and ALJ decisions and what actions SSA is taking to obtain greater consistency between the decisions in initial and appealed cases.
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Over the past few years, SSA has initiated both near-term and long-term initiatives to improve public service. These initiatives include the Short-Term Disability Plan (an initiative to reduce case inventories at OHA) and SSA's Plan for a New Disability Claim Process, referred to as the ''redesign plan,'' to address systemic problems contributing to inefficiencies in the disability program.
FOCUS OF THE HEARING:
During the hearing, the Subcommittee will: (1) review the current status of OHA workloads and their impact on service to the public; (2) examine the effects of SSA's short- and long-term initiatives to address those workloads, including what is working, what isn't working and what else needs to be done; and (3) consider the findings of the GAO regarding SSA's management of the timeliness and consistency of SSA's disability decisions.
DETAILS FOR SUBMISSION OF WRITTEN COMMENTS:
Any person or organization wishing to submit a written statement for the printed record of the hearing should submit at least six (6) copies of their statement and a 3.5-inch diskette in WordPerfect or ASCII format, with their address and date of hearing noted, by the close of business, Thursday, May 8, 1997, to A.L. Singleton, Chief of Staff, Committee on Ways and Means, U.S. House of Representatives, 1102 Longworth House Office Building, Washington, D.C. 20515. If those filing written statements wish to have their statements distributed to the press and interested public at the hearing, they may deliver 200 additional copies for this purpose to the Subcommittee on Social Security office, room B–316 Rayburn House Office Building, at least one hour before the hearing begins.
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FORMATTING REQUIREMENTS:
Each statement presented for printing to the Committee by a witness, any written statement or exhibit submitted for the printed record or any written comments in response to a request for written comments must conform to the guidelines listed below. Any statement or exhibit not in compliance with these guidelines will not be printed, but will be maintained in the Committee files for review and use by the Committee.
1. All statements and any accompanying exhibits for printing must be typed in single space on legal-size paper and may not exceed a total of 10 pages including attachments. At the same time written statements are submitted to the Committee, witnesses are now requested to submit their statements on a 3.5-inch diskette in WordPerfect or ASCII format.
2. Copies of whole documents submitted as exhibit material will not be accepted for printing. Instead, exhibit material should be referenced and quoted or paraphrased. All exhibit material not meeting these specifications will be maintained in the Committee files for review and use by the Committee.
3. A witness appearing at a public hearing, or submitting a statement for the record of a public hearing, or submitting written comments in response to a published request for comments by the Committee, must include on his statement or submission a list of all clients, persons, or organizations on whose behalf the witness appears.
4. A supplemental sheet must accompany each statement listing the name, full address, a telephone number where the witness or the designated representative may be reached and a topical outline or summary of the comments and recommendations in the full statement. This supplemental sheet will not be included in the printed record. The above restrictions and limitations apply only to material being submitted for printing. Statements and exhibits or supplementary material submitted solely for distribution to the Members, the press and the public during the course of a public hearing may be submitted in other forms.
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Note: All Committee advisories and news releases are available on the World Wide Web at 'HTTP://WWW.HOUSE.GOV/WAYS_MEANS/'.
The Committee seeks to make its facilities accessible to persons with disabilities. If you are in need of special accommodations, please call 202–225–1721 or 202–225–1904 TTD/TTY in advance of the event (four business days notice is requested). Questions with regard to special accommodation needs in general (including availability of Committee materials in alternative formats) may be directed to the Committee as noted above.
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Chairman BUNNING. The Subcommittee will come to order.
This morning, the Subcommittee picks up where it left off the last Congress examining the management of the disability program at SSA, the Social Security Administration. Today, as before, we will focus on, number one, the action SSA is taking to address the tremendous backlog of cases, waiting for a decision at the appeals level; and, number two, learn more about why there is a decisional inconsistency between the examiner physician teams who make decisions at the State disability determination agencies and ALJs, the administrative law judges.
As I have stated before, my primary objective in looking into the disability program is to make sure that those who are truly disabled receive benefits quickly and relatively easily and that those who have recovered and are no longer eligible for benefits are removed from the rolls. Effective customer service and public confidence must be restored at SSA, especially in the disability program. It is still difficult for persons with disabilities to believe they are receiving adequate services when they are forced to wait 1 year or longer for a decision, and it is extremely disheartening to the American taxpayers to hear their hard-earned dollars are supporting disability benefits for people who are able to work.
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It is clear from testimony we will hear today that SSA is trying to make progress. I am pleased to hear about these efforts and look forward to hearing the details.
During the 104th Congress, I asked GAO to investigate the reasons for the inconsistencies between the decisionmakers at different levels of the disability determination process at SSA. Today, they will share with us their findings.
We will conclude with testimony from a panel of witnesses who work in the disability process every day. I believe they will be able to give us valuable insight into what is working, what isn't working, and offer their suggestions for improvement.
In the interest of time, it is our practice to dispense with opening statements, except from the Ranking Democrat Member. All Members are welcome to submit statements for the record. I yield to Congresswoman Kennelly for any statement she wishes to make.
Mrs. KENNELLY. Thank you, Mr. Chairman.
I venture to say most Americans don't spend a great deal of time thinking about the disability appeals process. If they do think about it, they are hoping they will never have to use it, but if misfortune comes their way and they are forced to apply for disability benefits, there are probably two things they will expect from the process—let it be speedy and let it be fair.
They want to receive their benefits in a timely fashion. They want to be treated fairly by the Federal Government.
The backlog of cases at the Office of Hearings and Appeals is currently nearly half a million cases. Moreover, applicants who appeal their cases wait well over 1 year, on average, before they receive a decision. Such a lengthy wait can cause severe financial hardship for many disabled people who are unable to support themselves through work.
SSA has taken some positive steps to reduce these backlogs and has had some measures of success, but progress remains slow.
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I look forward today to hearing more from SSA about the effectiveness of its activities in this area. In addition to a swift decision, the public has a right to expect a fair hearing. Most people would expect to receive a hearing before an individual with some independence from the agency. This is the agency, after all, that has rejected the applicant's claim for benefits. If the public does not believe that SSA provides a fair and impartial hearing, then more people will appeal their decisions to the Federal courts. The result will be to clog the Federal court system and further delay decisions. I don't believe that is a result anyone desires.
Clearly, a very high reversal rate for ALJs is in no one's best interest. It is slow, expensive, and undermines the integrity of the process. However, the public must be confident that when they have been inappropriately denied benefits, they will nevertheless receive a fair an impartial hearing on that denial.
It was not so long ago in the early eighties that the public concluded that applicants were being unjustly denied benefits, and ALJs were applauded for their independence and willingness to buck the agency by reversing DDS, disability determination services, denials. We must be careful the administration plan which we put in place to streamline the process and speed decisions does not have the potential to strangle the fair hearing process. No one would be the winner in that case.
Thank you, Mr. Chairman.
Chairman BUNNING. Thank you, Mrs. Kennelly.
Today, we will begin with testimony from—if the first panel will be seated—Carolyn Colvin. Is that correct?
Ms. COLVIN. Yes.
Chairman BUNNING. From the Social Security Administration, Ms. Colvin is the Deputy Commissioner for Programs and Policy. She is accompanied by Rita Geier, Associate Commissioner for Hearings and Appeals; and Arthur Fried, General Counsel.
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Ms. Colvin, would you please begin.
STATEMENT OF CAROLYN W. COLVIN, DEPUTY COMMISSIONER, PROGRAMS AND POLICY, SOCIAL SECURITY ADMINISTRATION; ACCOMPANIED BY RITA GEIER, ASSOCIATE COMMISSIONER, HEARINGS AND APPEALS; AND ARTHUR FRIED, GENERAL COUNSEL
Ms. COLVIN. Good morning, Mr. Chairman, Members of the Subcommittee. I am very pleased to be here to discuss the Social Security disability appeals process today.
To my right is Rita Geier, who is the Associate Commissioner of the Office of Hearings and Appeals, and to my left is Arthur Fried, who is our General Counsel.
We appreciate the opportunity to submit a statement for the record. I will describe today many short-term and long-term initiatives designed to strengthen and streamline our appeals process.
It is important to note that more than 70 percent of the beneficiaries awarded disability benefits in 1996 were allowed by the DDS. Fewer than 30 percent were allowed at the ALJ hearing level or at a higher appellate level.
I also want to stress that there is one and only one standard for determining disability at all levels of the adjudicative process.
A fundamental goal of SSA's effort to redesign its disability process is to make the correct decision as early in the process as possible. When developing our redesign strategy, we recognized that, in order to achieve this goal, we needed to minimize those factors within our control which contribute to the variance in allowance rates between the DDSs and ALJs. Collectively, we are calling these initiatives Process Unification. Our goal is to achieve similar results on similar cases at all stages of the process, through consistent application of laws, regulations, and rulings with minimal or no impact on program costs.
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I am proud to report that SSA has made significant strides toward this goal. One of the factors we have identified as contributing to the different allowance rates is the different approaches the DDSs and the ALJs take in evaluating claims which can lead to different conclusions in a particular case. These are areas which are highly complex.
Last year, we published eight new Social Security rulings clarifying policy in these complex areas designed to assist all decisionmakers in applying the policy in the same way. To assure consistent application of these rulings, we conducted for the first time joint training for SSA's 15,000 disability adjudicators. The hearings level allowance rate declined to 59 percent in fiscal year 1996, and data for the second quarter of fiscal year 1997 indicate an increase in the initial and reconsideration allowance rates at the DDS with an accompanying further decrease in the ALJ allowance rate.
Some of this likely can be attributed to the new rulings and the training. Another initiative designed to improve consistency is the development of a single presentation of policy that is binding on all decisionmakers. This will ensure that different presentations of policies do not result in different outcomes.
