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<h2>Social Security Testimony Before Congress</h2></div>
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<div class="column-12 topic">
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<p align="center"> </p>
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<p> </p>
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<div align="center"><strong>Statement of Judge Patricia Jonas,
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Executive Director, <br>
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Office of Appellate Operations<br>
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Office of Disability Adjudication and Review<br>
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Social Security Administration<br>
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before the Senate Committee on<br>
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Homeland Security and Governmental Affairs<br>
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Permanent Subcommittee on Investigations<br><br>
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September 13, 2012</strong>
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</div>
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<p> </p>
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<p>Chairman Levin, Ranking Member Coburn, and Members of the Subcommittee:</p>
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<p>Thank you for the opportunity to appear before you today. My name is Judge Patricia Jonas. I am
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||
the Executive Director of the Office of Appellate Operations and the Deputy Chair of the Appeals
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Council (AC) at the Social Security Administration Office of Disability Adjudication and Review
|
||
(ODAR). Since 1940, the AC has operated under a direct delegation of authority from the
|
||
Commissioner of Social Security to help oversee the hearings process. The AC conducts reviews of
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||
practices and decisions based on this authority. I oversee approximately 75 administrative appeals
|
||
judges of the AC who review both the allowances and denials made by our administrative law judges
|
||
(ALJ).</p>
|
||
<p>I understand the Subcommittee is preparing to release a report concerning 300 disability cases—100
|
||
each from Buchanan County, VA, Dallas County, AL, and Oklahoma County, OK. We have not yet seen
|
||
that report, but we look forward to reviewing it and working with the Subcommittee to collect
|
||
meaningful data about areas of mutual concern. We recognize that the conclusions of this study
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||
will be severely limited by the statistically non-representative sample of cases that was studied.
|
||
That said, we are hopeful that the report will identify data that merit further research. We are
|
||
also pleased to share with you the agency’s preliminary findings from its separate review of the
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||
300 cases.</p>
|
||
<p>In addition to addressing the findings from your report, I want to take this opportunity to update
|
||
you on the improvements we have made to the hearings and appeals process. The Supreme Court has
|
||
recognized that we are “probably the largest adjudicative agency in the western world,” and we take
|
||
very seriously our responsibility to issue timely and accurate decisions.<strong>1</strong></p>
|
||
<p>When Commissioner Astrue arrived five years ago, there was widespread discontent with backlogs and
|
||
delays in the disability system. There was also significant concern about the quality of our
|
||
decision-making. The majority of a prior agency plan to fix those problems—Disability Service
|
||
Improvement (DSI)—was halted so that resources could be redirected to backlog reduction. The
|
||
numbers tell the story. At the time, over 63,000 people waited over 1,000 days for a hearing, and
|
||
some people waited as long as 1,400 days. We were failing the public.</p>
|
||
<p>Right from the beginning, Commissioner Astrue’s refrain was that we could not take the easy road of
|
||
short-term fixes on backlogs that would aggravate our quality issues. With that principle in mind,
|
||
Commissioner Astrue developed an operational plan that focused on the gritty work of truly managing
|
||
the unprecedented hearings workload. We made dozens of incremental changes, including using video
|
||
more widely, improving information technology, simplifying regulations, standardizing business
|
||
processes, and establishing ALJ productivity expectations, to name just a few. Additional resources provided by
|
||
Congress in the Recovery Act were critical to supporting these initiatives.</p>
|
||
<p>Today, the result is clear—the plan has worked. Average processing time, which stood at 532 days
|
||
in August 2008, steadily declined for more than three years, and currently stands at 359 days.</p>
|
||
<p>This improvement in our ability to hold hearings and issue timely decisions is even more impressive
|
||
when you consider that we have given priority to the oldest cases, which are generally the most
|
||
complex and time-consuming. Since 2007, we have decided over
|
||
600,000 of the oldest cases. Each year, we lower the threshold for aged cases to ensure that we
|
||
continue to eliminate the oldest cases first. We ended fiscal year (FY)
|
||
2011 with virtually no cases over 775 days old. Through the steady efforts of our employees, we now
|
||
define an aged case as one that is 725 days or older, and we have already completed over 90 percent
|
||
of them. Next year, our management goal is to raise the bar on ourselves again by focusing on
|
||
completing all cases over 675 days old.</p>
|
||
<p>As we have worked to provide your constituents with quicker decisions, we have not forgotten our
|
||
duty to ensure that every decision is fair and meets the requirements of the law. In short, we
|
||
strive to make sure that our decisions are of the highest quality.</p>
|
||
<p>Prior to Commissioner Astrue’s arrival, due to several years of budget shortfalls, the agency had
|
||
performed very little quality review at ODAR, in large part due to litigation and congressional
|
||
reaction to the “Bellmon Review” in the 1980s. And perhaps equally important, as a result of that
|
||
litigation and congressional reaction, our policy guidance and feedback to our ALJs was limited.
|
||
For many years, a remand order was the primary method of providing written feedback from the AC to
|
||
ALJs. While this method of providing feedback and guidance to ALJs is still an appropriate
|
||
mechanism when
|
||
addressing individual cases, there are limitations. For example, the number of remands to any ALJ
|
||
is relatively small, and, until the reintroduction of a favorable review effort at the AC, the
|
||
feedback was generally limited to cases in which the ALJ made an unfavorable decision.</p>
|
||
<p>However, under Commissioner Astrue’s leadership, we took aggressive steps to
|
||
institute a more balanced quality review into the hearings process. The first step was to develop
|
||
serious data collection and management information for ODAR, and the next step was to revive
|
||
development of an electronic policy-compliant system for the AC, which had been terminated by the
|
||
DSI initiative. These new tools permitted the AC to capture a significant amount of structured
|
||
data concerning the application of agency policy in hearing decisions. In December 2008,
|
||
Commissioner Astrue provided resources to our Office of Quality Performance to institute an
|
||
independent national-level review of hearings level decisions to ensure a consistent and
|
||
comparative review for all three adjudicative levels of the agency’s disability process. Also, in
|
||
2009,
|
||
Commissioner Astrue reestablished the quality review function in the AC, known as the Division of
|
||
Quality (DQ), that reintroduced review of a sampling of favorable hearing decisions. This office
|
||
took about a year to implement fully since we had to hire, train,and lease office space for about 50 staff whose function is to identify quality issues in the
|
||
processing of disability cases at the hearings level. Beginning in September 2010, the DQ began to
|
||
conduct the reviews of favorable hearings level decisions.</p>
|
||
<p>These new quality initiatives have given us a new opportunity to improve our feedback and policy
|
||
guidance. The data collected from these quality initiatives identify the most error-prone
|
||
provisions of law and regulation and this information is used to design and implement our ALJ
|
||
training efforts, including the annual judicial training and mandatory quarterly training for all
|
||
ALJs. We have also recently implemented a new process that expands the opportunity for ALJs to
|
||
provide feedback to the AC when a remand is issued.</p>
|
||
<p>We also provide feedback on decisional quality, giving adjudicators real-time access to their
|
||
remand data. We develop and deliver specific training that focuses on the most error-prone issues
|
||
that our judges must address in their decisions. In addition, we make available specific training
|
||
to address individualized training needs.</p>
|
||
<p>These efforts are testing some longstanding traditions within ODAR. We are moving from training
|
||
based primarily on anecdotal information as to our most significant problems to a data-based
|
||
identification of issues. Training materials are developed so that they are not only a policy
|
||
reminder, but a skill-based training designed to improve both the adjudicator’s efficiency and
|
||
accuracy in case adjudication. We are transparent with the information that we are collecting so
|
||
that the ALJs can more readily make use of the information. Providing a mechanism for the ALJs to
|
||
question the AC about a remand is also a new innovation. We believe that our hearings process is
|
||
improving because of this increased feedback and communication.</p>
|
||
<p>As you are aware, there is a public dialogue about our ALJs and our hearing process. Certainly, the
|
||
fact that better ALJ data are readily available is a factor. Allegations both of “paying down the
|
||
backlog” and fraud in the disability system have appeared in the media from time to time. These
|
||
allegations are based mostly on anecdote and innuendo, and unfairly diminish our accomplishments
|
||
over the past five years. Moreover, these reports often ignore the reality that we are making
|
||
quicker, higher quality disability decisions. Over the past five years, the allowance and denial
|
||
rates have become more consistent throughout the ALJ corps. Since FY 2007, there has been more
|
||
than a two-thirds reduction in the number of judges who allow more than 85 percent of their cases.<strong class="ninetypercent">2</strong></p>
|
||
<p>Of course, opportunities for continued improvement remain. Due to challenges maintaining our
|
||
staffing levels and difficulty keeping up with demand, we have begun to lose ground with respect to
|
||
our average processing time these last two years. At this point, it appears all but certain that
|
||
we will not meet our average processing time goal of
|
||
270 days in FY 2013; however, full funding of the President’s budget would allow us to make
|
||
progress.
