Statement of Theresa Gruber,
Deputy Commissioner, Disability Adjudication and Review
Social Security Administration
Testimony before the Senate Committee on Homeland Security and Governmental Affairs, Subcommittee on Regulatory Affairs and Federal Management
May 12, 2016
Chairman Lankford, Ranking Member Heitkamp, and Members of the Subcommittee:
Thank you for this opportunity to testify on “Examining Due Process in Administrative Hearings.” My name is Theresa Gruber. I have been the Deputy Commissioner for Disability Adjudication and Review at the Social Security Administration (SSA) since July 2015.
Today, I will talk about the significant public service challenges that we face, with over 1.1 million individuals and their families awaiting a hearing decision; they are counting on us, with the support of Congress, to find a solution. These individuals are waiting an average of 17 months for an answer from us—and in some places, the wait is much longer.
I began my career in Social Security working in a field office in Minnesota. I have worked directly with the people we serve and for me and the men and women who work with me, these are not just shockingly large numbers. We see the faces and families behind each appeal. It is our duty as public servants to use every tool we have to address this crisis. I will briefly discuss why we are facing this crisis, and I will tell you about our multi-year plan to address it: the Compassionate and Responsive Service (CARES) plan, which I have attached, see Attachment A. The CARES plan recognizes that we can only address wait times through a comprehensive and multi-layered approach that includes strategies and tactical initiatives in a variety of areas such as business process improvements, information technology innovations, and investments in staffing and facilities. Those investments include a temporary measure to augment our adjudicative capacity by using the skills of our administrative appeals judges (AAJs) to help in our efforts.
Let me assure you at the outset that our decision to have AAJs on the Appeals Council hold hearings and issue decisions in certain cases comports with high standards of due process. Currently, AAJs have the authority to hold hearings. Since its inception in 1940, our hearings process – including hearings held by the Appeals Council – safeguards a claimant’s right to due process. Our hearings process provides, for example, a neutral decisionmaker; an opportunity to make an oral presentation to the decisionmaker; an opportunity to present evidence and witnesses; and opportunity to confront and cross-examine evidence and witnesses; the right to appoint a representative; and a decision based on the record with a statement of the reasons for the decision.
And, because AAJs on the Appeals Council will operate under the same standards and rules as the ALJ hearing process, they too will meet these requirements. When AAJs on the Appeals Council hold hearings and issue decisions, they will act as neutral decisionmakers, as do our ALJs. Moreover, our decision to have AAJs hold hearings and issue decisions is consistent with our longstanding regulations and is merely a temporary measure to augment our adjudicative capacity and address this unacceptable backlog that is delaying decisions for too many Americans.
The success of our efforts depends on two conditions: adequate and sustained funding from Congress and a sufficient and updated list of administrative law judge (ALJ) candidates from which to hire. The Fiscal Year (FY) 2017 President’s Budget would allow us to continue to fund our increased hiring needs and complete more hearing decisions. But funding is not enough – we also need a sufficient pool of ALJ candidates to enable us to hire in a timely manner enough ALJs. Unfortunately, for a number of years, we have not been able to hire a sufficient pool of ALJ candidates meeting SSA’s unique needs, but as described below, we are collaborating with our Office of Personnel Management (OPM) colleagues to develop new solutions to this issue.
The work we do matters for millions of our citizens – seniors, people with disabilities, children, widows, and widowers. We administer a number of programs, including the Old-Age, Survivors, and Disability Insurance (OASDI) program, commonly referred to as “Social Security.” Social Security is a social insurance program under which workers earn coverage for retirement, survivors, and disability benefits by working and paying Social Security taxes on their earnings. The DI portion of Social Security helps replace a portion of the lost earnings for workers who, due to their significant health problems, can no longer work to support themselves and their families. DI also ensures that workers who become disabled and their families are protected from the loss of future retirement benefits. The contributions that workers pay into Social Security also finance the share of our administrative budget used for processing Social Security claims and benefits, with the level of funding set by Congress each year.
We also administer the Supplemental Security Income (SSI) program, funded by general revenues, which provides cash assistance to aged, blind, and disabled persons with very limited income and resources. Between Social Security and SSI, we pay over $930 billion per year to more than 65 million beneficiaries. As with the OASDI program, the level of funding provided to administer the SSI program is set by Congress each year.
