Statement of James A. Hill, President, Attorney-Advisor, Office of Hearings and Appeals, Social Security
Administration, Cleveland Heights, Ohio,
and President, National Treasury Employees Union, Chapter 224
Before the Subcommittee on Social Security,
House Committee on Ways and Means
Hearing on Social Security Disability Programs' Challenges and Opportunities
June 20, 2002
Chairman Shaw and Members of the Subcommittee:
My name is James A. Hill. I have been employed by the Office of Hearings and Appeals (OHA) of the Social Security Administration (SSA) for more than 19 years as an Attorney-Advisor. I am also the President of National Treasury Employees Union (NTEU) Chapter 224 that represents Attorney-Advisors and other staff members in approximately 110 Hearing Offices and OHA Regional Offices across the United States. I wish to thank the Subcommittee for inviting me to testify regarding the challenges and opportunities facing Social Security disability programs today.
The crisis in disability adjudication at the hearing level of the mid-1990’s has returned. Case backlogs and average processing time have increased at an alarming rate, severely diminishing the quality of service provided to the American public. SSA must immediately address the current backlog problem and devise a system that will adequately serve the needs of the future. At the request of the Social Security Subcommittee, the United States General Accounting Office (GAO) conducted a study of the initiatives that SSA developed and the results that have been obtained. GAO stated that:
SSA’s current backlog is reminiscent of a crisis-level backlog in the mid 1990’s, which led to the introduction of 19 temporary initiatives designed to reduce OHA’s backlog of appealed cases . . . Among the most long-standing of these initiatives was the Senior Attorney Program. Under this program, selected attorneys reviewed claims to identify those cases in which the evidence already in the case file supported a fully favorable decision. Senior attorneys had the authority to approve these claims without ALJ involvement. The Senior Attorney Program took effect in fiscal year 1995 and was phased out in 2000. During its existence, the program succeeded in reducing the backlog of pending disability cases at the hearing level by issuing some 200,000 hearing-level decisions. …SSA management has expressed concern that the Senior Attorney Program is a poor allocation of resources as it diverts attorneys from processing more difficult cases in order to process the easier cases”. (GAO Report 02-322, February 2002, Page 23-24, (hereinafter “GAO”))
GAO recommended implementing “short-term strategies to immediately reduce the backlog of appealed cases in the Office of Hearing and Appeals. These strategies could be based on those that were successfully employed to address similar problems in the mid-1990’s”. (GAO at Page 28) (Emphasis added.)
Unfortunately, SSA has chosen to evade the clear advice of the GAO and has not implemented strategies based on those that worked in the 1995 to 1999 time period. The misuse of ALJs to screen and analyze unassembled cases off the master docket is the only short term change proposed by the Commissioner that bears any resemblance to the changes that successfully brought down the backlog by more than 250,000 cases. It will not succeed because every minute an ALJ spends on screening and analyzing unassembled cases is a minute that that ALJ will not spend preparing for a Hearing, holding a Hearing or deciding a case after the Hearing, tasks that no other SSA employee can assume. It robs from Peter to pay Paul. It actually reduces the time ALJs will have to spend on the great majority of cases that go to Hearing, the ones where the claimant waits the longest. This initiative will have the unintended consequence of actually making most claimants wait longer for their Hearing. Additionally, if each ALJ does not produce a decision for each 4 hours he or she spends on this program, ALJs will actually produce fewer decisions with this initiative than they would have without it. To be sure, some deserving (and lucky) claimants will get their decisions and benefits significantly earlier than they would under the present process, but it will come at the expense of other claimants who have been waiting much longer. Further, these claimants would receive the same benefits from a Senior Attorney program that has none of the adverse consequences of this initiative. The Senior Attorney program would not divert any ALJ time from the Hearing workload. No one would wait longer for a Hearing because of the Senior Attorney program. Rather than the possibility of fewer cases going out each month, the Senior Attorney program will result in as many as 5,000 to 8,000 more cases going out every month. Based upon previous experience the average processing time for these cases would be approximately 100 days. We asked the Agency how many cases they expected their initiatives to produce and we were told that they did not have that data.
