Social Security Perspectives

Who Said It?

2011-02-21T09:14:00.001-05:00

It was Paul Ryan, the Republican Chairman of the House Budget Committee who said that "... Social Security is not a contributor to our deficit of any material right now. Social Security is not a big driver of our debt problems. Medicare and Medicaid are the biggest drivers of our future debt problems."

Binder and Binder Complaint Part I

2010-09-25T10:06:00.002-04:00

Binder and Binder Complaint Part II

2010-09-25T10:04:00.000-04:00

Chapter 8

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8

Disability Determination

This chapter discusses the use of occupational information for disability
determination. Although O*NET was envisioned as a replacement for the Dictionary of
Occupational Titles (DOT), the Social Security Administration (SSA) continues to rely on the
DOT when making disability determinations. The chapter first reviews the history of the use
of occupational information in the process of disability determination. It then discusses prior
interagency efforts between the Department of Labor (DOL) and SSA to develop an
occupational information database suited to the process of disability determination and prior
research on the use of O*NET for disability determination. The third section evaluates the
potential use of O*NET data vis à vis the specific types of occupational information required
in the disability determination process, and the final section presents the panel’s conclusions
and recommendations in this area.

OCCUPATIONAL INFORMATION NEEDS OF THE SOCIAL SECURITY
ADMINISTRATION

The Social Security Act (Section 223(d)(2)) establishes that disability determination
requires that an individual’s physical or mental impairment is of such severity that she or he is
not only unable to do his or her previous work but cannot, considering his or her age,
education, and work experience, engage in any other kind of substantial gainful work that
exists in the national economy. “Work which exists in the national economy” is defined as
work found in jobs that exist in significant numbers in either the region where such individual
lives or in several regions in the country. To answer the question of whether or not “work
exists in significant numbers” in the national economy, the Social Security Administration
(SSA) took administrative notice of the Dictionary of Occupational Titles (DOT). That is,
under the assumption that only occupations that existed in significant numbers were reflected
in the DOT, this O*NET predecessor served as a primary tool for determining whether a
Social Security claimant had the capacity to work.

In 1996, SSA requested that the Institute of Medicine, in collaboration with the
National Research Council’s Committee on National Statistics, conduct an independent
review of the statistical design and content of its research plan for redesigning the disability
decision process. The study committee concluded that the DOT replacement (i.e., O*NET),
“will not meet SSA’s needs to define the functional capacity to work without major
reconstruction” (Institute of Medicine, 2002, p. 9). The report continues:
Barring some resolution, SSA will be left with no objective basis upon which to justify
decisions concerning an individual’s capacity to do jobs in the national economy. SSA
might be cast back into the era when it relied extensively on the testimony of
“vocational experts” or their written evaluations [emphasis in the original].
Given that occupational information is critical for use in disability determination, our
panel invited Sylvia E. Karman, a representative of SSA, to make a presentation on this issue.
SSA appears to think that O*NET is not able to fulfill the needs of vocational rehabilitation
experts and others involved in the process of disability determination. In a letter to
administrators of disability determination services, SSA advises disability adjudicators and
reviewers not to use O*NET when making disability decisions (Social Security
Administration, Office of Disability, 1999). Sylvia Karman (2009) indicated that this view is
widely shared, presenting a list of four reports (General Accountability Office, 2002a, 2002b;
Social Security Advisory Board, 2001; Institute of Medicine, 1998) which, she said, either
state that “both SSA and DOL acknowledge that O*NET cannot be used in SSA’s process”
and/or “recommend that SSA investigate other alternatives.”

THE FUTURE OF OCCUPATIONAL INFORMATION FOR DISABILITY DETERMINATION

Having ruled out the use of O*NET for disability determination purposes, SSA has
begun taking steps to develop its own occupational information system. In December 2008,
the commissioner of social security established the Occupational Information Development
Advisory Panel. The advisory panel was charged with providing independent advice and
recommendations on plans and activities to replace the DOT currently used in the SSA
disability determination process (Astrue, 2008). The panel’s report, issued in September,
2009, recommends the creation of a new “Social Security Administration Occupational
Information System” for use in disability determination (Social Security Administration
Occupational Information Advisory Panel, 2009). The panel recommends developing an
initial, empirically derived work taxonomy; research to examine various job classification
methods; development of internal and external research capacity at SSA; basic and applied
research on work-side and person-side job attributes and demands; development of scales and
measures; and communication with users, the public, and the scientific community.
SSA has concluded that, in its current form, O*NET does not fulfill the needs of the
disability determination process. At the same time, the Department of Labor (DOL) has
concluded that O*NET fulfills its needs for occupational information; other chapters of this
report show that O*NET meets many other occupational information needs. However,
disability determination was an important use of the DOT and because O*NET was created to
replace the DOT, it seems fair to conclude that O*NET has failed to replace the DOT in this
particular usage.
The panel understands that, pending SSA’s response to the advisory panel
recommendations, the jury is still out on the topic of whether and to what extent O*NET
should be changed or expanded to meet SSA’s needs. However, given public demand for
budgetary restraint and efficient government, which acquire additional importance in times of
economic recession and slow economic growth, duplication in government functions should
be prevented. Therefore, the development of parallel, possibly redundant, occupational
information systems, one for general purposes termed O*NET and the other tailored to the
needs of SSA, is of concern to taxpayers. In addition, dual data collection processes would
seem unnecessarily expensive.
The panel is not advocating the adoption of O*NET by SSA or the development of a
hybrid O*NET-Disability system in the disability determination process. However, we
conclude that a considerably modified and expanded O*NET may be capable of informing the
disability determination process. There are also some potential economies of scale to be
derived from the development of a single occupational information system to be used by both
agencies, which may allow cost-sharing of resources in such functions as data collection and
system maintenance.
An occupational information system that facilitates the process through which
individuals with disabilities obtain gainful employment would help relieve the financial
pressure on the SSA system and also contribute to the mental health of those who become
productive members of society.
Not all stakeholders share the opinion that O*NET cannot be amended to meet the
needs of those involved in disability determination. In fact, the Committee to Review the
Social Security Administration’s Disability Decision Process called for interagency
collaboration (Institute of Medicine, 1998). Its 1998 report encouraged SSA to explore some
interagency agreement “to initiate a version of O*NET that would collect information on
minimum as well as average job requirements to better serve SSA’s needs to assess ability to
engage in substantial gainful activity” (p. 24).
We found evidence suggesting that these calls for collaboration between DOL and
SSA were heeded. In 2000, vocational rehabilitation professionals initiated discussions with
DOL and SSA which led to the creation of the Inter-Organizational O*NET Taskforce with
representatives of 16 associations of physicians, psychologists, therapists, counselors, insurers
and educators (Cannelongo, 2009). The group met for 4 years and proposed development of a
modified version of O*NET called O*NET –D (for Disability) that would incorporate
occupational information gathered in the field by disability professionals trained in job
analysis, using standardized questionnaires. A pilot study of the approach funded by DOL
yielded promising results. Although SSA staff initially agreed with the plan and submitted it
to the SSA administrator, the agency later withdrew its support.
At around the same time, SSA commissioned the American Institutes for Research
(AIR) to examine the suitability of O*NET for the disability determination process
(Gustafson and Rose, 2003). Based on an analysis of the initial O*NET database (the
“occupational analyst” database), the AIR research team found that reliability, definitional,
and anchoring issues could lead to problems if O*NET data were used for disability
determination. At the same time, however, the authors identified specific steps for addressing
these problems. For example, they suggested that a disability decision maker could use
Copyright © National Academy of Sciences. All rights reserved.

O*NET task lists and other descriptive information to help determine the activities of
claimants’ current jobs and described an approach to using selected O*NET descriptors that
would adjust for the positively skewed distributions of ratings of these descriptors. Gustafson
and Rose (2003, p. 15) concluded that “SSA could implement into the [disability
determination process] a version of O*NET that is legally defensible and acceptable to
decision-makers and claimants alike.”
Another piece of evidence, suggesting the continued possibility of collaboration
between DOL and SSA, is the testimony provided by former O*NET director, James Woods,
to the SSA advisory panel on January 13, 2009 (Woods, 2009). In his address, he regretted
that earlier efforts to accommodate the SSA needs into O*NET did not bear fruit; however, he
remained hopeful that O*NET
may provide a basis to help SSA focus on a specific set of data needs and to organize
data within the O*NET framework—for SSA’s specific needs. O*NET, or at least the
lessons learned in developing the O*NET system, may provide a starting point rather
than SSA starting from scratch.
In spite of such past interagency efforts, communication and collaboration between
DOL and SSA regarding a common occupational database now appears quite limited. An
inspection of their most recent communications suggests that both agencies have reached the
implicit conclusion that DOL will not modify O*NET to accommodate disability
determination users, and that SSA will build an entirely different occupational information
system for its purposes. The fact that SSA’s newly formed advisory panel does not include a
DOL liaison suggests that the development of an SSA-sponsored system may proceed
relatively independent of O*NET.
It is important to consider why SSA and other stakeholders deem O*NET inadequate
for disability determination purposes. In the next sections, we present the primary issues that
preclude the use of O*NET in the disability determination process in the eyes of stakeholders,
the available evidence, and our conclusions regarding the type and the extent of the O*NET
modifications called for by each of the issues.

MEASUREMENT OF FUNCTIONAL REQUIREMENTS

In recent years, the concept of disability has shifted its focus from diseases,
conditions, and impairments to the functional limitations caused by these factors (Institute of
Medicine, 2002, p. 4). A key element implicit in the contemporary view of the disability
determination process is the need for an increased understanding of the physical and social
factors in the work environment that may impact the Social Security claimant’s functional
capacity.
There are a number of mental, physical, and psychosensory disabilities that affect the
capacity to work. In the context of disability determination, the role of occupational analysis
is to determine the important job behaviors and the type and level of ability that is required to
perform them. The Americans with Disabilities Act (ADA) states that job requirements
should be linked to essential (not marginal or peripheral) job functions, and that alternate
ways of performing job functions that may require reasonable accommodations should be
considered.

In spite of their importance for job performance, physical abilities have not received as
much attention as cognitive abilities have in the occupational analysis literature (Guion and
Highhouse, 2006). Much of what is known about physical abilities appears to have its origins
in the work of Fleishman and his associates (Fleishman and Reilly, 1992). An overall
summary of this work (Hogan, 1991) suggests that physical abilities can be subsumed into
three general fitness factors: (1) muscular strength, or the ability to apply or resist force by
contracting muscles; (2) cardiovascular endurance, or aerobic capacity; and (3) coordination,
or quality of movement.
Physical abilities are not the only type of ability impacted by disability. Cognitive,
psychomotor, and sensory/perceptual abilities can also be impaired. Fleishman’s approach to
abilities is particularly important because his measures of ability requirements—including
cognitive, physical, psychomotor, and sensory abilities—were adopted in O*NET (Fleishman
and Quaintance, 1984). For example, the 52 ability scales used in O*NET were drawn almost
verbatim from Fleishman and Reilly (1992). Even though all of these 52 abilities conceivably
have implications for disability determination, the panel heard from stakeholders who
questioned their utility in the disability determination process.

Comparing the O*NET and SSA Approaches

Sylvia Karman pointed out a series of shortcomings related to disability determination
in the O*NET approach to the measurement of physical requirements (Karman, 2009). These
shortcomings, along with a critical examination of their rationale, are reviewed below.

Physical Abilities Versus Functional Capacity

Fleishman’s physical and sensory-motor measures use rating scales to assess
occupational requirements along each physical ability dimension. As incorporated into the
O*NET content model, these scales provide a definition of the ability as well as examples of
tasks or job behaviors situated at various points on the scale.
This approach is most useful for a construct or a criterion-related approach to the
validation of measures of physical requirements that are used for selection purposes (Hogan,
1991). For example, a number of tests are available to assess each of these abilities that can
be used to identify capable individuals and can be validated in criterion-related studies
(Fleishman and Reilly, 1992). However, from the point of view of disability determination,
these abilities represent nonspecific, psychologically worded, or unobservable constructs that
cannot be easily tied to specific disabilities or specific groups of muscles, such as those
involved in lifting, kneeling, etc.
Consider, for example, the O*NET ability, Static Strength, which is defined as “the
ability to use muscle force in order to lift, push, pull, or carry objects. It is the maximum force
that one can exert for a brief period of time using the hand, arm, back, shoulder, or leg”
(National Center for O*NET Development, no date; see Figures 4-1 and 4-2). Clearly, this
physical ability construct cuts across very different muscle groups and different body limbs.
In contrast to this type of definition of a physical construct, the SSA disability determination
process relies on the notion of Residual Functional Capacity (RFC), which measures the
ability to perform specific physical tasks, such as lifting 20 pounds with hands and arms. In
the RFC assessment of the claimant, the focus is on specific and observable functions or
behaviors related to lifting, standing, sitting, and pushing, as well as similarly verifiable
(medically and otherwise) postural limitations regarding balancing, crouching, and crawling
(Form SSA-4734-BK, 08-2008).
There is a series of O*NET work context descriptors related to how much time the
occupation requires sitting, standing, climbing, walking or running, and keeping one’s balance
(items 34 through 39 in the work context O*NET questionnaire—National Center for O*NET
Development, no date) that have conceptually parallel items in the RFC assessment, even
though the anchors placed at the various points of these scales are quite different in the two
approaches. For example, SSA uses specific time ranges (e.g., “about 6 hours in an 8-hour
workday”), whereas O*NET uses relative scales (e.g., “about half the time”). The panel also
observes that some O*NET descriptors, such as item 38 in the work context questionnaire,
collapses occupational requirements across posturing, such as kneeling-crouching-stoopingcrawling,
whereas the RFC assessment breaks down each one of these postural limitations.

Sensory and Perceptual Abilities

In contrast to the noticeable differences found in the domain of physical abilities, the
panel identified smaller differences between the O*NET and SSA approaches with regard to
sensory and perceptual abilities. Note for example the almost perfect equivalence between the
O*NET descriptors of near vision, far vision, visual color discrimination, and depth
perception and the RFC assessment (descriptors of near acuity, far acuity, color vision, and
depth perception). The scales and definition of scale points, however, are still quite different
between the two scales.

Environmental Conditions

The RFC assessment involves an evaluation of the claimant’s ability to sustain
environmental factors, such as extreme heat, extreme cold, wetness, humidity, noise,
vibration, and others, using scales ranging from “unlimited” to “avoid all exposure.” Although
the panel did not find perfectly equivalent descriptors in O*NET, the O*NET Work Context
domain involves a number of conceptually similar items related to exposure to either very hot
or very cold temperatures (item 23), such contaminants as gases and dust (item 25), and
whole-body vibration (item 27). The anchors in these O*NET scales range from “never” to
“every day,” and the anchors in the RFC range from “unlimited” to “avoid all exposure.”

Use of Behavioral Anchors

O*NET uses the scale format known as Behaviorally-Anchored Rating Scale (BARS),
in which behavioral anchors representing differing degrees of a construct are placed along the
scale continuum (see Chapter 4). The various degrees of the continuum represented by these
scales are illustrated through “anchors” situated at the corresponding scale points. These
anchors are short statements describing tasks purportedly representing the level of the
construct: “light a candle” is placed next to the scale point 2 in the Ability scale termed Arm-
Hand Steadiness,” “thread a needle” is placed next to the scale point 4 in the same scale, and
“cut facets on a diamond” is placed next to the point 6 in the scale.

Clearly, there are variations in the degree of arm-hand steadiness lying between any of
these pairs of proximal anchors. If the O*NET occupational unit score on arm-hand
steadiness is 3 (requiring a level of arm-hand steadiness between 2–light a candle and 4–
thread a needle), it seems nearly impossible to determine the type of task that a potential
claimant should be able to complete to be deemed capable of performing work in this
occupation unit. For example, two Social Security disability claimants, both of them capable
of lighting a candle and unable to thread a needle, may or may not be able to perform an
occupation with a score of 3 on this ability. This could be true because the two claimants
have different limitations in their degree of arm-hand steadiness, despite the fact that both of
them are unable to thread a needle.
Still another issue related to the behavioral anchors employed in the O*NET physical
ability scales is whether ability requirements are scaled at the level of the ability required by
the most demanding task or the typical (average) task. For example, a Social Security
claimant may be capable of performing the occupation because she or he has enough armhand
steadiness to thread a needle, so long as threading a needle represents the maximal level
of ability that would be required on the job; however, that same claimant may be unable to
perform all the work in the occupation if threading a needle represents the level required by
the typical, average, or everyday task.

Source of Physical Requirements Information

Another concern is about the source of the ability requirement information. Karman
viewed the National Center for O*NET Development’s use of trained occupational analysts to
judge ability requirements, using solely a written description of the occupation, as an obstacle
to relying on this information for disability determination purposes (Karman, 2009). This
concern may be accentuated when physical requirements are being determined, because many
of them lend themselves to job observation. The process of disability determination can be
quite litigious, and those in charge of making the determination prefer to minimize the risk of
legal challenges by relying on occupational information gathered directly by trained
vocational or job analysts. As noted in chapter 1, trained occupational analysts gathered
information directly from job incumbents for inclusion in the DOT.

Level of Aggregation in Occupational Categories

According to Karman (2009), the number of occupations included in O*NET is too
small for disability determination purposes, because each occupation involves multiple,
heterogeneous jobs that may have different physical and education requirements. If her
assertion is correct that there is a wide range of physical and education requirements of jobs
within the same O*NET occupation, then SSA would find it nearly impossible to determine
whether or not a given disability precludes a claimant from performing a specific job in the
occupation.
The process used to create and write descriptions for the 1,122 original O*NET
occupations, referred to as “occupational units” was complex, according to a report of the
National Center for O*NET Development (1998). It entailed the use of the occupational
classification system adopted by the Bureau of Labor Statistics to administer the Occupational
Employment Survey, the development of crosswalks to DOT title codes, cluster analyses of

DOT data, analysis and aggregation of DOT task statements, and multiple reviews by subject
matter experts. As described in this report, even though DOT titles and task data contributed
to the original formation of these occupational units, the occupational units were not the
outcome of a simple clustering of DOT titles, nor were they meant to represent simple
aggregations of DOT titles. It is not unreasonable to conclude that, at the end of this process,
each occupational unit had its own identity independent of—though partially informed by—
DOT titles and task content.
Since that time, the O*NET occupational classification system has been revised
several times, so that the current O*NET-SOC 2009 occupations may exhibit less within occupation
variability than did the occupational units created by the research team in the late
1990s. Nevertheless, the reduction from over 12,000 occupational titles in the DOT to the
current 1,102 occupations in O*NET-SOC 2009 will inevitably be accompanied by some
increase in within-occupation variability.
Karman presented a chart indicating wide variability in education and physical
requirements across 553 DOT titles that she said were clustered into a single O*NET
occupational unit (51-9198, Helpers-Production Workers) (Karman, 2009). Harvey (2009)
presented similar data and drew similar implications regarding what in his view constituted
excessive aggregation in the original O*NET occupational units for the purpose of disability
determination. However, as noted above, the occupational units were not intended to be
merely aggregated DOT titles. The question of the extent of variability in current O*NET
occupations deserves further study.

CONCLUSIONS AND RECOMMENDATIONS

The Social Security Administration’s disability determination process currently relies
on assessment of the residual functional capacity of a claimant, focusing on physical functions
or behaviors and postural limitations. Matching the results of the RFC to the descriptors of
physical ability and occupational context employed in O*NET is inherently difficult.
Nevertheless, there are commonalities in the descriptors used in these two systems, even
though substantial differences remain in the level of detail, specificity, and types of scales
employed to measure them. The evidence indicates that occupational descriptors involving
exposure to unusual environmental demands, such as heat or cold, exist in both O*NET and
the RFC assessment used by SSA. However, there is no clear, one-to-one correspondence
between the two types of environmental descriptors, because some environmental factors are
defined and grouped quite differently in the two models. Taken together, the differences and
similarities suggest that continued collaboration between DOL and SSA is in the interest of
efficient use of government resources.
Recommendation: SSA and DOL should create an interagency task force to
study the viability of potential modifications of O*NET to accommodate the
needs of SSA with regard to disability determination. Before implementing these
or similar modifications, however, we recommend that the task force conduct (1)
an in-depth needs analysis of the occupational information required by the
current disability determination process and (2) an interagency cost-benefit and
cost-sharing analysis of the additional resources that would be needed to make
O*NET suitable to the disability determination process.

The reduction from over 12,000 occupational titles in the DOT to the current 1,102
occupations in O*NET-SOC 2009 has been accompanied by some increase in withinoccupation
variability in the physical and mental requirements of the work included in these
two different types of occupational categories. Because the extent of this variability has
important implications for the usefulness of O*NET in disability determination, it should be
studied.
Recommendation: As part of the research on the occupational classification
system recommended in Chapter 3, the Department of Labor should commission
research to determine whether and to what extent O*NET occupations represent
excessively heterogeneous clusters of jobs (in terms of their physical and
education requirements) for the purpose of disability determination. This
research should include gathering evidence from firsthand observations
regarding physical requirements and verifiable survey responses from wellinformed
sources capable of assessing cognitive requirements.

REFERENCES

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FL: Academic Press.
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General Accountability Office. (2002b, August). SSA and VA Disability Programs
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Mahwah, NJ: Lawrence Erlbaum.
Gustafson, S.B., and Rose, A. (2003). Investigating O*NET’s suitability for the Social
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Vocational Analysis, 6, 3-15.
Harvey, R.J. (2009). The O*NET: Do too abstract titles + unverifiable holistic ratings +
questionable raters + low agreement + inadequate sampling + aggregation bias = (a)
validity, (b) reliability, (c) utility, or (d) none of the above? Paper prepared for the
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Psychology, 76, 495-507.
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Rice (Eds.). Washington, DC: National Academy Press.
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[accessed June, 2009].
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November, 2009].
Occupational Information Advisory Panel. (2009). Content model and classification
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velopment%20Advisory%20Panel.pdf [accessed November, 2009].
Social Security Administration, Office of Disability. (1999, June 30). Policy instruction
DDSAL-507. Washington, DC: Author.
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Form SSA-4734-BK (08-2008). Washington, DC: Author.
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November, 2009].
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Information Development Advisory Panel. Available: Unpublished document
provided to the Panel to Review the Occupational Information Network.

Copyright © National Academy of Sciences. Permission is granted for this material to be
shared for noncommercial, educational purposes, provided that this notice appears on the
reproduced materials, the Web address of the online, full authoritative version is retained,
and copies are not altered. To disseminate otherwise or to republish requires written
permission from the National Academies Press.

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March 20 Letter From AFGE To Commissioner Astrue

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March 20, 2009

Commissioner Astrue:

On February 23, 2009 I sent you a letter regarding the Commissioner’s broadcast that you issued to all SSA employees on February 17, 2009 regarding the Economic Stimulus bill. In this broadcast you stated that SSA would be hiring 5000 to 6000 new employees in 2009. In my letter I urged you to use this hiring authority as an opportunity to provide current SSA employees past due merit promotion opportunities and to use the new hiring authority to backfill vacancies created by promoting current deserving SSA employees to higher graded positions. I made a legitimate request for information asking what positions SSA intended to fill through outside hires and what positions SSA intended to fill through the merit promotion process.

I received a reply to this letter from Milt Beever, Associate Commissioner of Labor and Employee Relations, on March 2, 2009. Mr. Beever failed to answer the information request and stated that it was premature to speculate on the mix of outside hires and merit promotion opportunities that the Agency would utilize to “make the most efficient use of stimulus resources”. He indicated that the Agency would be designing a plan encompassing a combination of new hires and merit promotion opportunities to make the most efficient use of the stimulus budget authority provided by Congress to SSA.