|
||
</p>
|
||
<p><strong><u>300 Case Study Preliminary Findings</u></strong></p>
|
||
<p>While my office has not yet reviewed the 300 disability cases provided the Subcommittee, which
|
||
consisted of a mixture of decisions from all levels of our adjudication process and were weighted
|
||
toward allowances, the agency’s Office of Medical and Vocational Evaluation did a basic review of
|
||
them. I understand that they found a limited number of policy issues that are consistent with what
|
||
we saw when the DQ in the AC conducted a national random sample review of favorable hearings level
|
||
decisions in FY 2011.</p>
|
||
<p>Two areas that concerned us in our AC sample results were the evaluation of medical opinion and the
|
||
assessment of residual functional capacity (RFC). Using the data we collected at the AC, we
|
||
provided mandatory training to all ALJs on RFC and evaluation of medical source opinion earlier
|
||
this year. Just as with the cases we see at the AC, the majority of the ALJs in the cases that the
|
||
Subcommittee requested appear to have complied with our policies. However, there also are examples
|
||
in which ALJs were not policy compliant in evaluating the appropriate weight given to a medical
|
||
source’s
|
||
opinion and in assessing the claimant’s RFC. There were also several case examples from one ALJ in
|
||
which the written decision appeared inaccurate and contained boilerplate information that was not
|
||
relevant to the individual claimant. That same issue had been seen by the DQ in the random sample
|
||
review and, as a result, the Chief ALJ had instructed the ALJ to discontinue this practice. This
|
||
example shows that our improvements are producing positive results.</p>
|
||
<p><strong><u>Building Speed and Quality into the Hearings and Appeals Process</u></strong></p>
|
||
<p>When the agency established the hearings process in 1940, it designed the process to handle a
|
||
substantial number of cases—that is, a larger number than was handled in other hearing processes.<span class="ninetypercent"><strong>3</strong></span> However, over the years, that number has grown. In FY
|
||
2007, we received nearly 580,000 hearing requests; last fiscal year, we received over
|
||
859,000 hearing requests, which was a record number. The main reason behind this workload growth
|
||
in recent years has been the flood of new appeals caused by the aging of the baby boomers and the
|
||
economic downturn. Rapid expansion of large firms representing claimants may also be a factor in
|
||
the higher rate of appeal.</p>
|
||
<p>To address these growing workloads, we decided to return to the gritty work of truly managing our
|
||
hearings and appeals workloads.</p>
|
||
<p>We hired additional ALJs for the offices with the heaviest workloads and informed our entire corps
|
||
of our expectation that they should issue between 500 and 700 legally sound decisions annually.<span class="ninetypercent"><strong>4</strong></span> When we established that productivity expectation in late 2007, only 47 percent of the ALJs were achieving it. In FY 2011, 77 percent met the expectation,
|
||
and we expect that percentage to rise this fiscal year.</p>
|
||
<p>We opened five National Hearing Centers (NHC) to further reduce hearings backlogs by increasing
|
||
adjudicatory capacity and efficiency with a focus on a streamlined electronic business process.
|
||
Transfer of workload from heavily backlogged hearing offices is possible with electronic files,
|
||
thus allowing the NHC to easily provide assistance to
|
||
these areas of the country.</p>
|
||
<p>In 2010 and 2011, we opened 24 new hearing offices and satellite offices. While a lack of funding
|
||
forced us to cancel plans for additional offices, those we did open are making a substantial
|
||
difference in communities that were experiencing the longest waits for hearings.</p>
|
||
<p>We increased usage of the Findings Integrated Templates that improve the legal sufficiency of
|
||
hearing decisions, conserve resources, and reduce average processing time. We introduced a
|
||
standard Electronic Hearing Office Process, also known as the Electronic Business Process, to
|
||
promote consistency in case processing across all hearing offices. We also built the “How MI
|
||
Doing” tool that gives adjudicators extensive information about the reasons their cases were
|
||
subsequently remanded and allows them to view their performance in relation to the average of other
|
||
ALJs in the office, region, and Nation. Currently, we are developing training modules for each of
|
||
the 170 bases for remands that eventually will be linked to this tool so that ALJs can obtain
|
||
training on targeted issues.</p>
|
||
<p>We expanded automation tools to improve speed, efficiency, quality, and accountability. We
|
||
initiated the Electronic Records Express project, which provides electronic options for submitting
|
||
health and school records related to disability claims. This initiative saves critical
|
||
administrative resources because our employees burn fewer CDs freeing them
|
||
to do other work. In addition, appointed representatives with e-Folder access have self- service
|
||
access to hearing scheduling information and the current Case Processing and Management System
|
||
(CPMS) claim status for their clients, reducing the need for them to contact our offices. We have
|
||
registered over 9,000 representatives for direct access to the electronic folder. We also
|
||
implemented Automated Noticing that allows CPMS to automatically produce appropriate notices based
|
||
on stored data. We implemented centralized printing and mailing that provides high-speed,
|
||
high-volume printing for all hearings and appeals offices. We implemented Electronic Signature
|
||
that allows ALJs and Attorney Adjudicators to sign decisions electronically.</p>
|
||
<p>Additionally, we are developing another automated tool, the electronic bench book (eBB), which we
|
||
believe will help ALJs review, decide, and provide instructions for decision writers in a fully
|
||
electronic environment. Last month, we initiated a pilot of the eBB in three hearing offices. The
|
||
eBB is a web-based tool that aids in documenting, analyzing, and adjudicating a disability case
|
||
according to our regulations. Wherever possible, we reuse data to limit the need to re-enter
|
||
information. eBB is designed to pull in and display information entered from various sources. eBB
|
||
should make review of the electronic file and instructions to decision writers more complete and efficient, which would
|
||
reduce the number of cases remanded because of incomplete documentation.</p>
|
||
<p>We have Federal disability units that provide extra processing capacity throughout the country. In
|
||
recent years, these units have been assisting stressed State disability determination agencies.
|
||
After evaluating our limited resources, our success in holding down the initial disability claims
|
||
pending level, and a further spike in hearings requests, we redirected these units in February 2012
|
||
to assist in screening hearings requests. Our Federal disability units can make fully favorable
|
||
allowances, if appropriate, without the need for a hearing before an ALJ.</p>
|
||
<p>We also listened to criticism from Congress and others. We have tried to make the right decision
|
||
upfront as quickly as possible. For instance, we are successfully using our Compassionate
|
||
Allowances (CAL) and Quick Disability Determination initiatives to fast- track disability
|
||
determinations at the initial claims level for over 150,000 disability claimants each year, while
|
||
maintaining a very high accuracy rate. Currently, about 6 percent of initial disability claims
|
||
qualify for our fast-track processes, and we expect to increase that number as we add new
|
||
conditions to our CAL program. This helps keep these cases out of our appeals process altogether.</p>
|
||
<p>At the AC, we also made improvements that helped us to handle the influx of cases from the hearing
|
||
offices and improve the quality of decisions throughout our entire hearings and appeals process.
|
||
For example, we developed and are now using the Appeals Review Processing System (ARPS), an
|
||
Intranet case processing system that helps staff identify errors, prepare recommendations for
|
||
review, identify trends, and provide feedback to adjudicators and staff.</p>
|
||
<p>Over the last few years, the AC has developed an interactive training model that received the
|
||
prestigious W. Edwards Deming Training Award from the Graduate School USA in 2011.</p>
|
||
<p>In the future, we plan to implement a new case assignment model for the AC that will group cases
|
||
with similar issues and assign those cases concurrently. This change will improve consistency and
|
||
help identify areas for future training, while also decreasing processing times for all claimants.</p>
|
||
<p>However, of all the important improvements we have made or plan to make at the AC, none is more
|
||
important than the recent creation of the DQ. In 2008, we presented Commissioner Astrue with a
|
||
plan that would allow us to gather comprehensive data on the quality of our hearing decisions.
|
||
Recognizing an obvious need, Commissioner Astrue established a workgroup in 2009, which led to the
|
||
establishment of DQ in September 2010.</p>
|
||
<p>Even in the beginning, when the data were just trickling in, we began to identify decision-making
|
||
issues that we knew needed to be addressed through rulemaking or sub-regulatory action.</p>
|
||
<p>Currently, DQ reviews a statistically valid sample of un-appealed favorable ALJ hearing decisions
|
||
before those decisions are effectuated (i.e., finalized), as authorized by 20
|
||
CFR 404.969 and 416.1469. In FY 2011, DQ reviewed 3,692 partially and fully favorable decisions
|
||
issued by ALJs and attorney adjudicators, and took action on about
|
||
22 percent, or 812, of those cases.<strong class="ninetypercent">5</strong></p>
|
||
<p>While longstanding regulations do not permit our DQ to do pre-effectuation reviews that are based
|
||
on a specific ALJ or hearing office, the DQ is able to conduct post- effectuation focused reviews
|
||
on specific hearing offices, ALJs, representatives, doctors, and disability program issues, etc.<span class="ninetypercent"><strong>6</strong></span> These reviews allow us to better understand how our complex disability policies are being
|
||
implemented by various parties throughout the hearings level. We identify potential subjects for
|
||
focused reviews from a variety of sources, including data collected through our systems, findings
|
||
from pre-effectuation reviews, and internal and external referrals received from various sources
|
||
regarding potential non-compliance with our regulations and policies. One way we use these reviews
|
||
is to identify common errors in ALJ decisions. The results of these reviews
|
||
show common errors to be failure to adequately develop the record, lack of supporting rationale,
|
||
and improper evaluation of opinion evidence. We have used this information to develop and implement
|
||
mandatory training for our ALJs. Furthermore, we use the comprehensive data and analysis provided
|
||
by DQ to provide feedback to other components on policy guidance and litigation issues.</p>
|
||
<p>Moreover, since we are handling more cases in both our hearing offices and at the AC, the number of
|
||
new Federal court cases filed challenging our final decisions has gone up. In FY 2007,
|
||
dissatisfied claimants filed 11,920 new cases. That number rose to
|
||
15,644 in FY 2011, and we project that there will be about 19,100 new cases filed in FY
|
||
2013. Our success in the courts has also improved. In FY 2011, courts affirmed our decisions in 51
|
||
percent of the cases decided, up from 49 percent in FY 2007, and court reversals have decreased
|
||
from 5 percent to fewer than 3 percent of cases over this time.</p>
|
||
<p>Finally, notwithstanding our impressive work to-date, we have sought outside advice from the
|
||
Administrative Conference of the United States (ACUS) to guide our future quality improvement
|
||
efforts in our hearing offices and at the AC. Currently, ACUS is studying:</p>
|
||
<p>• The effect of the treating physician rule on the role of the courts in reviewing our disability
|
||
decisions and the measures that we could take to reduce the number of remanded cases;</p>
|
||
<p>• The AC’s role in reviewing cases to reduce any observed variances and the efficacy of expanding
|
||
the AC’s existing authority to conduct more focused reviews of judge decisions; and</p>
|
||
<p>• How the AC can select cases for review—as well as when the AC should select cases for review
|
||
(i.e., pre- or post-effectuation)—and what should be the scope and manner of review.</p>
|
||
<p>We expect ACUS to deliver its preliminary findings by the end of this calendar year and a draft
|
||
final report with recommendations early next year.</p>
|
||
<p>Additionally, we have also asked ACUS to review and analyze the Social Security Act and our
|
||
regulations regarding the duty of candor and the submission of all evidence in disability claims.
