Hearing on Management of the Office of Hearings and Appeals
September 25, 2003
Subcommittee on Social Security
House Committee on Ways and Means
Testimony of
Marty Ford
Co-Chair
Social Security Task Force and Work Incentives Implementation Task Force
Consortium for Citizens with Disabilities
ON BEHALF OF:
American Association on Mental Retardation
American Council of the Blind
American Foundation for the Blind
American Network of Community Options and Resources
Association for Persons in Supported Employment
Association of University Centers on Disabilities
Brain Injury Association of America
International Association of Psychosocial Rehabilitation Services
National Alliance for the Mentally Ill
National Association of Councils on Developmental Disabilities
National Association of Disability Representatives
National Association of Protection and Advocacy Systems
National Mental Health Association
National Organization of Social Security Claimants’ Representatives
NISH
Paralyzed Veterans of America
Research Institute for Independent Living
The Arc of the United States
United Cerebral Palsy
Contact: Marty Ford, The Arc & UCP Public Policy Collaboration, 1331 H Street,
NW Suite 301, Washington, DC 20005 (o) 202/7835-2229 (FAX) 202/783-8250 (email)
ford@thearc.org or ford@ppcollaboration.org
Chairman Shaw, Representative Matsui, and Members of the Subcommittee, thank you
for this opportunity to testify regarding management of the Social Security
Administration’s Office of Hearings and Appeals.
I am Director of Legal Advocacy for The Arc and UCP Public Policy Collaboration,
which is a joint effort of The Arc of the United States and United Cerebral
Palsy. I am testifying here today in my role as co-chair of the Social Security
Task Force and the Work Incentives Implementation Task Force of the Consortium
for Citizens with Disabilities. CCD is a working coalition of national consumer,
advocacy, provider, and professional organizations working together with and on
behalf of the 54 million children and adults with disabilities and their
families living in the United States. The CCD Social Security and Work
Incentives Implementation Task Forces focus on disability policy issues in the
Title XVI Supplemental Security Income program and the Title II disability
programs.
The CCD Task Forces welcome the opportunity to testify here today and appreciate
your holding a hearing regarding management of the Office of Hearings and
Appeals.
As the Subcommittee is aware, 10 million people with disabilities under age 65
receive disability benefits: 5.2 million people with disabilities depend upon
Title II disability benefits, 3.5 million depend upon Supplemental Security
Income disability benefits, and 1.3 million depend upon a combination of both
Title II and SSI disability benefits. Therefore, the management and
administration of the Title II and SSI disability programs are of critical
importance to people with disabilities and to the members of CCD.
Claimants for Title II and SSI disability benefits can be very vulnerable. The
average monthly benefit of people with disabilities in the Social Security
Disability Insurance program is $834. People with disabilities of working age in
the SSI program have monthly benefits that average $428. Many people applying
for disability benefits have very low incomes, due to their impairments, and
many have mental impairments that further complicate the application process and
their understanding of the requirements for hearings and appeals. Claimants for
the SSI program tend to have less work experience and education than their
counterparts applying for Title II disability benefits.
Unlike most of the witnesses here today, we cannot provide insight about the
day-to-day management of the Office of Hearings and Appeals. What we can
provide, however, is an understanding of the impact of management problems and
failures on people who are intended beneficiaries of the Social Security
disability programs. I also hope that we can imbue a sense of urgency to the
discussion, because management problems that result in delay impact on the daily
lives of people with disabilities who must turn to the Office of Hearings and
Appeals to appeal unfavorable decisions on their claims for benefits under Title
II or SSI.
Further, since solutions to management issues are inextricably tied to the
expected functions of OHA, I also want to reinforce the key elements that we
believe must remain in the hearings and appeals process. This includes
preserving a requirement for an Administrative Law Judge hearing on the record,
allowing new evidence at the ALJ and Appeals Council stages, and not having SSA
represented at ALJ hearings.
For people with disabilities, it is critical that the Social Security
Administration address and significantly improve the process for hearings and
appeals. The backlog of cases waiting for ALJ and Appeals Council decisions is
clearly unacceptably long, as so vividly and visually illustrated by the
Commissioner at this Subcommittee’s hearing on May 2, 2002. People with severe
disabilities who by definition have limited earnings from work are often forced
to wait years for a final decision, from the time of application through the
final Appeals Council decision. This is damaging not only to the individual with
a disability and his/her family, but also to the public perception of and
integrity of the program.
