Statement of John H. Pickering, Past Chair, Senior Lawyers Division, and
Commissioner Emeritus, Commission on Legal Problems of the Elderly,
American Bar Association

Before the Subcommittee on Social Security,
House Committee on Ways and Means

Hearing on Social Security Disability Programs' Challenges and Opportunities

June 20, 2002

Mr. Chairman and Members of the Subcommittee:

My name is John H. Pickering.  I serve as Commissioner Emeritus of the American Bar Association Commission on Legal Problems of the Elderly, which I chaired for a number of years.  I am also a past chair of the ABA Senior Lawyers Division. I appreciate the opportunity to appear before you today on behalf of the Association, to discuss our views on the Social Security disability appeals system.

As representative of the legal profession in the United States, the American Bar Association is particularly concerned with equal access to justice for those members of our society who are generally least able to protect their own rights -- low-income persons, individuals with disabilities and older people. We have a long-standing interest in the Social Security Administration's disability benefits review process, and have worked actively for many years to promote increased efficiency and fairness in this system. We have followed the agency’s efforts over the past decade to improve the timeliness, accuracy, and consistency of its disability decisions, and we commend those attempts, although we recognize that they have met with mixed results.  It is clear that they have not alleviated backlogs in the system.  It still takes the agency as long as one year to reach a determination on an initial appeal; some claimants must wait years for a final Appeals Council decision.  These delays have a profound effect on public confidence in the agency, on agency staff, and most significantly, on claimants who desperately need the benefits.

Almost seventeen years ago, the ABA joined with the Administrative Conference of the United States (ACUS) to sponsor a national symposium to examine Social Security’s administrative appeals process. In 1986, the Association filed an amicus curiae brief in the landmark U.S. Supreme Court case, Bowen v. City of New York, in which we argued successfully that the Social Security Administration should reopen the cases of thousands of mentally disabled claimants who were denied disability benefits because they failed to meet sub rosa requirements and appeal deadlines. Brief for the American Bar Association, Amicus Curiae, in Support of the Respondents, Bowen v. City of New York, 476 U.S. 467 (1986). More recently, the Association adopted a set of recommendations for strengthening safeguards and protections in the representative payee program. Over the years, we have drawn upon the considerable expertise of a membership with backgrounds as claimant representatives, administrative law judges, academicians and agency staff to develop a wide ranging body of recommendations on the disability adjudication process that encourage clarity in communications with claimants, due process protections, and application of appropriate, consistent legal standards at all stages of that process.

It is with this background that we offer some recommendations to the Subcommittee for consideration.  We believe that implementation of these recommendations will help to alleviate the backlogs and delays that are overwhelming the current system, and will lead to the development of a disability determination and appeals process that is timely, efficient and fair, and that meets the needs of individuals with disabilities and their families. 

The first step toward increasing the speed and efficiency of the appeals process is to reduce the number of appeals. According to the General Accounting Office, of the 40% of claimants who appealed initial denials in fiscal year 2000, approximately two-thirds were awarded benefits upon appeal.  In all too many cases in the system today, claims that could have been decided at the initial stages are awarded at the hearing level simply because the evidence of disability is more complete by the time it is presented to the administrative law judge.  We recommend that the Social Security Administration improve the front end of the process by providing applicants with a clear statement of eligibility requirements, a list of claimant responsibilities, a description of the administrative steps in the process, an explanation of relevant medical and vocational evidence, and notice of the availability of legal representation.

To improve the quality of medical and vocational evidence at the initial stages of the process and to reduce the need for appeal, we suggest that the agency consult the claimant's health care providers, and compensate them adequately for providing relevant medical information.  We encourage SSA to take affirmative steps to compile accurate documentation and to supplement medical reports (particularly those from treating physicians) that are not sufficiently detailed or comprehensive.  We are pleased to note that the SSA website includes information for the medical community about eligibility criteria used in the disability program. We encourage the agency to go further by assisting claimants in compiling necessary documentation and in supplementing incomplete reports. We also urge the agency to establish a single standard for the determination of disability at all levels of decision-making making.

We recommend that, prior to denying claims, the Social Security Administration notify claimants of the pending adverse action; inform them of the reasons why the finding of disability cannot be made; ensure that they have access to all the evidence in their file, including medical reports; and provide them the opportunity to submit further evidence.  We also recommend that SSA advise claimants' health care providers of deficiencies in the medical evidence and give them the opportunity to supply additional information.  Disability claims managers should be encouraged to consult with legal as well as medical resources in their evaluation of a claim. We encourage the vesting of initial decision-making authority in two-member teams composed of a disability examiner and a medical or psychological professional, and we support face-to-face interviews between claimants and agency decision-makers before a final decision is made.