We are taking several other crucial steps, for instance, preparing revised regulations clarifying the ALJ's responsibility for considering the medical opinions of DDS physicians. It must be kept in mind, however, that because of the new information presented by the claimant as well as other factors, most ALJ allowances are based on a substantially different case than the case evaluated by the DDS. Therefore, as part of our Process Unification effort, we are trying to minimize this effect by permitting the ALJs to remand cases to the DDS for a review when new medical evidence is received prior to the hearing being scheduled. This will permit the DDS to change its denial to an allowance which will result in fewer cases going to hearing. For cases that the DDSs do not allow, the ALJ will benefit from the DDS' assessment of the new evidence.
Additionally, SSA recently published a ruling reemphasizing its acquiescence policy, and one of the initiatives in Process Unification is to streamline the process for issuing these rulings.
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Under SSA's acquiescence policy, SSA issues a ruling in all cases where the final circuit court decision conflicts with SSA policy and SSA decides not to appeal the decision to the Supreme Court. Our adjudicators are not authorized to give precedential weight to the circuit court decision until these rulings are issued.
Another key initiative in Process Unification is implementation of preeffectuation quality review of OHA allowances. Under this initiative, the Office of Program Integrity Review will screen approximately 10,000 favorable hearing decisions each year and forward the case to the Appeals Council if a possible error is detected.
It is important to note, however, that the hearings process is different by design from the DDS process. Claims heard by the ALJ generally are the most complex and the toughest to evaluate. It is entirely appropriate for such cases to be heard in a more formal setting allowing presentation of testimony and questioning of witnesses.
At the same time, we want accurate decisions and more consistency in our decisionmaking process. To achieve this goal, SSA is developing a clear vision of what the future of a quality review should be, a more comprehensive review program that better defines its quality standards, communicates more effectively to employees, and continually provides the employees with a means to achieve them.
Mr. Chairman, I would like to very briefly address the increased disability workloads which have required us to evaluate ways to process cases more efficiently. SSA's short-term disability project successfully achieved a substantial near-term reduction in both initial and appeals backlogs. From the inception of the project through the end of fiscal year 1995, the number of initial claims pending in the DDS was reduced by more than 120,000. And, since its inception, SSA increased hearing dispositions by almost 100,000 cases.
In another effort to reduce OHA pendings, over 300 ALJs were hired during the course of fiscal years 1994 and 1995.
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The plan for a new disability claim process represents a long-term initiative to provide world class service within available resource levels by redesigning SSA's disability process. The streamlined process is expected to significantly reduce the time and resources needed to process disability cases through the hearing stage.
In closing, Mr. Chairman, I want to thank the Subcommittee for the opportunity to address these important issues. With the assistance of Ms. Geier and Mr. Fried, we would be very happy to answer any questions you may have.
[The prepared statement follows:]
Statement of Carolyn W. Colvin, Deputy Commissioner, Programs and Policy, Social Security Administration
Mr. Chairman and Members of the Subcommittee:
I am pleased to be here today to discuss the workloads at our Office of Hearings and Appeals (OHA), and the General Accounting Office's (GAO) findings on inconsistencies in disability decisionmaking at different levels of the adjudicatory process. As described below SSA is working on myriad initiatives designed to improve and streamline the appeals process. These include short-term initiatives designed to improve our processing time, as well as long range initiatives such as the implementation and testing of several elements of our disability process redesign.
Disability Claims Process
Mr. Chairman, a brief overview of the disability process might help put this statement in context. The Social Security Act broadly defines disability as the inability to engage in any substantial gainful activity. The Act requires the Commissioner of Social Security to prescribe rules for obtaining and evaluating evidence and making disability decisions. The law further requires that initial disability determinations be generally made by State Disability Determination Services (DDSs) following Federal rules and guidelines and financed by Federal funds.
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State DDS Process
In the State DDS, a team composed of a disability examiner and a physician (or sometimes a psychologist) makes the disability determination based on an evidentiary record. The State DDS requests medical evidence from the treating physician(s) and other sources identified by the claimant. If that evidence is incomplete or conflicting, the disability examiner may request a consultative examination from the claimant's treating physician or a physician under contract to the DDS to perform these examinations. If necessary, the examiner will also obtain evidence from the claimant's family, friends, or other third parties which will help explain how the individual's impairment(s) affects his or her ability to work. The team then considers all medical and other evidence to make the disability determination; if the claimant is not disabled, the DDS releases a denial notice to the claimant.
Appeals Process
A person who is denied disability benefits may pursue an appeal through three administrative levels, one at the State DDS and two at SSA, and the Federal courts. The Act requires the Commissioner to provide a dissatisfied claimant the opportunity for a hearing before an SSA administrative law judge (ALJ), and allows for filing of a civil suit in Federal court after the Commissioner's final decision. SSA has also provided a reconsideration review at the State DDS prior to the hearing and a final review after the hearing by SSA's Appeals Council.
Reconsideration is the first administrative review for claimants and is a de novo (fresh) review of the claims file (including any new evidence) by a State DDS doctor/examiner team who did not participate in the original decision. The new team considers all of the evidence and issues a reconsideration decision.
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The second level of administrative appeal is a de novo hearing before an administrative law judge (ALJ). The ALJ can call on medical and vocational experts to assist in evaluating the evidence. Usually the claimant will obtain legal representation at this point. Frequently new evidence is introduced by the claimant and his or her representative, often at the hearing itself. They are allowed to present testimony to the ALJ in person, to subpoena witnesses, and to obtain answers to interrogatory requests.
The final administrative appeal level is the Appeals Council (a group of 24 administrative appeals judges), which may grant, deny, or dismiss a request for review of the ALJ decision. It will grant review if the ALJ decision contains an error of law, is not supported by substantial evidence, involves a broad policy issue, or there appears to be an abuse of discretion by the ALJ. After an unfavorable Appeals Council decision or an Appeals Council dismissal, if the claimant is still dissatisfied, the next step is filing a civil action in Federal court.
Allowance Rates
Although there is one and only one standard for determining disability at all levels of the adjudicative process, there are some inconsistencies in disability decisionmaking at different levels of the adjudicatory process. Before I cite the statistics on the different allowance rates at the DDS and OHA levels, it is important to note that more than 70 percent of the beneficiaries awarded disability benefits in 1996 were allowed by the DDS. Fewer than 30 percent were allowed at the ALJ hearing level or higher levels of appeal.
From the late 1970s and throughout the 1980s while the DDS allowance rates remained fairly stable at about 35 percent, the hearing level allowance rate fluctuated between about 48 to 59 percent. From 1990 to 1992 both the DDS and hearing level allowance rates increased primarily because of the effects of the Zebley Supreme Court decision. Although the DDS allowance rate decreased in 1993, to about 39 percent, the hearing level allowance rate remained at 67 percent through 1995. In contrast the DDS allowance rates dropped to the low 30 percent range during those years. However, in FY 1996 the hearing level allowance rate decreased to about 59 percent and has declined even further in the second quarter of FY 1997. Additionally, the DDS allowance rate has risen slightly.
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Process Unification
A fundamental goal of SSA's effort to redesign our disability process is to make the correct decision as early in the process as possible. When developing our redesign strategy we recognized that in order to achieve this goal we needed to minimize those factors, within our control, which contribute to the variance in allowance rates between the DDSs and the ALJs. To that end, we are implementing several initiatives designed to do just that. Collectively, we are calling these initiatives Process Unification. Our goal is to achieve similar results on similar cases at all stages of the process, through consistent application of laws, regulations, and rulings with minimal or no impact on program costs.
At the outset I want to stress that there is one and only one standard for determining disability at all levels of the adjudicative process. As I will explain below, the difference in the State DDSs and hearing level allowance rates is influenced by many different factors, including differences in the process, as described above. I am proud to report that through the Process Unification initiatives SSA is making significant strides toward minimizing these factors.
As an initial step, we have convened a group of Agency experts to identify policy issues that are critical to process unification. In addition, we have established a senior level group to oversee all aspects of process unification implementation.
Consistent Application of Policy at all Levels
A key element in process unification is consistent presentation of policy both in written instructions and in training. One of the factors we identified is the different approaches that the DDSs and ALJs take in evaluating claims which can lead to different conclusions in a particular case. These are areas which are highly complex, like how pain and related symptoms are evaluated, or what weight to give treating physician opinion, or deciding an individual's residual functional capacity.
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Last year we published eight new Social Security rulings clarifying policy in several complex areas of disability evaluation, designed to assist all decisionmakers in applying the policy in the same way. To ensure consistent application of these rulings, we conducted—for the first time—joint training for SSA's 15,000 disability adjudicators. This training included DDS examiners, quality reviewers, senior attorneys, and ALJs as well as members of the Appeals Council and their staffs. Training commenced in July 1996 and was completed in February 1997. Each training class was comprised of representatives from all levels of our disability decisionmakers. The training allowed the participants to benefit from the experience of adjudicators at every level, to hear the same information from the same instructors, and to discuss and resolve any differences in interpretation.
Preliminary results are very favorable. Decisionmakers surveyed about the training generally praised the quality of the training and the substance of the new rulings. In fact, our internal stakeholders—DDS administrators, physicians, examiners and ALJs—think that process unification, besides being essential, is progressing positively.
Additionally, we have seen a recent shift in the pattern of allowances both by the DDSs and the ALJs. As mentioned above, the hearing level allowance rate declined to 59 percent in FY 1996, and data for the second quarter of FY 1997 indicate an increase in the initial and reconsideration allowance rates at the DDS with an accompanying further decrease in the hearing level allowance rate. Some of this likely reflects an impact from the process unification initiatives. The rulings published last summer and the joint training effort recently completed were expected to affect decision outcomes in these directions.
We plan to have similar joint training sessions on other complex policy areas in the future. Quality assurance efforts are in place to support and evaluate the training objectives.
Another initiative designed to improve consistency is the development of a single presentation of policy (the ''one book'') that is binding on all decisionmakers. This will ensure that different presentations of policies, although those differences may be slight, do not result in different outcomes.