The scope of our work is immense. Just to provide a few examples, in FY 2015, over 40 million people visited our 1,200 field offices nationwide; we handled approximately 37 million calls on our National 800 Number; and we completed over 8 million claims for benefits. SSA also completed 87 million online transactions. In addition, in FY 2015, we received around 746,000 hearing requests, and issued approximately 663,000 hearing dispositions through our network of 163 hearing offices. Nearly all of these hearing requests and dispositions involve claims for Social Security disability benefits or SSI payments. We perform all this work – and much more work – in an extremely efficient manner, with our discretionary administrative costs being only about 1.3 percent of our benefit payments.
A Plan for Compassionate and Responsive Service
Unfortunately, at present, and for the first time in our history, over 1.1 million people are waiting for a hearing decision. For a full description of our administrative process, see Attachment B. Almost all of the people waiting for a hearing decision are claimants seeking Social Security disability benefits or SSI disability payments whose claims have been denied at the State DDS level. The Act has a very stringent definition of disability—i.e., the inability to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or is expected to last at least one year or to result in death1 and many individuals are initially denied benefits ultimately are found eligible. In many cases, the appeals process uncovers more detailed and complete medical evidence and sometimes individuals’ medical conditions deteriorate, which can lead to successful applications upon appeal. Disability recipients have very serious health conditions - among those who start receiving disability benefits at the age of 55, one in five men and one in seven women die within five years of the onset of their disabilities.
While claimants await a hearing, they may develop new or worsening conditions. Moreover, it is not uncommon for these claimants to endure severe financial difficulties because they are out of the workforce, often for extended periods. Therefore, hearing delays can intensify an already difficult and stressful situation. Wait times for a hearing decision are now approaching 17 months on average. The situation is urgent. Our employees have shared with us stories of individuals who became or were within days of becoming homeless because of the time it took to get a hearing. Our employees also have told us of individuals who, because they are unable to get necessary medical treatment, experience significant worsening in their conditions. Our judges have shared with us having to dismiss cases, or substitute a party, because claimants have died while waiting for a hearing and decision.
Although we made measurable progress through 2011 toward reducing the number of hearings pending, severe budget cuts adversely affected our progress. For three years in a row, in FYs 2011-2013, we received for each year nearly a billion dollars less than the President requested in his budget. During those years, we had to make deep reductions in our services to the public and in our stewardship efforts, while still striving to meet our mission and serve the public. For example, decreased budget allocations drove our difficult decision to curtail plans to open eight additional hearing offices that would have increased adjudicatory capacity. We also were unable to hire the numbers of ALJs necessary to maintain progress. While our budgets were more stable in FYs 2014 and 2015, we faced challenges in hiring a sufficient number of ALJs to meet SSA’s needs to replace the ALJs lost to attrition.
Exacerbating the situation, over the same period, we received a record number of hearing requests, due primarily to the aging of the baby boomers as they entered their disability-prone years. We also received an increase in applications during the economic recession and its aftermath. During this time, our resources to address disability claims did not keep pace with the increase in applications and backlogs grew. Primarily for these reasons, wait times for a hearing and the number of pending hearings began to rise again. (See Figure 1.)
In light of these challenges, Acting Commissioner Colvin charged me with developing a comprehensive strategy to address our hearings wait times and the growing queue of people awaiting a hearing decision. We ultimately developed the CARES plan to help reduce wait times and the number of cases pending a hearing.
As noted earlier, the CARES plan recognizes that we can only address wait times through a comprehensive and multi-layered approach using the tools available to us today, while at the same time developing and implementing new tools for the future. Through our CARES plan, we expect in FY 2018 that we will begin to reduce the average wait for a hearing decision, which currently averages over 540 days. With adequate and sustained funding, we plan to achieve an average wait time of no more than 270 days in FY 2020. We also expect to reduce the number of pending cases by half in FY 2020.
The CARES plan combines a number of immediate, tactical, and strategic initiatives to increase hearings decisional capacity, improve ALJ support and staff efficiency, and strengthen personnel oversight, accountability, and policy compliance without sacrificing our commitment to quality. We consider the CARES plan a living document, which will change as we gain more experience with each initiative, begin new initiatives, and adapt to the changes in our operational environment. However, the success of our plan will require adequate and sustained funding for the various initiatives as well as a sufficient pool of ALJ candidates meeting SSA’s unique needs.