|
||
ACUS will also survey the requirements of other administrative tribunals, as well as the Federal
|
||
Rules of Evidence, Federal Rules of Civil Procedure, and other applicable authority, regarding the
|
||
duty of candor and submission of all evidence and then make recommendations for improvements in the
|
||
Social Security adjudication process.</p>
|
||
<p> <u><strong>Conclusion</strong></u><strong></strong></p>
|
||
<p> Contrary to popular anecdote and innuendo, we have made extraordinary gains improving the speed and
|
||
quality of our hearings and appeals process over the past five years. We have done so against
|
||
extraordinary obstacles, including demographic challenges, the economic downturn, and fiscal belt
|
||
tightening. Resources permitting, we believe that we can continue to improve by building upon our
|
||
productivity gains and the body of quality review data that we have accumulated.</p>
|
||
<p>Finally, I look forward to reviewing the Subcommittee’s report concerning 300 disability cases.
|
||
Without having seen the report, I will do my best to answer any questions you may have today.
|
||
Although the report will be severely limited by the statistically non- representative sample of
|
||
cases that was studied, we are nonetheless hopeful that the
|
||
report will identify possible trends that merit further research.
|
||
</p>
|
||
<p><strong>__________________________________________________________</strong></p>
|
||
<p><strong>1</strong> Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983).</p>
|
||
<p><strong>2</strong> See Appendix A.</p>
|
||
<p><strong>3</strong> Basic Provisions Adopted by the Social Security Board for the Hearing and Review of Old-Age and
|
||
Survivors
|
||
Insurance Claims, at 4 (January 1940).</p>
|
||
<p><strong>4</strong> In addition, we limit the limit the number of cases assigned per year to an ALJ.</p>
|
||
<p><strong>5</strong> In those instances, the AC either remanded the case to the hearing office for further development
|
||
or issued a decision that modified the hearing decision.</p>
|
||
<p><strong>6</strong> Since these focused reviews are post-effectuation reviews, they do not change case outcomes.</p>
|
||
<p><img src="testimony_091312a.jpg" width="796" height="497" alt="ALJs with 100+ Dispositions in Allowance Rate Groups"></p>
|
||
<p>__________________________________________________________________________________________________________________</p>
|
||
<div align="center"><strong>Statement of Judge Debra Bice<br>
|
||
Chief Administrative Law Judge <br>
|
||
Office of DIsability Adjudication and Reviewbefore the Senate Committee on<br>
|
||
Homeland Security and Governmental Affairs<br>
|
||
Permanent Subcommittee on Investigations<br>
|
||
<br>
|
||
September 13, 2012</strong></div>
|
||
<p><br>
|
||
Chairman Levin, Ranking Member Coburn, and Members of the Subcommittee:</p>
|
||
<p>Thank you for the opportunity to appear before you today. My name is Judge Debra Bice, and I am
|
||
the Chief Administrative Law Judge at the Social Security Administration. I am responsible for
|
||
overseeing approximately 1,500 administrative law judges (ALJ) in the Office of Disability
|
||
Adjudication and Review (ODAR). My testimony will focus on the process through which we determine
|
||
disability at all adjudicative levels across the agency. My testimony will also address the
|
||
challenges we face hiring, managing, and disciplining our judge corps.</p>
|
||
<p><strong><u>How We Determine Disability—The Sequential Evaluation Process</u></strong></p>
|
||
<p>Our general process for determining disability is admittedly complicated, but it is necessarily
|
||
complex to meet the requirements of the law as designed by Congress.<strong class="ninetypercent">1</strong></p>
|
||
<p>We evaluate adult claimants for disability under a standardized five-step evaluation process
|
||
(sequential evaluation), which we formally incorporated into our regulations in
|
||
1978. At step one, we determine whether the claimant is engaging in substantial gainful activity
|
||
(SGA). SGA is significant work normally done for pay or profit. The Social Security Act (Act)
|
||
establishes the SGA earnings level for blind persons and requires us to establish the SGA level for
|
||
other disabled persons.<span class="ninetypercent"><strong>2</strong></span> If the claimant is engaging in SGA, we deny the claim without
|
||
considering medical factors. </p>
|
||
<p>If a claimant is not engaging in SGA, at step two, we assess the existence, severity, and duration
|
||
of the claimant’s impairment (or combination of impairments). The Act requires us to consider the
|
||
combined effect of all of a person's impairments, regardless of whether any one impairment is
|
||
severe. Throughout the sequential evaluation, we consider all of the claimant’s physical and mental
|
||
impairments singly and in
|
||
combination.</p>
|
||
<p>If we determine that the claimant does not have a medically determinable impairment, or that the
|
||
impairment or combined impairments are “not severe” because they do not significantly limit the
|
||
claimant’s ability to perform basic work activities, we deny the claim at the second step. If the
|
||
impairment is “severe,” we proceed to the third step.</p>
|
||
<p><em>Listing of Impairments</em></p>
|
||
<p>At the third step, we determine whether the impairment “meets” or “equals” the criteria of one of
|
||
the Listing of Impairments (Listings) in our regulations.</p>
|
||
<p>The Listings describe for each major body system the impairments considered so severe that we can
|
||
presume that they would prevent an adult from working. The Act does not require the Listings, but
|
||
we have been using them in one form or another since
|
||
1955. The listed impairments are permanent, expected to result in death, or last for a specific
|
||
period greater than 12 months.</p>
|
||
<p>Using the rulemaking process, we revise the Listings’ criteria on an ongoing basis. The Listings
|
||
are a critical factor in our disability determination process, and we are committed to updating
|
||
each listing at least every five years. In the last five years, we have revised five of 14 body
|
||
systems in the Listings, and in FY 2013 we plan to revise two more body systems and obtain public
|
||
comments on the remaining seven body systems. When updating a listing, we consider current medical
|
||
literature, information from medical experts, disability adjudicator feedback, and research by
|
||
organizations such as the Institute of Medicine. As we update entire body systems, we also make
|
||
targeted changes to specific rules as necessary.</p>
|
||
<p>If the claimant has an impairment that meets or equals the criteria in the Listings, we allow the
|
||
disability claim without considering the claimant’s age, education, or past work experience.</p>
|
||
<p>As part of our process at step three, we developed an important initiative—our Compassionate
|
||
Allowances (CAL) initiative—that allows us to identify claimants who are clearly disabled because
|
||
the nature of their disease or condition clearly meets the statutory standard for disability. With
|
||
the help of sophisticated new information
|
||
technology, we can quickly identify potential Compassionate Allowances and then swiftly make
|
||
decisions. We currently recognize 165 CAL conditions, and we expect to expand the list later this
|
||
year. We continue to review our CAL policy to ensure we base it on the most up-to-date medical
|
||
science.</p>
|
||
<p><em>Residual Functional Capacity</em></p>
|
||
<p>A claimant who does not meet or equal a listing may still be disabled. The Act requires us to
|
||
consider how a claimant’s condition affects his or her ability to perform past relevant work or,
|
||
considering his or her age, education, and work experience, other work that exists in the national
|
||
economy. Consequently, we assess what the claimant
|
||
can still do despite physical and mental impairments—i.e., we assess his or her residual functional
|
||
capacity (RFC). We use that RFC assessment in the last two steps of the sequential evaluation.</p>
|
||
<p>We developed a regulatory framework to assess RFC. An RFC assessment must
|
||
reflect a claimant’s ability to perform work activity on a regular and continuing basis (i.e.,
|
||
eight hours a day for five days a week, or an equivalent work schedule). We assess the claimant’s
|
||
RFC based on all of the evidence in the record, such as treatment history, objective medical
|
||
evidence, and activities of daily living.</p>
|
||
<p>We must also consider the credibility of a claimant’s subjective complaints, such as pain. Such
|
||
complaints are inherently difficult to assess. Under our regulations, disability adjudicators use
|
||
a two-step process to evaluate credibility. First, the
|
||
adjudicator must determine whether medical signs and laboratory findings show that the claimant has
|
||
a medically determinable impairment that could reasonably be expected to produce the pain or other
|
||
symptoms alleged. If the claimant has such an impairment, the adjudicator must then consider all