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Additionally, the process unification workgroups are continually looking at ways to improve our guidance in the areas of policy identified by an intercomponent panel, described below, as ''problem areas'' . For example, we are in the process of preparing revised regulations clarifying residual functional capacity (RFC) assessments for less than a full range of sedentary work, a particularly difficult area of assessment.
Expanded Rationales at the DDS
In the early 1990s, in response to workload pressures caused by the skyrocketing number of new applications for disability benefits, we allowed the DDSs to use simplified rationales to document their determinations. Since the DDS decision is considered evidence at the hearing level, the simplified rationale did not provide the ALJs with the information they needed to determine why the DDS denied a case. Therefore, in some cases, the ALJ was unable to give proper weight to the DDS determination while evaluating the evidence in file.
We are now requiring that the DDSs fully rationalize all of their reconsideration denials so that this valuable expertise is fully utilized at the hearing level. We are also preparing revised regulations clarifying the ALJ's responsibility for considering the medical opinions of DDS physicians.
Remands of Cases to the DDS
In reality, most ALJ allowances are based on a substantially different case. Thus, an ALJ decision may ''allow'' benefits but it does not necessarily ''reverse'' the DDS determination. A substantial majority of ALJ decisions are based on additional and different evidence from that available to the DDSs.
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Also, the ALJ hearing is the first step of the claims process in which the claimants may appear in person before the decisionmaker to explain their impairments and present witnesses who can attest to the effects of their impairments. DDSs do not meet the claimant. In addition, more than 80 percent of the claimants are represented by an attorney or other individual at the hearing. Because the representative assists the claimant in obtaining new evidence to support the case and explaining the effects of the impairments to the ALJ, representation can have a substantial impact on the hearing decision. There is also some anecdotal evidence that representatives wait until the hearing before submitting some of the evidence of disability.
Additionally, in some cases the person's condition has worsened, or the person alleges an additional impairment. Other cases, denied by the DDS based on expected improvement in the claimant's condition within 12 months of the onset of the condition, are allowed by the ALJ because improvement has not occurred since the DDS determination.
Therefore, as part of our Process Unification effort, the ALJ can remand to the DDS, for a new determination, those cases where new medical evidence is received prior to the hearing being scheduled. In many cases this will permit the DDS to change its denial to an allowance which will result in fewer cases going to hearing and decrease the time a claimant must wait for a favorable decision.
Additionally, for cases that the DDS cannot allow, the ALJ will be reviewing the same claims file as the DDS and benefiting from the DDS's assessment of the new evidence.
Precedential Value to Court Cases
Because ALJ decisions are reviewed directly by the district and appellate courts, ALJs are more inclined than DDSs to be sensitive to how the courts review disability law and policy. Under SSA's acquiescence policy, a ruling is issued in all cases where the final circuit court decision conflicts with SSA policy and SSA decides not to appeal the decision to the Supreme Court. Our adjudicators are not authorized to give precedential weight to the circuit court decision until these rulings are issued. SSA recently published a ruling reemphasizing our acquiescence policy, and one of the initiatives in Process Unification is to streamline the process for issuing these rulings.
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Increased Review of ALJ Cases
Another key initiative in Process Unification is implementation of pre-effectuation (PER) quality review of OHA allowances by the Appeals Council under its authority to conduct ''own motion'' reviews. The Office of Program Integrity Review (OPIR) (which is not a part of OHA) will screen approximately 10,000 favorable hearings decisions each year, in addition to the ongoing quality review of ALJ allowance and denial decisions, and forward these cases to the Appeals Council if a potential error is detected.
While we are preparing a regulation describing this new process, we have begun a post-adjudicative ''dry run'' of OPIR's identification of cases for Appeals Council review. OPIR is providing feedback to the ALJs on cases when they detect a possible error and an intercomponent panel is being established to review a body of ''tough policy cases'' which can be used to identify problem areas between the DDSs and ALJs and then to develop policy solutions. We have put the staffing and processes in place so that the official reviews can begin immediately after the regulation is published.
Rewards of Success
The benefits of successful process unification will be enormous. Obtaining the correct decision as early as possible in the process will greatly improve administrative efficiency, often avoiding an expensive hearing. If fewer claimants seek appeal, OHA workloads will decrease, and service to claimants will improve. Not the least benefit will be that DDS examiners and ALJs can work together more harmoniously, and each will be more effective in their roles as decisionmakers.
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Having said all this, however, it is important to note that the hearing process is different by design from the DDS process. In a program as important to the American public as this one is, it is imperative that the process not only be fair but also be seen as fair to those applying for benefits. Disability evaluation is a complex task requiring sophisticated, professional expertise. Claims appealed to the ALJ generally are the toughest to evaluate, the most complex and the most subjective. It is entirely appropriate for such cases to be heard in a more formal setting allowing presentation of testimony and questioning of witnesses.
I want to emphasize that all of the SSA family (including the DDSs) is committed to Process Unification. We all recognize that the goals of process unification are important on their own, and they are essential for the success of our highest priority, a better and more efficient disability process.
Quality Review
Current Process
At the same time that we want more consistency in our decisionmaking process, we also want accurate decisions. To achieve this goal, SSA's quality review activities comprise an integrated system designed to provide the Agency with a ''report card'' of management information (MI) about how different components within the disability decisionmaking process are doing in terms of well documented, policy-consistent correct decisions. At the State level, each DDS conducts inline quality reviews on samples of determinations before they are returned to SSA's field offices. Subsequently, SSA reviews, at the regional level, DDS determinations issued at the initial and reconsideration steps. When appropriate, determinations are returned to the DDS to either change the decision or obtain additional documentation. Some of the cases which are sampled at the DDS level and regionally also receive a review by a component at SSA Headquarters. Known as a consistency review, this assessment enables SSA to check on the consistency with which the regional review components are applying Agency policy. All of these reviews of DDS determinations are integrated in that there is a sharing of findings so that any adjustments in the reviews resulting from this data can be coordinated to achieve greater efficiency and an improved product through the planning and scheduling of DDS/SSA training initiatives.
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At the hearing level, the history of quality review is more recent. Prior to 1993, there was no ongoing quality review of hearing decisions per se, and as a result, the Agency lacked a basic source of ongoing MI with respect to that level. To some extent, the Appeals Council was viewed as a quasi-quality review component because of its review of hearing decisions. However, its formal position as the last step in the administrative appeals process is separate and distinct from that of a quality review component.
In 1993, SSA began its first ongoing quality review of ALJ allowance and denial decisions. This sample is stratified 50 percent allowances and 50 percent denials. Valuable MI has been obtained which has resulted in both ALJ training and process unification initiatives. Moreover, this review also includes a review of the initial and reconsideration denial determinations which preceded each ALJ decision. This unique aspect of the review enables the Agency, for the first time, to obtain a multilevel longitudinal assessment of each case. In addition to identifying process unification issues arising between the DDS and the hearing level, this review enables SSA to ascertain whether hearing allowances were allowed at the earliest possible point in the adjudicative process, which is a fundamental goal of policy unification.
Transitioning to a New Quality Review Vision
With respect to the future of quality review within a redesigned process, SSA is developing a clear vision of what the future of quality review should be—a more comprehensive quality review program that better defines its quality standards, more effectively communicates them to employees in a consistent manner and continually provides employees with the means to achieve them.
SSA's existing quality review system has always demonstrated the flexibility necessary to adapt to the new concerns and many changes which have occurred in the disability program over the years. The enhancement of the hearing-level reviews is just one example of that flexibility. As SSA continues forward with its redesign activities, its quality review system will continue to be adaptable and meet the growing needs of the new processes which SSA introduces.
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Workload Issues
The enormous demands confronting SSA in the form of increasing disability workloads required us to evaluate policies and procedures which might be streamlined or altered to process the workload more efficiently. Record numbers of disability applications were received in the early 1990s, leading to skyrocketing hearing requests and ever larger OHA pendings. Additionally, we expect more than 125,000 additional hearings from now through FY 1998 relating to the legislation passed last year affecting individuals disabled due to drug addiction and alcoholism and children and non-citizens receiving Supplemental Security Income payments. SSA has sought both short-term and long-term solutions to manage the unprecedented workload increases.
Short-Term Disability Project
SSA's Short-Term Disability Project was designed to achieve a substantial near-term reduction in both initial and appeals backlogs. From the inception of the Project in October 1994 through the end of FY 1995, the number of initial claims pending in the DDS was reduced by more than 120,000. Project initiatives designed for OHA had to await completion of hiring, redeployment, and training of staff, as well as approval of a new regulation. This initiative allowed us to increase hearings dispositions by almost 100,000 cases (and doubled the number of CDRs processed), while maintaining most of the progress made in basic DDS initial claims pendings.
Some of the more successful elements are being continued, including:
• expanding the prehearing conference procedures to ensure claimants' files are complete;
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• granting temporary authority to experienced staff attorneys and paralegal specialists to make allowances in certain prehearing cases; and
• establishing screening units to identify appealed reconsideration decisions which can be allowed based solely on the record without additional development or a hearing.
In addition, SSA increased decision drafting capacity by detailing employees to decision drafting functions. Through September 1996, these employees produced nearly 58,000 decision drafts.
New ALJ Hires
In another effort to help reduce OHA pendings, over 300 ALJs were hired during the course of fiscal years 1994 and 1995, increasing the total number of ALJs on duty by over 25 percent to about 1050. New ALJ hires in FY 1996 essentially covered attrition, which is also the plan for FY 1997. In order to help with the new ''welfare reform'' legislation workloads, 60 ALJs are being hired this year in anticipation of FY 1998 attrition and will report in June.
Additionally, SSA is exploring ways to hire ALJs with subject matter-specific experience. These ALJs would be able to become proficient immediately and would help address the short-term need of ''welfare reform'' legislation.