People and Quality
Underlying our CARES plan are two interdependent components: people and quality—engaged, well-trained people providing quality service. Our employees have a long tradition of serving our customers and a firm understanding that who we serve is why we serve. We will continue to depend on employees who work hard every day knowing that their work makes a huge difference to a person or family. Inherent in this compassionate and responsive service is quality, and quality includes the timeliness of our actions. Service delayed is service denied.
We define high-quality decisions as policy-compliant and legally sufficient decisions. We have always had to operate in a high production environment, and the hearings process is no exception. Regardless of whether they ultimately receive benefits, the millions of people who apply for our benefits deserve timely and accurate decisions. Quick decisions without quality or quality decisions without timeliness are not acceptable.
While the CARES plan includes many different initiatives, I will start with the initiative that is the topic of this hearing. Hiring ALJs is always critically important, and I will describe our efforts to do this. With the help of Congress and our colleagues at OPM, we are working to develop both short and long-term solutions. However, we do not think it is viable to build our entire plan to address the current unacceptable backlog solely around strategies related to improving ALJ hiring – progress there will not come fast enough to address the critical need to increase adjudicative capacity quickly. Given the urgency of our the need to address the hearings backlog, it would be unacceptable not to take every reasonable action to reduce the amount of time people – your constituents, many of whom have contributed into Social Security and are insured for coverage – wait for a hearing decision.
With that in mind, we developed a short-term action that we can begin immediately, and incrementally, to augment our current adjudication capacity. We call this initiative our Adjudication Augmentation Strategy (augmentation strategy). The augmentation strategy is a short-term initiative to utilize AAJs to hold hearings and issue decisions in non-disability cases2 and cases that are already before the Appeals Council and may have otherwise been remanded back to the ALJ.
The cases targeted for the augmentation strategy represent only 3.6 percent of our hearings pending and the non-disability cases often involve issues that ALJs do not typically encounter. A small number of AAJs and staff will specialize in adjudicating the non-disability issues, thus freeing up critical ALJ resources to handle disability hearings. But I want to be clear. Although the augmentation strategy is consistent with the Act and our regulations, this is a temporary initiative aimed at addressing a current need – bringing wait times down to 270 days. It allows us to use highly qualified adjudicators, whom we have thoroughly vetted, as we continue with our extraordinary efforts to hire more ALJs. The augmentation strategy is not part of a plan to replace ALJs in our hearings process.
The augmentation strategy is based on longstanding agency regulations. Since the beginning of the Social Security hearings process in 1940, our regulations have authorized the members of the Appeals Council to hold hearings. Under our current regulations, the Appeals Council has the authority to remove a pending hearing request from an ALJ, hold the hearing, and issue the decision.3 Moreover, nothing in our existing regulations precludes the Appeals Council from holding a hearing in a case that is before it on request for review or on remand from a Federal court. (See Attachment C for a Summary of Our Legal Rationale for the augmentation strategy.)
As we planned this initiative, we were very deliberate about the cases the Appeals Council would handle. We selected non-disability cases because ALJs see far fewer of these cases and therefore often do not gain enough sufficient experience to handle this work efficiently. By contrast, the Appeals Council has AAJs who specialize in these cases, making them exceptionally suitable to handle this workload timely and accurately.
When a claimant is dissatisfied with an ALJ hearing decision, she can appeal to the Council. Thus the second set of cases are a subset of cases already before the Council – cases where the Council could have completed action on the appeal but have generally remanded back to the ALJ. Under the augmentation strategy, the Council will complete the action on the case and issue the final decision, thus preventing an additional workload from returning to the hearing offices and freeing ALJs to hold hearings on other cases. The sole objective of this strategy is to increase capacity to hold more hearings and issue decisions so that we can, collectively, reduce the time people and their families are waiting for a decision.
In developing the augmentation strategy, we were careful to ensure that we took all actions necessary to protect claimants’ due process rights. Let me reassure you that when AAJs conduct hearings and issue decisions, they will function as neutral decision makers and will follow the same rules that govern hearings before ALJs.4 We safeguard the claimant’s right to due process, regardless of whether an ALJ or an AAJ conducts the hearing and issues the decision.
We did not decide to ask the Appeals Council to take on this work lightly. We strategically decided which cases make the most sense for the Appeals Council to handle, ensured that the Appeals Council has the authority to perform this work, and developed an implementation plan. Claimants who disagree with Appeals Council decisions will continue to be able to seek judicial review in Federal court. We will continue to run robust quality reviews on both ALJ and AAJ hearing decisions.