We believe that it is necessary to reduce unnecessary delays for claimants and
to make the process more efficient. Improving how the OHA functions should not
require any significant changes that would diminish the fairness of the process
in determining a claimant’s entitlement to benefits.
I. Improving the Office of Hearings and Appeals
While we cannot address all of the factors that go into making an office
efficient and productive, there are some elements of the OHA structure and
practices which come to our attention regularly and could be resolved to
contribute to a more efficient and productive system of hearings and appeals.
Technological Improvements
We support the Commissioner’s efforts to make technological improvements at SSA.
Whatever funds are necessary should be appropriated to ensure that the process
works as intended by the law. Much of the delay in the current process is caused
by a system that still requires a great deal of manual labor, including handling
and transmission of paper files. Several initiatives have been announced that
could reduce delays, provide better service to the public, and would not require
fundamental changes to the current process. They include: electronic folders (eDIB),
digital recording of hearings, and video teleconference hearings. We support
such modernizations where they are used to ensure a full and fair evaluation of
a claim and ensure the claimant’s access to a full and fair hearing on appeal,
where necessary.
The electronic folder: “eDIB.” The Commissioner is moving forward to develop the
electronic disability folder, “eDIB,” as soon as practicable in light of
available resources. This would reduce delay caused by moving and handing-off
folders, allowing for immediate access by whichever component of SSA or the DDS
is working on the claim. Further, this would allow adjudicators to organize
files to suit their preference.
In terms of preparing a record for federal district court, eDIB would allow for
electronic filing of the administrative record, which is consistent with the
Judicial Conference of the United States’ policy and initiative to move towards
electronic filing of documents and pleadings. The Appeals Council has had
difficulty reproducing copies of the record, whether needed by the claimant or
for federal court filing. Files are too often lost or difficult to locate,
leading to delays at the Appeals Council and district court levels. The
electronic folder would certainly ease the workload in this regard and,
consequently, reduce delays.
We believe that using electronic folders will allow much faster processing,
eliminating delays while folders are moved from place to place, avoiding loss of
valuable records, and allowing immediate recording of updates, new evidence, or
other actions regarding the file. However, we believe that it is critical to
establish that electronic files contain all of the claimants' evidence in an
exact, unalterable electronic copy of the original, including complete copies of
originals that are received electronically. Important details and nuances in the
paper reports must not be lost. In addition, nothing should preclude the
claimant from presenting available evidence in any format.
We do not consider summaries or partial documents acceptable substitutes for
inclusion in a folder. Technology is now widely available to allow such “paper”
evidence to be fully included in the electronic folder without alteration. We
urge the Commissioner to ensure protection of this valuable, sometimes
irreplaceable, evidence by requiring that exact, unalterable electronic copies
of all originals be permanently maintained in the electronic folder. Otherwise,
we could not support this move toward a fully electronic record.
Digital recording of hearings. Another important component of technological
improvement is digital recording of ALJ hearings. Currently, hearings are often
taped on obsolete tape recorders, which are no longer manufactured. If copies
are needed, they must be transferred to cassette tapes, which is time-consuming.
Tapes are frequently lost because they are stored separately from the paper
folder. Given the age of the taping equipment, the quality of tapes is often
quite poor, which also results in remands from the Appeals Council or the
district court. A digitally recorded hearing would not only be of high audio
quality but also would be easy to copy or transfer to the district court as part
of the administrative record.
Use of video teleconferencing at ALJ hearings. The Commissioner also 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. Claimants and their representatives 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 February 2003, SSA published final rules on video teleconference hearings
before ALJs. In general, we support the 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.
Gathering and Protecting Evidence
It is critical that SSA collect the correct information at the earliest possible
time in the process to ensure that correct decisions are made the first time.
SSA must improve the collection of medical and non-medical evidence by
explaining what is needed and asking the correct questions, with appropriate
variations for different treatment sources.
Claimants should be encouraged to participate to the extent they are able. To
that end, SSA should assess, as early in the process as possible, the claimant’s
need for special assistance and provide it. Such assistance could be triggered
when applicants are unable to read, show evidence of cognitive or other mental
impairments, or give other indications of being unable to negotiate the process
alone.