In the event that the claim is denied after this full and complete development of the file, we suggest certain additional steps to enhance the integrity and efficiency of the appeals process while guaranteeing the claimant due process.

Claimants whose applications are denied should be provided a clear and detailed statement of the reasons for denial, the opportunity to appeal, the availability of representation, and the consequences of failing to appeal. The ABA supports elimination of the reconsideration level.  If the quality of intake and development of evidence at the early stages is improved, there is little reason for reconsideration, particularly given the historically low reversal rate and substantial delays involved at this level. Instead, claimants whose applications are denied should have the right to a due process hearing on the record before an administrative law judge whose authority as an independent fact-finder is assured.  The administrative law judges should be appointed pursuant to the Administrative Procedures Act.  This hearing is essential to a full and fair review of the claim, and administrative law judges should have the opportunity to take testimony from the claimant, develop evidence when necessary, consider and weigh the medical evidence, and evaluate vocational factors in order to reach an impartial decision free from agency coercion. 

In 1995, in response to the Social Security Administration’s efforts to eliminate the backlog of cases that threatened the ability of administrative law judges to assure due process at the hearing level, the ABA House of Delegates endorsed additional reforms at the hearing and pre-hearing stages. We recommended the designation of adjudication officers with supporting staff who, immediately following the initial denial of a claim, would work with the disability claims manager to develop the evidence, assemble a file and, where appropriate, allow the claim. The adjudication officer could obtain additional evidence necessary to establish a change in medical condition, or evidence that the claimant was unable to procure due to cost or other circumstances beyond the claimant's control. Should the case proceed to a hearing, the adjudication officer could be a “presenter” responsible for drawing attention to salient facts in the record and calling witnesses where appropriate.  However, concerned about the disadvantage such a system might pose to unrepresented claimants, we also recommended that administrative law judges have access to investigative sources and be permitted to assert direct control over the development of the record. Those recommendations still have value today.

Several proposals over the past few years have suggested closing the record at some point during the administrative appeal process to provide a measure of finality.  While we hope that evidence would be submitted as early in the process as possible, we urge that proposals to close the record be carefully considered.  Certainly, the record should not be closed until the conclusion of the hearing at the earliest.  Even then, claimants who show good cause, such as newly discovered evidence or a material change in condition, must be permitted to reopen the record within one year of an adverse decision.  To close the record without allowing reopening under those circumstances would penalize claimants who may have been unable through no fault of their own to gather the evidence necessary for a full and fair hearing.  It would also create additional costs for the agency, because claimants would file new applications simply to submit new evidence.

Recent proposals have raised anew questions about the role of the Appeals Council. In 1986, the ABA advocated for a complete study of Appeals Council procedures and functions to determine whether Appeals Council review is necessary and to explore possible changes in the Council's role. We are cognizant of past agency attempts to control the rates at which administrative law judges allowed claims, so we caution that any changes to the role of the Appeals Council not compromise the independence and impartiality of administrative law judge decision-making making.  We therefore urge that the scope of Appeals Council review be limited to clear errors of law or lack of substantial evidence.  Administrative law judges’ findings of fact should not be reversed without specific documentation and review of the hearing tapes.  Finally, we recommend that if the Appeals Council fails to act upon a request for review within a specified period of time, claimants should be deemed to have exhausted their administrative remedies and permitted to seek federal court review.

Finally, we consider the issue of Article I courts to hear Social Security appeals. The ABA has consistently opposed legislation to create Article 1 courts to hear appeals from final decisions of the SSA.  When we testified before this Subcommittee in 1991, we observed that efforts to establish a separate court appeared to have been motivated by three concerns: increasing numbers of appeals, issues too technical for courts of general jurisdiction; and the need for uniformity of decision-making making.  More recent arguments have included the potential for more cases in the system as a result of baby boomer claim filings, and the parallels to be drawn with the Veterans Court of Appeals and other specialized courts. We have posited in the past that Social Security appeals are not drains on federal court resources since they are considered by magistrates in many if not all jurisdictions, and are on the record reviews using a substantial evidence test.  While it may be time to revisit this issue in light of the more recent arguments, the more significant problem remains the failure of the Social Security Administration to make accurate determinations on claims in the earlier stages of the process.  Simply shifting appeals to another court system is not a practical solution, and indeed could overwhelm a single court. 

We attach copies of relevant ABA policies for your reference.

The Social Security Administration has made great strides in improving access to information, particularly on the Internet, but there continues to be room for improvement in the appeals process itself.  We are confident that our recommendations would improve the disability system and alleviate the backlog by reducing the number of appeals and the reversals upon appeal. We commend the Subcommittee for holding hearings on these important issues, and appreciate the opportunity to submit this testimony.  We look forward to working with the Subcommittee and with the Social Security Administration on these issues in the future.