|
||
of the medical and non-medical evidence to determine the credibility of the claimant’s statements
|
||
about the intensity, persistence, and limiting effects of symptoms. The adjudicator cannot
|
||
disregard the claimant’s statements about his or her symptoms simply because the objective medical
|
||
evidence alone does not fully support them.</p>
|
||
<p>The courts have influenced our rules about assessing a claimant’s disability. For example, when we
|
||
assess the severity of a claimant’s medical condition, we historically have given greater weight to
|
||
the opinion of the physician or psychologist who treated that claimant. While the courts generally
|
||
agreed that adjudicators should give special weight to treating source opinions, the courts
|
||
formulated different rules about how adjudicators should evaluate treating source opinions. In
|
||
1991, we issued regulations that explain how we evaluate treating source opinions.<span class="ninetypercent"><strong>3</strong></span> However, the
|
||
courts have continued to interpret opinions from treating physicians in conflicting ways. </p>
|
||
<p>Once we assess the claimant’s RFC, we move to the fourth step of the sequential evaluation.</p>
|
||
<p><em>Medical-Vocational Decisions (Steps Four and Five)</em></p>
|
||
<p>At step four, we consider whether the claimant’s RFC prevents the claimant from performing any past
|
||
relevant work. If the claimant can perform his or her past relevant work, we deny the disability
|
||
claim.</p>
|
||
<p>If the claimant cannot perform past relevant work (or if the claimant did not have any past
|
||
relevant work), we move to the fifth step of the sequential evaluation. At step five, we determine
|
||
whether the claimant, given his or her RFC, age, education, and work experience, can do other work
|
||
that exists in the national economy. If a claimant cannot perform other work, we will find that
|
||
the claimant is disabled.</p>
|
||
<p>We use detailed vocational rules to minimize subjectivity and promote national consistency in
|
||
determining whether a claimant can perform other work that exists in the national economy. When we
|
||
issued these rules in 1978, we noted that the Committee on Ways and Means, in its report
|
||
accompanying the Social Security Amendments of
|
||
1967, said that:</p>
|
||
<blockquote>
|
||
<p>It is, and has been, the intent of the statute to provide a definition of disability which can be
|
||
applied with uniformity and consistency throughout the nation, without regard to where a particular
|
||
individual may reside, to local hiring practices or employer preferences, or to the state of the
|
||
local or national economy.<strong class="ninetypercent">4</strong></p>
|
||
</blockquote>
|
||
<p>The medical-vocational rules, set out in a series of “grids,” relate age, education, and past work
|
||
experience to the claimant's RFC to perform work-related physical activities. Depending on those
|
||
factors, the grid may direct us to allow or deny a disability claim. For cases that do not fall
|
||
squarely within a vocational rule, we use the rules as a framework for decision-making. In
|
||
addition, an adjudicator may rely on a vocational expert to identify other work that a claimant
|
||
could perform.</p>
|
||
<p><strong><u>How We Determine Disability—The Administrative Process</u></strong></p>
|
||
<p>The Supreme Court has accurately described our administrative process as “unusually protective” of
|
||
the claimant.<span class="ninetypercent"><strong>5</strong></span> Indeed, we strive to ensure that we make the correct decision as early in the
|
||
process as possible, so that a person who truly needs disability benefits receives them in a timely
|
||
manner. In most cases, we decide claims for benefits using an administrative review process that
|
||
consists of four levels: (1) initial determination; (2) reconsideration determination; (3) hearing; and (4) appeals.6 At each level,
|
||
the decision-maker bases his or her decisions on provisions in the Social Security Act (Act) and
|
||
regulations, as outlined above.</p>
|
||
<p><em>Initial and Reconsideration Determinations</em></p>
|
||
<p>In most States, a team consisting of a State disability examiner and a State agency medical or
|
||
psychological consultant makes an initial determination at the first level. The Act requires this
|
||
initial determination.7 A claimant who is dissatisfied with the initial determination may request
|
||
reconsideration, which is performed by another State
|
||
agency team. In turn, a claimant who is dissatisfied with the reconsidered determination may
|
||
request a hearing.<strong class="ninetypercent">8</strong></p>
|
||
<p><em>Hearing Level</em></p>
|
||
<p>We have over 70 years of experience in administering the hearings and appeals process. Since the
|
||
passage of the Social Security Amendments of 1939, the Act has required us to hold hearings to
|
||
determine the rights of individuals to old-age and survivors’ insurance benefits.</p>
|
||
<p>Over the years, the numbers of ALJs and hearing offices rapidly grew as the Social Security program
|
||
grew. Recently, we added staff to help us meet growing demand and allow us to focus our resources
|
||
on those parts of the country with the greatest need for hearings. In addition, we have expanded
|
||
the use of video hearings, opened five National Hearing Centers to deal only with backlogged cases
|
||
by video, and realigned the service areas of some of our offices. However, the attributes of the
|
||
hearings and appeals process have remained essentially the same since 1940. When it established
|
||
the hearings and appeals process in 1940, the Social Security Board sought to balance the need for
|
||
accuracy and fairness to the claimant with the need to handle a large
|
||
volume of claims in an expeditious manner.<span class="ninetypercent"><strong>9</strong></span> Those twin goals still motivate us. As the
|
||
Supreme Court has observed, the Social Security hearings system “must be fair—and it must work.”<strong class="ninetypercent">10</strong></p>
|
||
<p>When a hearing office receives a request for hearing from a claimant, the case file is prepared by
|
||
hearing office staff prior to the case being assigned to a judge and scheduled for hearing. The
|
||
ALJ decides the case de novo, meaning that he or she is not bound by the determinations made at
|
||
prior levels of the disability process. The ALJ reviews any new medical or other evidence that was
|
||
not available to prior adjudicators. The ALJ will also consider a claimant's testimony and the
|
||
testimony of medical and vocational experts called for the hearing. Since the ALJ considers
|
||
additional evidence and testimony, his or her decision to allow an appeal does not necessarily mean
|
||
that the earlier decision was incorrect based on the evidence available at the time. If a review
|
||
of all of the evidence supports a decision fully favorable to the claimant without holding a
|
||
hearing, the ALJ or attorney adjudicator may issue an on-the-record fully favorable decision.<strong class="ninetypercent">11</strong></p>
|
||
<p>In contrast to Federal court proceedings, our ALJ hearings are non-adversarial. Formal rules of
|
||
evidence do not apply, and the agency is not represented except by the ALJ, who has dual
|
||
responsibilities.<span class="ninetypercent"><strong>12 </strong></span>At the hearing, the ALJ takes testimony under oath or affirmation. The
|
||
claimant may elect to appear in-person at the hearing or consent to appear via video. The claimant
|
||
may appoint a representative (either an attorney or non- attorney) who may submit evidence and
|
||
arguments on the claimant’s behalf, make statements about facts and law, and call witnesses to
|
||
testify. The ALJ may call vocational and medical experts to offer opinion evidence, and the
|
||
claimant or the claimant’s representative may question these witnesses.</p>
|
||
<p>If, following the hearing, the ALJ believes that additional evidence is necessary, the ALJ may
|
||
leave the record open and conduct additional post-hearing development; for example, the ALJ may
|
||
order a consultative exam. Once the record is complete, the ALJ considers all of the evidence in
|
||
the record and makes a decision. The ALJ decides the case based on a preponderance of the evidence
|
||
in the administrative record. A
|
||
claimant who is dissatisfied with the ALJ’s decision generally has 60 days after he or she receives
|
||
the decision to ask the Appeals Council (AC) to review the decision.<strong class="ninetypercent">13</strong></p>
|
||
<p><em>Appeals Council</em></p>
|
||
<p>Upon receiving a request for review, the AC evaluates the ALJ’s decision, all of the evidence of
|
||
record, including any new and material evidence that relates to the period on or before the date of
|
||
the ALJ’s decision, and any arguments the claimant or his or her representative submits. The AC
|
||
may grant review of the ALJ’s decision, or it may deny or dismiss a claimant’s request for review.