I responded to Mr. Beever on March 3, 2009 expressing skepticism of the Agency’s assurances regarding providing adequate promotional authority and questioning skewed statistical data that Mr. Beever provided in his response of March 2, 2009 that portrayed a false representation of SSA record regarding merit promotion. I asked for accurate information regarding SSA’s hiring and merit promotion record over the past three years so that we could have a meaningful dialogue regarding this issue. I also questioned whether no decisions have been made in this area since you encouraged managers in your 2/17/09 Commissioner’s broadcast to start the hiring process.

On March 9, 2009 Mr. Beever sent me an e-mail and stated that I should receive a response to my March 3, 2009 letter by March 16, 2009. No response has been received to date.

Last week on March 11, 2009 you sent another message to all SSA employees regarding President Obama’s signing of the FY 09 appropriations bill and your decision to lift SSA hiring restrictions. Your broadcast also provided information regarding the FY 10 appropriation request. In the broadcast you assert that President Obama and Congress provided SSA with budgetary support in the stimulus package, the FY 09 and FY 10 budgets due to your efforts to communicate SSA’s budgetary requirements. Your self serving plaudets ignores the work that numerous SSA employees have done to educate and lobby Congress and the Obama administration for more resources for SSA. Your failure to acknowledge such efforts in this broadcast is an insult to those employees who are dedicated advocates of SSA. It also contradicts history which is that your FY 09 budget request was actually less than that requested by your predecessor in FY 08. Congress provided a higher budget than you requested for FY 09 primarily due to efforts of SSA unions, SSA management organizations and retirement and disability constituent groups. All these organizations urged Congress for more resources since your request was too low.

Your March 11 broadcast further urges managers to “begin laying the groundwork for bringing on new employees”. Despite the statements of Mr. Beever that it is “premature for us to speculate” regarding hires and promotions, it is clear that management has already made its decisions regarding how many employees will be hired, what jobs they will be hired to fill and the mix of hires for each SSA component. As is your legacy, you have failed to communicate those decisions to the Union despite clear requests by AFGE for this information. In addition, your agent, Mr. Beever, has failed to tell the truth regarding SSA’s intentions and ignored his own deadlines for providing AFGE requested information.

The Union has learned from numerous sources that SSA has allocated positions to managers with hiring authority and decisions have been made on which positions to fill. Information has been provided to other groups regarding the number of positions SSA intends to fill in each SSA component and in the DDS. In fact the Union has learned that you intend to fill the following vacancies:

157 ALJs
600-700 ODAR
175 PSC
125 TSC
1450 Field – DCO
1000 DDS

If these figures are accurate, rather than hiring 5000-6000 employees in SSA as you stated in your 2/17/09 Commissioner broadcast, the Agency is only hiring about 2600 SSA workers and 1000 DDS workers. The field which is about 58% of the SSA workforce will only receive about 25% of the new employees that you stated in your 2/17/09 broadcast that SSA would hire in 2009. In view of the problems with the inability of the public to reach SSA employees by phone through either the 800 number or at their local office, and in view of the failure of SSA to process significant portions of its Continuing Disability Review and redetermination integrity workloads, and in view of the increased interviewing waiting times in field offices across the country, it is incomprehensible that SSA would devote such a small percentage of jobs to the field/TSC. Please confirm whether the above figures are accurate and please explain why the field is being shortchanged in comparison to its size and the backlog problems.

Your two Commissioner broadcasts regarding the budget, the stimulus package and SSA hiring plans are notable in that neither address merit promotion opportunities that SSA should offer to existing employees in conjunction with this hiring effort. While the existing workforce is anticipating long neglected promotional opportunities, your messages offer no hope to employees that SSA will be afforded any promotional opportunities in conjunction with the Agency’s hiring plans. Lower graded SSA workers have been patiently waiting for promotional opportunities and SSA appears to be telling them to continue to wait, since the stimulus hires will be to jobs in the normal line of promotions. Please confirm or clarify this conclusion.

It is also evident that managers in the field have been instructed to use discredited non competitive hiring authorities such as the Federal Career Intern Program (FCIP) to fill SSA vacancies. Managers are informing employees that they are seeking new hires at colleges and using other non-competitive sources. Jobs are not being posted on the USA jobs network for competitive hires. Despite the use of FCIP, SSA appears to have a strategy to cover up the fact that this has become their primary hiring tool. The SSA National Recruitment Guide of July 2008 states:

SSA will use all available recruitment and retention resources to attract, recruit and retain employees, particularly those with critical and hard-to-fill skills. Do not reference FCIP. (Emphasis added) We do not want to highlight our use of FCIP in light of the pending NTEU suit against OPM which alleges that agencies use FCIP to circumvent merit systems principles. We’re trying to avoid being dragged into the lawsuit.

You should be wary of using non-competitive hiring authorities such as FCIP. SSA’s own statistics indicate that in FY 08 62% of hires in SSA were done under FCIP. Only 4.68% of these hires were veterans. Only 26% of hires in SSA in FY 08 were done under competitive procedures. However, 17.45% of competitive hires were veterans. FCIP clearly discriminates against veterans yet you persist in using it as the primary mechanism for hiring new employees. Reports indicate that FCIP and other non-competitive hiring methodologies will be the exclusive procedure for hiring new employees authorized under the stimulus budget despite the adverse affect this will have on veteran employment opportunities. To use such a discriminatory hiring mechanism during wartime is unfathomable. To hide to avoid lawsuits is disingenuous.

AFGE has also received a number of reports from employees complaining that managers have used FCIP to hire their relatives, friends, neighbors, fellow church members, etc. Examples are the FCIP hire of Ryan Kulinski, son of Milwaukee DT District Manager Mark Kulinski or the FCIP hiring of Mark Fansler, nephew of Seattle Area Director Steve Dymale. Both Kulinski and Fansler were not only FCIP hires but they were quickly selected at the first opportunity to higher graded positions instead of highly qualified veteran employees who were not related to management. It is clear that the FCIP method of selection is corrupt. The FCIP hiring system is unfair to selectees in that it subjects them to a 2 year probationary period instead of the 1 year probationary period that exists for competitive hires. 1 year is a sufficient period of time for SSA to determine whether an employee possesses the necessary tools to succeed as an SSA employee. Requiring an additional year of probationary period is oppressive. I urge you to terminate this corrupt and discriminatory non-competitive system for hiring. If the Agency persists in using FCIP as a hiring mechanism AFGE will seriously consider filing a law suit to force the Agency to terminate this hiring mechanism which was not ever designed for the routine hiring that SSA is using with stimulus revenue.

Your March 11, 2009 Broadcast concludes by touting SSA as “A leader of hiring persons with disabilities and that we should continue our outstanding record in hiring and promoting these employees”. This statement is highly deceptive and distorts the truth. SSA does have a higher percentage of disabled employees than most Agencies. However, SSA’s promotion record for the disabled is miserable. Evidence indicates that the disabled are selected for promotions when they appear on well qualified lists at a significant smaller percentage than non-disabled employees. This poor promotion record has caused many disabled SSA employees to file a class action discrimination case against SSA for its failure to promote the disabled. This case has been certified by the EEOC as a proper class and AFGE is confident that the evidence will show that SSA discriminates against the disabled in the merit promotion process. You should concentrate in eliminating such discrimination rather than ignoring it and issuing false self praising missives.

The union expects you to provide the information that we have requested regarding hires and promotion plans for 2009. AFGE requests that your hiring strategy for 2009 take into account the widespread promotional aspirations of the workforce. AFGE also requests that you reconsider the distribution of staff resources and fill vacancies in the field proportionate to the field’s percentage of employees. The Union also urges you to abandon the FCIP hiring system and to take steps to eliminate discrimination in promotions for SSA’s disabled workforce.

Sincerely

Witold Skwierczynski

AFGE General Committee

Cc: AFGE General Committee

AFGE SSA Local Presidents

J. Gage

M. Beever

L. McMahan

M. Baucus

J. Tanner

AFGE Statement

2009-03-06T15:50:00.002-05:00

STATEMENT BY AFGE COUNCIL PRESIDENT WITOLD SKWIERCZYNSKI, REGARDING EAA FACILITIES AT SOCIAL SECURITY ADMINISTRATION HQ, BALTIMORE, MARYLAND

Date: Saturday, February 7, 2009, 12:26 AM

Union leaders:

Yesterday Commissioner Astrue sent an inflammatory message to every SSA and DDS employee regarding the Employee Activity Association (EAA). There are separate Employee Activity Associations within SSA in various locations throughout the SSA universe. Mr. Astrue’s poorly worded communication to every employee has raised questions regarding the survival of these numerous EAA’s. Although I am hardly a spokesperson for Mr. Astrue, I do believe that his message to SSA and DDS employees concerns the Baltimore Headquarters EAA.

The EAA has provided services to SSA employees in the Baltimore area for 68 years. The EAA has run both SSA Headquarters day care centers since 1991. They also ran the Headquarters fitness centers. The EAA also has stores which provide postal services, bill paying services, transportation services, etc. The EAA also sponsors SSA athletic teams and was the ticket vendor for the annual SSA night at the Orioles game.

Last year Commissioner Astrue contended that the Agency had received complaints about child abuse at the day care center and that the Agency conducted a survey regarding child care services and the EAA scored poorly on the survey. Commissioner Astrue initiated an “investigation” and admitted that the child abuse allegations could not be proven. GSA had conducted national day care surveys and the Headquarters EEA run day care centers scored high on the survey. Astrue, however, devised his own unscientific survey, distributed it selectively to parents and used a scoring system that penalized for unanswered questions. He then compared it to the average scores of the GSA survey which asked different questions. This was clearly a bogus attempt to achieve a preordained result – a finding that the EAA run day care centers had poor acceptance from parents.

Astrue then asserted that there were financial irregularities in the management of the day care centers. Although the EAA undergoes an annual audit, they invited Astrue to audit its day care operations. While conducting the day care audit, Astrue’s auditors started demanding records for the fitness center. Users of the fitness center are required to provide medical certification to the fitness center in order to use the facilities. Astrue’s auditors demanded to inspect employee fitness center users’ medical records. The EAA demanded to know on what authority SSA was asking to inspect medical records of fitness center users. SSA terminated their audit and alleged that the EAA was being uncooperative.

Subsequently SSA set up a hand-picked Board of Directors for the day care center and demanded that the board fire the EAA and select a new for-profit business to run the day care centers. Astrue took these actions in violation of Article 20 of the AFGE/SSA contract which provides for union participation in the day care center board. The Agency tried to limit union participation. Astrue completely ignored the monitoring role of the National AFGE/SSA Child Care Committee. The national AFGE/SSA contract requires this committee to monitor all SSA child care centers. The Committee is responsible for monitoring the operations and funding of SSA child care centers and is also responsible for analyzing the results of any surveys regarding such centers. Astrue totally ignored this contractual requirement and sent no information regarding the alleged problems regarding the Baltimore child care centers to the National SSA/AFGE Child Care Committee.

The day care center has been handed over to a for profit corporation from Texas. The “abusive” day care staff was retained but their compensation package was cut. Tuitions are expected to increase in the future.

SSA gave notice to EAA at the end of 2008 that it would take over operations of the fitness center and contract out its operation. SSA also notified the EAA that is must close all its stores by 1/16/08.

Employees at Headquarters were outraged and asked the union to take action to Save the EAA. AFGE Local 1923 called for a rally on January 22, 2008 at Headquarters to protest the Commissioner’s actions to shut down the EAA. Senator Barbara Mikulski had already sent a strongly worded protest to Commissioner Astrue on 1/9/09 urging him to stop all plans to undermine the EAA. She criticized Astrue’s “unsupported claims of financial impropriety and mischaracterized statements made by EAA officials”. The Senator also expressed concern about the audit authorized by Astrue “for the sole purpose of trying to shut down the EAA”.

On the day of the rally over 300 SSA employees were greeted by an overwhelming police presence. Commissioner Astrue had summoned police from Immigration and Customs Enforcement (ICE), the Federal Protective Service (FPS) and contract guards. In addition, demonstrating SSA employees were greeted by police dogs. After speeches, AFGE President John Gage, Local 1923 President Cynthia Ennis, and AFGE NVP Joe Flynn attempted to deliver copies of over 3500 postcards that SSA employees had sent to Senator Barbara Mikulski protesting Commissioner Astrue’s actions to eject EAA from SSA. They were greeted by police in the lobby and on the 9^th floor of the Altmeyer Building which is the location of Commissioner Astrue’s office. The aisle to Astrue’s office was blocked by the police. The Commissioner’s Acting Chief of Staff took the box and the event was over.

Veteran SSA union officials who have attended many union rallies at SSA facilities indicated that they had never seen anything like the Astrue ordered police presence which was obviously summoned in an effort to intimidate the demonstrators. Not only did SSA order scores of police to the rally but unidentified photographers, who apparently worked for either SSA or the police agencies, took pictures of the entire rally. The union has subsequently learned that some employees were advised by their managers that it would not be in their best interest to attend the rally. Other managers appeared to purposely schedule meetings at 11 AM (the time of the rally) so employees could not attend the event. Other employees were denied leave to attend the rally.

Commissioner Astrue responded to the Mikulski letter with unspecific assertions regarding “abuses”, “predatory conduct” lack of “professional care” by the EAA. In the letter he falsely stated that I told him that any change in child care vendors would result in an abrupt increase in
child care fees. I have never had any conversation with Mr. Astrue about the EAA. Such attacks are similar to his false accusations against me last year that I had mischaracterized the fact that SSA closed a record number of offices in 2007 and, according to Linda McMahon, intended to close many more. Facts are facts and the record of 15 closed offices in 2007 is the most SSA closed in any other year.

Congressman Elijah Cummings, whose district includes the SSA Woodlawn Headquarters complex, has subsequently sent a strongly worded reply to Astrue’s response to the Mikulski letter. He specifically criticizes Astrue’s unsupported allegations regarding financial impropriety by the EAA.

Yesterday an AFGE ad appeared in the Baltimore Sun which specifically criticizes Astrue for his views on privatizing SSA and his actions against the EAA. (Although Astrue has remained silent on privatization legislative proposals, he does effusively praise aggressive privatization advocates such as Andrew Biggs and Dorcas Hardy, both with extensive backgrounds in the CATO Institute which supports eliminating SSA.) The ad criticizes the fact that under Astrue’s watch SSA’s staff and budget have been inadequate to meet the needs of the American public. It expressed No Confidence in his continuing ability to lead SSA. This ad mirrored the No Confidence petition that many of you signed.

On the same day an article was published in the Washington Post in which AFGE President Gage indicates that the union is asking President Obama to seek Commissioner Astrue’s resignation and, if he refuses, will be asking the President to remove him for malfeasance and neglect.

Commissioner Astrue’s response to yesterday’s newspaper ad and story was to attack the EAA and attack AFGE in his Commissioner’s Broadcast to all SSA and DDS employees. He attacks AFGE for threatening political retaliation against him and “Social Security’s career civil service”. In response, Commissioner Astrue has done a lot of damage to SSA in the 2 short years that he has been in charge of the Agency. He has submitted inadequate budget requests, has created an iClaims system which cheats hard working wage earners of their hard earned benefits, has transformed SSA from an Agency that prides itself in assisting the public in obtaining the best possible benefit package when they apply for benefits to an Agency that ignores evidence that claimants are making choices guaranteed to cause them to lose benefits and has worked to destroy the community based SSA service structure by closing offices and/orwstripping offices of sufficient staff able to provide adequate services to customers.

He implies that the Union supports dishonesty, opposes transparency and compliance with the law. Yet Mr. Astrue makes false statements regarding conversations with me that never happened. He does not tell the truth about office closings. Now, while attempting to convince Congress to agree to provide $750 million for a new National Computer Center (NCC), Commissioner Astrue has declined to inform the Union, NCC employees or Congress that SSA intends to move the NCC out of the Baltimore commuting area to Frederick or Westminster MD. Commissioner Astrue doesn’t seem concerned about the impact of such a move on either the 4000 employees who work at the NCC or the affect on the community that the loss of 4000 jobs will create. This secret effort to move the NCC into the only Republican Congressional District in MD must be Astrue’s definition of transparency.

SSA officials who undermine the program and are incompetent should be removed. Thus, Astrue should resign and “career civil service” officials who are either incompetent or have harmed the agency like Wells, McMahon and Beever also need to be replaced. President Obama needs SSA leaders who he can work with and not this crew who are actively attempting to undermine SSA. It’s time for a change.

Witold Skwierczynski /s/

President

AFGE Council 220

Social Security Ruling 96-8p As Originally Published

2009-02-18T12:02:00.003-05:00

NASI Proposals

2009-01-31T11:08:00.000-05:00

PROTECTING SOCIAL SECURITY BENEFITS FROM GARNISHMENT

Because Social Security and Supplemental Security Income (SSI) benefits are essential to meet basic needs, the Social Security Act protects the benefits from garnishment or attachment by creditors. Nevertheless, when benefits are deposited in a bank account, beneficiaries may find that their accounts have been temporarily frozen, or worse, permanently garnished at the behest of a creditor under provisions of statelaw. Because the government encourages direct deposit, over 80 percent of Social Security and SSI recipients receive their benefits electronically. In Safer than the Mattress, John Infranca proposes a five-part legislative and administrative policy solution to ensure that Social Security and other exempt federal benefits remain safe from garnishment, attachment, and freezes when they are deposited in a bank.

HELPING HOMELESS INDIVIDUALS WITH SERIOUS MENTAL ILLNESS GET DISABILITY BENEFITS

Social Security and SSI disability benefits are often the main sources of stable income for people who have serious mental illness. Individuals who are homeless face particular barriers in navigating the application process. They typically lack a mailing address, transportation, and a treatment history from accepted medical sources (physicians or licensed psychologists). In Improving Social Security Disability Programs for Adults Experiencing Long-term Homelessness, Yvonne Perret and Deborah Dennis
propose three strategies to address these barriers: (a) expand the acceptable
medical sources to include professions likely to be available in publicly funded health and mental health care systems; (b) use SSA’s presumptive eligibility for SSI disability benefits for people with schizophrenia who are homeless for at least six months; and (c) modify the administrative process to accommodate homeless individuals consistent with SSA’s Homeless Plan of 2002.

STRENGTHENING SOCIAL SECURITY WAGE REPORTING FOR FARM WORKERS

Farm workers are at risk of not having their work count toward Social Security benefits because their employers may erroneously classify them as independent contractors or simply fail to pay Social Security taxes and report wages. In Strengthening Social Security for Farm Workers: The Fragile Retirement Prospects for Hispanic Farm Worker Families, Barbara Robles supports legislation introduced in the 110th Congress, along with stronger enforcement of existing laws, to strengthen wage reporting. She notes that the changes would increase tax receipts and benefit the Latino farm worker population by increasing their Social Security benefits, providing better access to the Earned Income Tax Credit, and easing the burden on adult children of farm workers who have the triple burden of school debt, raising children and supporting aging parents.

REDUCING ELIGIBILITY REQUIREMENTS FOR RETIREMENT BENEFITS

To qualify for Social Security retired-worker benefits, individuals must have worked at least 40 calendar quarters (ten years) in jobs covered by Social Security. In The Effects of Reducing Eligibility Requirements for Social Security Retirement Benefits, Andrew Biggs examines the impact of eliminating the 40-quarters eligibility requirement. A small group of individuals (about 6 percent of those born in 1950) would gain eligibility for Social Security retired-worker benefits. The increases in benefits would often substitute for means-tested SSI benefits. Much of the new benefits would flow to immigrants who are not otherwise eligible for Social Security.

IMPROVING BENEFITS FOR WIDOWED SPOUSES OF LOW-EARNING COUPLES

Social Security is especially important to older women, particularly widows. Most poor elderly women are widows. Social Security survivor benefits help to bridge the transition to widowhood, but the benefits are less adequate when both the husband and wife had worked at low pay. In Strengthening Social Security Benefits for Widow(er)s: The 75 Percent Combined Worker Benefit Alternative, Joan Entmacher proposes to increase benefits for widowed spouses of low-earning dual-earner couples. The new widowed-spouse benefit would be 75 percent of the combined retired-worker benefits of the husband and the wife, but would be capped to not exceed the benefit for one person who had earned the average wage over a career.

INCREASING THE SOCIAL SECURITY SPECIAL MINIMUM BENEFIT AND UPDATING SSI

A special minimum benefit was added to the Social Security program in 1974, but few receive it today because it does not keep up with wage growth. In Enhancing Social Security for Low-Income Workers: Coordinating an Enhanced Minimum Benefit with Social Safety Net Provisions for Seniors, Laura Sullivan, Tatjana Meschede and Thomas M. Shapiro examine ways to update the special minimum benefit so that individuals with 30 years of work covered by Social Security would receive benefits that meet the updated poverty measure of the National Academy of Sciences, which is about 125 percent of the current official poverty threshold. They also propose to update SSI to reflect inflation since the program began – that is, increase the asset limit for individuals from $2,000 to $6,700 and increase the general income exclusion from $20 to $89.

A NEW SOCIAL SECURITY MINIMUM BENEFIT FOR LOW LIFETIME EARNERS

Despite a lifetime of hard work, many workers end up poor or near poor in
retirement. In A New Minimum Benefit for Low Lifetime Earners, Melissa Favreault examines a new minimum benefit that targets workers with long careers and low lifetime earnings, along with a modest credit that compensates for up to three years of low (or no) earnings due to caregiving, unemployment, or poor health. The benefit at the full retirement age would pay 60 percent of the poverty threshold for a worker with 20 years of Social Security covered work and increase to 110 percent of the poverty threshold for a worker with 40 years of work. Caregiver credits would be available only in years when a child is under age 4 and only to one parent. The credit
would be 60 percent of the average wage in the first such year, 50 percent in the second year and 40 percent in the third year.

A SOCIAL SECURITY SUPPLEMENT FOR LOW-INCOME WORKING PARENTS

Social Security provides benefits for spouses and widowed spouses, but does not provide credit for raising children. A growing portion of retiring women will not qualify for spousal benefits because they are divorced (with less than 10 years of marriage) or never married, yet will have earnings records that are limited because of time spent caring for their children. In Crediting Care in Social Security: A Proposal for an Income-Tested Care Supplement, Pamela Herd proposes to supplement Social Security benefits for retirees who have raised one or more children. The supplement would be an additional 75 percent of the worker’s benefit (80 percent if two or more children were raised) but would be capped to not push the retiree’s household income above 125 percent of the poverty threshold. The benefit and income testing would be administered through individual tax returns, similar to the Earned Income Tax Credit.

INCREASING SOCIAL SECURITY BENEFITS FOR FAMILY ELDER CAREGIVERS

Informal care provided by family members improves quality of life for frail elders, allows them to remain in the community instead of in nursing homes, and saves Medicaid dollars. Providing the care also imposes opportunity costs on caregivers that weaken their own retirement security. In Retirement Security for Family Elder Care Givers, Shelley I. White-Means and Rose M. Rubin propose to provide up to four years of Social Security credit to individuals who provide care to elders. The elders must be certified to need levels of care that would qualify for Medicaid coverage. The value of the credit would be the caregiver’s average wage in the three years before caregiving interrupted earnings. The authors suggest the credit could be financed based on the reduction in public spending for nursing home care.

INCREASING SOCIAL SECURITY BENEFITS FOR LOW-WAGE SINGLE RETIREES

Single retirees (that is, never married, divorced or widowed) are at high risk of being poor in old age. The decline in private pensions, rising out-of-pocket health costs, and declining housing values can be expected to make the already precarious financial situation of unmarried retirees even worse. In Restoring Old Age Income Security to Low-Wage Single Workers, Patricia Dilley proposes a change to the basic Social Security retired-worker benefit formula that would increase benefits for single retirees with at least 30 years of covered employment and low lifetime earnings. A second change would target single beneficiaries over age 85. Those who had at least 30 years of covered work, and received relatively low benefits (less than 75 percent of the average benefit), would receive a 10 percent benefit increase at age 85.