Disability Redesign
The Plan for a New Disability Claim Process represents a long-term initiative to provide world-class service within available resource levels by redesigning SSA's disability process. It is expected to significantly reduce the time and resources needed to process disability cases, and is the Agency's highest priority. We are concentrating most of our redesign efforts on several key elements and have begun testing an integrated redesign process that incorporates many of these elements. While redesign's project life is expected to run over many years, SSA is moving to implement those aspects of the new process that can be implemented in the nearer-term.
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Two of these projects are of particular pertinence to the appellate process. First is the Adjudication Officer (AO), currently being piloted in 25 sites nationwide. The AO will serve as the focal point for claimants who request a hearing and will have full authority to issue a favorable decision, if the evidence so warrants. Of the over 20,000 AO cases processed since testing began in November 1995, about 30 percent have been allowances, with the remainder being fully developed by the AO and forwarded to the ALJ for hearing. At slightly less than one case per day, productivity is lower than expected but improvements are anticipated. While quality review of allowances has found some problem areas that need work, the quality of the information being forwarded to ALJs is high.
Second is the Full Process Model, which tests several redesign features working together, including the AO, a pre-decision interview similar to the face-to-face interaction of a hearing, and elimination of the reconsideration step prior to the ALJ hearing. Testing began in eight states this month. Testing of an additional feature—elimination of mandatory Appeals Council review prior to the filing of a civil suit in Federal court—will begin after publication of a revised testing regulation.
Conclusion
In closing Mr. Chairman, I would like to thank the subcommittee for the opportunity to address these important issues. We expect, based on the short-term efforts mentioned earlier and followed by improvements related to implementing the redesigned disability process, to increase hearings dispositions significantly.
While process unification has already accomplished a great deal, much still remains to be done. You may rest assured that SSA is fully committed to obtaining correct, similar results in similar cases at all stages of the disability claims process. Although all indicators suggest that our initial efforts are succeeding, SSA will continue to monitor carefully the results of all our initiatives.
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Chairman BUNNING. Thank you.
First, let me say that I am pleased to see there has been some progress made and I commend the agency for its work. I know you would be disappointed if I didn't get to ask you some questions, so let me begin.
There is no question that these issues are complex and DDS and ALJ processes are different by design. Nevertheless, many of the reasons for differences between DDS and ALJ determinations have been around for a long time.
For example, let me quote, ''The council believes that the lack of uniformity in application of eligibility standards stem from: One, a lack of specificity in the rules for determining disability; two, an inadequately controlled, Federal-State arrangement for administering DI and SSI Programs; and three, an appeals process which fails to encourage the development of complete and correct evidence early in the process.'' This quote is from the report of the Disability Advisory Council, March 11, 1988.
There is another statement, ''The high reversal rates after the initial decisions have been attributed to: One, inadequate documentation of the initial claim; two, the progressive nature of an applicant's medical condition; three, the nature of disability; and four, different sets of rules governing different levels of disability decisionmaking processes.'' This quote is from the final report of the National Commission on Social Security, March 12, 1981.
These issues have been around for a long time, and certainly, the American people deserve better from its Federal Government. Clearly, you are trying to make a number of improvements in your disability process, but what about the legislative changes? Certainly, as a fully independent agency which operates two of the largest disability programs in the country, you must have some suggestions for improvements that could be made into law. None have been submitted since I have been Chairman of this Subcommittee, not one.
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There are many positive comments in testimony received today about the benefits of training ALJs and DDS personnel together. Did this job training occur regarding the legislation ending eligibility for drug addicts and alcoholics or for the SSI children provision?
Ms. COLVIN. Let me address your last question first. The training we recently provided to the 15,000 adjudicators, which includes both OHA staff as well as DDS staff, our quality review staff and our Appeals Council staff, was designed to review the eight new rulings that were recently developed to ensure consistency of application of the laws and regulations at all levels of the adjudicative process. This would certainly impact on all of the disability reviews, the childhood disability cases, or the noncitizen cases that we have processed will be coming forth, as well as, of course, the many DA&A, drug addicts and alcoholics, cases.
Chairman BUNNING. Will you answer my question? Did this job training occur because of the legislation ending eligibility for drug addicts and alcoholics or for the SSI children's provisions? Is that why you did it, or did you do it for some other reason?
Ms. COLVIN. We did it because it was recognized that we needed to unify the process for disability determinations to try to ensure that we would get the correct decision as early in the process as possible. Certainly, Mr. Chairman, this will impact implementation of the legislation on the DA&A and SSI children.
Chairman BUNNING. In other words, that wasn't the initial or main purpose for your joint training? You just decided to do it on your own?
Ms. COLVIN. We decided to do it as part of the Process Unification Initiative, which is a part of our overall disability redesign initiative.
Chairman BUNNING. The reason I push that is because SSA must pay attention to the Congress when it passes laws, so that as an independent agency, you can fully implement those laws. The American people and the Congress are interested in knowing that you are complying with the new laws that we pass.
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Ms. COLVIN. Let me be clear, Mr. Chairman, that we are, in fact, complying with the new laws. The Process Unification training will enable us to comply more thoroughly with those laws because by unifying the process we can ensure that the decisions we have to make about the DA&A workload, under the new law, are adjudicated in a fair and accurate manner early in the process. So, clearly, the Process Unification training will allow us to comply with the DA&A law.
Chairman BUNNING. I will inquire later.
Barbara, would you like to question?
Mrs. KENNELLY. Thank you, Mr. Chairman.
Thank you for coming.
Ms. Colvin, are you aware of an article that was in the New York Times, Monday, April 21, 1997, the United States challenges courts on disability?
Ms. COLVIN. Yes, we are.
Mrs. KENNELLY. So I can ask you a few questions about it. For people who are interested, the New York Times asserted that SSA has told its administrative law judges that they could disregard Federal court decisions if these decisions are in conflict with agency policy. ''An ALJ is bound to follow agency policy even if in the ALJ's opinion on that policy is contrary to law. The Federal courts seem to disagree with SSA's pronouncement that ALJs should ignore the law. In the Hutchison charter case, the court said, regardless of whether the Commissioner formally announces her acquisition, she is still bound by the law of this circuit and does not have the discretion to decide whether to adhere to it. The Congressional Research arm also agreed saying whether SSA issues an acquisition ruling or not, the agency must follow the court's decision that is binding on SSA.'' Yet, from reading this article, I think there is a disagreement from SSA. It appears SSA is asking the ALJs to ignore the Federal courts. Is that correct?
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Mr. FRIED. No, it is not correct. The SSA's policy is to follow circuit court decisions, and that has been the SSA's policy since the late eighties, and it is pursuant to regulations that were issued by Social Security on January 11, 1990.
The most recent issuance was on July 2, 1996, and it was a ruling that merely restated the policy reflected in the 1990 regulations.
Mrs. KENNELLY. Thank you, Mr. Fried.
Well, is SSA providing DDSs and ALJs with timely interpretations of these court decisions, of the Federal court decisions?
Mr. FRIED. Unfortunately, in the past, there have been some extensive delays in providing what are called acquiescence rulings. However, we have recently committed to issuing acquiescence rulings as fast as possible. The goal of the agency is to issue them within 120 days.
Mrs. KENNELLY. What is the backlog now?
Mr. FRIED. Currently, SSA has four circuit court decisions under serious consideration for publication of an acquiescence ruling.
Mrs. KENNELLY. OK. My problem is, as a Member of Congress, we get numerous constituents who don't have the decisions they are seeking, and then they come to us to see if we can help them, and sometimes we can, and obviously, as you well know, sometimes we can't. But another problem we are constantly dealing with is the clogged courts. If SSA ignores the Federal court decision, I am afraid the courts could get even more clogged, and here, we have got this huge agency that has everything set up to do what should be done, and then it ends up in a court situation at the highest level. So I will continue to follow this situation.
Let me ask you another question, Ms. Colvin. As one possible reason for differences in DDS and ALJ decisions, you have cited the type of cases we viewed at each level; that is, allowances are reviewed at the DDS level and denials are reviewed at the ALJ level. This would tend to make DDS—or I would think, maybe, this would tend to make DDS reluctant to award cases and ALJs reluctant to deny cases. So your solution is to review more allowances at the ALJ level.
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DDS has immediate review of their allowances by quality assurance personnel, but there is no immediate review of denials. Doesn't it make sense, also, to review more denials at the DDS level?
Ms. COLVIN. Let me say, first, that there is review of denials at the DDS level. As part of our Quality Assurance Program, we review a sample of both denials and allowances from each DDS. In addition, by law, we are required to perform a preeffectuation review of 50 percent of all title II concurrent allowances by the DDSs.
Also, in 1993, we began reviewing a small percentage, about 1 percent, of all ALJ decisions split between approvals and denials.
Mrs. KENNELLY. Thank you.
I am new to this Subcommittee, and I am doing a great deal of reviewing and reading. Last night, reading about this situation and looking at, obviously, the problems. To a layperson, it just jumps out to you that the first step is dealing with paper, and there is a certain percentage of dissatisfaction. Then, you go to the second step, and you get medical opinions. You get a person. Is there any thought that maybe we should be looking at the person or getting a doctor who knows the case earlier in the process?
I am not going to try to do your business this morning. As I said, I am new to this, but it jumps out at me that we are dealing totally in a paper fashion. Denials are happening, and then, when we get to the level where you have individual and the medical opinions, then we see things change. Obviously, you have thought about this.
Ms. COLVIN. In fact, we have looked at those issues that you raise, and the full process model under our disability redesign plan will test a number of those issues, including an early opportunity for the claimant to actually appear before the decisionmaker.
We have recognized that some of the differences result from the fact that the first opportunity for the claimant to actually appear before the person making the decision is at the ALJ level. So one of the models we are testing is designed to see what difference would exist if the appearance were earlier.
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Mrs. KENNELLY. Thank you.
Thank you, Mr. Chairman.
Chairman BUNNING. Mr. Collins will inquire.
Mr. COLLINS. Thank you, Mr. Chairman.
Ms. Colvin, this is one of the areas in the district offices back in Georgia that we have more inquiries and complaints about, I think, than most any other area of constituent work. What is the procedure for a person to apply for disability, and what is the criteria?
Ms. COLVIN. The procedure to apply for disability would be to make application at one of our field offices where there is a nonmedical determination made, and then, the medical determination of disability is made at the State DDS level. Individuals would submit or SSA would obtain evidence that is used to evaluate their disability. A review would be made of that evidence, and a decision would be made by the DDS team composed of a disability examiner and a medical consultant.
Mr. COLLINS. It seems like it is just an automatic denial on the largest percentage of the applicants that submit application. Is this common across the country?
Ms. COLVIN. Your second question that you raised, Mr. Collins, is what is the definition of disability. The person has to demonstrate they are unable to perform substantial gainful activity for at least a 12-month period or which will result in death. If the evidence does not substantiate that, then, more than likely, the person is going to receive a denial.
Mr. COLLINS. OK.
Ms. COLVIN. We believe the application of the definition is consistent throughout the country, regardless of the region, and we do have quality reviews to take a look at the accuracy of the decisions that are made.
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Mr. COLLINS. Like I say, though, it just seems like it is an automatic denial on the first go-around, and then, with the appeal for reconsideration or ask for reconsideration by other staff, then it seems to be, again, a denial, and then, when you get to the administrative law judge step in the process, there are a lot of reversals. It looks like the first approach to this thing is what is bottlenecking the whole system. Why do we have such a large denial rate to begin with, denial again, and reversing the denials?
Ms. COLVIN. Let me——
Mr. COLLINS. Are we all working off the same page and the same criteria, the same requirements, or is this different somewhere?
Ms. COLVIN. You are describing many of the issues that we have identified and which resulted in our implementation of Process Unification.
Let me just say that we have a 30-percent award rate at the initial DDS level, so about 70 percent are initially denied.
By the time the case gets to the ALJ level, in many instances, it is not the same body of evidence. You will recall we mentioned additional evidence can be presented at the ALJ level. This is the first time the individual appears before the person making the decision. Substantial time has often passed, which may mean the medical problems have increased.
What Process Unification is designed to do is to identify those problems that prevent an early decision so that we will get the correct decision earlier in the process and fewer cases go to the ALJ level. About two-thirds of the cases that are heard at the ALJ level are not the same cases that were heard at the DDS level.
Mr. COLLINS. Well, we don't have a way of handling this without going to the ALJ level when this new evidence is submitted, this medical documentation?
Ms. COLVIN. I understand your question. You are asking do we have a way of handling new evidence——
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Mr. COLLINS. This is a long, drawn-out process for the individual that has replied.
Ms. COLVIN. One of the things we are testing under the Process Unification Initiative is having cases where new evidence is presented at the hearing level, returned to the DDS level, so that the evidence can be reviewed and any revised decisions can be made at the DDS level and will not, in fact, be heard at the ALJ level.
Mr. COLLINS. OK.
Ms. COLVIN. So that is an area of concern we have identified and are attempting to address with the Process Unification Initiative.
Mr. COLLINS. We thank you, and with the long list of panelists we have today, we have to move on.
Thank you.
Chairman BUNNING. First of all, I am going to take the privilege of the Chair and say that, since 1981, these same problems have been around, as I reviewed for you. Only since 1991 have we made significant progress. At that time, 40 percent of the initial DDS claims were being allowed. That meant 60 percent were being denied in 1991.
The reversal rate at that time was 66 percent at the ALJ levels. So, of the 60 percent that had been denied and appealed, 66 percent were being allowed on appeal to ALJs.
Now, over 1991, 1992, 1993, 1994, 1995, and 1996, 30 percent of initial claims are allowed at the DDS level. So 70 percent are being denied. Of those 70 percent, approximately 60 percent are now being reversed at the ALJ level.
Now, what Mr. Collins is getting at and what everybody up here wants to know, Why can't we do a better job on the initial claim and make sure there isn't a running evidence trail from the time the process begins until the time of the ALJ pronouncement? Wouldn't it be much easier for everyone, including the applicant, on overall program costs, if we did it right in one decision? I think that is what we are trying to get at here, because it is acceptable for applicants to wait for over 1 year.
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In Kentucky, the waiting times are not that bad. It averages 4 or 5 months, but in other States, additional evidence often prolongs the disability application process to over 1 year. Considering the 30 percent DDS initial allowance rate in 1996, with ALJs overturning 60 percent of those 70 percent that are denied by the DDS who appeal, suggests there ought to be a better way of handling evidence.
Ms. COLVIN. I am going to ask Rita Geier to help me with this question, but I want to emphasize that we are looking at ways to improve. We are expecting through our Process Unification Initiatives to be able to address those problems you have just identified, the problem of getting all of the evidence earlier, so that the case can be decided correctly at the DDS level.
This is the problem I spoke about earlier; there is often additional information at the ALJ level, and there is a personal——
Chairman BUNNING. We are familiar with that. We are familiar. We don't think that is acceptable. We think all the information should be on the original application, and we are going to explore doing something about it legislatively because, obviously, it is not satisfactory if people have to wait over 1 year for their initial claim to be decided. They die. People actually die while waiting for the benefits, and that is not acceptable to me.
Mr. Hayworth will inquire.
Mr. HAYWORTH. I thank the Chairman, Ms. Colvin, and those with us on the panel. I thank you for joining us today.
Part of the frustration expressed by those of us in the Congress has already been outlined, I think, quite eloquently by the Chairman, and we are going to hear from a lot of different people today who will testify in support of SSA's initiative to develop one book where all decisionmakers are following the same set of instructions. To reasonable people, that makes immanently good sense.
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So I am interested today, Ms. Colvin, in getting your assessment of just where SSA is on its development of the one book and when will it be made available to all decisionmakers.
Ms. COLVIN. We are making significant progress in that direction, Mr. Hayworth.
We have just recently, as I mentioned, trained the 15,000 disability adjudicators on the same rulings. This is the first time in our history we have actually had training together for all of those individuals who adjudicate disability cases on the same laws, regulations, and rulings.
The one book will pull that together even more. I am not prepared today to give you an exact date of when that one book will be available, but we will be very happy to provide that to you for the record.
Mr. HAYWORTH. That would be good.
It is my understanding that in the discussions with staff, we have been told the one book is still at least 2 years away, and that is very disturbing when you consider the fact that this notion was first put forth in October 1994.
Certainly, since we are dealing with such a critical need, even understanding the complexities, I am a bit miffed with the notion of waiting an additional 2 years.
Ms. COLVIN. I am not prepared to respond to that at this point. This is an area we recognize will have a significant impact on the process. This is a very high priority for us. It is very complex with the various rulings and regulations, but as I said before, I would be very happy to provide you more specific detail for the record.
Mr. HAYWORTH. Well, we appreciate that, and we look forward to getting your assessment of the timeline to complete this work, and we will wait with great interest on that.
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[The following was subsequently received:]
Compilation of the ''one book'' is an iterative process. As an interim measure, we have been putting the exact text of regulations and Social Security rulings into the POMS so that decisionmakers at all levels will have the identical presentation of policy. Decisionmakers at the administrative appeals level already use the regulations and rulings directly.
As part of our strategy to build a single presentation of policy, which is what the ''one book'' is designed to be, we are also maximizing the use of Social Security rulings as a means of conveying policy clarification rather than providing such guidance in operating instructions that apply to only one level of the process. Rulings are binding on all levels of decisionmaking and review in our process and are thus ideally suited to enhancing uniformity of appilication of policy. As you know, regulations are also binding on all decisionmakers and reviewers.
SSA began this effort by placing the text of the regulations on symptoms including pain in the POMS in early 1995; eight rulings on the areas of symptoms, residual functional capacity, and weighing of evidence were put into the POMS in July 1996 and the recently published childhood regulations were put into the POMS in March of this year.
This process will continue with the ultimate goal being the presentation of all substantive disability policy identically at all decisionmaking through use of regulations and rulings.
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Mr. HAYWORTH. Ms. Colvin, you mentioned training for folks involved in the adjudication process. How much medical training do the ALJs receive?
Ms. GEIER. I will answer that, Congressman Hayworth. When the ALJs come on board, they are initially involved in a 5-week training program. This involves medical training, as well as training on the conduct of a hearing and full training in the specifics of the disability statute, regulations, and rulings.
About 1 year after they are on board, we bring them back for supplementary medical training geared to reinforce the earlier training.
There are also ongoing means of medical training through seminars and participation of ALJs in CLE-type training.
Mr. HAYWORTH. So, Ms. Geier, you are saying the initial training process is about 5 weeks in duration, but if you had to isolate the specific medical training, are we not, in fact, looking at about 1 week, initially?
Ms. GEIER. Well, it is difficult to say. In terms of only medical training, that may be accurate, but medical training involves casework, too. So, as we train through casework, we are also teaching the application of medical standards and evaluation.
Mr. HAYWORTH. And then, in the refresher course, for lack of a better term, you mention after people have been in the field when they come back, how long does that medical training run?
Ms. GEIER. That is about 1 week.
Mr. HAYWORTH. About 1 week. I thank you, ma'am.
Mr. Chairman, my time is up, so I yield back.
Chairman BUNNING. Mr. Portman.
Mr. PORTMAN. I have to do a little followup on that questioning. That is how much training the ALJs get. Clearly, we have an issue with the ALJs reversing these decisions from the earlier decisionmakers. How much training do the earlier decisionmakers get? What does the DDS get in terms of medical training as compared to the—roughly, it sounds like 1 week of medical training, initially, and then some refresher training throughout the year. Obviously, those folks aren't looking at these individual cases in the same way the initial decisionmakers are. How much medical training do the initial decisionmakers receive?