|
||
The AC will grant review in a case if there appears to be an abuse of discretion by the ALJ; there
|
||
is an error of law; the actions, findings, or conclusions of the ALJ are not supported by
|
||
substantial evidence; or if there is a broad policy or procedural issue that may affect the general
|
||
public interest.</p>
|
||
<p>If the AC grants a request for review, it may uphold part of the ALJ’s decision, reverse all or
|
||
part of the ALJ’s decision, issue its own decision, remand the case to an ALJ, or dismiss the
|
||
original hearing request. When it reviews a case, the AC considers all the evidence in the ALJ
|
||
hearing record (as well as any new and material evidence), and when it issues its own decision, it
|
||
bases the decision on a preponderance of the evidence.</p>
|
||
<p>If the claimant completes our administrative review process and is dissatisfied with our final
|
||
decision, he or she may seek review of that final decision by filing a complaint in Federal
|
||
District Court. However, if the AC dismisses a claimant’s request for review, he or she cannot appeal that dismissal; instead, the ALJ’s decision becomes the final decision.</p>
|
||
<p><em>Federal Level</em></p>
|
||
<p>If the AC makes a decision, it is our final decision. If the AC denies the claimant’s request for
|
||
review of the ALJ’s decision, the ALJ’s decision becomes our final decision. A claimant who wishes
|
||
to appeal our final decision has 60 days after receipt of notice of the AC’s action to file a
|
||
complaint in Federal District Court.</p>
|
||
<p>In contrast to the ALJ hearing, Federal courts employ an adversarial process. In District Court,
|
||
an attorney usually represents the claimant and attorneys from the United States Attorney’s office
|
||
or our Office of the General Counsel represent the Government.
|
||
When we file our answer to that complaint, we also file with the court a certified copy of the
|
||
administrative record developed during our adjudication of the claim for benefits.</p>
|
||
<p>The Federal District Court considers two broad inquiries when reviewing one of our decisions:
|
||
whether we correctly followed the Act and our regulations, and whether our decision is supported by
|
||
substantial evidence of record. On the first inquiry—whether we have applied the law correctly—the
|
||
court typically will consider issues such as whether the ALJ correctly evaluated the claimant’s
|
||
testimony or the treating physician’s opinion, and whether the ALJ followed the correct procedures.</p>
|
||
<p>On the second inquiry, the court will consider whether the factual evidence developed during the
|
||
administrative proceedings supports our decision. The court does not review our findings of fact
|
||
de novo, but rather, considers whether those findings are supported by substantial evidence. The
|
||
Act prescribes the “substantial evidence” standard, which provides that, on judicial review of our
|
||
decisions, our findings “as to any fact, if supported by substantial evidence, shall be
|
||
conclusive.” The Supreme Court has defined substantial evidence as “such relevant evidence as a
|
||
reasonable mind might
|
||
accept as adequate to support a conclusion.”<span class="ninetypercent"><strong>14</strong></span> The reviewing court will consider evidence that
|
||
supports the ALJ’s findings as well as evidence that detracts from the ALJ's decision. However, if
|
||
the court finds there is conflicting evidence that could allow reasonable minds to differ as to the
|
||
claimant’s disability, and the ALJ’s findings are reasonable interpretations of the evidence, the
|
||
court must affirm the ALJ's findings of fact. In practice, courts in many parts of the country do
|
||
not apply the substantial evidence standard as Congress intended, which results in many
|
||
inappropriate remands.</p>
|
||
<p>If, after reviewing the record as a whole, the court concludes that substantial evidence supports
|
||
the ALJ’s findings of fact and the ALJ applied the correct legal standards, the court will affirm
|
||
our final decision. If the court finds either that we failed to follow the correct legal standards
|
||
or that our findings of fact are not supported by substantial evidence, the court typically remands
|
||
the case to us for further administrative proceedings, or in rare instances, reverses our final decision and finds the claimant eligible for
|
||
benefits.</p>
|
||
<p><strong><u>ALJ Hiring, Management Oversight, and Disciplinary Processes</u></strong></p>
|
||
<p>In order to issue timely, fair, and quality decisions in our hearings and appeals process, we must
|
||
have the appropriate tools to hire, manage, and discipline our judge corps without infringing on
|
||
their qualified decisional independence.</p>
|
||
<p><em>Hiring Process</em></p>
|
||
<p>On Commissioner Astrue’s watch, we have raised the standards for ALJ selection, hiring people who
|
||
we believe will take seriously their responsibility to the American public. We have hired 794
|
||
judges since 2007. Insistence on the highest possible standards in judicial conduct is a prudent
|
||
investment for taxpayers, especially since ALJs may be removed only for good cause established and
|
||
determined by the Merit Systems Protection Board.</p>
|
||
<p>We originally planned to hire 125 ALJs in September of FY 2012; however, we ultimately decided to
|
||
hire 46 judges who will report on September 23, 2012.</p>
|
||
<p>We depend on OPM to provide us with a register of qualified ALJ candidates. During the Azdell
|
||
litigation, which began in the late 1990s, use of the register was temporarily frozen due to an
|
||
MSPB decision that was subsequently overturned by the United States Court of Appeals in 2003 (at
|
||
which time OPM was able to reopen the then-existing register to agency requests for certificates).
|
||
Since 2003, however, OPM not only re- opened the then-existing register, but also established a new
|
||
examination, administered it three times, generally, beginning in 2007, and established (and
|
||
subsequently supplemented) a new register. For our hearing process to operate efficiently, we need
|
||
ALJs who can treat people with dignity and respect, be proficient at working electronically, handle
|
||
a high-volume workload without sacrificing quality, and make swift and sound decisions in a
|
||
non-adversarial adjudication setting.</p>
|
||
<p>OPM should continue to engage the agencies who hire ALJs and some authoritative outside groups,
|
||
such as the Administrative Conference of the United States and the American Bar Association, to
|
||
incorporate their expertise in the ALJ examination process. I would like to point out that the
|
||
total number of Federal ALJs is 1,726 as of March 2012, and our corps represents about 86 percent
|
||
of the Federal ALJ corps—we have the greatest stake in ensuring that the criteria and hiring
|
||
process meet our needs, but recognize that OPM is required to produce an examination that meets the
|
||
needs of the Government – and the public it serves – as a whole, pursuant to congressional
|
||
directives.</p>
|
||
<p><em>Management Oversight and Disciplinary Processes</em></p>
|
||
<p>Under Commissioner Astrue’s leadership, we have not hesitated to hold ALJs accountable where the
|
||
law permits. Although the Administrative Procedure Act (APA) does not expressly state that ALJs
|
||
must comply with the statute, regulations, or sub- regulatory policies and interpretations of law
|
||
and policy articulated by their employing agencies, both the courts<span class="ninetypercent"><strong>15 </strong></span>and the Department of
|
||
Justice’s Office of Legal Counsel<span class="ninetypercent"><strong>16</strong></span> have opined that ALJs are subject to the agency on matters of
|
||
law and policy.</p>
|
||
<p>One of Congress’ goals in passing the APA was to protect the due process rights of the public by
|
||
ensuring that impartial adjudicators conduct agency hearings. Employing agencies are limited in
|
||
their authority over ALJs, and Federal law precludes management from using many of the basic tools
|
||
applicable to the vast majority of Federal employees. Specifically, OPM sets ALJs’ salaries
|
||
independent of agency recommendations or ratings. ALJs are exempt from performance appraisals, and
|
||
they cannot receive monetary awards or periodic step increases based on performance. In addition,
|
||
our authority to discipline ALJs is restricted by statute. We may take certain measures, such as
|
||
counseling or issuing a reprimand, to address ALJ
|
||
underperformance or misconduct. However, we cannot take stronger measures against an ALJ, such as
|
||
removal or suspension, reduction in grade or pay, or furlough for 30 days or less, unless the Merit
|
||
Systems Protection Board (MSPB) finds that good cause exists.<strong class="ninetypercent">17</strong></p>
|
||
<p>We have taken affirmative steps to address egregiously underperforming ALJs. With the promulgation
|
||
of our “time and place” regulation, we have eliminated arguable ambiguities regarding our authority
|
||
to manage scheduling, and we have taken steps to ensure that judges are deciding neither too few
|
||
nor too many cases. By management instruction, we have limited assignment of new cases to no more
|
||
than 1,200 cases annually.</p>
|
||
<p>Our Hearing Office Chief Administrative Law Judges (HOCALJ) and Hearing Office Directors work
|
||
together to identify workflow issues. If they identify an issue with respect to an ALJ, the HOCALJ
|
||
discusses that issue with the judge to determine whether there are any impediments to moving the
|
||
cases along in a timely fashion and advise the judge
|
||
|
||
of steps needed to address the issue. If necessary, the Regional Chief ALJ and the
|
||
Office of the Chief ALJ provide support and guidance.<strong class="ninetypercent">18</strong></p>
|
||
<p>Generally, this process works. The vast majority of issues are resolved informally by hearing
|
||
office management. When they are not, management has the authority to order an ALJ to take a
|
||
certain action or explain his or her actions. ALJs rarely fail to comply with these orders. In
|
||
those rare cases where the ALJ does not comply, we pursue disciplinary action. Our overarching goal
|
||
is to provide quality service to those in need and instill that goal in all of our employees,
|
||
including ALJs.</p>
|
||
<p>The current system limits how we address the tiny fraction of ALJs who hear only a handful of cases
|
||
or engage in misconduct. A few years ago, we had an ALJ in Georgia who failed to inform us, as
|
||
required, that he was also working full-time for the Department of Defense. Another ALJ was
|
||
arrested for committing a serious domestic assault. We were able to remove these ALJs, but only
|
||
after completing the lengthy MSPB disciplinary process that lasts several years and can consume
|
||
over a million dollars of taxpayer resources.19 In each of these cases, unlike disciplinary action
|
||
against all other civil servants, the ALJs received their full salary and benefits until the case
|
||
was finally decided by the full MSPB—even though they were not deciding cases. We are open to
|
||
exploring options to address these issues, while ensuring the qualified decisional independence of
|
||
these judges. </p>
|
||
<p><strong><u>Conclusion </u></strong></p>
|
||
<p>Our highly-trained disability adjudicators follow a complex process for determining disability
|
||
according to the requirements of the law as designed by Congress. I look forward to reviewing the
|
||
Subcommittee’s report concerning 300 disability cases.