INCREASING SOCIAL SECURITY BENEFITS AT ADVANCED AGES

People who live into their 80s and 90s face a growing risk of becoming poor. They rely more and more on Social Security because their other sources of income decline as they age: private pensions, if received, are eroded by inflation; income from work is very rarely an option; and financial assets may have been spent. In Longevity Insurance, Strengthening Social Security at Advanced Ages, John Turner proposes increasing benefits at age 82 (about the average life expectancy at age 65) for beneficiaries with low Social Security benefits and long work histories. This longevity insurance would improve financial security for individuals who live longer than the
average life span.

EASING THE IMPACT OF INCREASING THE RETIREMENT AGE: OCCUPATIONAL DISABILITY

Legislation in 1983 increased from 65 to 67 the age at which Social Security pays full retirement benefits. The change lowers retirement benefits at each age they are claimed. Disabled-worker benefits remain unreduced, but are not available to individuals who fail to meet a strict test – “inability to engage in any gainful activity” – yet are unable to continue in their jobs. In Strengthening Social Security for Workers in Physically Demanding Jobs, Eric Klieber proposes a benefit for such individuals based on an occupational disability test – “inability to perform the essential duties of one’s current occupation.” Making such an occupational disability benefit available at age 62 could protect recipients from retired-worker benefit reductions (or part of such reductions) due to increasing the full benefit age.

Letter On Social Security Funding

2008-12-09T08:50:00.000-05:00

The undersigned organizations represent the millions of Americans with a stake in the efficient and effective operation of the Social Security Administration (SSA), including older Americans, people with disabilities, workers of all ages, and survivors of workers. We greatly appreciate the efforts you have made already this year to provide additional funding above the President’s Budget Request so that SSA may further address the unacceptable backlog of disability appeals hearings and other serious problems with service delivery to the public. We respectfully request that SSA’s final administrative funding for FY 2009 be no less than the House recommended level of $10.427 billion.

We strongly believe that any level of funding below $10.427 billion would exacerbate the massive backlog in disability appeals hearings. Currently a near record high of over 767,000 hearings are pending and the average wait for a decision in FY 2008 was 514 days. These enormous delays are in addition to the average time period of 250 days that most disability applicants must wait before even filing for an appeals hearing. An untold number of applicants are suffering severe financial hardships, including a rising number of home foreclosures. Many do not have health care, resulting in further deterioration of their conditions. Thousands of people have died before receiving a decision on their disability claims.

Even with the President’s proposed increase in funding for SSA in FY 2009 the agency does not expect the hearings backlog to be eliminated until 2013. Additionally, that date may be pushed back because there are now, and will continue to be, an increase in applications for disability benefits. This could be due to many factors including the economic downturn. We believe that it is absolutely imperative that SSA is funded at no less than $10.427 billion, providing at least an additional $100 million above the President’s Budget Request level.

Adequate funding for SSA is also needed to ensure that the agency is able to increase staffing levels in its Field Offices to improve some services to the public that are inadequate. As a result of insufficient Field Office staffing, customers in many offices are experiencing waiting times in excess of two hours. For those who try to reach their local SSA Field Office by telephone, busy rates are running at an unacceptable rate of an average of about 45 percent and disturbingly this figure pertains only to callers who ultimately get through to the local offices. It does not include all of those callers who never get through, even after making countless attempts. This problem results from the fact that Field Offices are receiving over 54 million business-related phone calls each year and do not have anywhere near the number of staff necessary to answer them.

As with disability appeals hearings, these inadequate levels of service in the Field Offices are being exacerbated by rising workloads in the agency’s Field Offices. For the current year, FY 2009, SSA actuaries now expect nearly 100,000 more Social Security retirement and disability claims than were initially projected in the President’s FY 2009 Budget Request. And as indicated above, these numbers may increase even further.

Funding above the President’s FY 2009 Budget Request will also help SSA to address the increased costs of its current personnel. In addition, SSA has an urgent need to improve its antiquated computer and information technology systems. SSA has a critical need for systems architecture improvements as well as a new data center. In addition, the agency’s ancient COBOL-based programming system needs to be replaced. Finally, the 54 Disability Determination Services (DDSs) need to be integrated into a single processing system. These computer and information technology costs total over one billion dollars. We must begin to address these critical needs.

Even though the President’s FY 2009 Budget Request for SSA is a step in the right direction, this level of funding will not fully address the problems we have described above. We respectfully request that the Social Security Administration’s final administrative funding level be no less than $10.427 billion for FY 2009. We realize the difficult decisions you must make regarding FY 2009 funding levels for many programs, and on behalf of our members throughout the country we appreciate your consideration of this request and your ongoing support for adequate funding for the Social Security Administration.

Sincerely,

AFSCME

American Association of Social Security Disability Consultants

American Association on Intellectual and Developmental Disabilities

American Association of People with Disabilities

American Foundation for the Blind

American Federation of Government Employees

American Federation of Teachers Program on Retirement and Retirees

Bazelon Center for Mental Health Law

Council of State Administrators of Vocational Rehabilitation

Easter Seals

Epilepsy Foundation

Federal Managers Association

Lighthouse International

National Alliance on Mental Illness

National Association of Area Agencies on Aging

National Association of Social Workers

National Association of Disability Examiners

National Association of Disability Representatives

National Association of Professional Geriatric Care Managers

National Association of State Directors of Developmental Disabilities Services

National Committee to Preserve Social Security and Medicare

National Council of Disability Determination Directors

National Council of Social Security Management Associations

National Council on Aging

National Disability Rights Network

National Down Syndrome Society

National Employment Network Association

National Multiple Sclerosis Society

National Organization of Social Security Claimants’ Representatives

National Respite Coalition

National Treasury Employees Union

Paralyzed Veterans of America

Research Institute for Independent Living

Social Security Section of the Federal Bar Association

Social Security Disability Coalition

The Arc of the United States

United Cerebral Palsy

ALJ Dispositions Per Day

2008-11-24T09:10:00.000-05:00

Average Age Of Pending

2008-11-24T08:53:00.003-05:00

Click on each thumbnail to view a report on average age of pending cases at each Office of Disability Adjudication and Review (ODAR) office.

Note that the report averages the length of time that each case pending at an ODAR office has been pending. That includes cases that have just arrived and those that are about to be heard. If cases were arriving and departing an ODAR office at a constant rate, the average age of pending would be exactly half of the length of time a claimant could expect to wait for a hearing.

My opinion is that the average age of pending number is confusing and virtually meaningless, but it has been used for a long time. Perhaps, Social Security does not mind that it causes some people to think that the backlog situation is not nearly as bad as it is.

Frequently Asked Questions About Social Security Disability Benefits

2008-10-30T14:42:00.002-04:00

You are free to link to these FAQs. You need not ask my permission to link. You may not simply copy the FAQs and use them elsewhere, with or without attribution, unless you get my permission. Copying them and using them elsewhere, whether online or offline, is copyright infringement. which is illegal.

1. What is the definition of disability used by Social Security?
Under the Social Security Act, "disability" means "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 has lasted or can be expected to last for a continuous period of not less than 12 months."

2. What types of Social Security disability benefits are there?
There are five major types of Social Security disability benefits. Disability Insurance Benefits is the most important type of Social Security disability benefits. It goes to individuals who have worked in recent years (five out of the last 10 years in most cases) who are now disabled. Disabled Widows and Widowers Benefits are paid to individuals who are at least 50 and become disabled within a certain amount of time after the death of their husband or wife. The late husband or wife must have worked enough under Social Security to be insured. Disabled Adult Child Benefits go to the children of persons who are deceased or who are drawing Social Security disability or retirement benefits. The child must have become disabled before age 22. For Disability Insurance Benefits, Disabled Widow's or Widower's Benefits and Disabled Adult Child benefits, it does not matter whether the disabled individual is rich or poor. Benefits are paid based upon a Social Security earnings record. Supplemental Security Income (SSI) benefits, however, are paid to individuals who are poor and who are disabled. It does not matter for SSI whether an individual has worked in the past or not. SSI child's disability benefits are a variety of SSI benefits paid to children under the age of 18 who are disabled. Disability is defined differently for children.

3. How do I apply for Social Security disability benefits?
The best way to start the process of filing a Social Security disability claim is to call Social Security at 1-800-772-1213 to schedule an appointment to file the claim. In most cases, the appointment will be done over the telephone. Another way is to go to the nearest Social Security office and wait (often for hours) to see someone to file the claim in person. You can also file online.

4. Should I gather medical or other records before filing my claim?
No. Go ahead and file the claim. Social Security will tell you if they need anything from you. A lot of people waste a lot of time and energy trying to get records that Social Security isn't even interested in.

5. I am disabled, but I have money in the bank. Do I have to wait until this money is gone before I apply for Social Security disability benefits?
No. If you have worked in recent years or if you are applying for Disabled Widow's or Widower's benefits or Disabled Adult Child benefits, it does not matter how much money you have in the bank.

6. I used to work but lately I have been staying home taking care of my kids. I have now become sick. Can I get Social Security disability benefits?
Possibly. If you have worked five out of the 10 years under Social Security before becoming disabled, you will have enough earnings in to potentially qualify for Social Security disability benefits. If you are 31 or younger, the requirements are a little different, since you have not had such a long time to work. Also, you may qualify for Supplemental Security Income (SSI), even if you have never worked, if you are poor enough.

7. How long do I have to wait after becoming disabled before I can file a claim for Social Security disability benefits?
Not even one day. You can file for Social Security disability benefits on the very same day that you become disabled. Many people make the mistake of waiting months or even years after becoming disabled before filing a Social Security disability claim. Still, there is no reason to file a Social Security disability claim if you have only a minor illness or one which is unlikely to last a year or more.

8. I am still on sick leave from my employer. Can I file for Social Security disability now? Do I have to wait until the sick leave is exhausted?
You do not have to wait until the sick leave is exhausted. You can file for Social Security disability benefits now, if you believe that you will be out of work for a year or more. Even active duty military personnel can file a claim for Social Security disability benefits if they have discontinued their regular duties due to illness.

9. I got hurt on the job. I am drawing worker's compensation. Can I file a claim for Social Security disability benefits now or should I wait until the worker's compensation ends?
You do not have to wait until the worker's compensation ends. You can file a claim for Social Security disability benefits while receiving worker's compensation benefits. It is best to file the Social Security disability claim as soon as possible. If you don't file the claim as soon as possible, there may be a gap between the time the worker's compensation ends and the Social Security disability benefits begin.

10. Can I get both workers compensation and Social Security disability benefits at the same time?
Yes. In most states, Social Security disability benefits are offset, or reduced, because of workers compensation benefits paid. In a few states it is the other way around -- workers compensation benefits are reduced because of Social Security disability benefits. In almost all cases, there are still some Social Security disability benefits to be paid even if you are receiving workers compensation benefits. As important as workers compensation is, Social Security disability is more important because, unlike workers compensation, Social Security disability can last for the rest of your life.

11. How can I tell if I will be found disabled by Social Security?
Unless your disability is catastrophic (such as terminal cancer, a heart condition so bad that you are on a heart transplant waiting list, etc.), there is no way for you to tell in advance whether you will be found disabled by Social Security. In the end, you should not make the decision of whether to apply for Social Security disability based upon your guess about whether Social Security will find you disabled. You should make the decision about whether to file for Social Security disability based upon you feel. If you feel that you are disabled and will not be able to return to work in the near future, you should file for Social Security disability benefits. If denied, you should consult with an attorney familiar with Social Security disability to get an opinion about your chances of success on appeal.

12. Can you get Social Security disability benefits for _________________ (insert the name of whatever disease you're interested in)?
In almost every case, no matter what the disease is, the answer is the same -- "Maybe. It just depends upon how badly you are affected by the disease." One example might be cancer. The word "cancer" is scary, but there are many cancers which can be treated and cured quickly, with little or no lasting damage. On the other hand, there are cancers which cause great suffering and death. The question in each case is, "How sick is this particular individual with cancer and how long is this person going to remain sick?" Skin diseases are another example. Most skin diseases, while annoying, are not disabling. On the other hand, there are some uncommon skin problems which are clearly disabling. Almost without exception, the mere fact that you have a disease with a certain name does not guarantee that you either will or will not be found disabled. It all depends upon how sick you are.

13. Do I have to be permanently disabled to get Social Security disability benefits?
No. You have to have been disabled for at least a year or be expected to be disabled for at least a year or have a condition that can be expected to result in death within a year. You do not have to wait until it has been a year. You can apply and be approved if it looks like you will be disabled for at least a year.

14. I have several health problems, but no one of them disables me. It is the combination that disables me. Can I get Social Security disability benefits?
Social Security is supposed to consider them all. Most claimants for Social Security disability benefits have more than one health problem. Each one must be considered, as well as the combined effect of all of the health problems.

15. I got hurt in an automobile accident. I am disabled now, but I expect that I will be able to return to work after I recover. Should I file for Social Security disability benefits?
If you expect to be out of work for a year or more due to your medical condition, or even if you are just not sure if you will be out of work that long, you should file a claim for Social Security disability benefits. Cases take so long that it is best to start the claim as early as possible.

16. How does Social Security determine if I am disabled?
Social Security is supposed to gather your medical records and carefully consider all of your health problems, as well as your age, education and work experience. In general, Social Security is supposed to decide whether you are able to do your past work. If Social Security decides that you are unable to do your past work, they are supposed to consider whether there is any other work which you can do, considering your health problems and your age, education and work experience.

17. Who decides if I am disabled?
After you file a Social Security disability claim, your case is sent to a disability examiner at the Disability Determination Service office in your state. The disability examiner, usually working with a doctor, makes the initial decision on your case. If your claim is denied and you request reconsideration, your case is sent to another disability examiner at the Disability Determination Service office in your state, where it goes through much the same process. If your claim is denied at reconsideration, you may request a hearing. At this point, your case is sent to an Administrative Law Judge who works for Social Security. The Administrative Law Judge holds a hearing and makes an independent decision upon the claim. This is the only level at which you and the decisionmaker get to see each other.

18. Why does Social Security consider my age in determining whether I am disabled?
Social Security has to consider age because that is what the Social Security Act requires. The idea is that as people get older, they become less adaptable, less able to switch to different jobs to cope with health problems. A severe foot injury which might cause a 30-year-old to switch to a job in which he or she can sit down most of the time might disable a 60-year-old person who could not make the adjustment to a different type of work. If you are younger and this make little sense to you, just wait. You will be older eventually and it will make sense to you then.

19. Is there a list of impairments that Social Security considers disabling?
Not really. There is something called the Listing of Impairments, but you may be better off not even looking at it, because you are likely to be confused by it. Because most types of illness can vary from minor to severe, there is no one simple list of illnesses which Social Security considers to be disabling. The Listings are not the only way you can be found disabled.

20. Can I keep working and file a claim for Social Security disability benefits?
Yes, but if you do much work, you will be denied automatically because of the work. If you can keep working full time, then keep working full time and don't apply for Social Security disability. If you are only able to work part time, go ahead and file a claim for Social Security disability benefits. Social Security will decide whether you are working too much to get disability benefits.

21. Can't I make up to a certain dollar amount and still be able to get on Social Security disability benefits?
Sort of, but there is so much complexity and so many exceptions that it is best that you not even think about it. Lots of Social Security disability cases are borderline. A real person has to make a decision for Social Security about whether you are disabled. That person might look at your case one way and approve your claim or look at it another way and deny your claim. How would it look to that person if you deliberately work right up to a certain dollar amount? It will look like you are able to work and are just playing games. That may not be your intent, but that is how it would look to someone else. You would probably be denied even though the rules might say, in theory, that the work doesn't matter. People who try to work right up to some dollar amount usually make a mistake anyway. They forget that Social Security is interested in their earnings before taxes rather than their take home pay or they get tripped up because some months have more paydays than others. The bottom line is simple. Forget about any dollar limits you hear about. Work if you can and let the Social Security chips fall where they may.

22. What can I do to improve my chances of winning my Social Security disability claim?
Get under medical care and stay under medical care as best you can. It is possible to be approved for Social Security disability benefits even if you are not under medical care, but it is harder. If you have trouble paying for medical care, ask around. There are free or reduced cost clinics in most places. Beyond that, the most important thing is simply to file your claim for disability benefits with Social Security. They will definitely not give you the benefits unless you ask for them. When filing the claim, be honest and as complete in giving information as you can, but do not worry too much about it. Your Social Security claim is not a test upon which you are graded. There are no magic words that you can put down that will assure that your claim will be approved, nor anything truthful that you need to avoid saying. After you file your Social Security disability claim, the most important thing that you can do is just keep appealing -- and stay under medical care as best you can. Most claims are denied at the initial level, but most cases heard by an Administrative Law Judge are approved. Hiring an attorney to represent you is helpful. Statistically, claimants who employ an attorney to represent them are more likely to win than those who do not have anyone representing them.

23. If I am approved for Social Security disability benefits, how much will I get per month?
For Disability Insurance Benefits, it all depends upon how much you have earned in the past. For Disabled Widows or Widowers benefits, it depends upon how much your late husband or wife earned, as well as your age at the time you go on benefits. For Disabled Adult Child benefits, it all depends upon how much your father or mother earned. For all types of SSI benefits, there is a base amount that an individual with no other income receives. Other income that an individual receives will reduce the amount of SSI paid.

24. How far back will they pay benefits if I am found disabled?
Disability Insurance Benefits cannot begin until five full months have passed after you become disabled. In addition, benefits cannot be paid more than one year prior to the date of your claim. SSI benefits cannot be paid until the beginning of the month after the month in which you file your claim.

25. What do I do if Social Security denies my claim for Social Security disability benefits?
First, do not be surprised. About two-thirds of Social Security disability claims are denied at the initial level. If you are denied at the initial level, unless you have already returned to work or expect to return to work in the near future, you should appeal, that is, file a request for reconsideration. (In a few states there is no reconsideration and the next step is to ask for a hearing.) You should also consider hiring an attorney to represent you.

26. Why does Social Security turn down so many claims for disability benefits?
There is no simple answer for this question. One reason is that there is no easy way to determine whether an individual is disabled. Most people who are disabled suffer from pain or mental illness. There is no way to measure pain, nor any good way to measure the severity of mental illness. A second reason is that Social Security is more concerned with making sure that everyone who is receiving Social Security disability benefits is "truly" disabled than with making sure that everyone who is disabled receives Social Security disability benefits. An underlying reason is that Congress has always believed that, given a chance, many people will fake disability in order to get benefits.

27. I only want to get back the money I put in Social Security. Why do they make it so hard for me to get my own money back?
Actually, when you file a Social Security disability claim, you are not trying just to get "your own money" back. The money that you have paid into Social Security wouldn't last long. There is no way for you to just get back the money you paid in.

28. What is "reconsideration"?
It is the first level of appeal at Social Security. When a claim for Social Security disability benefits is denied at the initial level, you may request reconsideration. Your case is sent to a different disability examiner for a new decision. Unfortunately, about 85-90% of the time the reconsideration decision is the same as the initial decision -- a denial. (In a few states there is no reconsideration and the next step after an initial denial is to ask for a hearing.)

29. Who makes the reconsideration determination?
A disability examiner at the Disability Determination Section makes the reconsideration determination -- not the same one, but one working in a very similar job.

30. What are my chances of winning at reconsideration?
Statistically, about 10-15% of the time a claimant wins at reconsideration.

31. Do I have to go through reconsideration?
If you want to appeal a denial of Social Security disability benefits, you have to go through reconsideration, unless you happen to be in one of the few states where there is no reconsideration.

32. How long does it take to get a hearing on a Social Security disability claim?
This can vary from about a year to over two years, depending upon what part of the country you live in.

33. Why does it take so long to get a hearing?
Social Security does not have enough employees to get its work done. In fact, for a long time Social Security has not had enough employees to get its work done. The work has been piling up for years. Social Security and its employees are unhappy that you have to wait so long but until Congress and the White House give Social Security enough money to hire more employees, there is little that the Social Security Administration can do.

34. How can I get my case speeded up so I won't have to wait so long for a hearing?
You can ask that your case be expedited if you are terminally ill or if you are without and unable to obtain food, medicine or shelter. Your case could also be expedited if the medical evidence in your case is extremely strong, especially if you are 50 or older. The cases of "wounded warriors" are also supposed to be expedited. As a practical matter, you are going to need the help of a lawyer to ask that your case be expedited.

35. What is the Social Security hearing like?
The hearings are informal. The only people certain to be there are the Administrative Law Judge, a hearing reporter who operates the recording equipment, you and your attorney if you have one. In many cases, the Administrative Law Judge has a medical doctor or vocational expert present to testify at the hearing. There is no jury nor are there any spectators at the hearing. There is no attorney at the hearing representing Social Security trying to get the judge to deny you. Most hearings last less than an hour.

36. What are video hearings like?
In a video hearing the Administrative Law Judge is at another location. You see him or her on a television screen. The Administrative Law Judge sees you on a television screen at his or her end. It is not the same as being in the same room, but most people are mostly satisfied with video hearings. If you do not like the idea of a video hearing, you can insist on a live hearing. Insisting on a live hearing may cause further delay, however.

37. What are the chances that an Administrative Law Judge will approve my claim?
Statistically, 60% or more of claimants who request a hearing before an Administrative Law Judge are approved.

38. If the Administrative Law Judge denies my claim, can I appeal any more?
Yes. You can appeal to the Appeals Council which is still within Social Security.

39. What is the Appeals Council?
The Appeals Council exists to review Administrative Law Judge decisions. The Appeals Council headquarters are in Falls Church, Virginia. Neither the claimant, nor the attorney sees the people at the Appeals Council who are working on the case.

40. Can I appeal a case beyond Social Security to the Federal Courts?
Yes. After being denied by the Appeals Council, it is possible for you to file a civil action in the United States District Court, requesting review of Social Security's decision. It is just about impossible to do this without an attorney.

41. If I get on Social Security disability benefits, get feeling better and want to return to work, can I return to work?
Certainly you can return to work. Social Security wants people drawing disability benefits to return to work and gives them every encouragement. For persons receiving Disability Insurance Benefits, Disabled Widows or Widowers Benefits and Disabled Adult Child Benefits, full benefits continue for a year after you return to work. Even after that, you can get right back on Social Security disability benefits without having to file a new claim for the next three years if you have to stop work. There is even a right to expedited reinstatement for another two years after that. In SSI cases, things work differently, but there is still a strong encouragement to return to work. You should tell Social Security when you return to work. You should make sure that you receive a written receipt that you reported your return to work to Social Security. You should keep that receipt in case there is any problem in the future.

42. Where can I go to get help with my Social Security disability claim?
For help, go to a lawyer who represents Social Security disability claimants on a regular basis.

43. Do I really have to hire a lawyer to represent me in my Social Security disability claim?
No. You can go through all of the levels of review on your own, if you wish, but claimants who are represented by an attorney win a good deal more often than those who are not represented. Most claimants who have a hearing hire an attorney. You also have the option in most areas of the country of hiring a non-attorney representative. The fee will be the same whether you hire an attorney or a non-attorney representative.

44. How do lawyers who represent Social Security disability claimants get paid?
In most cases, the attorney receives one-quarter of the back benefits up to a certain dollar amount if you win and no fee if you lose. You will probably have to pay the lawyer back for anything that he or she had to pay out of pocket to get medical records on you.

45. Can alcoholics and drug addicts really get Social Security disability benefits?
Social Security is prohibited from paying disability benefits on the basis of alcoholism or drug addiction. However, alcoholics and drug addicts have heart attacks, get cancer and get sick in other ways just like everyone else. Alcoholics and drug addicts who become disabled without consideration of their alcoholism or drug addiction are eligible for Social Security disability benefits.

46. I know someone who is on Social Security disability and he does not look a bit disabled. Why do they put these freeloaders on benefits?
When it comes to disability, looks can be deceiving. There are many people who look healthy but who are quite disabled by anyone's standard. There are also a few people who look quite sick, but actually are fairly healthy. Many individuals who suffer from severe psychiatric illness are physically healthy and able to do things like mow their yards. It's awfully hard to get on Social Security disability benefits. The vast majority of people drawing Social Security disability benefits really are quite sick.