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Ms. GEIER. It is my understanding that that is about 5 or 6 weeks for the initial level at DDS.
Mr. PORTMAN. But DDS only gets 5 or 6 weeks——
Ms. GEIER. Weeks.
Mr. PORTMAN [continuing]. Of training, 5 or 6 weeks of training? Is that initial training?
Ms. COLVIN. Yes, that is my understanding.
Mr. PORTMAN. Five or six weeks——
Ms. COLVIN. Yes.
Mr. PORTMAN [continuing]. Of medical training?
Ms. COLVIN. Yes.
Mr. PORTMAN. OK.
Mr. FRIED. That is just for the disability examiner. At the initial level, there are also medical advisers who participate in the decisionmaking process, and they are doctors with specialties in various areas.
Mr. PORTMAN. Well, in fact, every initial decision has to be signed off by a physician. Isn't that correct?
Mr. FRIED. Currently, that is correct. There are tests Ms. Colvin referred to before of what is called the single decisionmaker, and we are also looking at early decision lists which may, in appropriate cases, depart from that, but currently, the standard is for a doctor to sign off——
Mr. PORTMAN. To sign off.
Mr. FRIED [continuing]. The initial decision.
Mr. PORTMAN. So give me a generalized comment here, if you would. Where is the medical expertise located in the system? Is it more at the outset? Mr. Bunning told us that 70 percent of the initial applications are being denied at the initial level, and then, about 67 percent are being appealed later on in the process once you go through the two steps. Where is more of the medical expertise, at the beginning of the process or at the ALJ part of the process?
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Ms. COLVIN. I would——
Mr. FRIED. The——
Ms. COLVIN. Go ahead.
Mr. FRIED. The ALJs, if they determine it is necessary, can bring a medical adviser to testify at the hearing or can submit——
Mr. PORTMAN. That is not really answering my question, though. Do they do that on a typical——
Ms. COLVIN. It is really throughout.
Mr. PORTMAN. Do more than——
Mr. FRIED. The answer is it is throughout the process.
Mr. PORTMAN [continuing]. One-half of the ALJs do that, Mr. Fried?
Ms. COLVIN. They do——
Mr. PORTMAN. Do the majority of the ALJs do that?
Mr. FRIED. The ALJs have significant medical evidence in the file. They have the medical evidence that was developed at the——
Mr. PORTMAN. But answer my question. Do they bring in medical experts or a doctor?
Ms. GEIER. They do, Congressman Portman.
Mr. PORTMAN. They do in more than one-half of the cases?
Ms. GEIER. Yes, 40 percent or so have medical expert or consultative medical input.
Mr. PORTMAN. Forty percent or so?
So, in every instance at the outset—I am just trying to figure out. This is such a bizarre system we have, and one must wonder to the extent this is a medical determination, which it really is, where does that expertise lie, and you are telling me that in roughly 40 percent of the cases with regard to the ALJs, they actually bring in some medical professional to help them analyze the case, and in every case at the outset with the DDS examiner, there is a doctor that signs off on the initial decision?
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Mr. FRIED. In every case, the ALJ has the expertise of medical professionals and evidence in the file.
Mr. PORTMAN. Has evidence in the file.
Mr. FRIED. In addition to 40 percent, they actually specifically get medical advice for——
Mr. PORTMAN. That evidence in the file comes from the applicant?
Ms. COLVIN. What was your question, the last one?
Mr. PORTMAN. Well, Mr. Fried is indicating there might be some objective medical expertise at the ALJ level, and my time is almost up, but it sounds as though that is more evidence that is in the file that clearly would be available to them in rendering their decision, but not something that they would be receiving independently.
My only point, because I have got—unfortunately, the Chairman is good at keeping these sessions going. So I am not going to go overtime. Otherwise, I will never get another question.
I think part of the issue Mr. Collins alluded to, and the Chairman alluded to it, is to determine how we can get more of that medical expertise at the front end of the process, or if it is already there, maybe rely more on that end of the process and have all that information provided initially, to the extent it is possible. I know new information might arrive, conditions change, so that we don't have this kind of—as I said earlier, a bizarre situation where you have got all of these denials initially and then go through this long process and then have them reversed, two-thirds of them being reversed.
One other comment I need to make, and that is, I was very supportive of the independent agency. I think it is a great idea, and the reason I think it is such a good idea is, in large measure, because it allows you to have independent judgment with regard to tough issues like this.
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You have got to give us your thinking on this, independent of HHS, independent of the administration, what really makes sense. Give us legislative recommendations. I don't think you have given us any in 3 or 4 years, and I would just encourage you to do that, look at it objectively, how you can do your job best, and tell us how we can help you do that.
Thank you, Mr. Chairman.
Chairman BUNNING. Thank you, Rob.
Let me ask—who hires the ALJs?
Ms. GEIER. Congressman, the——
Chairman BUNNING. Would you please bring your microphone a little closer. I am having an awful time hearing you.
Ms. GEIER. Is that better?
Chairman BUNNING. Go ahead.
Ms. GEIER. The process of selection——
Chairman BUNNING. That mike is not working. Would you try another one?
Ms. GEIER. The SSA actually hires the ALJs, but it hires the ALJs from a certificate of eligible candidates that is provided by OPM.
OPM maintains a register of eligibles, of persons who satisfy the basic threshold qualifications for ALJ positions throughout all of the government. The agencies request the number of ALJs they need to hire from that register, and OPM provides a certificate.
Chairman BUNNING. Who pays them?
Ms. GEIER. The agency pays.
Chairman BUNNING. The SSA?
Ms. GEIER. Yes, sir.
Chairman BUNNING. OK. Who hires the DDSs?
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Ms. GEIER. That would be the States. They are State——
Chairman BUNNING. They are State-determined employees——
Ms. GEIER. That is correct.
Chairman BUNNING [continuing]. Hired by each individual State. Who pays them?
Ms. COLVIN. They receive Federal funding from SSA for their staff. So, we do. The SSA pays them.
Chairman BUNNING. Pays them. So you pay both the DDSs and the ALJs?
Ms. COLVIN. Yes.
Mr. FRIED. If I may just clarify to make sure it is accurate, we provide funds to the DDSs. The DDS employees receive State agency checks. They don't receive a Federal check, but the funds are funds provided by SSA through a regulatory arrangement. We have no direct relationship with an employee of the State DDSs.
Chairman BUNNING. In other words, you don't hire the DDS personnel, they are hired by the State.
Ms. COLVIN. That is correct.
Chairman BUNNING. But you pay them.
Mr. FRIED. We pay the State.
Chairman BUNNING. Which pays them.
Mr. FRIED. We reimburse the State for its expenses in operating the DDS——
Chairman BUNNING. But what I am getting at is the decisionmaking process and who is paying for it and why people are losing confidence in the decisionmaking process. If SSA pays the ALJs and the DDSs, and people are coming to SSA for disability benefits, there is always the possibility of the applicants thinking the reason they are not getting satisfaction or the reason they are not getting a fair hearing, so to speak, is because the decisionmakers are employees of SSA.
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There have been bills introduced to make the ALJs independent, and I am not really happy with that bill. I never liked that bill, but the fact of the matter is, unless we can solve this problem of credibility, particularly at the initial decisionmaking process, and then have a reasonable appellate or appeal process, we are not going to build the confidence we need in this program. People should not think we are trying to rip them off and keep them out of the program. We, on this Subcommittee, need your assistance in order to help you do your job better. We haven't had any assistance from the SSA in trying to solve this problem, other than efforts from within SSA, which you are doing on your own. We think we can assist you by writing a better disability law and making sure all the evidence is up front and that there can't be a different set of evidence for the DDSs and the ALJs. Then SSA can make the decision without 60 percent being reversed as in 1996.
Ms. COLVIN. Mr. Chairman, we appreciate that offer, and we are, in fact, continuing to evaluate what legislative proposals might be desirable under the Process Unification Initiatives.
[The questions of Chairman Bunning to Acting Commissioner John J. Callahan and Mr. Callahan's answers follow:]
Question.1A. In their testimony, GAO discussed the fact that should an applicant be determined to have a functional capacity of less than the full range of sedentary work, this classification is likely to lead to an award. GAO reports that decisionmakers in the State DDSs make this classification in less than 6% of the allowed cases. ALJs, however, utilize this classification in 63% of allowed cases. How does this happen?
Answer. We are continuing to study functional capacity assessment at all levels of the process to determine the reasons for differences and have taken steps to address this issue, including recent issuance of Social Security Ruling 96–9p which explains SSA policy on assessing functional capacity for less than a full range of sedentary work. This ruling is part of a broad array of Process Unification activities, designed to reduce decisional inconsistencies between OHA and the DDSs. Much of our efforts at process unification are directed at the issue of assessing functional capacity, especially in the more difficult cases involving pain and other symptoms and evaluating treating physician opinion. As mentioned in our testimony, we have recently completed a large, national training effort in which we trained more than 15,000 individuals involved in assessing disability. This included disability examiners, State agency medical consultants, Administrative Law Judges (ALJs), agency attorneys, and quality review personnel from all levels. In that training, we specifically discussed the issue of use of a functional capacity for less than a full range of sedentary work.
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Question.1B. ALJs may ask independent medical experts to testify, yet they do so in only 11% of the hearings. How are they, then, making what must be very difficult judgment calls regarding how long a person can stand or walk or how much a person can lift?
Answer. Although ALJs use the testimony of medical experts in 11% of the hearings, the ALJ has an extensive case record before a hearing is held. At the very least, there has been an initial determination by the State agency followed by a reconsideration determination by the State agency. At both levels, the DDS is expected to document all known alleged impairments and limitations. In addition, we have begun testing the use of an Adjudication Officer (AO) who serves as the focal point for all prehearing activities when a claimant requests a hearing before an ALJ. The AO has the responsibility for assisting the claimant and claimant's representative, as well as ensuring that the case record is ready for a hearing.