Deputy Commissioner Martin Gerry recently testified before this Subcommittee and stated that short term initiatives are being implemented that are intended to alleviate some of the current problems at the Office of Hearings and Appeals. Mr. Gerry testified that these initiatives were recommended by the HPI Executive Steering Committee impaneled by Acting Commissioner Massanari and charged with finding short term initiatives to solve many of the problems associated with HPI. I was a member of the Executive Steering Committee as was Judge Bernoski. I regret to inform you that many members of that Committee were bitterly disappointed that we failed to address the primary problems associated with HPI, and we left the final meeting with a pervasive feeling that we had failed. We were well aware that the initiatives we advised would have only a minimal impact. I seriously doubt that feeling was conveyed to the Commissioner during the briefing she received regarding these initiatives.
In light of the GAO analysis and recommendations, NTEU makes the following recommendations for action necessary to ensure that the Office of Hearings and Appeals delivers the quality of service demanded by the American people currently and in the future:
Since the mid-1990’s SSA’s disability program has been in crisis. In the mid-1990s the disability backlog rose to over 550,000 cases and processing time climbed to nearly 400 days at the hearing office level. In 1995 SSA introduced the Senior Attorney Program that was instrumental in reducing the disability backlog to approximately 311,000 cases by September 1999 and reducing processing time to approximately 270 days at the end of fiscal year 2000. Since the termination of the Senior Attorney Program the pending case backlog has risen to approximately 491,350 and SSA projects by the end of FY 2002 the backlog will rise to 546,000 cases.
The Senior Attorney Program was replaced by HPI, a program which was implemented without testing. HPI includes a triage system in which Attorney Advisers screen profiled cases (the same profiles used by the Senior Attorney Program) and recommend cases to ALJs that could be paid on the record. This still requires a significant commitment of ALJ resources. However, this process has resulted in a considerable decline in on-the-record decisions emanating from this profiled workload leading to fewer overall dispositions. The average rate of ALJ dispositions has not increased; in fact, it has declined, leading to a substantial decrease in total dispositions. We are in the midst of an emerging disaster precipitated by the demise of the Senior Attorney decision maker and fueled by HPI. The situation continues to deteriorate. Any hope of significant improvement without bold and decisive action is unreasonable. OHA has traditionally maintained a roster of 1000-1100 ALJs. Hiring substantial numbers of additional ALJs to meet future needs is fiscally irresponsible. SSA recently hired approximately 130 new Administrative Law Judges (returning to the norm) but readily admits that this addition will not solve today’s problems.
The loss of efficiency caused by HPI, the elimination of the Senior Attorney Program, the precipitous decline in the number of on-the-record decisions, the staggering increase in “unpulled” cases, the expected increase in disability receipts, and the imposition of a new and increased Medicare workload spell disaster. The Social Security Administration must act quickly to deal with the current disability backlog. It must also realistically assess its future workloads and devise processes sufficient to meet the decision-making needs of the future.
SSA Must Immediately Re-introduce the Senior Attorney Program
The fundamental problem at OHA is that the number of decision makers is insufficient to meet the workload. There is widespread agreement that it is unreasonable to expect an Administrative Law Judge to produce more than 500 dispositions in a year if an acceptable level of quality is to be maintained. If ALJs are the only decision-makers, unless the Agency is prepared to accept a much greater number of ALJs than currently are employed, the simple arithmetic mandates an ever increasing backlog and skyrocketing processing times. The solution is more decision makers.
In 1995 the Social Security Administration faced a disability caseload backlog and processing time crisis very similar to that existing today. In order to reduce the backlog and decrease processing time, SSA instituted the Short Term Disability Program. The primary element of that program, designed to reduce both the backlog and processing time, was the Senior Attorney Program.
That program continued until the advent of the HPI Program. The authority to make and issue fully favorable decisions on the evidence of record, with minimal development, was delegated to the Agency's experienced Attorney Advisors. The Senior Attorney decisions combined with ALJ decisions resulted in a substantially higher level of total dispositions than would have occurred if ALJs had been the sole decision-makers. In addition to performing the “Senior Attorney work”, the Senior Attorneys also continued to draft ALJ decisions. This arrangement utilized the knowledge, skills, and abilities of these attorneys to issue fully favorable decisions to those claimants whose case did not require a hearing, and to continue to draft the more difficult ALJ decisions. This afforded, on an individual hearing office basis, the flexibility to direct decision making and decision writing resources as necessary to achieve maximum productivity.