47. I am disabled, but I have never worked at public work. Can I get Social Security disability benefits?
If you are poor enough and disabled, you can qualify for Supplemental Security Income (SSI) even if you have never worked in the past. It is also possible to qualify for Disabled Adult Child Benefits on the account of a parent if you became disabled before age 22 or for Disabled Widows or Widowers benefits on the account of a late husband or wife.

48. I am a widow. I have not worked at public work in many years. I am disabled. Can I get Social Security disability benefits?
If you are over 50 and became disabled within seven years after your husband or wife died or within seven years after you last drew Mothers or Fathers benefits from Social Security, you can get Disabled Widows or Widowers Benefits. Perhaps more important, if you are poor and disabled, you can draw Supplemental Security Income (SSI) benefits no matter what your age is or when you became disabled.

49. I have a daughter who has been disabled by cerebral palsy since birth. She has never been able to work. Can she get disability benefits from Social Security?
Very possibly. If your child is under 18 and you are poor enough, the child may be able to qualify for SSI child's disability benefits. If the child is over 18, she may be able to qualify for SSI disability benefits no matter how much money you have. If either the father or mother of the child is drawing Social Security benefits of some type or is deceased, the child may be eligible for Disabled Adult Child benefits.

50. I am already on Social Security disability benefits, but I am worried that my benefits will be stopped in the future. What are the chances of this happening?
Social Security is not supposed to cut off your disability benefits unless your medical condition improves. When Social Security reviews the case of someone already on Social Security disability benefits, they continue benefits the vast majority of the time.

51. If Social Security tries to cut off my disability benefits, what can I do?
You should appeal immediately. If you appeal within 10 days after being notified that your disability benefits are being ceased, you can ask that your disability benefits continue while you appeal the decision. You may also want to talk with an attorney about representation on your case, but do not let that delay you in filing the appeal quickly. You only have 10 days!

52. My doctor says I am disabled, so why is Social Security denying my disability claim?
Social Security's position is that it is not up to your doctor to decide whether you are disabled. They say it is up to them and they will make their own decision regardless of what your doctor thinks. They are supposed to pay attention to what your doctor says, however.

53. VA says I am disabled, so why is Social Security denying my Social Security disability claim?
Social Security and VA have different standards for approving disability claims. Many people can get VA disability benefits but not Social Security disability benefits. There are some in Congress who are trying to change this.

54. I am 60% disabled. Do I get 60% of my Social Security disability benefits?
No. There are no percentages of disability with Social Security. For purposes of Social Security disability benefits, you are either disabled or not disabled. You get it or you don't.

55. I am disabled by mental illness. Can mental illness serve as the basis for a Social Security disability claim?
Yes. Mental illness is a common basis for awarding Social Security disability benefits.

56. Will it help if I ask my Congressman to help me get Social Security disability benefits?
Not likely. Most Social Security disability claimants eventually ask their Congressman to help. The Congressman sends a form letter to Social Security and Social Security sends a form letter back to the Congressman, but the exchange of form letters seldom has an effect upon how Social Security handles the case. However, contacting your Congressman may help in a more general way, by keeping Congress informed about how bad things are at Social Security. In unusual cases, Congressional pressure can force Social Security to take action in a particular case.

57. After I file a claim for Social Security disability benefits, how long does it take before Social Security makes an initial decision?
On average about six months, but that is an average. Some cases are decided faster and some slower. Things are slower in some areas of the country than others.

58. How long does it take for Social Security to make a reconsideration determination on my Social Security disability claim?
Again, the average is about six months, but some cases move slower than others and there are differences around the country.

59. How long does it take for Social Security to act on a request for Appeals Council review?
It is highly variable. It can be anywhere from a month to more than two years.

60. I am disabled. I need help with medical bills even more than I need a cash income. How do I get help with medical bills now?
Getting help with medical bills is usually tied up with getting cash benefits, that is, you don't start getting help with medical bills until after you start getting the cash benefits. This means that you have to keep going with the Social Security disability claim. You can apply for Medicaid separately from Social Security in some states. You apply for Medicaid at the county Welfare Department or Department of Social Services. Social Services sounds like Social Security, but it is a different agency.

61. What is the difference between Medicare and Medicaid?
The short answer is that Medicaid is a poverty program and Medicare isn't. Most disabled people who get Medicaid get it because they are on SSI. To get SSI and thereby get Medicaid, you have to be poor and disabled. Medicaid pays doctors at low rates. People who have only Medicaid sometimes have a hard time finding a doctor they like. Medicaid does pay for prescription medications. Medicaid can go back up to three months prior to the date of a Medicaid claim. For Medicare, it does not matter whether you are rich or poor. If you have been on Disability Insurance Benefits, Disabled Widows or Widowers Benefits or Disabled Adult Child Benefits for 24 months, you qualify for Medicare. The good thing about Medicare is that it pays doctors at a higher rate than Medicaid. Almost all doctors are happy to take Medicare patients. The bad things about Medicare are that it does not begin until after a person has been on cash disability benefits for two years and there is only a limited prescription drug benefit.

62. If I win, how long will it be before I get paid?
In most cases, you will receive some money within one to two months after a favorable decision. It can take longer to get everything paid if you are approved for two types of disability benefits at the same time or if you have been receiving workers compensation or a state disability benefit.

63. I am already on Social Security retirement benefits. Can I get Social Security disability benefits?
Maybe. You cannot get both at the same time. You cannot get disability benefits at all after full retirement age. However, if you are on early retirement benefits and have not yet reached full retirement age, you can apply for Disability Insurance Benefits. If you are found disabled, you will be switched to Disability Insurance Benefits, which will pay more per month.

Draft Of Frequently Asked Questions

2008-10-09T16:32:00.005-04:00

Below is a draft of a new edition of my list of Frequently Asked Questions About Social Security Disability Benefits. I am posting this here to ask for comments. Do you think any of the answers are wrong or misleading or outdated? Are there other questions that I ought to include? At the bottom of the post, there is a button you can click to post a comment.

You may freely link to this, but you ought to wait until I finalize it. You may not simply steal this however. Copying this, with or without attribution, and using it elsewhere, whether online or offline, without my permission is theft. That is illegal and can get you in trouble.

FREQUENTLY ASKED QUESTIONS ABOUT SOCIAL SECURITY DISABILITY BENEFITS

1. What is the definition of disability used by Social Security?

Under the Social Security Act, "disability" means "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 has lasted or can be expected to last for a continuous period of not less than 12 months."

2. How many different types of Social Security disability benefits are there?

There are at least five major types of Social Security disability benefits. Disability Insurance Benefits is the most important type of Social Security disability benefits. It goes to individuals who have worked in recent years (five out of the last 10 years in most cases) who are now disabled. Disabled Widow's and Widower's Benefits are paid to individuals who are at least 50 and become disabled within a certain amount of time after the death of their husband or wife. The late husband or wife must have worked enough under Social Security to be insured. Disabled Adult Child Benefits go to the children of persons who are deceased or who are drawing Social Security disability or retirement benefits. The child must have become disabled before age 22. For Disability Insurance Benefits, Disabled Widow's or Widower's Benefits and Disabled Adult Child benefits, it does not matter whether the disabled individual is rich or poor. Benefits are paid based upon a Social Security earnings record. Supplemental Security Income benefits, however, are paid to individuals who are poor and who are disabled. It does not matter for SSI whether an individual has worked in the past or not. SSI child's disability benefits are a variety of SSI benefits paid to children under the age of 18 who are disabled. The way in which disability is defined is different for children.

3. How do I apply for Social Security disability benefits?

The best way to file a Social Security disability claim is to call Social Security's 800 number, 1-800-772-1213 to schedule an appointment to file the claim. In most cases the scheduled appointment will be done over the telephone. Another way is to go to the nearest Social Security office and wait (often for hours) to see someone to file the claim in person. You can also file online, although this may be frustrating.

4. I am disabled, but I have plenty of money in the bank. Do I have to wait until this money is gone before I apply for Social Security disability benefits?

No. If you have worked in recent years or if you are applying for Disabled Widow's or Widower's benefits or Disabled Adult Child benefits, it does not matter how much money you have in the bank. There is no reason to wait to file the claim.

5. I used to work but lately I have been staying home taking care of the kids. I have now become sick. Can I get Social Security disability benefits?

Possibly. If you have worked five out of the 10 years under Social Security before becoming disabled, you will have enough earnings in to potentially qualify for Social Security disability benefits. For individuals 31 or less, the requirements are a little different, since such individuals have not had such a long time to work. Unless a person has been staying home and taking care of their children for quite a long time, however, it is very possible that they will qualify for Social Security disability benefits based upon their own earnings. Also a homemaker can qualify for Supplemental Security Income (SSI), whether he or she has worked in the past or not.

6. How long do I have to wait after becoming disabled before I can file for Social Security disability benefits?

Not even one day. You can file for Social Security disability benefits on the very same day that you become disabled. Many individuals make the mistake of waiting months or even years after becoming disabled before filing a Social Security disability claim. There is no reason to file a Social Security disability claim if one has only a minor illness or one which is unlikely to last a year or more. However, an individual who suffers serious illness or injury and expects to be out of work for a year or more should not delay in filing a claim for Social Security disability benefits.

7. I am still on sick leave from my employer. Can I file for Social Security disability now or do I have to wait until the sick leave is exhausted?

No, you do not have to wait until the sick leave is exhausted. You should file for Social Security disability benefits now, if you believe that you will be out of work for a year or more.

8. I got hurt on the job. I am drawing worker's compensation benefits. Can I file a claim for Social Security disability benefits now or should I wait until the worker's compensation ends?

You do not have to wait until the worker's compensation ends. You should not wait that long. An individual can file a claim for Social Security disability benefits while receiving worker's compensation benefits. It is best to file the Social Security disability claim as soon as possible because otherwise there may be a gap between the time the worker's compensation ends and the Social Security disability benefits begin.

9. Can I get both worker's compensation and Social Security disability benefits?

Yes. In most states, there is an offset which reduces Social Security disability benefits because of worker's compensation benefits paid, but in virtually all cases, there are still some Social Security disability benefits to be paid.

10. How can I tell if I will be found disabled by Social Security?

Unless your disability is catastrophic (such as terminal cancer, a heart condition so bad that you are on a heart transplant waiting list, total paralysis of both legs, etc.), there is no easy way for you to tell whether you will be found disabled by Social Security. In the end, the decision of whether to apply for Social Security disability benefits should not be based upon whether you feel that Social Security will find you disabled. Attorneys familiar with Social Security disability can make predictions about who will win and who will lose, but even they can seldom be sure. An individual should make the decision about whether to file for Social Security disability based upon their own belief about their condition. If you feel that you are disabled and will not be able to return to work in the near future, you should file for Social Security disability benefits. If denied, you should consult with an attorney familiar with Social Security disability to get an opinion as to the chances of success on appeal.

11. Can you give Social Security disability benefits for _____________ (insert the name of whatever disease you are interested in)?

In almost every case, no matter what the disease is, the answer is the same - "Maybe, it just depends upon how badly you are affected by the disease." One example might be cancer. The word "cancer" is scary, but there are many cancers which can be treated and cured very quickly, with little or no lasting effect. On the other hand, of course, there are cancers which cause great suffering and ultimately death. The question in each individual case is "How sick is this particular individual with cancer and how long is this person going to remain sick?" Skin diseases are another example. The vast majority of skin diseases, while annoying, would not normally be considered to be disabling. On the other hand, there are some uncommon, very severe skin problems which are clearly disabling. Almost without exception, the mere fact that an individual has a disease with a certain name does not guarantee that the individual either will or will not be found disabled. It all depends upon how sick the person is.

12. Do you have to be permanently disabled to get Social Security disability benefits?

No. You have to have been disabled for at least a year or be expected to be disabled for at least a year or have a condition that can be expected to result in death within a year.

13. I have several health problems, but no one of them disables me. It is the combination that disables me. Can I get Social Security disability benefits?

Social Security is supposed to consider it all. Most claimants for Social Security disability benefits have more than one health problem. Each one must be considered as well as the combined effects of all of the health problems.

14. I got hurt in an automobile accident. I am disabled now, but I expect that I will be able to return to work after I recover. Should I file for Social Security disability benefits?

If you expect to be out of work for a year or more on account of illness or injury or even if you are just not sure if it will be more than a year, you should file for Social Security disability benefits.

15. How does Social Security determine if I am disabled?

Social Security is supposed to gather your medical records and carefully consider all of your health problems, as well as your age, education, and work experience. In general, Social Security is supposed to decide whether you are able to do your past work. If Social Security decides that you are unable to do your past work, they are supposed to consider whether there is any other work which you can do considering your health problems and your age, education, and work experience.

16. Who decides if I am disabled?

After an individual files a Social Security disability claim, the case is sent to a disability examiner at the Disability Determination Section. This individual, usually working with a doctor, will make the initial decision on the claim. If the claim is denied and the individual requests reconsideration, the case is then sent to another disability examiner at the Disability Determination Section, where it goes through much the same process. If a claim is denied at reconsideration, the claimant may then request a hearing. At this point, the case is sent to an Administrative Law Judge who works for Social Security. The Administrative Law Judge holds a hearing and then makes an independent decision upon the claim. This is the only level at which the claimant and the decisionmaker get to see each other.

17. Why does Social Security consider my age in determining whether I am disabled?

Social Security has to consider age, because that is what the Social Security Act requires. As people get older, they become less adaptable, less able to switch to different jobs to cope with health problems. A severe foot injury which might cause a 30-year-old to switch to a job in which he or she can sit down most of the time might disable a 60-year-old person who could not make the adjustment to a different type of work.

18. Is there a list of impairments that Social Security considers disabling?

Not really. There is something called the Listing of Impairments, but you may be best off not even looking at it, because you are likely to be confused by it. Because most types of illness can vary from minor to severe, there is no one simple list of illnesses which Social Security considers to be disabling.

19. What can I do to improve my chances of winning my Social Security disability claim?

Be honest and complete in giving information to Social Security about what is disabling you. Many claimants, for instance, fail to mention their psychiatric problems to Social Security because they are embarrassed. In almost all cases, individuals who were slow learners in school fail to mention this fact to Social Security, even though it can have a good deal to do with whether the Social Security disability claim is approved. Beyond being honest and complete with Social Security, the most important thing that you can do is just keep appealing. Most claims are denied at the initial level, but are approved at higher levels of review. Also important is hiring an attorney to represent you before the Social Security Administration. Statistically, claimants who employ an attorney to represent them are much more likely to win than those who do not employ an attorney to represent them.

20. If I am approved for Social Security disability benefits, how much will I get?

For disability insurance benefits, it all depends upon how much you have worked and earned in the past. For disabled widow's or widower's benefits, it depends upon how much the late husband or wife worked and earned. For disabled adult child benefits, it all depends upon how much the parent worked and earned. For all types of SSI benefits, there is a base amount that an individual with no other income receives. Other income that an individual has reduces the amount of SSI which an individual can receive.

21. How far back will they pay benefits if I am found disabled?

Disability Insurance Benefits cannot begin until five months have passed after the person becomes disabled. In addition, benefits cannot be paid more than one year prior to the date of the claim. SSI benefits cannot be paid until the beginning of the month after the month in which the claim is filed.

22. What do I do if Social Security denies my claim for Social Security disability benefits?

First, do not be surprised. Only about 35% of Social Security disability claims are approved at the initial level. If you are denied at the initial level, unless you have already returned to work or expect to return to work in the near future, you should appeal, that is, file a request for reconsideration. You should also consider employing an attorney to represent you.

23. Why does Social Security turn down so many claims for disability benefits?
There is no simple answer for this question. One reason is that there is no simple way to determine whether an individual is disabled. Most people who are disabled suffer from pain. There is no way of determining whether another individual is in pain, much less how much pain they are in. A second reason is that Social Security over the years has been more concerned with making sure that everyone who is receiving Social Security disability benefits is "truly" disabled than with making sure that everyone who is disabled receives Social Security disability benefits. An underlying reason is that Congress has always believed that, given a chance, many people will "fake" disability in order to get benefits.

24. I only want to get back the money I put in Social Security. Why do they make it so hard for me to get my own money back?
Actually, when you file a Social Security disability claim, you are not trying to just get "your own money" back. The money that an individual may have paid into Social Security over the years would not last very long if that was all that an individual could draw from Social Security.

25. What is "reconsideration"?
When a claim for Social Security disability benefits is denied at the initial level, the claimant may then request "reconsideration" of that decision. The case is then sent to a different disability examiner for a new decision. Unfortunately, about 89% of the time the reconsideration decision is the same as the initial decision - a denial.

26. Who makes the reconsideration determination?
A disability examiner at the Disability Determination Section makes the reconsideration determination. Not the same one, but one working in a very similar job. Most of the time, the claimant does not see the disability examiner or even know his or her name.

27. What are my chances of winning at reconsideration?
Statistically, about 11% of the time a claimant wins at reconsideration.

28. Do I have to go through reconsideration?

If you want to appeal a denial of Social Security disability benefits, you have to go through reconsideration. There is no way to avoid it.

29. How long does it take to get a hearing on a Social Security disability claim?
This can vary from about a year to over two years, depending upon what part of the country you live in.

30. What is the Social Security hearing like?
The hearings are informal. The only people certain to be there are the Administrative Law Judge, a hearing reporter operating recording equipment, the claimant, the claimant's attorney, and anyone else the claimant has brought with him or her. In many cases, the Administrative Law Judge has a medical doctor or vocational expert present to testify at the hearing. There is no jury nor are there any spectators at the hearing. There is no attorney at the hearing representing Social Security trying to get the judge to deny the disability claim. Most hearings last less than an hour.

31. What are video hearings like?
In a video hearing the Administrative Law Judge is at another location. You will be able to see him or her on a television screen. The Administrative Law Judge will be able to see you on a television screen. Although it is not the same as being in the same room, most people are mostly satisfied with video hearings. If you do not like the idea of a video hearing, you can insist on a live hearing. Insisting on a live hearing may cause further delay, however.

32. What are my chances of winning after a hearing?
Statistically, 60% or more of claimants who have a Social Security disability hearing win.

33. If the Administrative Law Judge denies my claim, can I appeal any more?
Yes. You can appeal to the Appeals Council which is still within Social Security.

34. What is the Appeals Council?

The Appeals Council exists to review Administrative Law Judge decisions. The Appeals Council is located in Falls Church, Virginia, and neither the claimant nor the attorney sees the people at the Appeals Council who are working on the case.

35. Can I appeal a case beyond Social Security to the Federal Courts?
Yes. After being denied by the Appeals Council, it is possible for a claimant to file a civil action in the United States District Court, requesting review of Social Security's decision. A Social Security disability claim can go all the way to the Supreme Court. Every few years the United States Supreme Court actually hears an appeal about a Social Security disability case.

36. If I get on Social Security disability benefits and get to feeling better and want to return to work, can I return to work?

Certainly you can return to work. Social Security wants individuals drawing disability benefits to return to work and gives them every encouragement to do so. For persons receiving Disability Insurance Benefits, Disabled Widow's and Widower's Benefits, and Disabled Adult Child Benefits, full benefits may continue for a year after an individual returns to work. Even thereafter, an individual who has to stop work in the following three years can get back on Social Security disability benefits immediately without having to file a new claim. In SSI cases, things work a differently, but there is still a strong encouragement to return to work. You just have to make sure you tell Social Security that you have returned to work. You should make sure that you receive a written receipt when you report your return to work and you should keep that receipt in case there is any problem in the future.

37. Where can I go to get help with my Social Security disability claim?
For help, go to a lawyer who represents Social Security disability claimants on a regular basis.

38. Do I really have to hire a lawyer to represent me in my Social Security disability claim?
No. You can go through all of the levels of review on your own, if you wish, but statistically claimants who are represented by an attorney win a good deal more often than those who are not represented by an attorney. You also have the option of hiring a non-attorney representative. This option is available in most places.

39 How do lawyers who represent Social Security disability claimants get paid?
In most cases, the attorney receives one-quarter of the back benefits if the claimant wins and no fee if the claimant loses.

40. Can alcoholics and drug addicts really get Social Security disability benefits?
Social Security is prohibited from paying disability benefits on the basis of alcoholism or drug addiction. However, alcoholics and drug addicts have heart attacks, get cancer or get sick in other ways just like everyone else. Alcoholics and drug addicts who are disabled without consideration of their alcoholism or drug addiction can be eligible for Social Security disability benefits.

41. I know someone who is on Social Security disability and he does not look a bit disabled. Why do they put all of these freeloaders on benefits?
When it comes to disability, looks can be deceiving. There are many people who look healthy but who are quite disabled by anyone's standard. There are also a few people who look quite sick, but who actually are fairly healthy. Many individuals who suffer from very severe psychiatric illness are physically healthy and able to do things such as mow their yards.

42. I am disabled, but I have never worked at public work. Can I get Social Security disability benefits?

If you are poor enough, you can qualify for Supplemental Security Income (SSI) if you are disabled, even if you have never worked in the past. It is also possible to qualify for Disabled Adult Child Benefits on the account of a parent if you became disabled before age 22 or for disabled widow's or widower's benefits on the account of a late husband or wife.

43. I am a widow. I have not worked in public work in many years. I am disabled. Can I get Social Security disability benefits?

If you are over 50 and became disabled within seven years after your husband or wife died or within seven years after you last drew mother's or father's benefits from Social Security, you can get Disabled Widow's or Widower's Benefits. Perhaps more important, if you are poor, you can draw Supplemental Security Income benefits no matter what age you are or when you became disabled.

44. I have a daughter who has been disabled by cerebral palsy since birth and has never been able to work. Can she get disability benefits from Social Security?

Very possibly. If the child is under 18 and you are poor enough, the child may be able to qualify for SSI child's disability benefits. If the child is over 18, she may be able to qualify for SSI disability benefits without regard to the income of her parents. If her father or mother is drawing Social Security benefits of some type or is deceased, the child may be eligible for disabled adult child benefits.

45. I am already on Social Security disability benefits, but I am worried that my benefits will be stopped in the future. What are the chances of this happening?
Normally, Social Security is not supposed to cut off disability benefits for an individual unless his or her medical condition has improved. When Social Security reviews the case of someone already on Social Security disability benefits, they continue benefits in the vast majority of cases.

46. If Social Security tries to cut off my disability benefits, what can I do?
You should appeal immediately. If you appeal within 10 days after being notified that your disability benefits are being ceased, you can ask that your disability benefits continue while you appeal the decision cutting off your benefits. You may also want to talk with an attorney about representation on your case, but you should file the appeal immediately.

47. My doctor says I am disabled so why is Social Security denying my Social Security disability claim?

Social Security's position is that it is not up to your doctor to determine whether you are disabled. It is up to them and they will make their own decision regardless of what your doctor thinks.

48. VA says I am disabled, so why is Social Security denying my Social Security disability claim?
Social Security and VA have different standards for approving disability claims. Many people can get VA disability benefits but not Social Security disability benefits. There are some in Congress who are trying to change this.

49. I am 60% disabled. Do I get 60% of my Social Security disability benefits?
No. There are no percentages of disability in Social Security disability determination. For purposes of Social Security disability benefits, you are either disabled or not disabled. You get it or you don't.

50. I am disabled by mental illness. Can mental illness serve as the basis for a Social Security disability claim?

Yes. Mental illness is a common basis for awarding Social Security disability benefits.

51. Will it help if I ask my Congressman to help me get Social Security disability benefits?

Not likely. Most Social Security disability claimants eventually ask their Congressman to help. The Congressman sends a form letter to Social Security and Social Security sends a form letter back to the Congressman, but the exchange of form letters has no effect upon how Social Security handles the case.

52. How long does it take before Social Security makes a decision once I file a claim for Social Security disability benefits?