|
||
Without having seen the report, I will do my best to answer any questions you may have today.
|
||
Although the report will be severely limited by the statistically non-representative sample of
|
||
cases that was studied, I am nonetheless hopeful that the report will identify data that merit
|
||
further research.</p>
|
||
<p> </p>
|
||
<p><strong>________________________________________________________</strong></p>
|
||
<p><strong>1</strong> Section 223(d) of the Act defines “disability” as “the inability to engage in any substantial
|
||
gainful activity by reason of any medically determinable physical or mental impairment which can be
|
||
expected to result in death or which has lasted or can be expected to last for a continuous period
|
||
of not less than 12 months; or in the case of an individual who has attained the age of 55 and is
|
||
blind (within the meaning of ‘blindness’ as defined in section
|
||
216(i)(1)), inability by reason of such blindness to engage in substantial gainful activity
|
||
requiring skills or abilities
|
||
comparable to those of any gainful activity in which he has previously engaged with some regularity
|
||
and over a substantial period of time. An individual shall be determined to be under a disability
|
||
only if his physical or mental impairment or impairments are of such severity that he is not only
|
||
unable to do his previous work but cannot, considering his age, education, and work experience,
|
||
engage in any other kind of substantial gainful work which exists in the national economy,
|
||
regardless of whether such work exists in the immediate area in which he lives, or whether a
|
||
specific job vacancy exists for him, or whether he would be hired if he applied for work. For
|
||
purposes of the preceding sentence (with respect to any individual), ‘work which exists in the
|
||
national economy’ means work which exists in significant numbers either in the region where such
|
||
individual lives or in several regions of the country. In determining whether an individual’s
|
||
physical or mental impairment or impairments are of a sufficient medical severity that such
|
||
impairment or impairments could be the basis of eligibility under this section, the Commissioner of
|
||
Social Security shall consider the combined effect of all of the individual’s impairments without
|
||
regard to whether any such impairment, if considered separately, would be of such severity. If the
|
||
Commissioner of Social Security does find a medically severe combination of impairments, the
|
||
combined impact of the impairments shall be considered throughout the disability determination
|
||
process. An individual shall not be considered to be disabled for purposes of this title if
|
||
alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to
|
||
the Commissioner’s determination that the individual is disabled. For purposes of this subsection,
|
||
a ‘physical or mental impairment’ is an impairment that results from anatomical, physiological, or
|
||
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
|
||
diagnostic techniques.”</p>
|
||
<p><strong>2</strong> For blind persons, the SGA earnings limit is currently $1,690 a month. Currently, other disabled
|
||
persons are engaging in SGA if they earn more than $1,010 a month. Both SGA amounts are indexed
|
||
annually to average wage growth, using the National Average Wage Index. However, the Act specifies that we cannot
|
||
necessarily count all the person’s earnings. For example, we deduct impairment-related work
|
||
expenses when we consider whether a person is engaging in SGA.</p>
|
||
<p><strong>3</strong> Under those regulations, we will give controlling weight to a treating physician's opinion if it
|
||
is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
|
||
inconsistent with the other substantial evidence in the record. In that case, a disability
|
||
adjudicator must adopt a treating source's medical opinion regardless of any finding he or she
|
||
would have made in the absence of the medical opinion.</p>
|
||
<p><strong>4</strong> 43 Fed. Reg. 55349, 55350 (1978) (quoting H.R. Rep. No. 544, 90th Congress, 1st Sess., at 30
|
||
(1967)).</p>
|
||
<p><strong>5</strong> Heckler v. Day, 467 U.S. 104 (1984).</p>
|
||
<p><strong>6</strong> 20 C.F.R. §§ 404.900, 416.1400. My testimony focuses on disability determinations, but the review
|
||
process generally applies to any appealable issue under the Social Security programs.</p>
|
||
<p><strong>7</strong> Sections 205(b) and 1631(c)(1)(A) of the Act, 42 U.S.C. §§ 405(b), 1383(c)(1)(A).</p>
|
||
<p><strong>8 </strong>For disability claims, 10 States participate in a “prototype” test under 20 C.F.R. §§ 404.906,
|
||
416.1406. In these States, we eliminated the reconsideration step of the administrative review
|
||
process. Claimants who are dissatisfied with the initial determinations on their disability cases
|
||
may request a hearing before an ALJ. The 10 States participating in the prototype test are Alabama,
|
||
Alaska, California (Los Angeles North and West Branches), Colorado, Louisiana, Michigan, Missouri,
|
||
New Hampshire, New York, and Pennsylvania.</p>
|
||
<p><strong>9</strong> Basic Provisions Adopted by the Social Security Board for the Hearing and Review of Old-Age and
|
||
Survivors
|
||
Insurance Claims, at 4-5 (January 1940).</p>
|
||
<p><strong>10</strong> Richardson v. Perales, 402 U.S. 389, 399 (1971).</p>
|
||
<p><strong>11</strong> Under the Attorney Adjudicator program, our most experienced attorneys spend a portion of their
|
||
time making on-the-record, disability decisions in cases where enough evidence exists to issue a
|
||
fully favorable decision without waiting for a hearing. 20 C.F.R. §§ 404.942, 416.1442.</p>
|
||
<p><strong>12</strong> Starting in the 1970s under Commissioner Ross, we tried to pilot an agency representative
|
||
position at select hearing offices. However, a United States District Court held that the pilot
|
||
violated the Act, intruded on ALJ independence, was contrary to congressional intent that the
|
||
process be “fundamentally fair,” and failed the constitutional requirements of due process. Salling
|
||
v. Bowen, 641 F. Supp. 1046 (W.D. Va. 1986). We subsequently discontinued the pilot due to the
|
||
testing interruptions caused by the Salling injunction, general fiscal constraints, and intense
|
||
congressional opposition. Congress originally supported the project; however, we experienced
|
||
significant congressional opposition once the pilot began. For example, Members of Congress
|
||
introduced legislation to prohibit the adversarial involvement of any government representative in
|
||
Social Security hearings, and 12 Members of Congress joined an amicus brief in the Salling case
|
||
opposing the project.</p>
|
||
<p><strong>13</strong> The Appeals Council is headquartered in Falls Church, Virginia. It is our last administrative
|
||
decisional level. Created on March 1, 1940 as a three-member body, the Appeals Council was
|
||
established to oversee the hearings and appeals process, promote national consistency in hearing
|
||
decisions made by referees (now ALJs) and ensure that the Social Security Board's (now the
|
||
Commissioner's) records were adequate for judicial review. The Appeals Council has grown over time
|
||
due to the growth in the increasingly complex programs it reviews and the increased number of
|
||
requests for review that it receives. Currently, the Appeals Council is made up of approximately 75
|
||
Administrative Appeals Judges, 56 Appeals Officers, and several hundred support personnel. The
|
||
Appeals Council is physically located in Falls Church, Virginia with additional offices in Crystal
|
||
City, Virginia, and in Baltimore, Maryland. Cases originate in hearing offices throughout the
|
||
country. The Appeals Council looks at each case in which a request for review is filed (over
|
||
173,000 in FY 2011). The Appeals Council may grant, deny, or dismiss a request for review. If the
|
||
Appeals Council grants the request for review, it will either decide the case or return ("remand")
|
||
it to an ALJ for a new decision. The Council also performs quality review, policy interpretations,
|
||
and court-related functions. The Appeals Council is the core component of the Office of Appellate
|
||
Operations, one of the parts of our Office of Disability Adjudication and Review. The Office of
|
||
Appellate Operations provides professional and clerical support for the Appeals Council, and also
|
||
maintains and controls files in cases decided adversely to claimants by ALJs and the Appeals
|
||
Council, in case a further administrative or court appeal is filed. When a claimant brings a civil
|
||
action against the Commissioner seeking judicial review of the agency’s final
|
||
decision, staff in the Office of Appellate Operations prepare the record of the claim for filing
|
||
with the Court. This includes all the documents and evidence the agency relied upon in making the
|
||
decision or determination.</p>
|
||
<p><strong>14</strong> Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197 (1938).</p>
|
||
<p><strong>15 </strong>“An ALJ is a creature of statute and, as such, is subordinate to the Secretary in matters of
|
||
policy and interpretation of law.” Nash v. Bowen, 869 F.2d 675, 680 (2d Cir.) (citing Mullen, 800
|
||
F.2d at 540-41 n. 5 and Association of Administrative Law Judges v. Heckler, 594 F. Supp. 1132,
|
||
1141 (D.D.C. 1984)), cert. denied, 493 U.S.
|
||
812 (1989).</p>
|
||
<p><strong>16</strong> “Administrative law judges have no constitutionally based judicial power. . . . As such, ALJs
|
||
are bound by all policy directives and rules promulgated by their agency, including the agency's
|
||
interpretations of those policies and rules. . . . ALJs thus do not exercise the broadly
|
||
independent authority of an Article III judge, but rather operate as subordinate executive branch
|
||
officials who perform quasi-judicial functions within their agencies. In that capacity, they owe
|
||
the same allegiance to the Secretary's policies and regulations as any other Department employee.”