Senior Attorneys issued approximately 220,000 decisions during the course of the Program. The average processing time for Senior Attorney decisions was approximately 105 days. During its pendency the OHA backlog fell from over 550,000 to as low as 311,000 at the end of FY 1999. The correlation is obvious. During the same time period there was also an increase in ALJ productivity demonstrating that dual decision makers was a viable concept. It is readily apparent that processing a large number of cases in such an expeditious manner materially reduced the average processing time for all disability cases at the hearings level in OHA.
While the Senior Attorney Program resulted in a substantial increase in on-the-record decisions, there was not a corresponding increase in the OHA payment rate. In fact the overall payment rate at OHA declined during the course of the Senior Attorney Program.
In July 1998 the Senior Attorney Program was significantly downsized with approximately one-half of the senior attorneys returned to the GS-12 attorney adviser position. The remaining Senior Attorneys spent 100 percent of their time doing “Senior Attorney work”. This lack of flexibility doomed this arrangement which lasted only four months before the remaining Senior Attorneys were also assigned ALJ decisions drafting duties. Unfortunately, the number of Senior Attorneys was not increased which led to a significant decline in the Program's productivity. This decrease in productivity led to the rise in unpulled cases and the beginning of the increase in the backlog and average processing time.
The Senior Attorney Program benefited more than just those claimants who received their disability payments far earlier than would otherwise have been the case. Staff and ALJ time was not spent needlessly on cases that could be paid without a hearing and they could more timely attend to the other cases, thereby reducing processing time for those cases as well. Another benefit was that cases paid by a Senior Attorney were not "pulled" (prepared for hearing). Had the Senior Attorney Program not been downsized, and then eliminated, there would be about 90,000 fewer cases waiting to be "pulled".
The processing of Senior Attorney cases involved a very limited amount of hearing office staff time. This resulted in the expenditure of far fewer work years devoted to processing Senior Attorney cases than would have been the case had ALJ adjudication been required. This resulted in a significant reduction of administrative costs for those cases. The former Chief Administrative Law Judge stated that OHA may receive as many as 100,000 cases a year that with minimal development could be paid without a hearing. The savings in administrative costs arising from the reinstitution of the Senior Attorney Program would be substantial.
One of the criticisms of the Senior Attorney Program involved decisional accuracy. Of course that is also one of the chief complaints regarding ALJ decisions. The Appeals Council review of Senior Attorney and ALJ on-the-record decisions found no difference in quality. I am convinced that the formulation and implementation of an effective quality assurance program at the hearing level should be of the highest priority
The success of the Senior Attorney Program ultimately rests on the competence of the legal professionals who can serve as adjudicators. These individuals are experienced OHA Attorney Advisors who have many years experience dealing with the intricacies of the legal-medical aspects of the Social Security disability program. They are attorneys well versed in the law, and they are experienced disability practitioners with a wealth of adjudicatory experience in the Social Security disability system.
The conversion of OHA Attorney Advisers to Senior Attorney decision makers as described above will result in an immediate and substantial improvement in OHA service to the public at minimal additional cost. Based upon the Agency’s experience with the original Senior Attorney Program, and with the full cooperation of hearing office management (lacking during the original Senior Attorney Program), this measure could produce as many as 75,000-100,000 decisions a year without diminishing ALJ productivity.
The original Senior Attorney Program was a resounding success. It materially improved the quality of service provided to the public, especially for those individuals who were disabled and entitled to receive their disability decision and benefits on a timely basis. In addition, it resulted in administrative and program cost savings. Senior Attorney decision makers have proven by their performance that pre-ALJ decision making in the OHA hearing office significantly improves the quality of service provided to the public.