On average about six months, but that is an average. Some cases are decided faster and some slower. Things are faster in some areas of the country than others.

53. How long does it take for Social Security to make a reconsideration determination on my Social Security disability claim?
Again, the average is about six months, but some cases move faster than others.

54. How long does it take for Social Security to act upon a request for Appeals Council review?
It is highly variable. It can be anywhere from a month or two to two years or more.

55. I am disabled. I need help with medical bills even more than I need a cash income. How do I get help with medical bills?

Getting help with medical bills is usually tied up with getting cash benefits, that is, you don't start getting help with medical bills until after you start getting the cash benefits, so you have to keep going with the Social Security disability claim in order to get the help with medical bills. You can apply for Medicaid separately from Social Security in some states. You apply for Medicaid at the county Welfare Department or Department of Social Services. Social Services sounds like Social Security, but it is a different agency.

56. What is the difference between Medicare and Medicaid?
The short answer is that Medicaid is a poverty program and Medicare isn't. Most disabled people who get Medicaid get it because they are on Supplemental Security Income (SSI). To get SSI and thereby get Medicaid you have to be poor and disabled. Medicaid pays doctors a low rates. People who have only Medicaid sometimes have a hard time finding a doctor they like who is willing to take them on as a patient. Medicaid does pay for prescription medications. Medicaid can go back up to three months prior to the date of a Medicaid claim. For Medicare, it does not matter whether you are rich or poor. If you have been on Disability Insurance Benefits, Disabled Widows or Widowers Benefits or Disabled Adult Child Benefits for 24 months you qualify for Medicare. The good thing about Medicare is that it pays doctors at a higher rate than Medicaid. Almost all doctors are happy to take Medicaid patients. The bad things about Medicare are that it does not begin until after a person has been on cash disability benefits for two years and there is only a very limited prescription drug benefit.

Reeves Reinstatement Decision - I

2008-07-24T07:03:00.000-04:00

Reeves Reinstatement Decision - II

2008-07-24T07:02:00.000-04:00

Reeves Reinstatement Decision - III

2008-07-24T07:01:00.000-04:00

Reeves Reinstatement Decision - IV

2008-07-24T07:00:00.000-04:00

Binder Lawsuit -- Part I

2008-07-03T07:08:00.001-04:00

Binder Lawsuit -- Part II

2008-07-03T07:07:00.001-04:00

Binder Lawsuit -- Part III

2008-07-03T07:06:00.000-04:00

Binder Lawsuit -- Part IV

2008-07-03T07:05:00.000-04:00

Binder Lawsuit -- Part V

2008-07-03T07:04:00.000-04:00

Binder Lawsuit -- Part VI

2008-07-03T07:03:00.000-04:00

Binder Lawsuit Answer -- Part I

2008-07-03T07:01:00.000-04:00

Binder Lawsuit Answer -- Part II

2008-07-03T07:00:00.000-04:00

Astrue Written Statement to Appropriations Committee

2008-02-29T14:33:00.002-05:00

Mr. Chairman and Members of the Subcommittee, before I begin I want to express my sincere
appreciation for your efforts in securing funding for the Social Security Administration (SSA) in
Fiscal Year (FY) 2008. FY 2008 could be a watershed year for SSA. For the first time in 15
years, Congress has appropriated not only the President’s budget request, but an additional
$148 million to address SSA’s disability hearings backlog. On behalf of the American public, I
am deeply grateful for the Committee’s support of the Social Security programs and want to
assure you that your decision to support the Agency and its backlog plan will truly make a
difference in people’s lives. Today, I will discuss SSA’s FY 2009 budget request, as well as our
plans to improve the disability workloads.

As you know, SSA is now at a critical juncture. Due to the aging of the baby boomers, SSA is
facing an avalanche of retirement and disability claims at the same time that it must address
large backlogs due to years of increasing workloads and limited resources. Over the last few
years as SSA offices lost staff, waiting times increased, lines grew longer, and busy rates in our
field offices deteriorated. Without sustained, adequate funding, this situation will only worsen.
Furthermore, we must attack the disability backlogs, which have dramatically and unacceptably
damaged many applicants’ lives.

It is a moral imperative to reduce the disability backlogs, which have caused an incredible
hardship for disabled workers and their families as they cope with the loss of income and often
medical insurance as well due to a severe disability. With the additional funding provided by
Congress, SSA will be able to implement all of the key features of our Hearings Backlog
Reduction Plan. We will build a firm foundation for the future with automation improvements,
fast-track reviews, Administrative Law Judge (ALJ) hiring, and other initiatives, so that we can
significantly reduce waiting times while also improving accuracy.

While FY 2008 will allow us to make significant inroads, sustained, adequate funding is critical
so that we can continue to make progress. Over the next 10 years, SSA’s traditional workloads
will increase substantially – retirement claims by over 40 percent and initial disability claims by
nearly 10 percent. The first of over 80 million baby boomers has already applied for retirement
benefits. Baby boomers are also applying for disability benefits in greater numbers than
previous generations. At the same time as SSA faces increasing workloads, the Agency must
attack the disability backlogs and address new non-traditional workloads, such as the Medicare
Prescription Drug Program and immigration reform.

From FY 2001 through FY 2007, SSA achieved a cumulative productivity improvement of
15.5 percent. However, although we continue to be a can-do Agency and are implementing
efficiencies both large and small, productivity alone cannot fully offset the increase in our
workloads. Furthermore, inflationary growth in costs such as rent, guards, and employee
salaries and benefits have more than offset increases in SSA’s budget in recent years, leaving
SSA with even fewer resources to address these growing workloads. SSA currently requires
over a $400 million increase each year simply to keep up with increases in fixed costs. As a
result, staffing levels have declined significantly, which has affected service to the public.
The 2009 President’s Budget will enable SSA to build upon planned accomplishments in
FY 2008 and make significant progress. At $10.460 billion for SSA’s administrative expenses,
the President’s Budget provides a nearly $600 million or 6 percent increase over FY 2008.
SSA’s administrative budget includes $10.327 billion for the Limitation on Administrative
Expenses account, $98 million for the Office of the Inspector General, and $35 million for
Research. At this funding level, we expect to make substantial progress with our Hearings
Backlog Reduction Plan by processing 85,000 more hearings in FY 2009 compared to FY 2008,
ultimately reducing the number of hearings pending from over 750,000 to 683,000 in one year.
We will be able to reduce the initial disability claims backlogs to the lowest level in 10 years; the
number of initial disability claims pending will drop below 500,000 for the first time since 1999.
Finally, the FY 2009 budget will put us in a better position to handle the onslaught of work we
are confronting due to the aging of the baby boomers. We plan to process over 400,000
additional retirement claims in FY 2009 as compared to FY 2007, enabling SSA to keep up with
the influx of baby boomer claims.

SSA’s budget provides the necessary resources to begin to halt the decline in customer service
by preventing further staffing losses and investing in needed technology. The budget is a
fiscally reasonable and responsible approach. A multi-year effort is needed to eliminate the
disability backlogs. In addition, SSA will not be able to handle some of its less visible work,
generally work that is done after an individual is approved for benefits.

Overview of SSA’s Programs and Responsibilities

SSA administers the Nation’s social security programs, including Old-Age and Survivors
Insurance and Disability Insurance (OASDI), commonly referred to as Social Security, and
Supplemental Security Income (SSI). Through these programs, SSA affects nearly all
Americans at some point in their lives.

In FY 2009, SSA will pay $683 billion in Federal benefits to nearly 56 million people. While
Social Security trust fund benefit payments are permanently appropriated, and therefore not part of the budget requests before this Committee, the administrative resources that SSA needs in order to pay these benefits are part of the appropriations requests that I am asking you to
support. SSA has four appropriations requests before this Committee, totaling $56.3 billion:
Limitation on Administrative Expenses, Office of the Inspector General, Supplemental Security
Income, and Payments to the Social Security Trust Funds.

In FY 2009, some of the tasks SSA employees will perform with the administrative resources
requested in the President's budget include: processing over 6.8 million claims for benefits;
making decisions on 644,000 hearings; issuing 20 million new and replacement Social Security
cards; processing 274 million earnings items for crediting to workers’ earnings records; handling
approximately 67 million transactions through SSA’s 800-number; issuing 150 million Social
Security Statements; processing millions of actions to keep beneficiary and recipient records
current and accurate; and conducting 329,000 medical continuing disability reviews (CDRs) and
nearly 1.5 million non-disability SSI redeterminations.

In addition to our core workloads described above, SSA has complex responsibilities related to
the Medicare program, immigration, homeland security and data exchange programs.
I would now like to discuss our Limitation on Administrative Expenses appropriations request.

President’s Request for SSA’s Limitation on Administrative Expenses

The President’s Budget includes $10.327 billion for SSA’s Limitation on Administrative
Expenses (LAE), providing SSA with the resources necessary to administer the Nation’s social
security programs. This is less than 1.5 percent of SSA's total estimated outlays of
approximately $697 billion under current law, and an increase of $582 million in discretionary
budget authority from the FY 2008 appropriation.

The requested increase is needed to provide the salaries and benefits, facilities, computer and
telecommunications equipment, training, and other expenses required to deliver service to the
American public. Approximately 70 percent of our administrative resources are used for
personnel costs. The remainder is used to support these personnel and the workloads they
process. Due to fixed cost increases, such as annual increases to Federal employee salaries,
benefits, rent, and guard services, the total requested increase is essential to avoid disruptions
to the service SSA provides and to help provide better service to the millions of Americans who
count on us each and every day.

There are three overarching themes of SSA’s FY 2009 LAE budget:

• Improving the Disability Programs - Eliminating the hearings backlog is a moral imperative
for the Agency. This effort will take several years, but by the end of FY 2009, SSA will have
laid the groundwork of regulatory and process changes needed and will be driving waiting
times down. We already have made significant progress, which will be discussed later in the
statement. SSA also will process more initial disability claims, resulting in the lowest
pending level for these claims since 1999, and will make changes to the disability process to
improve timeliness, accuracy and efficiency.
• Enhancing Service to the American Public - SSA will continue to improve its retirement and
enumeration processes, safeguard personally identifiable information, and reach out to all
Americans through financial literacy efforts. Furthermore, with the FY 2008 enacted
appropriation and the FY 2009 budget, SSA will end a trend of staffing declines that has
damaged service to the public.
• Innovating, Automating and Investing in the Future - The FY 2009 budget, if it receives the
full support of Congress, will allow SSA to make automation and business process changes
which will improve service to the public. The budget also provides more support for program
integrity to ensure that the public’s money is spent in an appropriate fashion.

I would now like to address these three key areas of SSA’s FY 2009 budget in more detail.
Improving the Disability Programs

Eliminating the Hearings Backlog – SSA’s Recent Accomplishments and Future Plans

SSA will be implementing the Hearings Backlog Reduction Plan over the next 5 years to
eliminate the hearings backlog as efficiently and expeditiously as possible. These new
initiatives will increase the Agency’s capacity to hold hearings and implement necessary
modernizations to the hearing process. Crucial to the plan’s success is full funding of SSA’s
FY 2009 budget, which would ensure that hearing offices have enough staff to handle more
cases and allow critical improvements to Agency infrastructure.

There are four key elements of the Hearings Backlog Reduction Plan that I believe hold the
most promise to eliminate the hearings backlog:

• Accelerating Review of Cases Likely or Certain to be Approved;
• Improving hearings procedures;
• Increasing adjudicatory capacity; and
• Increasing efficiency through automation and improved business processes.

I am pleased that we have already made progress in many of these areas. For example,
national rollout of the Quick Disability Determination (QDD) process, designed to identify and
expedite claims that are likely to be allowed, began in October 2007. An electronic screening
tool/predictive model is used to identify claims where there is a high probability that the claimant is disabled and where medical evidence can be easily and quickly obtained. QDD claims are electronically routed to the state Disability Determination Services where experienced disability examiners and other staff review and adjudicate them on an expedited basis, many times in less than two weeks. As of January 2008, 1 percent of all cases nationally are being reviewed within 8 days under the new QDD process, and we expect that percentage to increase in the next
year.
We also are making progress on Compassionate Allowances, which is a way of quickly
identifying diseases and other medical conditions that invariably qualify under SSA’s medical
listings based on minimal medical information. Many of these claims can be allowed based on
confirmation of a medical diagnosis supported by medical evidence. For example, allowances
for cases such as catastrophic congenital anomalies (such as anencephaly, a form of
Tay-Sachs disease, and the most common form of Down syndrome), acute leukemia,
amyotrophic lateral sclerosis (ALS), and pancreatic cancer can be made as soon as the medical
diagnosis and onset data is confirmed.

In recent months SSA has continued to significantly reduce the number of hearing requests that
have been pending the longest. At the beginning of FY 2007, there were over 63,000 hearing
requests that would have been 1,000 or more days old on September 30, 2007. By September
30, SSA reduced that number to 108 and, since then, the remaining cases have been
processed. For FY 2008, SSA raised the bar for its own performance and set a goal to resolve
over 135,000 cases that are or would be 900 days old or older by the end of the fiscal year. As
of the end of January, SSA has reduced that number to 76,099. As the number of aged cases
is reduced, SSA will create new targets to ensure we provide decisions to those waiting the
longest.

As another key part of the plan, SSA established a National Hearing Center in Falls Church,
Virginia so that a centralized cadre of ALJs can use video hearing technology to hear cases
from the most backlogged parts of the country. As we review data from the pilot, we will
consider opening additional National Hearing Centers to conduct more video hearings and to
more effectively balance workloads at hearing offices nationwide.

SSA also is currently implementing a Service Area Realignment Plan to balance hearings
backlogs on a national basis. The Service Area Realignment Plan is designed to shift
workloads to offices with lower pendings. New requests for hearings may be processed in other
offices by means of video hearings.

Another way SSA is expediting hearings is through the Senior Attorney Adjudicator program,
which allows Senior Attorneys to issue decisions in cases that are fully favorable without the
involvement of an ALJ. Allowing non-ALJs to issue fully favorable on-the-record decisions
improves processing times for those hearings and conserves ALJ resources for the more
complex cases and cases that require a hearing.

In addition to new rules and processes, a number of electronic initiatives are being developed
which would reduce the lengthy procedure to simply prepare cases for the ALJs. For example,
the electronic folder has the potential to significantly decrease the time it takes hearing office
staff to prepare and exhibit files, associate correspondence, prepare and send notices, and
transfer workloads.

Even with all of these improvements, adequate staff is still a critical component of the Hearings
Backlog Reduction Plan. Our hearing offices will be able to replace all of their staff losses this
year including hiring approximately 150 ALJs this spring, for which we are deeply grateful to
Congress. Our goal is to reach a level of 1,250 ALJs in FY 2009. Sufficient funding in FY 2009
and beyond is essential to ensuring that we can maintain an adequate number of ALJs as we
continue our efforts to reduce the hearings backlog.

We are pleased to report that hearings processing times and ALJ productivity are already better
than we anticipated, resulting in quicker decisions for the American public. While we still have a
long way to go to provide the level of service the American public deserves, the progress we
have made so far gives me confidence that we are making the right changes in the right places.

Processing More Disability Claims

In FY 2007, SSA was able to stem the tide and slow the growth in the claims backlog. With the
FY 2009 budget, the DDSs will process significantly more disability claims, reducing claims
backlogs to the lowest level since 1999. This is critical since nearly 70 percent of disability
allowances are allowed at the initial claims level. Efforts such as the successful electronic
disability process and our new Quick Disability Determination and Compassionate Allowance
processes will improve service to the public, helping claimants to receive decisions earlier at this
critical juncture in their lives.

I am pleased to report that we have already made significant progress in providing better
service to the men and women who serve our country. U.S. military personnel are now
receiving expedited processing of disability claims from SSA. We are onsite every week at
Walter Reed, Bethesda, Brooke and numerous other treatment facilities throughout the U.S. to
take disability cases and ensure expeditious handling of those cases. We also have an
agreement with the Department of Veterans Affairs (VA) for the VA to electronically provide SSA with the medical records of veterans applying for disability benefits, which enables SSA to get medical records more quickly and efficiently.

Modernizing the Disability Process

Until just recently, many of SSA’s medical regulations—generally known as our “listings”—went
decades without review and revision. The Agency is now on a schedule that will review all
listings every 5 years, and with this budget SSA plans to review them every 3 years. Moreover,
we have an ambitious effort underway to expand the listings to include, for the first time, many
rare diseases and conditions. In the past, lack of guidance to adjudicators has resulted in errors
in these cases.

Enhancing Service to the American Public

With millions of Americans becoming eligible for Social Security retirement benefits at the rate of
10,000 a day for the next two decades, SSA must continue its development of a wide range of
online and automated services and seek to transform its service model. Maximizing the use of
modern technology and changing the service delivery model will enable SSA to continue to
provide critical services to all future beneficiaries.

In addition, in order to reverse a trend of deteriorating service, SSA also requires an adequate
staffing level. The 2009 President’s Budget will help SSA begin to turn around the staffing crisis
by enabling SSA to replace those employees who leave the Agency, whether for retirement or
other reasons. While the stable staffing levels will help SSA improve service on a national level,
it will have an even more profound effect on local offices because hiring freezes have caused
staffing imbalances and critical staffing shortages.

In addition to preparing for the nation’s imminent retirement wave, we have several other
priorities. SSA has already opened five Social Security Card Centers, in cities across the
country, which have succeeded in issuing cards more efficiently and accurately. To ensure the
continued security of the Social Security card and prepare for anticipated growth in card
applications if immigration-related legislation is passed by Congress, SSA is planning to open a
total of 7 more Card Centers in FYs 2008 and 2009. Our Pasadena, Texas, and Orlando,
Florida, Card Centers are expected to open in the spring.

With the prevalence of identity theft in the world today and increased exposure as more
transactions are completed across the Internet, our efforts to protect the personal information
entrusted to us are more important than ever. SSA’s security program includes comprehensive
policies and controls to protect the confidentiality, integrity, and availability of data and systems,
including personally identifiable information. We closely follow Federal guidelines including
security standards and guidelines issued by the National Institute of Standards and Technology
(NIST) and the Office of Management and Budget. We have constant monitoring of SSA
systems for potential attacks and problems. We limit SSA systems access to a “need-to-know”
basis. We have encryption of all data lines across SSA. We also have secure electronic mail
solutions between SSA and other Federal agencies where personal information is regularly
exchanged.

Finally, SSA must continue to explore new ways to have a greater impact on educating the
public about the importance of financial retirement planning. Research indicates that many
Americans lack comprehensive financial literacy and often make poor savings and retirement
decisions. Improving the public’s financial literacy, particularly its understanding about the need
for retirement planning and the role of Social Security’s retirement benefits as a supplement to
other sources of income, could boost personal savings and foster better retirement decisions.
Our annual Social Security Statements, online presence, and contacts with the public provide a
unique opportunity to participate in educational efforts.

We continue to explore new ways to have a greater impact on educating the public. For
example, future plans include a streamlined online claims process and enhanced Internet
benefit calculators that will provide real-time estimates of retirement benefits based on the
user’s earnings record. These tools will facilitate financial planning by allowing multiple “what if”
scenarios based on different user-entered retirement dates and earnings amounts.

Innovating, Automating and Investing in the Future Leveraging Technology

The 2009 President’s Budget will allow SSA to continue to invest in the Agency’s information
technology infrastructure. We are seeking new ways to automate workloads to increase
productivity and reduce the impact of the ongoing growth to our workloads. SSA will offer
additional services on our website, improve the automated services we offer by telephone,
provide more efficient and compassionate service to our disabled clients, and ensure that the
sensitive information entrusted to us is protected and can be restored in the case of a disaster.
In FY 2009, some of the new services we will be offering are a much improved claims
application package that will help ensure that claimants file for all benefits to which they are
entitled, and a more integrated disability application that will streamline the filing process and
improve the quality of the data we receive. In addition, we will offer the capability for third
parties, such as personnel offices, to help individuals file for retirement benefits.
Improving telephone services also will be a major focus in FY 2009. We will replace our
10 year-old call center network systems, which manage and route our 800-number calls, with a
system providing the Agency with 21st century features. In addition, we will continue the
replacement of our outdated field office telephone systems with a state-of-the-art phone system
that saves the Agency money and provides the capability to review e-mail messages over the
phone.

SSA is working with the 54 State DDSs on plans to pursue the replacement, beginning in
FY 2009, of the outdated systems that the States use to process disability claims with a modern,
web-based case processing system. As soon as we resolve the remaining technical issues of
the State DDSs, we plan to proceed.

We will take advantage of the progress that the medical community is making in automating
services through Electronic Health Records and Personal Health Records. Using automated
exchanges in standardized data formats, medical providers will send us requested evidence
electronically, allowing us to compare this information to our updated medical listings and use
business intelligence tools to make more accurate, consistent, and timely decisions.
Most importantly, we will continue with the automation of our hearing offices, expanding video
conferencing technology to offer attorneys the ability to participate in video hearings from their
own offices. Additional functionality that will be provided to the hearing offices includes
scheduling software that automates the complex process of scheduling a hearing and casepulling
software that allows us to identify, classify and extract data from document images.

Technology and business process improvements will both play an instrumental role in helping
SSA continue to make incremental productivity improvements. From FY 2001 through FY 2007, SSA achieved a cumulative 15.5 percent productivity increase. With the FY 2008 appropriation and the FY 2009 President’s Budget, we plan to achieve an additional 2 percent productivity increase in each of these years.

Investing in Program Integrity

The budget includes a special funding mechanism that will provide $240 million for SSA’s
program integrity efforts, in addition to the $264 million already included in the base request, for
a total of $504 million. These efforts protect taxpayers’ money by reviewing factors that could
affect eligibility for benefits or the payment amount. The two most cost-effective efforts are
CDRs and SSI redeterminations.

CDRs are periodic reevaluations of medical eligibility factors for Disability Insurance (DI) and
SSI disability recipients and are estimated to yield $10 in lifetime program savings for every $1
spent. The additional funding requested for SSI redeterminations, which are periodic reviews of
non-medical factors of SSI eligibility such as income and resources, are estimated to yield $7 in
lifetime program savings for every $1 spent. SSA plans to process 329,000 medical CDRs and
nearly 1.5 million SSI redeterminations in FY 2009.

If found to be as cost effective as redeterminations, up to $40 million may be used for initiatives
to improve the disability process and up to $34 million may be used to expand the Access to
Financial Information project, which automates verification of SSI recipients’ assets held in
banks. In total, SSA estimates this program integrity funding in FY 2009 will result in over
$4 billion in savings over 10 years.

Other FY 2009 Appropriation Requests

I would like to turn now to a brief summary of the other appropriation requests for FY 2009.
Office of the Inspector General (OIG)

$98.1 million for the OIG – The request for FY 2009 represents a $6.2 million increase in
resources from the FY 2008 appropriation and provides resources needed to restore some of
the staffing losses that occurred in FY 2008 due to budget constraints. The OIG will continue
efforts to improve the Agency’s integrity, efficiency and effectiveness. To that end, the OIG
provides invaluable service by directing, conducting and supervising a comprehensive program
of audits, evaluations and investigations relating to SSA’s programs and operations. The focal
point of this effort is protecting the integrity of the Social Security Number (SSN) and the
enumeration process. The OIG has also been an invaluable source of advice and data on the
Hearings Backlog Reduction Plan.

Supplemental Security Income

$45.8 billion for the SSI Program – The SSI program ensures a minimum monthly level of
income to eligible aged, blind, and disabled individuals. An individual’s income, resources, and
living arrangements are evaluated to determine the monthly SSI payment. The President’s
budget reflects $42.0 billion for Federal benefit payments to approximately 7.3 million aged,
blind, and disabled beneficiaries, $3.149 billion to reimburse the Social Security trust funds for
SSI administrative expenses, $3 million for beneficiary services, and $35 million to fund
extramural research and demonstration projects for FY 2009. The budget also includes
$15.4 billion for Federal benefit payments for the first quarter of FY 2010.