Evidence that has been gathered must be protected and preserved by SSA. We are
concerned about the loss of evidence from the Chicago office (mentioned in the
Advisory for this hearing). It goes without saying that allowing contractors to
discard potentially important evidence from case files can seriously harm
claimants. SSA must be vigilant in fulfilling its stewardship responsibilities.
This is also true for the failure to open mail for months at a time in the
Milwaukee office (as mentioned in the hearing Advisory).
Need to Protect Personal Privacy
We are disturbed by the reports in the press, discussed at this Subcommittee’s
hearing on July 24, 2003, that contractors for SSA have removed files from the
OHA offices and taken the files to employees’ homes to telecommute or work from
home. We also learned during the hearing that SSA employees are allowed to work
on these files at home. We are very concerned about this practice and urge that
it be halted for contractors as well as employees. At a minimum, the following
concerns should be addressed:
• Personal Medical Information – Case files, by their nature, contain very
personal information about an individual’s medical conditions and the impact of
those conditions on the individual’s daily life. Names of health care providers
and hospitals are included, as are recommended courses of treatment and
prescribed medications.
• Personal Identification Information – Files contain names, addresses, dates of
birth, and Social Security Numbers. Access to this information would make
identity theft possible.
• Impact of Loss of Files – Files can easily be lost, misplaced, damaged, or
destroyed when allowed to be removed from OHA offices. The loss of evidence can
create devastating delays for individuals waiting for decisions.
Even if SSA could assure that its employees and contractors would handle all
files with the utmost care and responsibility, SSA can make no such assurances
about the employees’/contractors’ family members, roommates, houseguests,
visitors, or household employees. There are also many opportunities for damaging
or losing files during transportation by car, bus, subway, etc. We urge the
immediate halt of this “work at home” practice, until such time as SSA can
reliably ensure that all privacy and security concerns have been addressed with
adequate safeguards.
II. Preserving Major Characteristics of the Current System
In the effort to ensure that the Office of Hearings and Appeals achieves higher
efficiency and productivity, it is important not to “throw the baby out with the
bathwater”. The purpose of OHA is to provide claimants with a fair opportunity
to appeal unfavorable decisions regarding benefits that the individual needs and
to which he/she may be entitled. Improvements in the implementation of OHA’s
responsibilities should not alter the purpose of those responsibilities or the
rights of the claimants. This Subcommittee has addressed many of these issues in
past hearings; however, in repeating some of the CCD Task Forces’ positions
here, I wish to emphasize the importance of protecting claimants’ rights and
ensuring that improvements to OHA do not circumvent these critical rights.
The Right To A Full And Fair Hearing Before An Administrative Law Judge
A claimant’s right to a hearing before an Administrative Law Judge (ALJ) is
central to the fairness of the adjudication process. This is the right to a full
and fair administrative hearing by an independent decision maker who provides
impartial fact-finding and adjudication, free from any agency coercion or
influence. The ALJ asks questions of and takes testimony from the claimant, may
develop evidence when necessary, considers and weighs the medical evidence,
evaluates the vocational factors, all in accordance with the statute, agency
policy, including Social Security Rulings and Acquiescence Rulings, and circuit
case law. Claimants have the right to present new evidence in person to the ALJ
and to receive a decision from the ALJ that is based on all available evidence.
These elements of the ALJ hearing should be preserved.
Importance of Considering New And Material Evidence
For claimants, a fundamental principle of the right to an ALJ hearing is the
opportunity to present new evidence in person to the ALJ, and to receive a
decision from the ALJ that is based on all available evidence. If new and
material evidence were available, but not allowed at the ALJ hearing, SSA would
suffer from public perceptions of an agency that makes arbitrary decisions
regardless of the weight of the evidence available. If the Appeals Council were
to ignore new and material evidence that relates to the time period before the
ALJ decision, the public would similarly conclude that the disability
determination process is arbitrary and flawed.
Restoring the Senior Attorney Position
In the 1990’s, as an initiative to reduce the backlog of cases at hearings
offices, senior staff attorneys were given the authority to issue fully
favorable decisions in cases that could be decided without a hearing (i.e. “on
the record”). This program was well received by claimants’ advocates because it
provided an opportunity to present a case and obtain a favorable result
efficiently and promptly. And, of most importance, thousands of claimants
benefited. While the Senior Attorney Program existed, it helped to reduce the
backlog by issuing approximately 200,000 decisions. Unfortunately, the
initiative was phased out in 2000.