Therefore, the ALJ has, in most cases, extensive medical evidence which must be weighed according to SSA regulations and rulings in order to make a disability decision. The file includes evidence from the claimant's treating sources, as well as the assessment of that evidence by a State agency medical consultant.
Question. 1C. I understand that, in the long term, you are planning to develop a simplified decision-making process which will expand the role of functional capacity assessments. Since differences in functional assessments are the primary reason for inconsistent decisions, how do you justify expanding the use of these assessments?
Answer. The adjudicator's findings, based on his or her review of the medical and other evidence, are called a ''residual functional capacity,'' or RFC assessment. Our plans do not call for expanding use of RFC assessments. Rather, they call for investigating alternative ways of assessing functioning.
As a part of its Disability Process Redesign, SSA is engaged in a long-term research project to develop a simpler, more efficient disability decisionmaking process. Conceptually, this new process is expected to be based, in part, on a more objective assessment of the functional consequences of an individual's impairment, i.e., by using standardized measures of functional ability. In the medical field, these standardized measures are called functional capacity assessments or functional capacity evaluations. We believe that reliance on more objective functional measures will have many advantages, including greater decisional consistency. However, we will not use any functional assessment tool until extensive research has been conducted and testing has been completed.
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2. SSA's testimony states that the agency is also planning to implement quality review of 10,000 favorable ALJ decisions each year. Will these cases be reviewed by the same group of people who review State DDS decisions? How was this number determined and is it a valid sample?
At this time, we have not determined exactly how we will implement the quality review nor which group will be responsible for the review. We will advise you when the implementation strategy is finalized.
3. A number of witnesses testified in support of SSA's initiative to develop a ''one book'' approach, where all decisionmakers are following the same instructions. Exactly where is SSA on their development of ''one book'' and when will it be made available to all decisionmakers?
Compilation of the ''one book'' is an iterative process. As an interim measure, we have been putting the exact text of regulations and Social Security Rulings into the POMS so that decisionmakers at all levels will have the identical presentation of policy. (Decisionmakers at the administrative appeals level already use the regulations and rulings directly.)
11As part of our strategy to build a single presentation of policy, which is what the ''one book'' is designed to be, we are also maximizing the use of Social Security Rulings as a means of conveying policy clarification, rather than providing such guidance in operating instructions that apply to only one level of the process. Rulings are binding on all levels of decisionmaking and review in our process and are thus ideally suited to enhancing uniformity of application of policy.
SSA began this effort by placing the text of the regulations on symptoms, including pain, in the POMS in early 1995. Eight Rulings on the areas of symptoms, residual functional capacity, and weighing of evidence were put into the POMS in July 1996 and the recently published childhood regulations were put into the POMS in March, 1997.
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This process will continue with the ultimate goal being the presentation of all substantive disability policy identically at all levels of decisionmaking through use of regulations and rulings.
4. In SSA's testimony, it mentioned that as part of the Process Unification, the ALJ can remand, or return a case of the State DDS, those cases where new medical evidence is received prior to the hearing. This permits the DDS to allow the case, if warranted, or to provide an explanation why the evidence doesn't change the decision. Is this an option for the ALJs? Isn't the public better served if the DDS can go ahead and allow the claim, rather than have the claimant wait well over a year for a hearing? How exactly does this process work?
Our regulations include the authority to have cases returned to the DDS by an ALJ after the claimant has requested a hearing and before it is held for the purpose of deciding whether the determination may be revised. However, the case review that is being established under process unification is not solely to identify favorable decisions that can be expedited (although the DDSs will have the opportunity to prepare favorable determinations, when appropriate.) Most of the cases that are being identified for this review are ones in which the claimant has provided new medical evidence since the reconsideration determination.
One purpose for sending the case to the DDS is to obtain a review and explanation of the new medical evidence by a State agency medical consultant. Of course, if the evidence supports a favorable determination, the DDS will revise its determination.
5. According to SSA testimony, the State DDSs are now being asked to fully rationalize all of their decisions so that the ALJ will give the DDS decision proper weight. ALJs have been described as wearing three hats; one representing the claimant, one representing SSA, and one as the independent decisionmaker. It was stated that more than 80% of claimants are represented by an attorney or other individual at the hearing, so the claimant and their representative provide evidence in support of their claim. How do the ALJs represent the Administration? Do they develop evidence from other medical sources? Do they order consultative examinations? Do you have objective data and have you studied cases to know the degree to which this is done?
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It is the policy of the Social Security Administration that its ALJs will fairly and fully develop any claim for benefits which reaches the Office of Hearings and Appeals. Social Security hearings are non-adversarial and not all claimants are represented or capable of representing themselves. Therefore, the ALJs have the duty to assist these claimants in getting the evidence to perfect their claims.
There is case law in some Federal circuits holding that the ALJs are responsible for developing the record even if the claimant is represented. If the ALJ concludes that the evidence is insufficient to make a decision, the ALJ can order a consultative examination of the claimant. The ALJs may order these examinations on their own motion or on the recommendation of staff or medical advisors. The ALJs can also order the examination based on a request from the claimant or representative.
When the record is complete, the ALJs act as fact finders and decide the case. The role of the ALJs in securing evidence, both favorable and unfavorable to the claimant, and then deciding the case, has led to the three hat analogy. However, as the Supreme Court stated in Richardson v. Perales, 402 U.S. 389 (Supreme Court, 1971): ''Neither are we persuaded by the advocate-judge-multiple-hat suggestion .... The social security hearing examiner, furthermore, does not act as counsel. He acts as an examiner charged with developing the facts.''
ALJs must order the consultative examination through the State Disability Determination Services. The ALJs ordered consultative exams for 59,168 cases in FY 1996 and 26,494 cases for the first 6 months in 1997.
6. Do all of the ALJs write their own decisions? If not, how many do? Why aren't the ALJs asked to write their own decisions?
ALJs draft their own decisions when by doing so, the ALJ would be providing better service to the public. Such a situation would arise when the time required to draft the decision is the same or less than the time required for the ALJ to prepare decision draft instructions. However, when a particular decision draft may be more time consuming, the public is better served by having the draft prepared by an attorney advisor or paralegal specialist. This permits the ALJ to focus on those activities which are uniquely the province of the ALJ, i.e., hearing and deciding cases.
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During FY 1996, ALJs drafted about 66,000 decisions. During the first half of FY 1997, ALJs have drafted about 30,000 decisions. Although some ALJs dictate or handwrite decision drafts, the majority of ALJs who prepare drafts do so on personal computers.
7. In his testimony, Judge Bernoski raised a series of questions regarding the relationship of any quality assurance system to the constitutional due process rights of claimants, as follows. Will the rights of the claimants be protected? Will the claimant have notice of review? Will the claimant have the right to appear and defend their interests? How do you plan to protect the rights of the claimants throughout the quality review process you are establishing? Please respond to these questions.
SSA has always ensured that the due process rights of the claimants who file for benefits are protected. The quality assurance review of ALJ decisions is designed to ensure accurate and equal treatment in the decisionmaking process. This review will be conducted under the existing regulatory authority of the Appeals Council. Every claimant whose case is selected for review by the Appeals Council will be notified within the 60 day timeframe provided for by the regulation. Where the case is remanded and corrective action is taken by the presiding ALJ—including conducting another hearing where needed—the claimant and/or representative will have full access to the appropriate files, including the Appeals Council basis for remand; and the opportunity to raise objections or concerns. If the decision is reversed, we will provide proper notification and the claimants appeal rights will be further protected.
8. One of the witnesses, Senior Attorney Mr. Hill, recommends that subject matter expertise should be included in the ALJ selection criteria. Is it not part of the selection criteria now? What criteria are used and how are the judges selected?
The Office of Personnel Management (OPM) retains the responsibility for administering the merit selection and pay systems for ALJs government-wide. The basic qualifying experience for ALJs includes 7 years as a practicing attorney, preparing for, participating in, and/or reviewing formal hearings or trials, involving administrative law and/or litigation at the Federal, State or local level. The current process administered by OPM for the selection of ALJs involves OPM certifying candidates for appointment consideration from the top of the register (i.e., those with the highest score) without reference to a particular subject matter area or experience in the program of the agency that requested a list of eligibles. Under the current process, it has been OPM's policy that if agencies can justify by empirical data gathered through job analysis that agency-specific subject matter expertise enhances performance on the job, OPM will give special consideration to those applicants in certifying them to agencies.
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SSA had requested OPM to enter into an agreement to conduct a pilot study to determine the effect that subject-matter-specific experience has on the productivity of recently hired ALJs at SSA. We requested that OPM consider subject-matter-specific experience in certifying ALJ applicants because our productivity data have shown that new ALJs with SSA disability program experience have significantly higher productivity during the first 9 months on the job than those ALJs without this experience. We also found that new ALJs with such experience can be trained more quickly and require less mentoring from experienced ALJs. OPM had agreed to participate in the pilot; however, we recently learned that OPM no longer agrees to conduct the pilot. SSA considers the pilot to be particularly important to SSA given our current disability workload and the additional workloads projected from Welfare Reform legislation.
The pilot study would not involve a permanent change in the hiring process for ALJs. At the conclusion of the study, which would last for 1 year, a determination will be made concerning the need for change to the policy and regulation, if any, for selection of ALJ candidates. In addition, as part of the study requirements, SSA would continue to hire some ALJs from regular ALJ certificates. On June 8, 1997, 31 new ALJs, who were hired from the regular ALJ certificate, reported for duty. We have made no selections thus far from a subject-matter-specific ALJ certificate.
SSA has legal authority to select candidates from certificates, including subject-matter-specific certificates, provided to it by OPM. Furthermore, OPM has determined its own legal authority to provide certificates to agencies requesting them. In addition, the subject-matter-specific certificate does not violate the intent of Congress with respect to merit selection.