SSA’s Proposed Changes
Instead of following the advice of GAO, SSA has once again decided to implement additional permanent untested changes to the Appeals process. These include requiring ALJs to perform early screening and analysis of unassembled cases from Master Docket; implementing a short form favorable decision; and, authorizing ALJs to issue bench decisions. While current Senior Attorneys will continue to screen and analyze some cases, they will not have the decisionmaking authority that they had in the original, successful, Senior Attorney program. Also contrary to the advice of GAO, SSA did not involve this Stakeholder, NTEU, in any predecisional planning for these changes.
The agency has stated that both the ALJs and Senior Attorneys will generally be expected to complete their early screening and analysis of cases within five work days. This will not permit ALJs or Senior Attorneys to develop the record. The system will allow ALJs to do little more than cherry pick the easy cases and second guess the DDS decision. The review of a lesser profile of cases by Senior Attorneys who have neither the authority to decide the case, nor the time allocated by management that is necessary to develop the case, will largely be a waste of resources. These short-term strategies will not reduce the backlog, in fact, it is unlikely that they will significantly slow the rate of growth of the backlog. (Other changes, such as ending certification of cases as ready to hear, simply recognize the reality that many offices never implemented this change, and most of those that did have already stopped the practice. Similarly, many offices no longer rotate clerical employees. Neither of these changes will have a measurable affect on the backlog.)
Without a doubt the biggest problem with the plan is the decision to have ALJs perform screening and analysis. This adds significantly to the workload of SSA’s most expensive and most limited resource, ALJs. The time they spend on screening, analyzing, deciding and writing these unassembled cases is time that they cannot spend preparing for a Hearing, holding a Hearing, deciding a case after a Hearing or editing and signing the final decision, functions that no other SSA employee can perform. Even if the program worked, most claimants would have to wait longer for their decision. ALJs will have less time to review, hear and decide those cases already in the 500,000 case backlog while critically limited ALJ time is spent cherry picking payments as they come into the office. This is supremely unfair to those claimants already waiting almost a year at OHA for their decision. The critical difference between the Senior Attorney program and this current SSA plan is that the Senior Attorney program did not divert any ALJ time to produce 50,000 or more decisions a year. NTEU does not believe that a process that reduces the number of Hearings that an ALJ can hold and the number of Hearing decisions that an ALJ can issue is a fair or effective way to increase production or reduce processing time. SSA needs a program where decisionmakers can pay deserving claimants at the earliest possible time in the appeals process, but not at the expense of those longer suffering claimants whose cases require a Hearing. That program is the Senior Attorney program.
The Senior Attorney program is a real life tested program that demonstrated it could produce 50,000 to 60,000 on the record decisions a year without the use of any ALJ time. It can be instituted quickly with minimal cost to the Agency using current Agency personnel. If it were implemented with the strong support of the Commissioner, OHA could, for the first time since the original Senior Attorney program was eliminated, actually decide more cases in a month then it received and begin to reduce the backlog.
As indicated by Acting Commissioner Larry Massanari, in response to questions from the Chairman following your June 28, 2001, Hearing:
The Senior Attorney program was established in 1995 as an initiative of the Agency’s Short Term Disability Project to rapidly reduce the number of pending disability cases at the hearing level. Under this program, some 200,000 fully favorable decisions were issued without the need for approval by an ALJ, thus saving the ALJ’s time for hearings and decisions on the rest of the hearing workload. In general, the Senior Attorney program had a positive impact on hearing process efficiency and productivity.
I note that rather than saving the ALJ’s time for hearings and decisions the current plan reduces the time that ALJs have for hearings and decisions on the rest of the hearing workload. Acting Commissioner Massanari continued:
However, by the beginning of FY 2000, pending hearing workloads had declined and fewer cases lent themselves to on-the-record fully favorable decisions primarily because of process unification improvements at the initial claim level. Thus, it was decided that an adjudicator in addition to the ALJ would not be a useful element of the workflow and staffing structure and that the signatory authority of the Senior Attorney would be terminated in each office.
Note that pending hearing workloads are now higher than they were during most of the existence of the Senior Attorney program and they continue to increase. The anticipated improvements from “process unification” have not materialized and thus the conditions that now exist are remarkably similar to the conditions that led to the first Senior Attorney program in 1995. Acting Commissioner Massanari further stated:
At the time the decision was made to terminate the Senior Attorney program, the full implementation of prototype in the DDSs was believed to be imminent. These process changes would further reduce the pool of possible on-the-record decisions at the hearing level by ensuring more allowance decisions made correctly at the DDS level and by sending fully developed and "fresher" cases to the hearing offices for adjudication.