We support reinstating senior attorney authority to issue decisions in cases
that can be favorably decided on the record and support expanding ways that they
can assist ALJs. For instance, they also can provide a point person for
claimants’ representatives to contact for narrowing issues, pointing out
complicated issues, or holding pre-hearing conferences.
Retaining an Informal ALJ Hearing
We do not support efforts to have SSA represented at the ALJ hearing because
past experience shows that it does not result in better decision-making and
reducing delays, but instead injects an adversarial element and increases
formality and technicality in a system meant to be informal and non-adversarial.
In the 1980’s, SSA tested, and abandoned, a pilot project to have the agency
represented. It was terminated following Congressional criticism and a judicial
finding that it was unconstitutional and violated the Social Security Act. In
the end, the pilot did not enhance the integrity of the administrative process.
SSA and the claimant should not be viewed as parties on opposite sides of a
legal dispute. SSA already has a very heavy say in what goes on: SSA implements
the law through development and publication of regulations, including the
medical listings; provides guidance to claims workers and Disability
Determination Services staff through its Program Operations Manual System (POMS);
contracts with the states for determinations made in accordance with its
regulations and POMS; and hires the ALJs. The claimant’s role is to show that
he/she has an impairment with limitations that fit within the parameters
constructed by Congress and implemented by SSA. Very few claimants would have
the wherewithal to know and understand all of the things that could or should
pertain to their cases. SSA has a vital role in helping the claimant through a
very complex process. SSA’s role is not to “oppose” the individual’s claim; but
rather to ensure that people who are eligible as contemplated by Congress are
enabled, as a result of the claims process, to receive the benefits to which
they are entitled. Where an individual has representation, whether legal or lay
representation, SSA should view the individual’s representative as an ally in
facilitating the collection of relevant evidence and highlighting the important
questions to be addressed in making the disability determination.
Review By The Appeals Council
SSA has been testing the elimination of a claimant’s right to request review of
a hearing decision by the Appeals Council. We strongly oppose the elimination of
a claimant’s right to request review by the Appeals Council. 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 has made significant improvements in reducing
processing times and its backlog.
The Appeals Council, when it is able to operate properly and in a timely manner,
provides claimants with effective review of ALJ decisions. In addition,
elimination of Appeals Council review could have a serious negative impact on
the federal courts. In 1994, the Judicial Conference of the United States
opposed elimination of the claimant’s request for review by the Appeals Council
prior to seeking judicial review in the district courts, stating that such a
proposal was “likely to be inefficient and counter-productive.” The Judicial
Conference also recognized the Appeals Council’s role as a screen between the
ALJ and federal court levels, noting that “[c]laimants largely accept the
outcome of Appeals Council review.” Further, the Conference expressed concern
that allowing direct appeal from the ALJ denial to federal district court could
result in a significant increase in the courts’ caseloads.
We agree with the conclusion of the Judicial Conference of the United States.
Access to review in the federal courts is the last and very important component
of the hearings and appeals structure. Court review is not de novo, but rather,
is based on the substantial evidence test. We believe that both individual
claimants and the system as a whole benefit from federal court review. The
district courts are not equipped, given their many other responsibilities, to
act as the initial screen for ALJ denials.
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Again, thank you for this opportunity to testify on these important issues. The
CCD Social Security and Work Incentives Implementation Task Forces looks forward
to working with the Subcommittee and the Commissioner on improving the
disability determination and appeals processes.
ON BEHALF OF:
American Association on Mental Retardation
American Council of the Blind
American Foundation for the Blind
American Network of Community Options and Resources
Association for Persons in Supported Employment
Association of University Centers on Disabilities
Brain Injury Association of America
International Association of Psychosocial Rehabilitation Services
National Alliance for the Mentally Ill
National Association of Councils on Developmental Disabilities
National Association of Disability Representatives
National Association of Protection and Advocacy Systems
National Mental Health Association
National Organization of Social Security Claimants’ Representatives
NISH
Paralyzed Veterans of America
Research Institute for Independent Living
The Arc of the United States
United Cerebral Palsy