Despite any best efforts, there are far more hearing requests pending than our ALJ corps can currently handle, and our first priority must be to help the more than one million people who are waiting for an answer. We are working to hire new ALJs as quickly as we can and are working jointly with OPM on those efforts.
Administrative Law Judge Hiring
Ideally, our goal is to recruit and retain enough ALJs to process our hearings workload in a timely manner. While we have committed agency funding, we have been unsuccessful in obtaining and retaining enough ALJ candidates who meet SSA’s needs. We currently have 1,506 full time permanent ALJs on duty, but we lose 100 or more ALJs each year through retirement or for other reasons, such as a reassignment to another agency. For example, last year 112 ALJs left the agency. We hoped to hire 250 ALJs to maintain our ALJ corps, but had sufficient candidates to hire only 196 for SSA positions – a large improvement over previous years. We have hired 52 ALJs in FY 2016 and plan to hire a total of 225.
We continue to work in close collaboration with our OPM colleagues, our partners in hiring qualified ALJs. We appreciate the leadership and efforts made in this regard by OPM Acting Director Beth Cobert.
In addition, we thank Congress for recognizing the importance of this issue by enacting section 846 of the Bipartisan Budget Act of 2015, which requires OPM, upon our request, to “expeditiously administer a sufficient number of competitive examinations, as determined by the Commissioner, for the purpose of identifying an adequate number of candidates to be appointed as Administrative Law Judges.” To that end, I am pleased to report that OPM recently opened an examination announcement so that the current ALJ register of eligible candidates can be replenished with additional qualified applicants. OPM also refreshed the ALJ register with new candidates from the 2013 Examination this fiscal year.
While we will not begin receiving lists of potential candidates from this exam until sometime in 2017, it is a critical part of our strategy to ensure adequate ALJ hiring into the future; and in the near-term, SSA is reviewing ALJ candidates from prior exams and is working with OPM to reach the FY 2016 ALJ hiring goal. An ALJ register with a sufficient number of candidates over the next several years will be critical to our ability to hire the number of ALJs we need to deal with this public service crisis. With aggressive hiring and partnership with OPM, we plan to bring the ALJ corps to over 1,900 by the end of FY 2018. In support of our ongoing hiring efforts and the new April examination, we worked with OPM, management associations, for our judges, advocacy groups, and national, state, and local bar associations to launch a massive recruiting effort designed to attract a broad and diverse ALJ applicant pool.
Hiring a sufficient number of ALJs is critical to improving our service delivery. But it takes time to recruit, hire, and train new judges, and it requires adequate funding for our agency. In the meantime, in the absence of our CARES plan and the augmentation strategy, the number of pending hearing requests would continue to grow and individuals and their families would wait longer for decisions.
Business Process Improvements
We are aggressively hiring ALJs. But as history has taught us, while hiring a sufficient number of ALJs is a critical component of reducing the wait time for a hearing decision, it cannot be our only plan. That is why our CARES plan includes a number of initiatives that provide additional decisional capacity.
We have undertaken a number of pre-hearing triage initiatives aimed at increasing disposition capacity. These initiatives will allow us to better prepare a case for hearing and allow certain functions to be handled by staff or technology, thus freeing judges to do the work only they can do. We are also using technology to provide virtual support.
One of our initiatives to triage cases is our Pre-Hearing Conference program. We currently lose over 12 percent of scheduled hearings because claimants do not show up or unrepresented claimants seek postponements of the hearing to allow them to obtain representation. We are piloting our Pre-Hearing Conference program for unrepresented claimants. The objectives of this program are to (1) advise claimants of their right to representation, (2) begin developing the case file well before the hearing, and (3) remove roadblocks to a successful hearing, such as the need for an interpreter. So far, we have implemented this program in 36 of our 163 hearing offices to improve the hearings process for unrepresented claimants, and we will continue to pilot this program in additional offices and to evaluate whether it effectively improves the number of hearings held for non-represented claimants.
Another triage initiative is the 1000+ Page Case Initiative. As of November 2015, data indicated that nearly five percent of all cases have over 1,000 pages of medical evidence. With the 1000+ Page Case Review, Senior Attorneys conduct pre-hearing reviews of cases with large medical files, summarize the information, and provide an analysis for the ALJ. This initiative focuses on case readiness – how we can prepare the case better for the ALJ to review. The team conducting this pilot has tested a summary for ALJs in the first phase, and has provided important feedback that will help us continue to improve our processes. In the second phase of the pilot – beginning in June 2016 – the team will collect data to determine the time saved by ALJs and decision writers from this case review. After that, we will determine whether and how to roll out the initiative nationally.