Estimates of current benefits are driven by the number of recipients eligible for monthly
payments and the amount of the monthly payments. The FY 2009 request represents almost a
$1.5 billion increase over the FY 2008 enacted level. The majority of this increase results from
mandatory increases in Federal benefit payments due to annual cost-of-living adjustments and
an increase in SSI recipients.

Payments to the Social Security Trust Funds

$20.4 million for Payments to the Social Security Trust Funds – This request will reimburse the
Social Security trust funds for the costs of certain benefits and administrative expenses which
are initially paid from the trust funds but are chargeable to general revenues. The purpose of
this account is to put the trust funds in the same financial position in which they would have
been had they not borne the cost of these expenses.

Conclusion

With sustained, adequate funding in FY 2009 and beyond, SSA can significantly reduce
disability waiting times and backlogs while investing in the infrastructure needed to serve the
baby boomers. It is critical that we begin to stabilize staffing levels and make the necessary
automation and business process improvements now more than ever. America’s retirement
wave has officially begun.

SSA has shown that it makes excellent use of the resources it receives. Our accomplishments,
in particular our cumulative 15.5 percent increase in productivity from FY 2001 through
FY 2007, demonstrate that SSA is an excellent steward of taxpayer dollars. We plan to build
upon our recent successes, such as the electronic disability process, by continuing to automate
wherever possible. Investments in technology and new business processes will allow SSA to
continue achieving incremental productivity improvements.

However, with 1,400 field and hearing offices in cities and towns across the nation, productivity
alone is not enough. Service is certain to deteriorate further without an adequate and timely
budget for SSA. SSA programs not only have a huge impact on the national economy, infusing
billions of dollars into the economy, but a huge impact on millions of individual people’s lives:
people striving to build economic security, people who overcome tremendous odds to return to
the workplace, people who are able to hold their families together with the help of Social
Security.

The funding Congress provided to SSA for FY 2008 has made a difference in people’s lives.
We already have made progress with our Hearings Backlog Reduction Plan. We are reducing
backlogs of our oldest cases first because it is simply unacceptable that Americans have to wait
so long for a hearing decision. We have created a National Hearing Center and a Service Area
Realignment Plan to distribute work more evenly across the nation. We are allowing Senior
Attorneys to issue decisions in cases that are fully favorable without the involvement of an ALJ,
and we are pursuing a number of electronic initiatives which will reduce the lengthy procedure to
prepare cases for the ALJs. New technology and rules, such as QDD and Compassionate
Allowances, are helping SSA to allow cases quicker and earlier in the process. Processing
times are better than we anticipated, and the ALJs we will be able to hire this spring will place
SSA in an even better position next year.

Mr. Chairman, thank you for the opportunity to present SSA's budget. I understand the many
difficult choices the Committee will have to make in the near future as you appropriate funding
to numerous worthwhile programs, and I appreciate how much you and the Committee did for
SSA and the American people last year. Critical to our future success is adequate funding in
FY 2009. People in need are counting on us now more than ever. I look forward to continuing
to work with you to ensure that SSA receives a timely and adequate budget so that we can
provide the level of service they deserve.

SOCIAL SECURITY ADMINISTRATION
Statement by the Commissioner of Social Security On Payments to Social Security Trust Funds

The fiscal year (FY) 2009 appropriation request for Payments to Social Security Trust Funds
totals $20,406,000 and covers three general fund payments to the Social Security trust funds.
Reimbursement for Pension Reform Administrative Costs

Included in this request is $6,400,000 to reimburse the Old-Age and Survivors Insurance (OASI) trust fund for the cost of administering pension reform responsibilities assigned to the Social Security Administration under Public Law 93-406, the Pension Reform Act. The reimbursement is for the cost of furnishing information on deferred vested pension rights to pension plan participants or their survivors.

The request for FY 2009 is the same as the FY 2008 funding level and reflects the ongoing level
of effort associated with this work, which flows from reports received from the Internal Revenue
Service regarding individuals who have earned vested pension rights. In the event that actual
expenses needed to process this workload exceed the amount available for reimbursement
through this account in any fiscal year, the trust fund is made whole in the subsequent fiscal
year upon enactment of the Payments to Social Security Trust Funds appropriation for that year.

Unnegotiated Checks

Also included in this request is $14,000,000 to reimburse the OASI and Disability Insurance (DI) trust funds for the value of interest on benefit checks that remain uncashed after 6 months. This payment is authorized by Section 201(m) of the Social Security Act and Section 152 of the
Social Security Amendments of 1983 (P.L. 98-21). The request for FY 2009 is the same as the
FY 2008 funding level. It supports the expected level of uncashed check activity and represents
the estimated interest for unnegotiated OASDI checks.

Social Security checks are negotiable for only 12 months from their date of issue under the
provisions of the Competitive Equality Banking Act of 1987 (P.L. 100-86). The face value of
these checks is credited directly to the trust funds from the general funds when the checks are
canceled. This account reimburses the trust funds for interest lost through the date of crediting
at the following points in the check negotiation process: (1) checks that remain uncashed after
6 months; (2) checks that are cashed after 6 months; and (3) checks that are administratively
canceled after 12 months.

Special Payments for Certain Uninsured Persons

The request before this Committee includes $6,000 to reimburse the OASI trust fund for the cost of special benefits paid to certain uninsured persons aged 72 years and over. The benefits are paid mainly to individuals who attained age 72 before 1968 and did not have a chance to work long enough under Social Security to become insured. This payment covers benefits paid in
FY 2007. The amount requested also includes reimbursement for related administrative
expenses and interest lost to the trust fund.

The population receiving special payments is a closed group of very aged persons, and their
number decreases annually. As of September 30, 2007, there was 1 person receiving benefits
under this program, as compared to 2 on September 30, 2006.

Coal Industry Retiree Health Benefits

The request before this Committee does not include additional funds to reimburse the OASI
trust fund for work carried out under Section 19141 of the Energy Policy Act of 1992
(P.L. 102-486), which established the “Coal Industry Retiree Health Benefit Act of 1992”
(CIRHBA). CIRHBA requires the Social Security Administration to search earnings records of
certain retired coal miners to determine which mine operators are responsible for payment of
their health benefit premiums under the law. The Social Security Administration computes the
premiums due based on a formula established in the Act, notifies the affected mine operators,
processes appeals from operators who believe that assignments have been made incorrectly,
and responds to and participates in litigation resulting from these agency determinations.
Additional funds are not requested for FY 2009 because amounts remaining from the
$10,000,000 per year appropriated in FY 1996 and in FY 1997 will continue to be available until
expended to reimburse the OASI trust fund.

The Social Security Administration (SSA) has made initial decisions on all of the retired miners
covered under these provisions of the 1992 CIRHBA (the Coal Act) and continues to provide
requested earnings records and review the appeals made by the assigned coal operators. In
addition, SSA has implemented the Coal Act provisions of The Tax Relief and Health Care Act
of 2006 (P.L. 109-432) which significantly impacted and restructured the Coal Act. After
carefully reviewing the legislation, obtaining legal advice, and assessing how P.L. 109-432
affected existing policies and procedures, SSA complied with the provision that specifically
directed the Commissioner to “revoke all assignments to persons other than 1988 agreement
operators for purposes of assessing premiums for plan years beginning on or after
October 1, 2007.”

While SSA has devoted considerable Agency time and resources to comply with P.L. 109-432, it
also remains active in one Coal Act case which is pending adjudication in the Federal Court.

The case is as follows:
Nicewonder Group, LLC v. Astrue is pending in the United States District Court for the
Western District of Virginia. Plaintiffs filed a complaint alleging that they are not related
to a former United Mine Workers of America signatory operator and therefore they are
not responsible for the premiums of the eight miners that have been assigned to them.
SSA has recently responded to this complaint.

SOCIAL SECURITY ADMINISTRATION
Statement by the Commissioner of Social Security on Supplemental Security Income

The Supplemental Security Income program (SSI) guarantees a minimum level of income to
financially needy individuals who are aged, blind or disabled. The appropriation request for
fiscal year (FY) 2009 is $30,414,000,000, in addition to the $14,800,000,000 appropriated for
the first quarter of FY 2009 in the FY 2008 appropriation, bringing the total to $45,214,000,000.

This includes $42,027,000,000 for Federal benefits to aged, blind and disabled recipients,
$3,149,000,000 for administrative expenses, $3,000,000 for beneficiary services, and
$35,000,000 for research and demonstration projects.

In addition to the appropriation request, in FY 2009 SSA is also planning to use $1,211,000,000
in carryover of unobligated balances for federal benefit payments, $54,000,000 in carryover for
beneficiary services, and $8,554,000 for research and demonstration projects.

We are also requesting an advance appropriation of $15,400,000,000 for the first quarter of
FY 2010 to ensure that benefits will continue without interruption into the next fiscal year.

Federal Benefit Payments

The SSI appropriation provides funds for direct cash assistance to eligible aged and blind or
disabled recipients to help finance their basic needs. An individual’s income, resources and
living arrangements are evaluated to compute the monthly SSI payment. The maximum
monthly Federal Benefit Rate (FBR) is expected to increase from $637 for an individual and
$956 for a couple in calendar year 2008 to $653 and $980 respectively in 2009. The average
monthly benefit is expected to increase from $473 in FY 2008 to $486 in FY 2009.
The total FY 2009 request for Federal benefit payments is $42.0 billion. This is an increase of
$1.35 billion from the amount appropriated for Federal benefits in FY 2008. This increase is
primarily the result of annual cost-of-living adjustments (COLA) and a projected increase in SSI
recipients. The maximum monthly Federal Benefit Rate is increased each January based on
increases in the cost-of-living. A COLA of 2.3 percent was effective January 2008 and a
2.5 percent increase is projected for January 2009. The average number of Federal SSI
recipients is expected to increase from 7,155,000 in FY 2008 to 7,314,000 in FY 2009, an
increase of about 2.2 percent.

These increases are partially offset by the effect of OASDI COLAs on concurrent SSI/OASDI
recipients and the use of more carryover prior-year unobligated balances in FY 2009. Because
Social Security benefits are counted as income for concurrent recipients (about 36% of SSI
recipients) the higher income reduces the SSI benefit payment. SSA expects to use $1.2 billion
in carryover of prior-year unobligated balances for Federal benefit payments in FY 2009,
compared to an estimated $550 million in FY 2008.

Administrative Expenses

The SSI and Social Security programs are administered on an integrated basis for purposes of
economy and efficiency. The Social Security Act authorizes SSA to pay for SSI administrative
expenses from the Social Security trust funds through the Limitation on Administrative
Expenses (LAE) account. This appropriation funds the SSI program’s share of administrative
expenses incurred through the LAE account. In the event that actual SSI administrative
expenses exceed the amount available for reimbursement through this account in any fiscal
year, the trust funds are made whole in the subsequent fiscal year upon enactment of the SSI
appropriation for that year.

The FY 2009 request for SSI administrative expenses is $3,149,000,000. This includes
$217 million in cap adjustment funding specifically for program integrity activities such as
continuing disability reviews, SSI redeterminations, and asset verification initiatives. This
additional funding will allow SSA to process an additional 112,000 continuing disability reviews
and 636,000 redeterminations.

These amounts exclude funding made available in the LAE account from State supplementation
user fees. State supplementation is mandatory for certain recipients who were on State rolls
just prior to the creation of the Federal program in 1974. Otherwise, States are encouraged to
supplement the Federal benefit and may elect to have SSA administer their program. States
that choose to have SSA administer their program reimburse SSA for the costs of administering
the program based on a user fee schedule established by the Social Security Act. The LAE
account assumes funding of $145,000,000 from State supplementation user fees in FY 2009.

Beneficiary Services

This activity funds reimbursements to Vocational Rehabilitation (VR) agencies for rehabilitation
services provided to SSI recipients. It also funds payments to Employment Networks authorized
under the “Ticket to Work and Work Incentives Improvement Act of 1999” (P.L. 106-170). SSA
plans to obligate $57 million for beneficiary services in FY 2009, mostly funded from prior-year
unobligated balances.

The Ticket legislation allows SSI disabled recipients more flexibility in obtaining “return to work” services by providing them with a Ticket to offer an Employment Network of their choice in exchange for VR services, employment services, and other support services. The regulation to
implement the Ticket to Work Program was effective January 28, 2002. The Ticket program has been rolled out to all States and U.S. territories since September 2004. In August 2007, SSA
published a Notice of Proposed Rule Making to simplify and improve the Ticket to Work
program. SSA expects to publish the final regulation in 2008.

Research

Sections 1110 and 1115 of the Social Security Act provide funding authority, including waiver
authority for the SSI program where appropriate, for research and demonstration projects.
Authority is provided for conducting both broad-based cross-program projects in the Social
Security and SSI programs and projects dealing with specific SSI program issues.
Section 1144 of the Social Security Act requires SSA to conduct outreach efforts to identify
individuals who may be eligible for payment of the cost of Medicare under the Medicare Savings
Program. The passage of the Medicare Prescription Drug, Modernization, and Improvement Act
of 2003 (P.L. 108-173), expanded the existing cost-sharing outreach requirements of
section 1144 to include outreach to beneficiaries who may potentially be eligible for Medicare
prescription drug subsidies under Medicare Part D.

The $35 million request for the FY 2009 extramural research program, along with $13.4 million
in funds carried over from FY 2008, will fund a range of activities, including projects to develop
effective rehabilitation and return-to-work strategies, analyze reform proposals to ensure
sustainable solvency, maintain and improve basic data about the Social Security and SSI
programs and beneficiaries, and provide outreach to potential beneficiaries of the Medicare
Savings Program and prescription drug subsidies. Some of the major research efforts are as
follows:

Youth Transition Demonstration (YTD)—assists young people with disabilities to transition to
the workforce.

The projects focus on youth between the ages of 14 and 25 who receive (or could receive)
disability benefits. In addition, five pilot sites have been funded for a year beginning in 2007. In
November, 2007, on the basis of a systematic assessment of the pilot operation and
advancement of the SSA research agenda, three of these sites were selected to fully implement
their YTD projects beginning in 2008. The overarching goal of the YTD is to find ways to enable
young people with disabilities to maximize their potential for self-sufficiency. The projects also
are testing whether modified SSI rules will encourage YTD participants to work and save for
their future. Throughout implementation of YTD, project staff receives technical assistance and
training. The YTD project has joint funding with section 234, as appropriate, based on the
participation of Title II and Title XVI beneficiaries.

Evaluation of the Ticket to Work—the evaluation will examine participation by both
beneficiaries and the new Employment Networks (EN) created by the program. It will also
provide feedback to policymakers through periodic reports detailing data collection, findings and
recommendations for program modifications.

The findings thus far indicate that the Ticket program has significant potential but that
improvements in beneficiary awareness and EN incentives are needed. Survey findings show
that many more beneficiaries are interested in employment and working their way off disability
benefits than is reflected in Ticket to Work program participation. Most beneficiaries remain
unaware of the Ticket to Work program despite various efforts by SSA to publicize the program.
Among those who are aware, a small, but significant number, have tried to use their Ticket but
have been unable to find an EN to accept it. Participation by ENs has been disappointing and
the evaluation indicates that the current payment rules are not providing enough revenue by
ENs to cover their costs. SSA initiatives to reduce EN costs have helped but have not
significantly affected EN profitability. The proposed changes to the Ticket to Work program
regulations are designed to address this cost/revenue imbalance and hold promise for reinvigorating the program.

Compassionate Allowance—a new initiative designed to expedite disability determinations for
individuals who, often at the time of application, meet SSA’s medical criteria for disability. The
project intends to reduce SSA’s disability hearings backlog by ensuring that such claims are
allowed early in the claims process.

Funding of this initiative supports the following activities:

• Interagency Agreements with the National Institutes of Health, including agreements with
its individual institutes and grantees.
• Development of an up-to-date, disease-specific medical information data-base
specifically designed to be applicable to SSA’s disability criteria.
• Investigation of how advances in medical and information systems technologies can be
applied to expedite SSA’s processing of compassionate allowances.
• Obtaining expert advice from organizations such as the Institute of Medicine or the
National Academy of Social Insurance on discrete medical issues pertaining to SSA’s
medical criteria for determining disability.
• Development of user-friendly tools designed to aid claimants’ interactions with SSA’s
disability claims processes.
• Field testing and implementation of tools designed to improve disability processes.

The Compassionate Allowances initiative is designed to quickly identify diseases and other
medical conditions that invariably qualify under the Listing of Impairments based on minimal
objective medical information.

Section 1144/1110 Outreach Requirements:

Medicare Buy-in—cost-sharing under the Medicaid program; Medicare Buy-in Outreach,
required by section 1144 of the Social Security Act, requires SSA to provide notification to those
potentially eligible for the Medicare Savings Program and help with prescription drug expenses
under Medicare Part D. In addition, SSA is required to share lists of those potentially eligible
with State Medicaid agencies.

Medicare Part D Prescription Drug Outreach—The major objective of these projects is to
increase enrollment of eligible low-income individuals into programs which assist Medicare
beneficiaries with their out-of-pocket medical expenses, including prescription drugs.
Homeless Outreach—this initiative will help SSA to demonstrate the effectiveness of using
skilled medical and social service providers to identify and engage homeless individuals with
disabilities as well as assist them with the application process. The service providers began
enrolling project participants in September 2004. As of October 2007, Homeless Outreach
Project & Evaluation (HOPE) grantees enrolled 9,054 homeless individuals in to the HOPE
project. Of those, 2,976 have been awarded benefits based on disability.

The HOPE initiative is focused on assisting eligible, homeless individuals in applying for SSI
and DI benefits. The HOPE projects will help SSA to demonstrate the effectiveness of using
skilled medical and social service providers to identify and engage homeless individuals with
disabilities as well as assist them with the application process.

In September 2004, SSA awarded an evaluation contract to Westat Inc. The evaluation report
was completed in October 2007.

Solvency Research

The research budget supports efforts to assess the economic and distributional effect of
proposals for reforming Social Security and keeping it financially sustainable now and in the
future. Two key projects are:

• Retirement Income Modeling, which uses econometric and simulation models to provide
policymakers with detailed information on the effects of changes in Social Security on
individuals and the economy, with projections for years into the future.

• The Retirement Research Consortium, which consists of three multi-disciplinary centers
that perform research and evaluation of retirement policies, disseminate results, train
young scholars and practitioners, and facilitate the use of SSA administrative data for
policy research purposes.

SOCIAL SECURITY ADMINISTRATION
Statement by the Commissioner of Social Security on Limitation on Administrative Expenses

The President’s fiscal year (FY) 2009 request for the Limitation on Administrative Expenses
(LAE) account is $10.327 billion, an increase of 6 percent or $582 million over FY 2008. The
LAE request, including funding derived from user fees, provides administrative resources for the
Old-Age and Survivors Insurance, Disability Insurance (DI), Supplemental Security Income
(SSI) programs, Special Benefits for Certain World War II Veterans, the Medicare prescription
drug program, and certain other Medicare support functions.

At this funding level, we expect to make significant progress with our Hearings Backlog
Reduction Plan by processing 85,000 more hearings in FY 2009 compared to FY 2008,
ultimately reducing the number of hearings pending from over 750,000 to 683,000 in one year.
We will be able to reduce the initial disability claims backlog to the lowest level in 10 years; the
pending level for these claims will drop below 500,000 for the first time since 1999. Finally, the
FY 2009 budget will put us in a better position to handle the onslaught of work we are
confronting due to the aging of the baby boomers. We plan to process over 400,000 additional
retirement claims in FY 2009 as compared to FY 2007, enabling SSA to keep up with the influx
of baby boomer claims.

Salaries and Operating Expenses

The LAE budget request includes $7.844 billion for Federal salaries and operating expenses,
including Federal pay raises and benefit increases and rent for SSA offices across the nation.
Approximately 70 percent of our administrative resources are used for personnel costs. The
remainder is used to support these personnel and the workloads they process. Due to fixed
cost increases, such as annual increases to Federal employee salaries, benefits, rent, and
guard services, the total requested increase is essential to avoid disruptions to the service SSA
provides and to help provide better service to the millions of Americans who count on us each
and every day.

SSA relies on a mix of full time equivalents and overtime to achieve its total workyears. This
budget supports 62,538 workyears for SSA proper, essentially providing stable staffing and
stopping a trend in recent years of declining staffing levels which has affected service to the
public. With 1,400 offices in cities and towns across America, it is important that SSA has
adequate staffing now and in the future to provide service to a growing number of beneficiaries.

State Disability Determination Services

The LAE budget request includes $1.946 billion for operating expenses for the State DDSs.
This represents a net increase of $102 million over the FY 2008 level, primarily to fund State
pay raises and higher costs for medical evidence. SSA estimates that almost 2.6 million initial
disability claims will be processed by the DDSs in FY 2009, nearly 20,000 more cases than in
FY 2008 and 70,000 more cases than in FY 2007. Efforts such as the successful electronic
disability process and SSA’s new Quick Disability Determination and Compassionate Allowance
processes will improve service to the public, helping claimants to receive decisions earlier at
this critical juncture in their lives.

In addition, SSA will continue its focus on program integrity by conducting periodic continuing
disability reviews (CDR). The FY 2009 President’s budget includes a proposal to dedicate
funding for increasing the number of CDRs conducted.

Information Technology Systems

The LAE budget request includes $504 million for Information Technology Systems (ITS) in
FY 2009. With this funding, SSA will be able to continue to invest in the Agency’s information
technology infrastructure. We are seeking new ways to automate workloads to increase
productivity and reduce the impact of the ongoing growth to our workloads. SSA will offer
additional services on our website, improve the automated services we offer by telephone,
provide more efficient and compassionate service to our disabled clients, and ensure that the
sensitive information entrusted to us is protected and can be restored in the case of a disaster.
Technology and business process improvements will both play an instrumental role in helping
SSA continue to make incremental productivity improvements. From FY 2001 through FY 2007, SSA achieved a cumulative 15.5 percent productivity increase. With the FY 2008 appropriation and the FY 2009 President’s Budget, we plan to achieve an additional 2 percent productivity increase in each of these years.

Program Integrity Activities

The President has proposed to set caps on net discretionary budget authority and outlays in
FY 2009. The FY 2009 President’s Budget would allow adjustments to these caps for spending
above a base level of funding for several Government-wide program integrity activities, including SSA’s CDRs and SSI redeterminations.

In FY 2009, the LAE base request includes a total of $264 million dedicated for CDRs and SSI
non-disability redeterminations. The request specifies that upon enactment of discretionary
spending caps, $240 million of SSA’s budget request would not count towards the overall cap
on discretionary budget authority. CDRs are the most effective mechanism SSA has for
determining whether DI and SSI disability beneficiaries have medically improved or continue to
meet the statutory definition of disability. CDRs are a proven, sound investment – yielding $10
in lifetime program savings for every $1 spent. SSI redeterminations are periodic reviews of
non-medical factors of SSI eligibility. The additional funding requested for redeterminations are
estimated to yield $7 in lifetime program savings for every $1 spent. SSA plans to process
329,000 medical CDRs and nearly 1.5 million SSI redeterminations in FY 2009. If found to be
cost effective as redeterminations, up to $40 million may be used for initiatives to improve the
disability process and up to $34 million may be used to expand the Access to Financial
Information project, which automates verification of SSI recipients assets held in banks. In total,
SSA estimates this program integrity funding in FY 2009 will result in over $4 billion in savings
over 10 years.

User Fees

The FY 2009 LAE request includes up to $145 million in funding from user fees that are paid by
States for Federal administration of SSI State supplementation payments. This is $12 million
higher than the FY 2008 level. Funding derived from the user fees helps cover the costs of
administering State supplementation payments. The FY 2009 LAE request also includes up to
$1 million in fees for certification of non-attorney representatives, as provided in section 303(c)
of the Social Security Protection Act.

