Skip to content

Johnson Opening Statement: Joint Hearing on the Role of Social Security Administrative Law Judges

July 11, 2011

I am pleased to be co-chairing this hearing with my colleague Chairman Howard Coble and his Subcommittee colleagues and thank them for hosting this important hearing.  

The Social Security and Supplemental Security Income disability programs are the largest of Federal programs that provide assistance to people with disabilities. Both are administered by the Social Security Administration and only individuals who have a disability may qualify for benefits under either program.  

Social Security Disability Insurance pays benefits to workers and their families if they worked long enough and recent enough (generally 10 years, 5 of which were in the last 10 years) and paid Social Security taxes. Supplemental Security Income or SSI pays benefits based on financial need and is funded by general revenues.  

According to CBO, over $123 billion in disability insurance benefits were paid to 10.2 million disabled workers and their families in 2010 – though the current system makes it difficult if not impossible to know if that is the accurate number of Americans who are truly disabled and truly deserving of these benefits.  

Nonetheless, these are the numbers we have and CBO projects that by 2021, the number of beneficiaries will increase by close to 20 percent to 12.1 million and benefits paid will increase 57 percent to $193 billion.

In 2010, 6.5 million disabled SSI recipients received $41.8 billion in SSI benefits.  By 2021 CBO projects 7.1 million disabled SSI recipients will receive $56 billion in SSI benefits.  

Requests for benefits have increased with the aging of the baby boomers and the recession, the latter suggesting that people – in some cases – file for disability not because they are unable to work, but because they are unable to find work.  

Since 2007, disability insurance awards have increased 18 percent to 1.1 million people in 2010, while SSI disability awards have increased 28 percent to 938,000 in 2010.  According to the 2011 Trustees Report, disability program revenue will cover only 86 percent of benefits in 2018, a few short years from now.   The path we are on is unsustainable.

At the center of Social Security’s disability programs is the disability process that determines whether claimants are entitled to benefits.  Pivotal to that process is the hearing before an Administrative Law Judge or ALJ at which many of the difficult cases denied at earlier stages in the process are newly reconsidered and awarded benefits.  

The Ways and Means Subcommittee on Social Security has long focused on ALJ and hearing office performance on a bipartisan basis.  A September 2008 Subcommittee hearing highlighted the Agency’s and the Agency’s Inspector General’s work to address hearing office and ALJ performance.  A good deal of progress has been made.

Commissioner Astrue has implemented close to 40 initiatives to boost adjudication capacity, improve performance, and increase efficiency through automation and process changes. Also Agency hiring efforts have focused on increasing the number of ALJs and their support staff.   

The average waiting time for a hearing decision has been reduced from a high of 505 days in August 2008 to 353 days in June 2011.  Now, 74 percent of ALJs are meeting the requested threshold of 500 decisions, up from 47 percent when the request was first made in October 2007.  

Appeals processing statistics are posted online.  Now the public is rightly paying attention and raising questions about the integrity of the ALJ hearing process.  

Recent press articles have highlighted:
•    Judges awarding benefits 90 percent or more of the time, in comparison to a national average that hovers around 60 percent;
•    Judges who decide extremely high numbers of cases in comparison to their colleagues, in some cases thousands more;
•    Awards that are made without a hearing, based on whatever medical evidence may be in the file;
•    Disparities from office to office and state to state, where an outcome can be predicted based on the ALJ assigned the case; and
•    Assignment of cases outside of random rotation, raising the specter of inappropriate relationships with counsel.

At the bipartisan request of this Subcommittee, the Agency’s Inspector General is investigating the most egregious of these examples now.   At a minimum, these articles raise serious questions about the fundamental fairness of this appeals system, and whether it operates as the public has a right to expect.  

So why do these Judges get away with this?  Under the law, ALJs have judicial independence, which seems to mean they operate with little or no accountability.

Simply put, the Agency can’t question their decisions, even if they grant approvals in most of their cases or deny most of their cases.   ALJs who produce extraordinary numbers of decisions or who do very little are hard to hold accountable as well, since their productivity seems to be related to their independence.  

Their collective bargaining agreement affords ALJs additional layers of protection, and the ALJ union has fought long and hard to keep those protections in place.  And while the laws that protect ALJs give the Agency the ability to pursue the most egregious cases of conduct, it’s a costly and time-consuming process.

No one should have to wait months or even years longer for their hearing decision because of the office or the ALJ their appeal is assigned to, nor should the taxpayer have to foot the bill for a national hearings process that can, in effect, allow judges to rubberstamp awards.  

That’s just plain wrong.  Those who aren’t performing up to expectations must be held accountable.  Social Security must work fairly for all Americans and protect their hard-earned taxpayer dollars.

We need to find out what is going on in this program and fix it.  And if current law allows this to happen, we need to change the law.   Preserving the public trust demands no less.