We also implemented the National Adjudication Team (NAT) with senior attorney advisors, who have the authority to issue decisions in certain cases. The NAT screens, develops, and adjudicates cases where the evidence supports a fully favorable decision, removing these cases from the pending hearings workload. We select cases based on characteristics most likely to lead to a fully favorable decision, such as alleged impairments and the claimant’s age. If the NAT cannot issue a fully favorable decision after gathering medical evidence, it prepares a case summary to assist the ALJ who will hear the case. We conduct an in-line review of a sample of NAT decisions to ensure quality in the process.
Information Technology Innovations
Technology also helps us be more efficient. Video hearings have proved to be a convenient and effective alternative that allows us to conduct more timely hearings and alleviate pressure on our hearing offices with longer wait times. Increasing our use of video hearings is a key strategy in our ability to address service imbalances across the country by matching available ALJs where the need is greatest. We are just beginning to provide medical and vocational experts and claimant representatives with online electronic folder access, which will eliminate the manual work and time staff currently spend on producing compact disc copies of the record. We also are pursuing an automated appeals process for claims filed with the Appeals Council.
We are certainly aware of and support the government’s actions to reduce its physical footprint. Video hearings help with that, but we will still need sufficient space to hold hearings so that we can schedule them timely. We have a multipronged approach to better utilize our space, including repurposing vacant space for the hearings operation that is already Federally owned or leased, using existing space more efficiently, and sharing services. While we need enough appropriate space to hold hearings, we also need enough ALJs to timely hold hearings.
We are committed to working collaboratively with our unions and we have had several discussions with them about how to improve service. We remain open to all ideas. However, the status quo is not acceptable to the one million people waiting in line.
Many of us here today have a close relative or friend who has needed our programs. That is true of me, too. It is important to me both as a government leader and on a personal level that our programs work as intended. I would not use the Appeals Council’s longstanding authority to hear and decide cases, or any of the other CARES initiatives, if I thought they would harm the public or interfere with due process.
I have the deepest regard for what Social Security means to Americans and for our employees who work hard to ensure we deliver quality service. We will continue to collaborate with Congress, our employees, advocates, and our Federal partners like OPM to find innovative solutions to hearing wait times. I am pleased to say that we are on target this year to reduce the wait time for those who have been waiting the longest. We have issued decisions on 99 percent of cases that began the fiscal year at 430 days old or older (our 252,000 oldest cases). That said, reducing wait times across the board must be our priority. The FY 2017 President’s Budget request, which fully funds the CARES plan, gives us the best chance to stay on track and fulfill our duty as public servants. Sustained, adequate funding is critical to implementing our multi-year CARES plan to reduce the wait time for a hearing decision.
To us 1.1 million is not just a number; it is a line of people and their families—many of whom are in desperate circumstances. For many of them, long wait times can mean catastrophic consequences, such as losing a home or making agonizing choices between other basic needs. When the status quo stops working, we need to rethink what we are doing. To address the urgency of over one million people waiting for a hearing decision, we are committed to improving our process. We believe our plan, including a growing and sustained ALJ corps, numerous initiatives to more fully support the ALJ corps and appeals processes, and augmenting our ability to meet the urgent need of the public come together as a set of short and long term measures that will help us reduce the average wait time for a decision.
I thank you for your interest in discussing these important issues. I hope that this Subcommittee will work with us to improve service to our fellow Americans and your constituents. I would be happy to answer any questions.
1 See 42 U.S.C. § 423(d)(1) (2016).
2 A non-disability case is an appeal of an initial eligibility determination on non-disability issues such as, but not limited to the following: insured status; age; citizenship; income; living arrangement; resources (excess resources, workers compensation, other); relationship (marital, paternity, adoptions, other); retirement factors; nonpayment of benefits because of failure to furnish proof of an SSN; alleged misinformation deterring an applicant from filing for benefits; application of an offset (windfall elimination provision, government pension offset, public disability benefit, workers compensation, other); cessation based on work activity; and overpayments.
3 See 20 C.F.R §§ 404.956, 416.1456.
4 See 20 C.F.R §§ 404.956, 416.1456 (“If the Appeals Council holds a hearing, it shall conduct the hearing according to the rules for hearings before an administrative law judge.”).