Conclusion

SSA’s LAE budget provides the necessary resources to begin to halt the decline in customer
service by preventing further staffing losses and investing in needed technology. SSA will be
able to process substantially more retirement claims, keeping up with an onslaught of work as
baby boomers begin to retire, while significantly reducing the disability backlogs.
It is important to note that at less than 1.5 percent of SSA’s total outlays, the LAE budget is a
fiscally reasonable and responsible approach. A multi-year effort is needed to eliminate the
disability backlogs. In addition, SSA will not be able to handle some of its less visible work,
generally work that is done after an individual is approved for benefits.

SOCIAL SECURITY ADMINISTRATION
Statement by the Commissioner of Social Security on Office of the Inspector General
Background

As part of the Social Security Independence and Program Improvements Act of 1994, SSA was
provided with its own statutory Inspector General. As mandated by the Inspector General Act
of 1978, as amended, the Office of the Inspector General’s (OIG) mission is to protect the
integrity of SSA’s programs. The OIG is directly responsible for promoting economy, efficiency
and effectiveness in SSA programs and detecting and preventing fraud, waste and abuse. This
mission is carried out through a nationwide network of audits and investigations. In conducting
audits and investigations, the Inspector General works closely with both the Congress and SSA
to improve program management.

Budget Request

The fiscal year (FY) 2009 appropriation request for the OIG totals $98,127,000. This includes
$28,000,000 to be appropriated from general funds and $70,127,000 to be transferred from the
Social Security trust funds. OIG’s FY 2009 budget request provides funds for the current
operating expenses of its programs, including:
• Almost $86.8 million for salaries and benefits; and
• Almost $11.3 million for other operating expenses such as rent, travel, service agreements,
investigative equipment, and supplies.

This request is an increase of approximately $6 million (6.8 percent) compared to the FY 2008
enacted level. This increase covers the costs of payroll increases including Federal pay raises,
within-grade increases, benefit rate increases for health benefits, and higher costs for newer
employees hired under the Federal Employees’ Retirement System (FERS).
The budget request is driven primarily by costs (including salaries, benefits, rent and core
services) associated with supporting the staffing levels needed to conduct audits and
investigations. The FY 2009 request supports a staffing level of 604 workyears. With the
resources included in this request, OIG will continue to support ongoing major initiatives that
focus on key areas such as the protection of personally identifiable information, including the
protection and integrity of the Social Security number. OIG will also continue to aggressively
pursue anti-fraud activities on a variety of fronts. The Cooperative Disability Investigation
Program will continue to investigate disability program fraud while other personnel will combat
improper OASDI and SSI payments.

Conclusion

FY 2009 will bring new opportunities for the OIG to fulfill its mission, as well as to confront the
continuing challenges of assuring integrity in the nation’s largest benefit-paying programs. This
budget request provides funding to enable the OIG to carry out that mission and to support
SSA’s efforts to seek efficiencies, avoid erroneous payments, and combat fraud.

Coalition For Citizens With Disabilities Testimony

2008-02-29T14:28:00.000-05:00

Testimony of Marty Ford
Co-Chair, Social Security Task Force
Consortium for Citizens with Disabilities

On Behalf of:

American Council of the Blind
American Network of Community Options and Resources
Association of University Centers on Disabilities
Council of State Administrators of Vocational Rehabilitation
Easter Seals, Inc.
Epilepsy Foundation
Goodwill Industries International
National Alliance on Mental Illness
National Association of Disability Representatives
National Disability Rights Network
National Industries for the Blind
National Multiple Sclerosis Society
National Organization of Social Security Claimants’ Representatives
Paralyzed Veterans of America
Research Institute for Independent Living
The Arc of the United States
Title II Community AIDS National Network
United Cerebral Palsy
United Spinal Association

Chairman Obey, Ranking Member Walsh, and Members of the House Appropriations Subcommittee on Labor, HHS, Education and Related Agencies, thank you for inviting me to testify at today's hearing on Reducing the Disability Backlog at the Social Security Administration/FY 2009 Budget Overview.

I am a member of the public policy team for The Arc and UCP Disability Policy Collaboration, which is a joint effort of The Arc of the United States and United Cerebral Palsy. I serve as the current Chair of the Consortium for Citizens with Disabilities (CCD), and also serve as a Co-Chair of the CCD Social Security Task Force. CCD is a working coalition of national consumer, advocacy, provider, and professional organizations working together with and on behalf of the 54 million children and adults with disabilities and their families living in the United States. The CCD Social Security Task Force focuses on disability policy issues in the Title II disability programs and the Title XVI Supplemental Security Income (SSI) program.

The focus of this hearing is extremely important to people with disabilities. Title II and SSI cash benefits, along with the related Medicaid and Medicare benefits, are the means of survival for millions of individuals with severe disabilities. They rely on the Social Security Administration (SSA) to promptly and fairly adjudicate their applications for disability benefits. They also rely on the agency to handle many other actions critical to their well-being including: timely payment of their monthly Title II and SSI benefits to which they are entitled; accurate withholding of Medicare Parts B and D premiums; and timely determinations on post-entitlement issues that may arise (e.g., overpayments, income issues, prompt recording of earnings).

We appreciate SSA’s attention to improving services for people with disabilities within its limited resources and the agency’s efforts to improve its technological capacity in ways that will help to accomplish its work. However, under the current budget situation, people with severe disabilities have experienced increasingly long delays and decreased service in accessing these critical benefits. Processing times have grown, especially at the hearing level where delays have reached intolerable levels. In some hearing offices, claimant representatives report that claimants wait more than two years to receive a hearing and decision. There are thousands of cases that have been pending 900 days or longer.

We believe that the main reason for the increase in the disability claims backlogs is that SSA has not received adequate funds to provide its mandated services. Commissioner Astrue has made reduction – and elimination – of the disability claims backlog one of his top priorities. While the current situation is dire, without adequate appropriations to fund SSA, the situation will deteriorate even more.

We are encouraged by recent Congressional efforts to provide SSA with adequate funding for its administrative budget. The Fiscal Year 2008 appropriation for SSA’s Limitation on Administrative Expenses (LAE) was $9,746,953,000. This amount was $148 million above the President’s request and was the first time in years that the agency has received at least the President’s request.

While the FY 2008 appropriation will allow the agency to hire some new staff and to reduce processing times, it will not be adequate to fully restore the agency’s ability to carry out its mandated services. Between FY 2000 and 2007, Congress appropriated less than both the Commissioner of Social Security and the President requested, resulting in a total administrative budget shortfall of more than $4 billion. The dramatic increase in the disability claims backlog coincides with this period of under-funding the agency, leaving people with severe disabilities to wait years to receive the benefits to which they are entitled.

People with severe disabilities have been bearing the brunt of the backlog crisis. Behind the numbers are individuals with disabilities whose lives have unraveled while waiting for decisions – families are torn apart; homes are lost; medical conditions deteriorate; once stable financial security crumbles; and many individuals die. Numerous recent media reports across the country have documented the suffering experienced by these individuals. Access to other key services, such as reporting that a check has not been received or promptly recording earnings, also has been diminished. Local SSA field offices have been threatened with closing or having their hours open to the public reduced. Despite dramatically increased workloads, staffing levels throughout the agency are at the lowest level since 1974 when SSI payments began.

The President’s request for the SSA FY 2009 LAE is encouraging, but does not go far enough to put the agency on a clear path to provide its mandated services at a level expected by the American public. In order for SSA to meet its responsibilities, we estimate that the agency needs a minimum of $11.0 billion for its FY 2009 administrative budget. This amount will allow the agency to not only significantly reduce the backlog, but also keep local offices open, provide adequate telephone services to the public, and maintain the integrity of its programs by performing more continuing disability reviews and SSI redeterminations. We also recommend that SSA’s LAE budget authority be removed from the Section 302(a) and (b) allocations for discretionary spending.

In my testimony today, I will discuss (1) the impact on people with disabilities of insufficient funding for SSA’s administrative budget and (2) ways that SSA can reduce the backlog of disability claims and improve the disability claims process.

I. The Impact on People with Disabilities of Insufficient Funding
for SSA’s Administrative Budget

Other witnesses today will address the current state of SSA’s inadequate level of resources. However, we must recognize the real-life impact of the backlog and the ensuing delays for individuals with disabilities who must file claims for disability benefits and wait for a decision. Over the past year, there have been numerous media stories both national and local in newspapers, on the radio, and on television, which have documented the suffering experienced by these individuals. For example, a December 2007 New York Times front-page article told several compelling stories:

· A North Carolina woman had a hearing three years after her initial application was denied. She used an oxygen tank 24 hours a day because of emphysema and sleep apnea. She had lost her apartment and slept on her daughter’s sofa or at a friend’s house.
· A North Carolina man’s application was denied in 2003 despite severe diabetes and numerous hospital records and doctors’ opinions. His parents went into debt because of his medical bills and nearly lost their home. They obtained a lawyer to represent their son who still had to wait two years for a hearing. The parents were notified that their son, fearing another rejection, committed suicide, just two hours after his attorney called to say that the administrative law judge had approved the claim without the need for a hearing.

There are many other similar stories across the country. Testimony presented in Congress last year by a CCD-member organization described circumstances facing a sampling of claimants and demonstrates in human terms the terrible impact of the delays and the crises facing claimants every day:

An Alabama man, a former welder, had a stroke when he was only 48 years old. While waiting 18 months for his hearing, he cashed in all of his savings bonds and his health deteriorated. He had to move in with his elderly mother who had lung cancer. He had no means of support after she died and his brother lost his job after he had to move to Alabama to help out.
An Arizona father of six, a former construction worker, watched his wife develop a substance abuse problem because of their financial problems. This family had a history with delays – the claimant’s father died after suffering a heart attack caused in part by delays in processing his own disability claim.
A former cook and professional musician in Idaho with cancer pawned his belongings to survive while waiting for his hearing. Without health insurance, he was not able to receive consistent medical care for his cancer.
To survive while waiting for a hearing decision, an Iowa woman cashed out her work pension plan, paying early withdrawal penalties. She borrowed money and took out a lien on her car. She received inadequate medical care because she had no medical insurance.
A veteran in Kansas has been unable to pay the rent for his VA transitional program and became homeless.
In Kentucky, a single father of five (his wife committed suicide) with heart problems and other conditions had to give up a promising heart treatment when he lost his medical insurance while waiting for a hearing.
A Maine father became homeless with his wife and two children while waiting for a hearing. After eviction, the family could not stay in a shelter because of the children and they lived in his car.
A Massachusetts mother of two young daughters lived in a shelter after leaving an abusive domestic situation. Her hearing request, filed in January 2006, was lost and logged in 15 months later in April 2007 when she obtained an attorney.
A woman in Montana lived in an 8 foot by 20 foot building, with no plumbing. She previously lived in a mold-infested trailer without running water, a bathroom, or cooking facilities. She had no insurance and was unable to pay her doctor for four years.
A New Mexico father of four with leukemia, who is a former pipeline inspector, filed for bankruptcy because his wife’s income could not support the family.
A New York mother, a former State employee, was evicted and lost custody of her children when she could not provide a home for them. She lived in a homeless shelter for four months. Her depression, which worsened due to stress, resulted in a hospitalization.
A former tugboat captain in North Carolina had no insurance and could not obtain surgery for his back. A request to expedite his hearing to avoid foreclosure was denied. He lost his home, forcing him to move in with his elderly and ailing mother.
Even though a man in North Dakota had a rare form of a brain tumor and failing kidneys, his claim was denied and he filed an appeal. He and his wife had financial problems paying for his medications and medical bills and they applied for heating assistance.
An Ohio man with diabetes requires multiple surgeries because of an open stomach wound. He lost his apartment and moved in with a friend, which was detrimental to his wound because he required a very clean environment.
An Oregon man died in June 2005 at age 41 because of heart disease. He was homeless and moved frequently. His hearing, requested in 2004, was held in 2007, long after his death.
A Pennsylvania woman spent all of her savings and had to apply for welfare. Her house went to foreclosure but was saved by her fiancé. He had cancer and a poor prognosis and she worried that without him, she would lose her house and become homeless.
The file of a Rhode Island resident sat in the SSA district office for more than two years after a hearing was requested in 2004. The hearing office returned the request to the SSA district office because it did not have a claims folder attached. The hearing request and folder were finally sent to the hearing office in January 2007, after an attorney became involved.
A Texas woman, a former broker who has a Master’s Degree, lost her income and health insurance after filing for benefits. She also lost her home and has exhausted her savings to pay for medical care. After living with friends, she went to live with her elderly parents.
While his hearing was pending, a Washington veteran became homeless and lived at a local mission. Before becoming disabled, he successfully sold cars. Upon leaving his hearing, his attorney drove him to the mission to pick up a paper bag with all of his possessions and then drove him to the local VA hospital for in-patient medical treatment.
A long-time municipal government employee in West Virginia was having serious financial problems. He has received eviction notices, which had been forwarded to the hearing office but no response had been received.

If we were to ask claimant representatives to provide up-to-date information on their current caseloads, we would see similar heart-wrenching stories of people’s lives in financial ruin and chaos. What do these real-life stories about individuals caught in the process tell us about the current situation at SSA?

1. Processing times have reached intolerable levels.

The average processing time for cases at the hearing level has increased dramatically since 2000, when the average time was 274 days. In the current fiscal year, SSA estimates that the average processing time for disability claims at the hearing level will be 535 days, nearly twice as long as in 2000. It is important to keep in mind that this is an “average” and that many claimants will wait longer. In addition, the average processing times at the initial and reconsideration levels have grown over the last ten years by about 20 days at each level, with some cases taking much longer.

The current processing times in some hearing offices are striking, and much longer than the 535 days targeted by SSA in FY 2008. SSA statistics from December 2007 for its 144 hearing offices indicate that the average processing time at 43 hearing offices is above the projected average processing time. There is wide fluctuation, with some offices over 700 days. And even in those hearing offices below the average processing time, it is important to keep in mind that there will be many cases above the average and each of those cases represents an individual with disabilities who must wait for critical cash and medical insurance benefits.

SSA has worked hard over the last year to reduce the number of “aged cases” at the hearing level. During FY 2007, there were more than 60,000 cases that would have been pending 1,000 days or longer by the end of FY 2007. The SSA Office of Disability Adjudication and Review (ODAR) dramatically reduced this number to 108 cases at the end of FY 2007 and is now focusing on cases that have been pending 900 days or longer. There is still much work to be done since there were more than 135,000 cases pending 900 days or longer – nearly two and one-half years – at the beginning of FY 2008.

The impact of the budget and staffing cuts in district offices also affect the processing times at the hearing levels. Representatives have reported that cases are sitting longer in district offices after requests for hearings are filed, often adding months – or years – to the processing time. In a case described above from Providence, RI, a claimant was still waiting in 2007 for an ALJ hearing where the request for hearing was filed by the claimant pro se in 2004. The request was timely sent to the hearing office but without the claims folder. The hearing office returned the file to the SSA district office, where the case sat for more than two years. The hearing request and folder were finally sent to the hearing office in January 2007 after an attorney became involved in the case and started to track what happened. The hearing office scheduled the case for an expedited hearing in view of the more than two year delay.

2. The number of pending cases continues to increase.

In a recent report, the Government Accountability Office (GAO) noted that the hearing level backlog was “almost eliminated” from FY 1997 to FY 1999, but then grew “unabated” by FY 2006. The number of pending cases at the hearing level reached a low in FY 1999 at 311,958 cases. The numbers have increased dramatically since 1999, reaching 752,000 in FY 2008.

However, even for hearing offices with a lower number of pending cases, the numbers do not tell the whole story. Because of the disparities between hearing offices, many claimant representatives have reported that SSA has been transferring cases from offices with high numbers of pending cases to offices with lower numbers where the hearings are held by video conference, if the claimant agrees. While this is understandable in a national program, it nevertheless means that claimants who live near hearing offices with lower numbers of pending cases will end up waiting longer.

3. Staffing levels have decreased which means a decrease in service.

Representatives have noted the loss of Administrative Law Judges (ALJs) and support staff in hearing offices around the country. Former Commissioner Barnhart had planned to hire an additional 100 ALJs in FY 2006 but due to cuts in the President’s budget request, she was able to hire only 43. The real impact of the burden on the current ALJ corps can be seen by comparing statistics from 1998 and 2006. In FY 1998, there were 1,087 ALJs available to conduct hearings. This number dropped to 1,018 in FY 2006, while the number of pending cases more than doubled.

Whether there are an adequate number of ALJs may not even be the primary staffing issue in hearing offices. According to the GAO: “By the close of fiscal year 2006, SSA saw the highest level of backlogged claims and the lowest ratio of support staff over this period [FY 1997 to FY 2006].” Productivity is not related solely to the number of ALJs, but also to the number of support staff. In 2006, the actual ratio of support staff to ALJs was 4.12. SSA senior managers and ALJs recommend a staffing ratio of 5.25. The actual ratio represented a significant decrease, about 25 percent, from the recommended level, at a time when the number of pending cases had increased dramatically. It is also important to note that the number of pending cases older than 270 days was much lower when the support staff to ALJ ratio was higher (FY 1999 to FY 2001).

The SSA LAE appropriation for FY 2008 will allow the Commissioner to hire 150 new ALJs and some additional staff. We are encouraged that his goal is to reach a level of 1250 ALJs by early FY 2009. However, sufficient funding to maintain an adequate number of ALJs and support staff is necessary in FY 2009 and future years to continue reducing the backlog.

4. Impact on service provided in SSA field offices.

Under the current budget situation, people with severe disabilities have experienced long delays and decreased services provided in SSA field offices, which do not have adequate resources to meet all of their current responsibilities. “Over the past decade, the growth in the disability claims backlogs has coincided with a period of staff turnover and losses throughout the disability claims process.” SSA staffing levels are at the lowest level since the SSI program began making payments in 1974.

· Impact on disability claims. Under the current SSA budget situation, we are concerned that delays will grow not only at the hearing level but also at the initial and reconsideration levels. A recent action taken by SSA demonstrates the scope of the problem. In June 2006, SSA was forced to direct all available resources to the processing of initial applications, and away from processing reconsideration level cases, when the initial application backlog became too high. The decision to redirect resources was caused primarily by the cut in the President’s request for fiscal year 2006. In some states, this meant that reconsideration cases were not processed or were temporarily stopped, unless the claimant knew to notify the state agency of “dire circumstances.”

· Impact on post-entitlement work. The accumulated staffing reductions have already translated into SSA’s inability to perform post-entitlement work. Not surprisingly, with millions of new applications filed each year, SSA emphasizes the importance of processing applications, determining eligibility, and providing benefits. Once a person begins to receive monthly benefits, there are many reasons why SSA may need to respond to contacts from the person or to initiate a contact, known as “post-entitlement work.” Generally, this workload does not receive the priority it should. Frequently, when SSA is short on staff and local offices are overwhelmed by incoming applications and inquiries, agency workers are necessarily less attentive to post-entitlement issues. For people with disabilities, this can discourage efforts to return to work, undermining an important national goal of assisting people with disabilities to secure and maintain employment.

One key example of post-entitlement work that has fallen by the wayside in the past is the processing of earnings reports filed by people with disabilities. Typically, the individual calls SSA and reports work and earnings or brings the information into an SSA field office, but SSA fails to input the information into its computer system and does not make the needed adjustments in the person’s benefits. Years later, after a computer match with earnings records, SSA notices the person was overpaid, sometimes tens of thousands of dollars, and sends an overpayment notice to this effect to the beneficiary. These are situations where the individual is clearly not at fault. However, all too often, after receiving the overpayment notice, the beneficiary will tell SSA that he or she reported the income as required and SSA will reply that it has no record of the reports.

When this occurs, it may result in complete loss of cash benefits (Title II benefits) or a reduction in cash assistance (SSI). It also can affect the person’s health care coverage. To collect the overpayment, SSA may decide to withhold all or a portion of any current benefits owed, or SSA may demand repayment from the beneficiary if the person is not currently eligible for benefits. Not surprisingly, many individuals with disabilities are wary of attempting to return to work, out of fear that this may give rise to the overpayment scenario and result in a loss of economic stability and potentially of health care coverage upon which they rely. As a result of this long-term administrative problem, anecdotal evidence indicates that there is a widespread belief among people with disabilities that it is too risky to even attempt a return to work, because the beneficiary may end up in a frightening bureaucratic morass of overpayment notices, demands for repayment, and benefit termination.

· Impact on performing continuing disability reviews (CDRs) and SSI redeterminations. The processing of CDRs and SSI redeterminations is necessary to protect program integrity and avert improper payments. Failure to conduct the full complement of CDRs would have adverse consequences for the federal budget and the deficit. According to SSA, CDRs result in $10 of program savings and SSI redeterminations result in $7 of program savings for each $1 spent in administrative costs for the reviews. However, the number of reviews actually conducted is directly related to whether SSA receives the necessary funds. For example, the number of CDR reviews in 2006 was reduced by more than 50%, due to the lower level of appropriations. Even though the great majority of CDRs result in continuation of benefits, the savings from those CDRs that result in terminations are substantial because of the size of the program and the value of the benefits provided.

· New caseloads are added without providing the funds to implement these provisions. Over the past decade, Congress has passed legislation that added to SSA’s workload, but did not necessarily provide additional funds to implement these provisions. Recent examples include:

▪ Conducting pre-effectuation reviews on increasing numbers of initial SSI disability allowances. SSA must review these cases for accuracy prior to issuing the decision.

▪ Changing how SSI retroactive benefits are to be paid. SSA must issue these benefits in installments if the amount is equal to or more than three months of benefits. The first two installments can be no more than three months of benefits each, unless the beneficiary shows a hardship due to certain debts. Many more cases need to be addressed because under prior law, the provision was triggered only if the past due benefits equaled 12 months or more. With the trigger at three months, it is likely that many more beneficiaries ask SSA to make a special determination to issue a larger first or second installment.

▪ New SSA Medicare workloads. SSA has new workloads related to the Medicare Part D prescription drug program, including determining eligibility for low-income subsidies, processing subsidy changing events for current beneficiaries, conducting eligibility redeterminations, and performing premium withholding. And beginning in FY 2007, SSA must make annual income-related premium adjustment amount determinations for all current Medicare beneficiaries for the Medicare Part B premium for higher income beneficiaries. SSA also makes the determinations for new Part B applicants.

We were encouraged that in the recent Economic Stimulus Act of 2008, Congress recognized the added work that SSA will incur as a result of the legislation and appropriated an additional $31 million to the agency for FY 2008.

Our recommendations regarding SSA funding. SSA must be given enough funding to make disability decisions in a timely manner and to carry out other critical workloads. Due to the serious consequences of continued funding of SSA’s administrative expenses at inadequate levels, we strongly recommend that SSA receive $11 billion for its FY 2009 LAE. This amount will allow the agency to make significant strides in reducing the disability claims backlog, improving other services to the public, and conducting adequate numbers of CDRs and SSI redeterminations.

In addition, we also urge you to separate SSA’s LAE budget authority from the Section 302(a) and (b) allocations for discretionary spending. The size of SSA’s LAE is driven by the number of administrative functions it conducts to serve beneficiaries and applicants. The funds for Title II LAE are ultimately paid out of the Social Security Trust Funds and general revenues reimburse the Trust Funds for LAE costs associated with the Supplemental Security Income (SSI) program. There is a simple solution to SSA’s escalating funding crisis. Congress can remove SSA’s administrative functions from the discretionary budget that supports other important programs. SSA’s LAE would still be subject to the annual appropriations process and Congressional oversight.

II. OTHER RECOMMENDATIONS FOR IMPROVING THE DISABILITY CLAIMS PROCESS

In addition to SSA’s budget needs, the CCD Social Security Task Force has additional suggestions for improving the disability claims process for people with disabilities. Many of these recommendations have already been initiated by SSA. We believe that these recommendations and agency initiatives, which overall are not controversial and which we support, can go a long way towards reducing and eventually eliminating the disability claims backlog.