Clearly, this did not take place.
The Senior Attorney program was never a part of HPI. However, the HPI plan institutionalized key positive aspects of the Senior Attorney program, like early screening and analysis of cases and early identification and fast-tracking of potential on-the-record decisions.
Unfortunately, HPI was unsuccessful in its attempt to screen, analyze, identify and fast-track on-the-record decisions. HPI proved that taking a few, but not all, key aspects of a successful program like the Senior Attorney program, does not guarantee success in a new untested program. HPI had too many handoffs and still required the ALJ to review the potential on-the-record decision, and make the decision. This cumbersome process is what remains in place for most of the cases that will be screened and analyzed in OHA. It did not work well when it was called HPI and it won’t work any better with whatever new name they put on it.
NTEU doubts that Bench decisions will add significantly to ALJ productivity or decrease processing time. We do believe, however, that they will increase the rate of cases remanded to ALJs as these decisions are likely to be less well reasoned and drafted than those decisions where an ALJ can review the entire record after the Hearing and make a thoughtful reasoned decision with the advice and counsel of Hearing Office attorneys and program experts. Even without the screening and analysis initiative, many ALJs (who generally have hundreds of cases on their docket at any one time) have insufficient time to fully evaluate and consider all of the nuances of each case prior to the Hearing. We are concerned that ALJs are being pressured into making premature decisions.
NTEU also has serious concerns about the short form for favorable decisions format (FEDS) that the Agency proposes that ALJs and other employees use in drafting decisions. We are unimpressed that a number of Agency components have reviewed the format for legal sufficiency and quality as formats do not have to be legally defensible, disability decisions do. Decisions such as these, long on conclusions and short on facts, will fuel the complaint that the ALJ decisions are not supported by the evidence.
Long Term Changes
NTEU believes that it is time for the Social Security Administration to seriously consider fundamentally altering the nature of ALJ hearings by introducing an Agency representative, the Social Security Counsel, who will be responsible for presenting the Agency’s case to the Administrative Law Judge. The Counsel would be responsible for developing the record and presenting it at the hearing. It is the responsibility of the Counsel to present the adjudicator with a balanced and complete record upon which a fair and just decision can be based. The Counsel, in concert with the claimant’s representative, will resolve issues and propose settlement agreements that would be presented to the adjudicator for approval.
The role of the adjudicator would be reduced to oversight of the pre-hearing process, conducting hearings, and preparation of written decisions based on evidence presented at hearing. The ALJ would be relieved of the responsibility of representing the agency and the represented claimant, and would act as a trier of fact.
In its report dated January 2001, Charting the Future of the Social Security’s Disability Programs: The Need for Fundamental Change, the Social Security Advisory Board also noted that Administrative Law Judges have been required to balance three roles. They are obligated to protect the interests of both the claimant and the government, and to serve as an objective adjudicator. The Board further noted that approximately 80 percent of disability insurance claimants are now represented by an attorney. The Board also noted that because of the massive increase in the disability appellate workload, SSA has periodically made efforts to increase ALJ productivity which many in OHA believe has impacted adversely on the quality of decision-making. The Social Security Advisory Board recommended that the agency be represented at hearings. The Board stated that having a representative present at the hearing to defend the Agency’s position would help clarify the issues and introduce greater consistency and accountability into the adjudicatory system.
The extent of the quality assurance problems in the current system is underlined in the report of The Lewin Group, Inc, which stated that the adjudication process at OHA is almost unique. The Lewin Group reported, “We have not encountered good examples of non-adversarial processes.” The Lewin Group suggested that one way to improve the non-adversarial system is to make it more adversarial. It suggested that the mechanism for such a change would be to introduce a representative from the Social Security Administration into the adjudication process. This would relieve the Administrative Law Judge of the responsibility of representing the agency, and if the claimant were represented by outside counsel, the responsibility for representing the claimant.
In conclusion, NTEU makes the following recommendations: