Statement of Nancy G. Shor, Executive Director,
National Organization of Social Security Claimants’ Representatives, Midland Park, New
Jersey
This statement is submitted on behalf of the National Organization of Social Security Claimants’ Representatives (NOSSCR). NOSSCR’s current membership is approximately 3,450 attorneys and others from across the country who represent claimants for Social Security and Supplemental Security Income (SSI) benefits. Collectively, we have many years of experience in representing claimants at every level of the administrative and judicial process. NOSSCR is committed to providing the highest quality representation and advocacy on behalf of persons who are seeking Social Security and SSI benefits.
During my more than twenty-year tenure as the NOSSCR Executive Director, SSA Commissioners and other officials at the Social Security Administration have been willing to meet with us and other advocacy groups to discuss issues important to our membership and to claimants. This has proven to be an effective way of addressing our concerns before they become serious problems requiring other types of intervention and we look forward to continuing this dialogue with the new Commissioner and her management staff. I am very encouraged by Commissioner Barnhart’s recent decision to adjust the maximum amount payable to representatives in the fee agreement process, which was a topic at the Subcommittee on Social Security’s hearing in May 2001. I want to thank her for taking this action since, despite the statutory authority to do so, no other Commissioner since the legislation’s inception in 1990 had adjusted the amount for inflation.
On November 1, 2001, the Subcommittee on Social Security held a hearing on SSA’s response to the September 11 terrorist attacks. The testimony presented at the hearing reaffirmed the important and vital role that the Social Security Administration plays in the lives of people in this country. The challenges faced by the Commissioner are not insurmountable. This Statement for the Record will discuss NOSSCR’s major concerns, focusing on the disability programs.
SOCIAL SECURITY SOLVENCY AND REFORM
As the debate on Social Security solvency and reform proposals progress, the impact on people with disabilities must be considered. More than one-third of all Social Security benefit payments are made to nearly 17 million people who are not retirees. People with disabilities are paid benefits not only from the disability program but also from many other Social Security programs. We support efforts to require a beneficiary impact statement from SSA on every major proposal under consideration.
In addition, the agency has a role to play in educating the public about the Social Security program. Because the debate on reform focuses on the retirement program, many people are unfamiliar with the other benefits paid by Social Security, including the disability and survivors’ programs. SSA should engage in public information outreach activities to ensure that people have a clear understanding of all Social Security programs.
PROVIDING SSA WITH ADEQUATE RESOURCES TO MEET CURRENT AND FUTURE NEEDS
NOSSCR is concerned about SSA’s readiness to deal with the impending increase in its workload as the “baby boom” generation approaches the peak age for onset of disability and, subsequently, retirement. At Subcommittee on Social Security hearings in 2000, testimony painted a bleak picture regarding SSA’s ability to deal with the increased work, at the same time that its own workforce will reach peak retirement numbers. To exacerbate this problem, SSA’s budget continues to be cut from levels that would allow it to adequately address current and future service delivery needs.
Most cases handled by NOSSCR members are at the ALJ hearing and Appeals Council levels, where current processing times are unacceptably high. Thus, while their medical and financial situations are deteriorating, claimants are forced to wait for many months, if not years, before receiving a decision.
To improve delays, better develop cases and implement technological advances, SSA requires adequate staffing and resources. NOSSCR strongly agrees with the Social Security Advisory Board’s unanimous and bipartisan recommendation that SSA’s administrative budget, like its program budget, be removed from the discretionary domestic spending caps. Legislation such as H.R. 5447, a bipartisan bill introduced in 2000 by Chairman Shaw and Representative Cardin, would have accomplished this by allowing Congress to approve funding for SSA to address current service delivery needs and planning for the future.
THE DISABILITY DETERMINATION PROCESS
The vast majority of cases handled by NOSSCR members are claims for Social Security and SSI disability benefits. NOSSCR strongly supports efforts to reduce unnecessary delays for claimants and to make the process more efficient, so long changes do not affect the fairness of the process to determine a claimant’s entitlement to benefits.
1. Improve full development of the record earlier in the process
Developing the record so that relevant evidence from all sources can be considered is fundamental to full and fair adjudication of claims. Unfortunately, very often the files that denied claimants bring to our members show that little development was done at the initial and reconsideration levels. Claimants are denied not because the evidence establishes that the person is not disabled, but because the limited evidence gathered cannot establish that the person is disabled.
The key to a successful disability determination process is having an adequate documentation base and properly evaluating the documentation that is obtained. Unless claims are better developed at earlier levels, other procedural changes will not improve the disability determination process.
NOSSCR supports full development of the record at the beginning of the claim so that the correct decision can be made at the earliest point possible. Claimants should be encouraged to submit evidence as early as possible. The benefit is obvious: the earlier a claim is adequately developed, the sooner it can be approved and the sooner payment can begin. However, the fact that early submission of evidence does not occur more frequently is usually due to reasons beyond the claimant’s control. Recommendations to improve the development process include:
2. Streamline the process without impairing a claimant’s right to a full and fair hearing
Current processing times at the ALJ and Appeals Council levels are unacceptably high. We agree with the Commissioner that reducing the backlog and processing time must be a high priority. We urge commitment of resources and personnel necessary to reduce delays and make the process work better for the public.
Recently, a number of proposals to change the disability determination process have been put forward. However, these proposals contain some recommendations that we believe would undermine a claimant’s right to a fair adjudication process. Key features of a full and fair process include the following:
Under current law, an ALJ hears a disability claim de novo. Thus, new evidence can be submitted and will be considered by the ALJ in reaching a decision. However, the ability to submit new evidence and have it considered becomes more limited at later levels of appeal. At the Appeals Council level, new evidence will be considered by only if it relates to the period before the ALJ decision and is “new and material.”[1] At the federal district court level, the record is closed and the court will not consider new evidence. However, the court may remand the case to allow SSA to consider new evidence but only if (1) it is “new and material” and (2) there is “good cause” for the failure to submit it in the prior administrative proceedings.[2]
As noted earlier, NOSSCR strongly supports the submission of evidence as early as possible. Full development of the record at the beginning of the claim means that the correct decision can be made at the earliest point possible. The benefit is obvious: the earlier a claim is adequately developed, the sooner it can be approved and the sooner payment can begin.
There are a number of legitimate reasons why claimants are unable to submit evidence earlier in the process and, as a result, why closing the record is not beneficial to claimants. Such reasons include: (1) worsening of the medical condition which forms the basis of the claim; (2) the fact that the ability to submit evidence is not always in the claimant’s or representative’s control, e.g., providers delay sending evidence; and (3) the need to keep the process informal.
Filing a new application is not a viable option because it does not improve the process and may in fact severely jeopardize, if not permanently foreclose, eligibility for benefits. A claimant should not be required to file a new application merely to have new evidence considered where it is relevant to the prior claim. If such a rule were established, SSA would need to handle more applications, unnecessarily clogging the front end of the process. Further, there would be more administrative costs for SSA since the cost of handling a new application is higher than reviewing new evidence in the context of a pending claim.
We do not support proposals to have SSA represented at the ALJ hearing. In the 1980’s, SSA tested, and abandoned, a pilot project to have the agency represented, the Government Representation Project (GRP). First proposed by SSA in 1980, the plan encountered a hostile reception at public hearings and from Members of Congress and was withdrawn. The plan was revived in 1982 with no public hearings and was instituted as a one-year “experiment” at five hearing sites. The one-year experiment was terminated more than four years later following congressional criticism and judicial intervention.[3]
Based on the stated goals of the experiment, i.e., assisting in better decisionmaking and reducing delays, it was an utter failure. The GRP caused extensive delays in a system that was overburdened, even then, and injected an inappropriate level of adversity, formality and technicality into a system meant to be informal and nonadversarial. In the end, the GRP experiment did nothing to enhance the integrity of the administrative process.
NOSSCR opposes the elimination of a claimant’s right to request review by the Appeals Council, which SSA is still testing in the ten “prototype” states. The Appeals Council currently provides relief to nearly one-fourth of the claimants who request review of ALJ denials, either through outright reversal or remand back to the ALJ. The Appeals Council, when it is able to operate properly and in a timely manner, provides claimants with effective review of ALJ decisions and acts as a screen between the ALJ and federal court levels. Elimination of Appeals Council review could have a serious negative impact on the federal courts. We agree with the Judicial Conference of the United States’ 1994 statement opposing this plan when first proposed as “likely to be inefficient and counter-productive.”
NOSSCR supports the current system of judicial review. Proposals to create either a Social Security Court to replace the federal district courts or a Social Security Court of Appeals to provide appeal of all Social Security cases from district courts have been considered, and rejected, by Congress and SSA over the past twenty years.
We believe that both individual claimants and the system as a whole benefit from the federal courts deciding Social Security cases. Over the years, the federal courts have played a critical role in protecting the rights of claimants. The system is well-served by regular, and not specialized, federal judges who hear a wide variety of federal cases and have a broad background against which to measure the reasonableness of SSA’s practices.
Creation of either a single Social Security Court or Social Security Court of Appeals would limit the access of poor disabled and elderly persons to judicial review. Under the current system, the courts are more geographically accessible to all individuals and give them an equal opportunity to be heard by judges of high caliber.
Rather than creating different policies, the courts, and in particular the circuit courts, have contributed to national uniformity, e.g., termination of disability benefits, denial of benefits to persons with mental impairments, rules for the weight to give medical evidence, evaluation of pain. The courts have played an important role in determining the final direction of important national standards, providing a more thorough and thoughtful consideration of the issues than if a single court had passed on each. As a result, both Congress and SSA have been able to rely upon the court precedent to produce a reasoned final product.
Finally, the financial and administrative costs of creating these new courts must be weighed against their questionable effectiveness to achieve the stated objectives. The courts, if created, would involve new expenditures. Should limited resources be committed to that purpose instead of increasing resources at SSA? Further, from an administrative perspective, should the focus be on the end of the appeals process rather than on the front end?
3. Technological improvements
The Commissioner has announced an initiative to expand the use of video teleconference ALJ hearings. This allows ALJs to conduct hearings without being at the same geographical site as the claimant and representative and has the potential to reduce processing times and increase productivity. NOSSCR members have participated in pilots conducted by SSA and have reported a mixed experience, depending on the travel benefit for claimants, the quality of the equipment used, and the hearing room set-up.
In 2001, SSA published proposed rules on video teleconference hearings before ALJs. 66 Fed. Reg. 1059 (Jan. 5, 2001). In general, we support the proposed rules and the use of video teleconference hearings so long as the right to a full and fair hearing is adequately protected and the quality of video teleconference hearings is assured.
RETURN TO WORK EFFORTS
NOSSCR supports efforts that encourage disabled beneficiaries to return to work. Successful implementation of the Ticket to Work and Work Incentives Improvement Act of 1999 is an ongoing process. As a member of the Consortium for Citizens with Disabilities, we endorse the written statement and testimony on this issue presented by Marty Ford.
ANTIFRAUD ACTIVITIES
Recently passed legislation requires SSA to take steps to prevent fraud in the Social Security and SSI programs. The integrity of the Social Security and SSI disability programs must be protected and cases of true fraud should be uncovered. However, we are increasingly concerned about reports that cases involving very questionable allegations of fraud are being referred for investigation and possible criminal prosecution. While we support efforts that maintain the integrity of the programs, such activities must protect the due process and privacy rights of individuals since they may lead to serious sanctions. To avoid harming vulnerable individuals with disabilities, guidelines and criteria must be sufficiently detailed to ensure that only legitimate and appropriate cases are identified.
In December 2000, NOSSCR and other advocates met with officials from SSA and the Office of Inspector General to raise our concerns and to suggest ways to improve the process. We hope to continue the dialogue in this area.
NOTICES
Over the past decade, the Subcommittee on Social Security has addressed the serious problems caused by the poor quality of key SSA notices provided to beneficiaries. Despite efforts to improve notices, many of the same problems raised at a 1994 hearing continue to exist, based on testimony at a September 2000 hearing. As noted by the GAO at that hearing, notices continue to be written in complex and archaic language that even experienced advocates, not to mention claimants and beneficiaries, find difficult to decipher. They are written at reading levels beyond the ability of the average person. Moreover, the notices fail to adequately explain the basis for the action taken by SSA. As a result, the poor quality of SSA’s notices leads to erroneous and unnecessary loss of benefits and relinquishment of important rights, such as the right to appeal.
The poor quality of notices also affects SSA. Notices that claimants and beneficiaries do not understand cause more work for already overburdened SSA workers including: more telephone calls or in-person visits for explanation of the agency’s action; more appeals filed; and more new applications filed.
CONCLUSION
We commend the Subcommittee for holding this hearing to look at the challenges facing the new Commissioner of Social Security. NOSSCR is committed to working with Commissioner Barnhart to improve the Social Security and SSI programs which are so vital to millions of people in this country.
[1] 20 C.F.R. §§ 404.970(b) and 416.1470(b).
[2] 42 U.S.C. § 405(g).
[3] In Sallings v. Bowen, 641 F. Supp. 1046 (W.D.Va. 1986), the federal district court held that the Project was unconstitutional and violated the Social Security Act. In July 1986, it issued an injunction prohibiting SSA from holding further proceedings under the Project.