9. The National Council of Disability Determination Directors recommends that SSA develop a shared vision of the program among all components: quality, policy, operations and budget. They seem to feel they are getting different messages from each component. What are your views?
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SSA works very hard on communication. The State-Federal relationship, while very effective, provides additional challenges in communications. The disability program has many complex factors affecting day-to-day program administration. Over the last several years, program administration has been particularly complex for DDSs because of special one-time legislated workloads they have been asked to handle in tight timeframes, efforts to assist the Office of Hearings and Appeals, and the various disability redesign initiatives underway. Through all of this, DDSs have responded to the challenges, focusing on providing the best possible service.
It is understandable that DDSs may feel they are getting different messages from time to time as SSA strives to provide management direction that is responsive to the workload pressures that we face, while we continue to make needed refinements to our processes. In addition to our ongoing daily contacts with DDSs, SSA executives make special efforts to communicate frequently and openly with the officers of the National Council of Disability Determination Directors during quarterly meetings of the National Disability Issues Group, and with all DDS administrators twice a year during DDS Management Forums. We will continue to do all that we can to provide coordinated, clear direction to DDSs as we balance all of the various facets of disability program administration.
10. Over the years, a number of questions have been raised regarding the scope of SSA's management authority over its ALJs. I understand that in January 1997, the Office of the General Counsel provided a memorandum to the Commissioner which provided clarification to this matter. Would you please comment on the primary contents of the memorandum?
The purpose of the memorandum (attached at Tab A) was to review the scope of management authority that SSA may exercise over its ALJs, considering the factors that led to the passage of the Administrative Procedure Act (APA), the protections afforded by the APA to both ALJs and to those utilizing the administrative process, and the often misunderstood concept of the ALJ's ''decisional independence.''
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The memorandum's primary message is that the agency has the right and duty to ensure that its ALJs, like any other agency adjudicators, perform their jobs with appropriate demeanor and decorum and without bias, and that the decisions they issue on behalf of the Commissioner be made timely, be of the highest quality, supported by the evidence found in the record, and consistent with the agency's procedures and interpretations of law. The memorandum also states that, to achieve these goals, the agency can ask ALJs to follow reasonable administrative practices and programmatic policies as long as these do not interfere, either directly or indirectly, with the duty of impartiality that ALJs owe to claimants when hearing and deciding cases. Specifically, the memorandum discusses the agency's responsibility to ensure that its ALJs are well versed in its interpretations of the law, and reinforces the agency's ability to use a number of tools to guarantee that its hearing process is operated efficiently and effectively, including the use of reasonable production targets and quality assurance programs.
INSERT OFFSET FOLIOS 11 TO 31 HERE
[The official Committee record contains additional material here.]
11. In his testimony, Judge Bernoski indicated that the Office of General Counsel memo appears to be an attempt to provide a legal basis to require ALJs to follow SSA policy that is not consistent with the law. What is your reaction?
SSA's policy is to acquiesce in final circuit court decisions which conflict with SSA's interpretation of the Social Security Act or regulations regardless of our disagreement with the holding. This policy has not changed since SSA's current regulations (20 C.F.R. § § 404.985 and 416.1485) on acquiescence were published on January 11, 1990 (55 Fed. Reg. 1012). (See May 21, 1997, letter to you from Acting Commissioner John J. Callahan, attached at Tab B). The Office of the General Counsel memorandum makes no changes to the acquiescence policy. It merely restates well-established law that an ALJ is not free to apply his or her own interpretation of the law, but, instead, is bound to apply the law as enacted by the Congress as set forth by the Commissioner through regulations and rulings.
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As explained by the General Counsel in his testimony before the Subcommittee on Commercial and Administrative Law Committee on the Judiciary on May 22, 1997: ''Circuit court decisions are written to decide individual cases, not to provide adjudicatory instructions to decisionmakers, and are therefore often subject to disparate interpretations, particularly when the myriad possible situations to which they may apply are considered. If each of SSA's thousands of decisionmakers were responsible for interpreting circuit court holdings, it could result in conflicting decisions by different decisionmakers, even within the same circuit. SSA would have no way to ensure uniform application of eligibility standards as required by law, leading to further litigation. Indeed, SSA would have no mechanism to ensure that agency rules are consistently applied, since under this approach, it would be the adjudicator's role to interpret circuit court decisions for him or herself. Instead, the interpretation of a circuit court's decision and its consistency with SSA policy is appropriately made with careful scrutiny by SSA officials who have a broad understanding of national policy and who work closely with Department of Justice attorneys in this effort. If an ALJ or other decisionmaker believes that a particular circuit court decision conflicts with SSA policy, the decisionmaker can provide input to the Office of General Counsel through the appropriate channels about either appealing the case or issuing an Acquiescence Ruling.''
INSERT OFFSET FOLIOS 32 TO 38 HERE
[The official Committee record contains additional material here.]
12. Judge Bernoski also asked the question ''how does an agency 'manage' the administrative hearing process and not trample on the rights of the claimants?'' How do you respond?
As the January 28, 1997, Office of the General Counsel memorandum makes clear, part of the agency's responsibility in managing the administrative hearing process is to ensure that the rights of the claimants are protected, and that the agency's adjudicators are conducting themselves appropriately through the hearing process, including issuing fair and legally sufficient decisions. If a claimant believes that the hearing process used to decide the case did not comport with legal requirements, he or she can appeal the decision through the administrative appeals process and seek review in federal court. It would be far more likely that the rights of individual claimants would be ''trampled'' if each ALJ were free to determine for himself or herself what the proper procedures and policy should be, than under the current system in which it is the agency which promulgates rules and regulations, in accordance with statute, to protect claimants' rights and can be held accountable for ensuring that such rules and regulations are properly administered.
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13. In his testimony, Judge Bernoski indicated that the largest distinguishing factor for difference in results between DDSs and ALJs is the use of the legal standard at the appellate level which provides the claimant with the benefit of the full scope of the law for the adjudication of the claim. The DDS standard is set forth in instructions used only by DDS decisionmakers and not the judges (these are referred to as POMS). What are your views?
For the past two years, SSA has had a workgroup of senior SSA and DDS officials studying the disability process at both the DDS and ALJ levels. This included looking at the so-called ''medical'' versus ''legal'' model. We have concluded that disability is now, and always has been, a medical-legal issue, and we disagree with Judge Bernoski that the largest distinguishing factor for difference in results is ''the use of the legal standard at the appellate level.''
SSA has also looked extensively at the regulations, rulings, and POMS that provide instructional guidance to our adjudicators and concluded that there is no substantive difference between the regulations and rulings used by the ALJs and the POMS used by the DDSs. In other words, there is not a different substantive legal standard applied at the appellate level. However, we are aware that there is a perception by some (such as Judge Bernoski) that the different instructional materials result in differences. That is why we are preparing a single presentation of policy that will be used by all decisionmakers.
Finally, there are some differences between the DDS and ALJ levels that are intentional. The ALJ conducts a formal hearing in which the claimant can appear before an ALJ and has due process rights, such as the right to request subpoenas and to cross-examine witnesses. These procedural differences naturally have some affect on the ALJ decisions; however, the policies for determining disability are the same for all adjudicative levels.
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Chairman BUNNING. Thank you. Thank you all for your testimony. We appreciate it very much.
If the next panel would come forward.
GAO, the General Accounting Office, at my request, has been investigating SSA's management of the disability program with particular focus on the reasons for differences in DDS and ALJ decisions. Presenting the GAO findings are Jane Ross, the Director, and Cynthia Bascetta, Assistant Director of Income Security Issues of the Health, Education, and Human Services Division.
Ms. Ross, would you please begin, once you get settled.
STATEMENT OF JANE L. ROSS, DIRECTOR, INCOME SECURITY ISSUES, HEALTH, EDUCATION, AND HUMAN SERVICES DIVISION, U.S. GENERAL ACCOUNTING OFFICE; ACCOMPANIED BY CYNTHIA BASCETTA, ASSISTANT DIRECTOR, INCOME SECURITY ISSUES, HEALTH, EDUCATION, AND HUMAN SERVICES DIVISION
Ms. ROSS. Good morning, Mr. Chairman. Thank you for inviting me to testify on SSA's management of its disability programs.
My testimony is based on our reports and ongoing study which we are conducting for you. As you know and as you have just heard, SSA set out in 1994 to redesign disability decisionmaking to improve its timeliness, efficiency, and consistency. It undertook redesign because the lengthy and complicated decisionmaking process and the inconsistent decisions between adjudicative levels compromise the integrity of disability determinations and result in poor service for people applying for benefits.
SSA has an opportunity now if it follows through on its plans to finally address some of the longstanding problems with disability decisionmaking.
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I want to talk briefly about the number of cases awaiting ALJ hearings. This backlog began to grow dramatically in 1987. By 1996 the backlog had reached 475,000 cases. The huge increases in the number of appeals contributed to a rise in averaging processing time which now exceeds 375 days.
SSA acted to try and reduce this backlog by developing their short-term disability project, and under this project, SSA staff review and attempt to resolve appealed cases before they are actually assigned to ALJs, but despite this short-term initiative, the agency wasn't able to reach its goal, so the current backlog is now about 491,000 cases.
The point we would like to make here is, even though the goal hasn't been reached, about 98,000 more cases would have been added to the backlog without this short-term initiative. So we urge SSA to continue its short-term effort while it is moving ahead to more fundamentally change their disability determination process.
Besides the backlog, high ALJ allowances have been a subject of concern for many years, as you have said. Because ALJs allow about two-thirds of all the cases they decide, there is a real incentive for claimants to appeal, and indeed, for several years, about three-quarters of everyone whose claim has been denied at the DDS reconsideration level has appealed their claims.
Under Process Unification, which is a part of SSA's redesign plan, several initiatives were developed specifically with the objective of achieving similar decisions on similar cases regardless