|
||
Authority of Education Department Administrative Law Judges in Conducting Hearings, 14 Op. Off.
|
||
Legal Counsel 1, 2 (1990).</p>
|
||
<p><strong>17</strong> The MSPB makes this finding based on a record established after the ALJ has an opportunity for a
|
||
hearing.</p>
|
||
<p><strong>18</strong> Our managerial ALJs play a key role in ALJ performance. They provide guidance, counseling, and
|
||
encouragement to our line ALJs. However, the current pay structure does not properly compensate
|
||
them. For example, due to pay compression, a line ALJ in a Pennsylvania hearing office can earn as
|
||
much as our Chief Administrative Law Judge. Furthermore, our leave rules limit the amount of annual
|
||
leave an ALJ can carry over from one year to the next. These compensation rules discourage
|
||
otherwise qualified ALJs from pursuing management positions, and the APA prevents us from changing
|
||
those rules.</p>
|
||
<p><strong>19</strong> Since 2007, we have filed removal charges with the MSPB against nine ALJs. The MSPB upheld our
|
||
removal charges against five ALJs; three ALJs left the agency or retired in lieu of removal. One
|
||
removal action is currently awaiting a decision from the MSPB. Additionally, from 2007 to present,
|
||
we either sought to file or filed charges seeking suspension against 29 ALJs. Of these ALJs, 22
|
||
were suspended, six either retired or separated from the agency; and one case is currently before
|
||
the MSPB.</p>
|
||
<p>__________________________________________________________________________________________________________________<br>
|
||
</p>
|
||
<div align="center"><strong>Judge Douglas Stults<br>
|
||
Hearing Office Chief Administrative Law Judge<br>
|
||
Oklahoma City, Oklahoma Hearing Office<br>
|
||
Office of Disability Adjudication and Review<br>
|
||
before the Senate Committee on<br>
|
||
Homeland Security and Governmental Affairs<br>
|
||
Permanent Subcommittee on Investigations<br>
|
||
<br>
|
||
September 13, 2012</strong></div>
|
||
<p>Mr. Chairman, Ranking Member Coburn, Members of the Subcommittee:</p>
|
||
<p>My name is Douglas Stults, and I serve as the Hearing Office Chief Administrative Law Judge
|
||
(HOCALJ) for the ODAR Oklahoma City, Oklahoma Hearing Office (HO). I have four years and five
|
||
months of experience as an ALJ and three years and nine months experience as a HOCALJ. Prior to
|
||
becoming an administrative law judge (ALJ), I worked for ODAR in the Oklahoma City HO for 12 years,
|
||
3 years as the Hearing Office Director (HOD), 5 years as a Group Supervisor, and 4 years as an
|
||
Attorney-Advisor. Prior to working for ODAR, I was a staff attorney for the UAW Legal
|
||
Services Plan in Oklahoma City for 7½ years and had practiced law in central Oklahoma for
|
||
8½ years before that.</p>
|
||
<p>The Oklahoma City HO primarily serves central and western Oklahoma, specifically Oklahoma City,
|
||
Lawton, Ardmore, and Clinton, Oklahoma, as well as Wichita Falls, Texas and Santa Fe, New Mexico.
|
||
Thus, the claimants served by the Oklahoma City HO live in urban, suburban, and rural areas and are
|
||
of diverse cultural and economic backgrounds.</p>
|
||
<p>The Oklahoma City HO is presently staffed with 13 ALJs, supported by 59 staff, specifically: 1
|
||
Hearing Office Director; 4 Group Supervisors; 1 Administrative Assistant; 2 Hearing Office
|
||
Systems Administrators; 12 Senior Attorneys; 3 Attorney-Advisors; 6 Paralegal-Analysts; 3
|
||
Lead Case Technicians; 13 Senior Case Technicians; 6 Case Technicians; 4 Case Intake
|
||
Assistants; and 2 Contact Representatives. Fifty-seven percent of our employees (41 of 72) have
|
||
6 or more years of ODAR experience and 39% (28 of 72) have 16 or more years, myself included.</p>
|
||
<p>In fiscal year (FY) 2011, the Oklahoma City HO attained our regionally-set dispositional goal, with
|
||
7,216 claimants served. We also completed all of our aged cases (750 days old). Thus far in FY
|
||
2012, we have served 6,317 claimants. Through the end of July 2012, Oklahoma City ALJs’
|
||
dispositions have averaged: 37.8 percent fully favorable; 3.2 percent partially favorable;
|
||
41.7 percent unfavorable; and 17.2 percent dismissals. Further, through the end of August 2012,
|
||
the Oklahoma City HO has: </p>
|
||
<p>Average Processing Time of 381 days; </p>
|
||
<p>Average Cases Pending per ALJ of 591; </p>
|
||
<p>Average Age of Pending
|
||
Cases of 258 days; </p>
|
||
<p>Cases under 365 days old of 76%; </p>
|
||
<p>Receipts per day per ALJ of 2.31; </p>
|
||
<p>Hearing Scheduled per day per ALJ of 2.39; </p>
|
||
<p>Hearings Held per ALJ per day of 1.79; </p>
|
||
<p>Held to Scheduled Ratio of 75%; </p>
|
||
<p>2
|
||
Dispositions per day per ALJ of 2.15; and</p>
|
||
<p>Dispositions to Receipt Ratio of 103%.</p>
|
||
<p> As the HOCALJ, I strive to ensure that my hearing office handles hearing requests in an orderly
|
||
manner. I discuss ALJ workload and case assignment regularly with our HOD, who oversees the
|
||
direction of our staff involved in preparing cases for hearing. Generally, cases are “worked-up”
|
||
for hearing in hearing request date order, with the oldest cases prepared first. Our
|
||
HOD randomly assigns a minimum number of cases to each Oklahoma City ALJ; 40 cases per month so
|
||
far in FY 2012.</p>
|
||
<p>I use our agency’s technology to manage performance, quality, and productivity, mainly with the
|
||
help of the Case Processing Management System (CPMS) and Disability Adjudication Reporting Tools
|
||
(DART), including the “How MI Doing” and ODAR Management Information Dashboard (ODAR MIND). Top
|
||
priorities include the handling of our oldest cases, the number of hearings scheduled and held per
|
||
ALJ, the pending per ALJ, and the monthly dispositional totals. I pass general information
|
||
concerning these categories onto all ALJs, and pass specific information on to individual ALJs as
|
||
necessary.</p>
|
||
<p>I endeavor to work closely with our Oklahoma City ALJs. I have an unconditional “open door”
|
||
policy. I speak with all of our ALJs, both formally and informally, concerning questions,
|
||
problems, or suggestions that they might have, regarding individual cases as well as office
|
||
policies and procedures. I regularly send e-mails to clarify issues and procedures for our ALJs
|
||
and share general information.</p>
|
||
<p>Let me emphasize that while I can take actions to ensure that ALJs move their caseloads and apply
|
||
the law and our policies correctly, the Administrative Procedure Act grants all ALJs “qualified
|
||
decisional independence.” “Qualified decisional independence” means that ALJs must be impartial
|
||
in conducting hearings. They must decide cases based on the facts in each case and in accordance
|
||
with the agency’s policy, as set out in the regulations, rulings, and other policy statements. It
|
||
also means, however, that ALJs make their decisions free from agency pressure or pressure by a
|
||
party to decide a particular case, or a particular percentage of cases, in a particular way. If I
|
||
see a performance or quality issue with an ALJ that I need to address, I will discuss the issue
|
||
with the judge as soon as possible to ensure that the ALJ’s actions are consistent
|
||
with the agency’s policy, and that the ALJ is performing at an acceptable level of productivity.
|
||
While I exercise appropriate management oversight over the ALJs in my office and can take a number
|
||
of actions to help ALJs improve their performance, I cannot and do not interfere with or influence
|
||
the ultimate decision in any case.</p>
|
||
<p>In addition to my managerial duties, I hold hearings for disability cases.</p>
|
||
<p>Thank you for the opportunity to be here today. I would be happy to answer any questions that
|
||
you may have.
|
||
</p>
|
||
<p>__________________________________________________________________________________________________________________</p>
|
||
<div align="center"><strong>Judge Thomas Erwin<br>
|
||
Hearing Office Chief Administrative Law Judge<br>
|
||
Roanoke, Virginia Hearing Office<br>
|
||
Office of Disability Adjudication and Review<br>
|
||
before the Senate Committee on<br>
|
||
Homeland Security and Governmental Affairs<br>
|
||
Permanent Subcommittee on Investigations<br>
|
||
<br>
|
||
September 13, 2012</strong></div>
|
||
<p>Mr. Chairman, Ranking Member Coburn, Members of the Subcommittee:</p>
|
||
<p> My name is Thomas Erwin, and I serve as the Chief Administrative Law Judge (ALJ) for the Roanoke,
|
||
Virginia hearing office (HO). I have a little more than 3 years of experience as an ALJ and 1 ½
|
||
years as a hearing office chief ALJ (HOCALJ). Prior to becoming an ALJ, I was an attorney advisor
|
||
in the Roanoke, Virginia Office of Disability Adjudication and Review (ODAR) office for three
|
||
years. Before joining the Social Security Administration, I served as a U. S.
|
||
Navy JAG attorney on active duty for five years in San Diego and Port Hueneme, California, and was
|
||
appointed as the Officer in Charge of the Naval Legal Service Office Branch Office in Port Hueneme.
|
||
One of my duties in the Navy was to serve as criminal defense counsel in courts- martial cases; so
|
||
yes, Tom Cruise did play me in the movie A Few Good Men. I then worked in private practice in
|
||
Southern California as a certified specialist in family law prior to joining the Social Security
|
||
Administration in 2006.</p>
|
||
<p>The Roanoke, Virginia HO serves a broad area of Southwest Virginia and Southeast West Virginia.
|
||
This service area is a part of a cultural region commonly known as Appalachia. The region's
|
||
economy, once highly dependent on mining, forestry, agriculture, chemical industries, and heavy
|
||
industry, has become more diversified in recent times.</p>
|
||
<p>The Roanoke Hearing Office has eight ALJs, three of whom have fewer than two years of experience on
|
||
the job. The newest judge has been with the office only since June of this year. The office has
|
||
had significant ALJ turnover over the past several years, and has lost eight judges to retirement
|
||
or transfer. SSA has assigned eight new judges in the same period; seven of these judges were new
|
||
to the position or had less than one year of experience as an ALJ when they reported. The office
|
||
has 48 employees.</p>
|
||
<p>For fiscal year 2012, through August, the Roanoke hearing office has received 3,690 hearing
|
||
requests, an average of 335 cases per month. We have issued 3,643 decisions, so we have processed
|
||
close to 99% of total receipts. We have just under 4,700 cases pending in our office, an average
|
||
of over 580 cases pending per judge. Our average processing time is 432 days from the request for
|
||
hearing to decision.</p>
|
||
<p>The Roanoke hearing office has an allowance rate of 57% for fiscal year 2012. The judges have an
|
||
allowance rate of 55%, with most judges having an allowance rate between 45 and 57%. The
|
||
difference in allowance percentage between the overall office rate and the judges represents
|
||
favorable decisions processed by our senior attorneys.</p>
|
||
<p>As a HOCALJ, it is my job to make sure that the office functions smoothly, and that we process
|
||
cases fairly and efficiently. I strive to ensure that my hearing office handles hearing requests
|
||
in an orderly manner. I work with three other office managers to make sure cases are worked up and
|
||
ready for a hearing, that they are assigned to judges to allow them to hold hearings, and that
|
||
writers draft legally sufficient decisions. I monitor the workloads of the judges to make sure
|
||
they have sufficient cases at various stages of the process to allow them to review cases before
|
||
scheduling, hold hearings, and issue decisions.
|
||
|
||
A hearing office has many working parts, all of which need to operate smoothly to maintain both
|
||
quality and productivity. The senior case technicians prepare the files and get them ready for
|
||
hearing; the judges hold the hearings; and then the writers must draft, based on directions they
|
||
receive from the judges, legally sufficient and defensible decisions. As HOCALJ, I work with
|
||
my fellow supervisors to manage performance, quality, and productivity at each phase of a case’s
|
||
development and resolution.</p>
|
||
<p>I work with the ALJs in the office to make sure they are aware of monthly and yearly goals, that
|
||
they move cases through each stage of the process in a timely manner, and that they issue quality
|
||
decisions as quickly as possible. If the judges are having a problem, I help them resolve the
|
||
issue so that they can continue doing their job. I try to lead by example.</p>
|
||
<p>Let me emphasize that while I can take actions to ensure that ALJs move their caseloads and apply
|
||
the law and our policies correctly, the Administrative Procedure Act grants all ALJs “qualified
|
||
decisional independence.” “Qualified decisional independence” means that ALJs must be impartial in
|
||
conducting hearings. They must decide cases based on the facts in each case and in accordance with
|
||
the agency’s policy, as set out in the regulations, rulings, and other policy statements. It also
|
||
means, however, that ALJs make their decisions free from agency
|
||
pressure or pressure by a party to decide a particular case, or a particular percentage of cases,
|
||
in a particular way. If I see a performance or quality issue with an ALJ that I need to address, I
|
||
will discuss the issue with the judge as soon as possible to ensure that the ALJ’s actions are
|
||
consistent with the agency’s policy, and that the ALJ is performing at an acceptable level of
|
||
productivity. While I exercise appropriate management oversight over the ALJs in my office and can
|
||
take a number of actions to help ALJs improve their performance, I cannot and do not interfere with
|
||
or influence the ultimate decision in any case.</p>
|
||
<p>Thank you for the opportunity to be here today. I would be happy to answer any questions that
|
||
you may have.
|
||
</p>
|
||
<p>__________________________________________________________________________________________________________________</p>
|
||
<div align="center"><strong>Judge Ollie L. Garmon, III<br>
|
||
Regional Chief Administrative Law Judge<br>
|
||
Atlanta Region
|
||
<br>
|
||
Office of Disability Adjudication and Review<br>
|
||
before the Senate Committee on<br>
|
||
Homeland Security and Governmental Affairs<br>
|
||
Permanent Subcommittee on Investigations<br>
|
||
<br>
|
||
September 13, 2012</strong></div>
|
||
<p>Mr. Chairman, Ranking Member Coburn, Members of the Subcommittee:</p>
|
||
<p>My name is Ollie L. Garmon, III, and I serve as the Regional Chief Administrative Law Judge (RCALJ)
|
||
for Region IV (Atlanta). The Montgomery, Alabama hearing office (HO) is one of the offices in the
|
||
Atlanta region. I have 21 years’ experience as an ALJ, 3 years as a Hearing Office Chief ALJ
|
||
(HOCALJ), 4 years as the Assistant to the RCALJ, and 9 years as the RCALJ.</p>
|
||
<p>As an RCALJ, I provide general oversight for all program and administrative matters concerning our
|
||
hearings process in the Atlanta region. The Atlanta region is composed of 37 hearing
|
||
offices, nearly 400 administrative law judges, and a total staff of nearly 2,300 people in
|
||
following eight states: Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South
|
||
Carolina, and Tennessee. This region serves a population of about 60 million citizens. We have
|
||
approximately 25 percent of the agency’s hearings caseload, which results in more than 200,000
|
||
decisions per year.</p>
|
||
<p>I began my legal career in the private sector as an associate for a law firm; I then became a sole
|
||
practitioner, after which I organized and was a partner in a law firm. During this same time, I
|
||
served in the public sector as a city attorney and was elected county prosecuting attorney for a 4-
|
||
year term. In 1979, I was elected for a 4-year term to a full time judicial position of county
|
||
court judge where I also served as a juvenile court judge. Afterwards, I was appointed by the
|
||
Governor of the State of Mississippi to the position of Commissioner of the Mississippi
|
||
Workers’ Compensation Commission for a 6-year term.</p>
|
||
<p>One of the Hearing Offices in Region IV is located in Montgomery, Alabama. The Montgomery Office’s
|
||
service area includes Alexander City, Anniston, Auburn, Demopolis, Montgomery, Opelika, Selma, and
|
||
Tuskegee.</p>
|
||
<p>The Montgomery Office currently has 10 judges. We expect two new judges to report for duty on
|
||
September 24, 2012. The support staff for the ALJs includes a mix of attorney advisors, paralegal
|
||
specialists, and legal assistants. The office has a high transfer rate for ALJs, who frequently
|
||
request reassignment to other offices.</p>
|
||
<p>In fiscal year (FY) 2011, the Montgomery Office received 8,357 cases for adjudication and issued
|
||
7,252 dispositions. In FY 2012 to date, the office has received 6,540 cases for adjudication and
|
||
issued 6,246 decisions. The Montgomery Office currently has 8,323 cases pending and the current
|
||
average processing time is 430 days. The rate of average dispositions per ALJ per day is 2.37. .</p>
|
||
<p>Let me emphasize that while I can take actions to ensure that ALJs move their caseloads and apply
|
||
the law and our policies correctly, the Administrative Procedure Act grants all ALJs “qualified
|
||
decisional independence.” “Qualified decisional independence” means that ALJs must be impartial in
|
||
conducting hearings. They must decide cases based on the facts in each case and in accordance with
|
||
the agency’s policy, as set out in the regulations, rulings, and other policy statements. It also
|
||
means, however, that ALJs make their decisions free from agency
|
||
pressure or pressure by a party to decide a particular case, or a particular percentage of cases,
|
||
in a particular way. If I see a performance or quality issue with an ALJ that I need to address, I
|
||
will
|
||
2
|
||
discuss the issue with the judge as soon as possible to ensure that the ALJ’s actions are
|
||
consistent with the agency’s policy, and that the ALJ is performing at an acceptable level of
|
||
productivity. While I exercise appropriate management oversight over the ALJs in my offices and
|
||
can take a number of actions to help ALJs improve their performance, I cannot and do not interfere
|
||
with or influence the ultimate decision in any case.</p>
|
||
<p>Thank you for the opportunity to be here today. I would be happy to answer any questions that
|
||
you may have.
|
||
</p>
|
||
<p> </p>
|
||
<p>
|
||
</p>
|
||
|
||
|
||
|
||
|
||
</div>
|
||
|
||
|
||
|
||
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