1. Improve development of evidence earlier in the process.

For many years, CCD has supported full development of the record at the beginning of the claim so that the correct decision can be made at the earliest point possible and unnecessary appeals can be avoided. Changes at the front end of the process can have a significant beneficial impact on preventing the backlog and delays later in the appeals process. Emphasis on improving the front end of the process is appropriate and warranted, since the vast majority of all claims allowed are approved at the initial levels. Such changes also will benefit the significant percentage of claimants denied at the initial level who would meet the SSA disability criteria if their cases were properly developed but who abandon their claims and do not appeal.

Developing the record so that relevant evidence from all sources can be considered is fundamental to full and fair adjudication of claims. The adjudicator needs to review a wide variety of evidence in a typical case, including: medical records of treatment; opinions from medical sources and other treating sources, such as social workers and therapists; records of prescribed medications; statements from former employers; and vocational assessments. The adjudicator needs these types of information to make the necessary findings and determinations under the SSA disability criteria.

The key to a successful disability determination process is having an adequate documentation base and properly evaluating the documentation that is obtained. Often, claimants are denied not because the evidence establishes that the person is not disabled, but because the limited evidence gathered cannot establish that the person is disabled. Unless claims are better developed at earlier levels, proposed procedural changes will not improve the disability determination process. Unfortunately, very often the files that denied claimants bring to claimant representatives show that inadequate development was done at the initial and reconsideration levels by the state agencies. Until this lack of evidentiary development is addressed, the correct decision on the claim cannot be made.

Claimants should be encouraged to submit evidence as early as possible. However, the fact that early submission of evidence does not occur more frequently is usually due to many legitimate reasons beyond the claimant’s control, including:

State agency disability examiners who fail to request and obtain necessary and relevant evidence, including the failure to request specific information tailored to the SSA disability criteria;
The failure of SSA and state agency disability examiners to explain to claimants or providers what evidence is important, necessary, and relevant for adjudication of the claim;
Cost or access restrictions, including confusion over Health Insurance Portability and Accountability Act (HIPAA) requirements, prevent claimants from obtaining records;
Medical providers who delay or refuse to submit evidence;
Inadequate reimbursement rates for providers; and
Evidence which is submitted but then misplaced.

A properly developed file is usually before the ALJ at the hearing level because the claimant’s representative has obtained evidence or because the ALJ has developed the claim. Not surprisingly, different evidentiary records at different levels can easily produce different results on the issue of disability. To address this, the agency needs to emphasize the full development of the record at the beginning of the claim.

We have a number of recommendations that we believe will improve the development process:

· Provide more assistance to claimants at the application level. At the beginning of the process, SSA should explain to the claimant what evidence is important and necessary. SSA should also provide applicants with more help completing application paperwork so that all impairments and sources of information are identified, including non-physician and other professional sources, in addition to physicians.

· DDSs need to obtain necessary and relevant evidence. Representatives often are able to obtain better medical information because they use letters and forms that ask questions relevant to the disability determination process. DDS forms usually ask for general medical information (diagnoses, findings, etc.) without tailoring questions to the Social Security disability standard. DDSs should update and improve their forms to specifically request necessary information. This should include collecting functional capacity information, which is generally obtained at the ALJ hearing level but less so at the initial levels. In addition, SSA has created some national forms to collect evidence, but they vary in quality. The situation is further complicated because some DDSs use their own forms, which also vary in quality. SSA should review its own national forms and DDS forms that are used to collect evidence, and set standards for state-specific forms to ensure higher quality.

The same effort should be made with non-physician sources (therapists, social workers) who see the claimant more frequently than the treating doctor and have a more thorough knowledge of the individual’s limitations.

It also should be emphasized that all of these sources should be contacted for clarification to ensure that information is not misconstrued and that decisions are not made on apparent inconsistencies, when in fact, none exist.

· Increase reimbursement rates for providers. To improve provider response rates to requests for records, appropriate reimbursement rates for medical records and reports need to be implemented. This also will help to improve the medical expertise available to adjudicators for consultative examinations and for medical experts.

· Provide better explanations to medical providers. SSA and DDSs should provide better explanations to all providers, in particular to physician and non-physician treating sources, about the disability standard and ask for evidence relevant to the standard.

· Provide more training and guidance to adjudicators. Many cases that reach the appeals levels are reversed due to erroneous application of existing SSA policy. Additional training should be provided on important evaluation rules such as the rules for: weighing medical evidence, including treating source opinions; the role of non-physician evidence; the evaluation of mental impairments, pain, and other subjective symptoms; the evaluation of childhood disability; and the use of the Social Security Rulings, which provide very useful guidance in many areas of disability evaluation and are to be followed by all disability adjudicators.

· Improve use of the existing methods of expediting disability determinations. SSA already has in place a number of methods, often under-utilized, which can expedite a favorable disability decision if the appropriate criteria are met. These include: “Quick Disability Determinations,” Presumptive Disability in SSI cases, and terminal illness (“TERI”) cases.

· Improve the quality of consultative examinations. In addition to increasing reimbursement rates, steps should be taken to improve the quality of the consultative examination (CE) process. There are far too many stories about inappropriate referrals, short perfunctory examinations, and examinations conducted in languages other than the applicant’s. This is wasted money for SSA and unhelpful to individuals, especially those who with low incomes, who do not have complete medical records documenting their conditions and who need a high quality CE report to help establish their eligibility. The regulations allow SSA to pay treating physicians to provide CEs, but they are rarely used in that capacity. SSA should explore ways to expand use of treating physicians to provide this information. Also, to ensure that its funds are being used as effectively and appropriately as possible, SSA should provide more oversight of the CE process, which is conducted by the state agencies.

Is there a “culture of denial” at the early levels of the process? Recent media reports have raised the issue of whether a “culture of denial” exists at the initial and reconsideration levels of the disability claims process because of the high denial rate at those levels, while a majority of cases appealed to the ALJ hearing level are allowed. We do not know of any specific written documents that encourage denials at the earlier levels, but there are several reasons, in addition to the high denial rate, why there is a perception that a “culture of denial” exists.

By law, SSA must review at least 50 percent of all favorable disability determinations made by the state agencies. However, there is no similar requirement for the review of denials. As a result, state agency disability examiners know that they will receive more review – and possible feedback – if they allow a claim, but not if it is denied. A key question is whether this process influences or makes it easier for a disability examiner to deny – rather than allow – a claim.

In addition, the state agencies are held to “standards of performance,” by which SSA measures their compliance with SSA regulations and policy. The “standards of performance” include processing time standards. Because of the processing time levels, we believe that the state agencies are under pressure to cut short efforts to obtain medical information and to make decisions on cases with incomplete records.

Finally, there is great variation in allowance/denial levels among the state agencies. There are a number of legitimate factors for this variation, but it is possible that the “culture” in certain state agencies could lead to a higher level of denials. This is an area that should be more closely examined.

The above factors, alone or in combination, should be examined to determine whether they produce a leaning toward denial of cases at this initial stage in the review process.

In the Commissioner’s May 2007 backlog elimination initiatives, there are two efforts that relate to the issue of reconsideration denials. SSA’s Office of Quality Performance is reviewing 14,000 reconsideration denials, drawn at random over a one-year period from 15 state agencies that have low accuracy rates. The review began in September 2007 and will continue during FY 2008. The purpose of the initiative is to detect and correct erroneous reconsideration decisions, to make recommendations for addressing identified problems, and to eventually reduce the number of hearing-level appeals. The results of this initiative will be informative.

Under another initiative, cases have been informally remanded to DDSs based on “scoring profiles” from the Office of Quality Performance. DDSs agreed to review about 20,000 paper cases and SSA estimated that approximately 20% of the cases would be allowed. The allowance rate has actually been much higher – about 54%. In FY 2008, SSA plans to send a total of 51,000 cases to the DDSs, with an estimated 10% allowance rate. If the DDS does not issue a favorable decision, the cases return to ODAR with more development and move to the front of the queue for scheduling.

2. Expand technological improvements.

Commissioner Astrue has made a strong commitment to improve and expand the technology used in the disability determination process. CCD generally supports SSA’s technological initiatives to improve the disability claims process, so long as they do not infringe on claimants’ rights. Many of these improvements will not only reduce delays, but also provide better service to the public, and do not require fundamental changes to the process. The initiative to process disability claims electronically has the prospect of significantly reducing delays by eliminating lost files, reducing the time that files spend in transit, and preventing misfiled evidence. Some of the technological improvements that we believe can help reduce the backlog include the following:

· The electronic disability folder: “eDIB.” The Commissioner is moving forward with development of the electronic disability folder, “eDIB.” The electronic folder should reduce delays caused by the moving and handing-off of folders, allowing for immediate access by whichever component of SSA or DDS is working on the claim.

· Electronic Records Express (ERE). ERE is an initiative to increase the use of electronic options for submitting records related to disability claims that have electronic folders. Currently, registered claimant representatives are able to submit evidence electronically through the SSA secure website or to a dedicated fax number. The representative is given a barcode for the claim and the information in the barcode directs the information submitted to the claimant’s unique electronic disability folder.

SSA plans to expand use of ERE to allow representatives the ability to view the electronic folder online and to receive notices electronically. A pilot is targeted to begin in June 2008. Claimant representatives are very supportive of this expansion, as it will allow them to view the folder as soon as representation is obtained and will allow them to determine what additional evidence is needed in the claim or if submitted evidence is missing. Currently, claimant representatives receive CDs of files at different stages while cases are pending at the hearing level or they can request a CD from the SSA field office. However, requesting CDs causes more work for SSA workers and can lead to delays until they are received. Direct access to the secure website will eliminate both of these issues.

SSA also is working to allow the filing of appeals over the Internet.

· Findings Integrated Templates (“FIT”). FIT is used for ALJ decisions and integrates the ALJ’s findings of fact into the body of the decision. It is a “smart” decision-writing process, i.e., while it does not dictate the ultimate decision, it requires the ALJ to follow a series of templates to support the ultimate decision. The vast majority of ALJs are now using FIT to write their decisions. FIT is available to the public on SSA’s website and claimant representatives can use FIT to draft favorable decisions for ALJs. SSA is encouraging ALJs to accept draft decisions from representatives. Claimant representatives have reported problems with downloading FIT from the public website. These concerns have been relayed to SSA and we are hopeful that they will be resolved in the near future.

· Use of video hearings. The Commissioner is expanding the use of video hearings at the ALJ level. This allows ALJs to conduct hearings without being at the same geographical site as the claimant and representative and has the potential to reduce processing times and increase productivity. Claimant representatives have participated in hearings around the country and have reported a mixed experience, depending on the benefit for claimants, the quality of the equipment used, and the hearing room set-up.

We support the use of video teleconference hearings so long as the right to a full and fair hearing is adequately protected; the quality of video teleconference hearings is assured; and the claimant retains the absolute right to have an in-person hearing as provided under current regulations.

3. New screening initiatives.

We support efforts by SSA to accelerate the receipt of benefits for individuals with disabilities and support the agency’s desire to develop new mechanisms to expand the population of claimants who may qualify for expedited eligibility throughout the application and review process. Ideally, adjudicators should use SSA screening criteria as early as possible in the process. However, we also encourage the use of ongoing screening as claimants obtain more documentation to support their applications.

Although we support expedited screening mechanisms, we urge caution so that any new eligibility criteria do not create unintended consequences for individuals who may qualify later in the process. In other words, we do not support any expedited screening process that may eliminate the ability of applicants to continue through the full sequential evaluation. For some claimants, a medical diagnosis may provide the objective evidence of their impairment. However, we express concern about any approach that may either inadvertently diminish the significance of functional evidence or overlook the substantial obstacles that a very large number of individuals face to obtain medical evidence to support their claims. In addition, SSA must work to ensure that there is no negative inference when a claim is not selected by the screening tool or allowed at that initial evaluation.

There are two initiatives that hold promise:

· Quick Disability Determinations. We have supported the Quick Disability Determination (QDD) process since it first began in SSA Region I states in August 2006 and was expanded nationwide by Commissioner Astrue in September 2007. Under QDD, a computer screening tool identifies initial claims with a high likelihood of a favorable disability determination. The QDD process has the potential of providing a prompt disability decision to those claimants who are the most severely disabled. Since the QDD process’s August 2006 implementation in Region I states, the initial QDD results have been very positive. In particular, we are impressed that the vast majority of QDD cases have been decided favorably in less than 20 days. Currently, the majority of cases referred for QDD processing involve cancer. However, Commissioner Astrue intends to expand the number and types of cases referred to the QDD process and we support this expansion.

· “Compassionate allowances.” In July 2007, SSA published an Advance Notice of Proposed Rulemaking (ANPRM) on a proposed new screening mechanism for disability determinations to be known as “Compassionate Allowances.” According to the ANPRM, SSA is “investigating methods of making ‘compassionate allowances’ by quickly identifying individuals with obvious disabilities.” While there is no definition of disabilities that are considered “obvious,” there is emphasis on creating “an extensive list of impairments that we [SSA] can allow quickly with minimal objective medical evidence that is based on clinical signs or laboratory findings or a combination of both….” Like the QDD process, SSA is looking at the use of computer software to screen cases by searching claims for key words in the electronic folder. An outreach hearing was held on December 4 and 5, 2007, regarding this initiative. We understand that additional hearings will be held.

The CCD Social Security Task Force submitted comments to the ANPRM and we are generally supportive of this initiative so long as it does not eliminate the ability of applicants to continue through the full disability evaluation process. While recognizing that it is a laudable goal to expedite eligibility for individuals with terminal illnesses or other very serious conditions, we do not support a screening method that may create unintended consequences for individuals who do not meet the objective screening criteria and must collect documentation of their functional limitations.

In our comments to the ANPRM, we also made a number of specific recommendations for screening mechanisms including:

▪ A broader screening mechanism that goes beyond the existing “terminal illness” (TERI) process to include a wider range of claimants and publish criteria in the regulations;
▪ A preliminary, nonexhaustive list of impairments – affecting both children and adults –
to consider for the new screening process;
▪ Strengthening SSA rules regarding the evaluation and weighing of VA disability ratings for veterans who apply for Title II or SSI disability benefits; and
▪ Applying the new expedited screening mechanism throughout the application and review process when file evidence indicates the claimant meets the criteria.

4. Other hearing level improvements.

· The Senior Attorney Program. In the 1990s, as an initiative to reduce the backlog of cases at hearing offices, senior staff attorneys were given the authority to issue fully favorable decisions in cases that could be decided without a hearing (i.e. “on the record”). This program was well received by claimants’ representatives because it presented an opportunity to present a case and obtain a favorable result efficiently and promptly. And, of most importance, thousands of claimants benefited. While the Senior Attorney Program existed, it helped to reduce the backlog by issuing approximately 200,000 decisions. The initiative was phased out in 2000, just about the same time that the backlog began to increase.

We are pleased that Commissioner Astrue has decided to reinstate the program for at least the next two years and has proceeded with its implementation. We believe that this initiative will help to reduce the backlog of cases at the hearing level as the prior program did during the 1990’s.
· Increasing the time for providing notice of hearings. Current regulations in most of the country provide only a 20-day advance notice for ALJ hearings. This time period is not adequate for requesting, receiving, and submitting the most recent and up-to-date medical evidence prior to the hearing. Some hearing offices, but not on a nationwide basis, do provide much longer advance notice, some as long as 90 days. In SSA Region I states under the “Disability Service Improvement (DSI)” process, the time has been increased to 75 days, with the goal of providing adequate time to obtain new evidence (although, there is no requirement that providers, such as medical offices and hospitals, submit evidence within that time period).
SSA has proposed to expand the 75-day hearing notice requirement nationwide. We strongly support this proposed change. This increased time period will mean that many more cases would be fully developed prior to the hearing and lead to more on the record decisions, avoiding the need for a hearing.
Caution regarding the search for efficiencies. While we generally support the goal of achieving increased efficiency throughout the adjudicatory process, we caution that limits must be placed on the goal of administrative efficiency for efficiency’s sake. The purpose of the Social Security and SSI programs are to provide cash benefits to those who need them and have earned them and who meet the eligibility criteria. While there may be ways to improve the decision-making process from the perspective of the adjudicators, the bottom line evaluation must be how the process affects the very claimants and beneficiaries for whom the system exists.
People who find they cannot work at a sustained and substantial level are faced with a myriad of personal, family, and financial circumstances that will have an impact on how well or efficiently they can maneuver the complex system for determining eligibility. Many will not be successful in addressing all of SSA’s requirements for proving eligibility until they reach a point where they request the assistance of an experienced representative. Many face educational barriers and/or significant barriers inherent in the disability itself that prevent them from understanding their role in the adjudicatory process and from efficiently and effectively assisting in gathering evidence. Still others are faced with having no “medical home” to call upon for assistance in submitting evidence, given their lack of health insurance over the course of many years. Many are experiencing extreme hardship from the loss of earned income, often living through the break-up of their family and/or becoming homeless, with few resources - financial, emotional, or otherwise - to rely upon. Still others experience all of the above limits on their abilities to participate effectively in the process.
We believe that the critical measure for assessing any new initiatives for achieving administrative efficiencies must be the potential impact on claimants and beneficiaries. Proposals for increasing administrative efficiencies must bend to the realities of claimants’ lives and accept that people face innumerable obstacles at the time they apply for disability benefits and beyond. SSA must continue and improve its established role in ensuring that an individual’s claim is fully developed before a decision is made and must ensure that its rules reflect this administrative responsibility.
On October 29, 2007, SSA published a Notice of Proposed Rulemaking (NPRM), which would make major changes to the appeals process. The disability community and others registered significant concerns and opposition to major sections of the NPRM because of the impact the proposals would have on claimants and beneficiaries. As a result, Commissioner Astrue has announced that he is withdrawing the controversial sections of the proposal and we believe that he and his staff are working in good faith to find alternative approaches which will not have negative impacts on claimants. We applaud Commissioner Astrue’s efforts and have pledged to work with SSA to find such alternative approaches.

CONCLUSION

Thank you for the opportunity to testify today. For people with disabilities, it is critical that SSA be given enough funding to make disability decisions in a timely manner and to carry out its other mandated workloads.

We also support changes to improve the disability claims process so long as those changes do not affect the fairness of the procedures used to determine disability. For people with disabilities, it is critical that SSA receive adequate funding to carry out its mandated services and improve its process for making disability determinations.

On Behalf of:

American Council of the Blind
American Network of Community Options and Resources
Association of University Centers on Disabilities
Council of State Administrators of Vocational Rehabilitation
Easter Seals, Inc.
Epilepsy Foundation
Goodwill Industries International
National Alliance on Mental Illness
National Association of Disability Representatives
National Disability Rights Network
National Industries for the Blind
National Multiple Sclerosis Society
National Organization of Social Security Claimants’ Representatives
Paralyzed Veterans of America
Research Institute for Independent Living
The Arc of the United States
Title II Community AIDS National Network
United Cerebral Palsy
United Spinal Association

Social Security Advocacy Group Written Testimony

2008-02-29T14:27:00.000-05:00

United States House of Representatives
Appropriations Committee
Subcommittee on Labor, Health and Human Services, and
Education, and Related Agencies
Written Testimony for the Record
of Richard E. Warsinskey, Past President
National Council of Social Security Management Associations Inc.
February 28, 2008

Chairman Obey, Congressman Walsh and Members of the Subcommittee, my name is Richard Warsinskey and I represent the National Council of Social Security Management Associations (NCSSMA). I have been the manager of the Social Security office in Downtown Cleveland, Ohio for nearly thirteen years and have worked for the Social Security Administration for thirty-two years. I also help coordinate the activities of the SSA Advocacy Group. This group works to improve SSA’s services at all levels. Members include many senior organizations, a number of disability support groups, SSA and Disability Determination Service associations, and Federal employee unions. On behalf of our membership and in support of our Advocacy Group, I am pleased to have the opportunity to submit this written testimony to the Subcommittee.

NCSSMA is a membership organization of nearly 3,500 Social Security Administration (SSA) managers and supervisors who provide leadership in over 1,300 Field Offices and Teleservice Centers throughout the country. We are the front-line service providers for SSA in communities all over the nation. We are also the federal employees with whom many of your staff members work to resolve problems and issues for your constituents who receive Social Security retirement benefits, survivors or disability benefits, or Supplemental Security Income. From the time our organization was founded over thirty-seven years ago, NCSSMA has been a strong advocate of efficient and prompt locally delivered services nationwide to meet the variety of needs of beneficiaries, claimants, and the general public. We consider our top priority to be a strong and stable Social Security Administration, one that delivers quality and prompt community based service to the people we serve, your constituents.

The Fiscal Year 2009 Budget and Past Budgets

The President has proposed a budget of $10.327 billion for SSA’s Limitation on Administrative Expenses (LAE) account for FY 2009. This is an increase of $582 million over the FY 2008 funding level. It is also $730 million more than what the President proposed for FY 2007. This significant increase in the President’s recommended funding level for SSA is quite a departure from budget requests that have been proposed in recent years. In FY 2007, the President’s proposed budget for SSA’s administrative funding was only $100 million over the proposed funding level for FY 2006.

We are supportive of this increased funding proposed by the President. We are also appreciative of the fact that Congress appropriated $150 million more for SSA in FY 2008 than the President recommended. This reverses a five-year trend in which SSA has been appropriated on average about $150 million less per year than the President’s budget request. However, we believe that in order to meet all of SSA’s service delivery responsibilities additional funding above the President’s budget is necessary. We believe an additional $200-$250 million above a potential reserve fund of no less than $240 million for program integrity workloads would begin to address the areas where SSA’s services must be improved and upgraded. Thus we recommend total SSA FY 2009 administrative funding be no less than $10.767-$10.817 billion. Our testimony below will detail the reasons why we believe additional resources are necessary.

How Reduced Investments Have Affected SSA Disability Services

The level of administrative funding that SSA has received in recent years has affected the agency’s delivery of disability services in many ways. The following is a summary of a few key impacts:

As of January 2008 about 751,000 cases, a near record high, were awaiting a hearing on an appealed claim, compared to only 312,000 cases at the beginning of FY 2000. Nearly 300,000 of these appeals are over 1 year old. Approximately 91,000 veterans have pending hearings. The average processing time for a hearing is currently over 500 days, up about 200 days from earlier this decade. These delays are in addition to the nearly nine months that precede most appeals for a hearing for the initial claim and reconsideration claim filing. In addition, if a hearing is denied claimants wait on average another 200 days for the decision from the Appeals Council.

The delays have wreaked havoc on the lives of thousands of individual Americans and their families. There have been many major media stories reported in the past year chronicling how disability applicants have lost their homes and families, and become more and more desperate as they wait for an answer from SSA. Many do not have health insurance, and without approval for Social Security and SSI, will not be able to get any insurance. Thus, their health continues to decline. Tragically, thousands of disability applicants have died while waiting for a hearing.

The Disability Determination Services (DDSs) have lost over 1,100 positions since the beginning of FY 2006. As a result, their staffing levels are down nearly 8%. The attrition rate in recent years at the DDSs has averaged 12.7 % versus 6.8% for Federal government employees. (This is due primarily to the lower wage level of these jobs compared to other jobs within the area where these examiners work.) This has forced the DDSs to invest large sums of money in training new staff. This diverts precious dollars away from making quicker decisions.

The Office of Disability Operations which handles the back end of disability cases currently has over 750,000 actions pending. This compares to 511,000 pending at the beginning of FY 2007. The average amount of time it takes for a Benefit Authorizer to process a case they are assigned as of the end of January 2008 is 401 days. For Claims Authorizers it is 484 days. This is a primary reason why Congressional offices receive so many requests for assistance regarding this part of the operation in SSA. This is occurring even though the Office of Disability Operations currently makes available 8 hours of overtime on Saturdays and 6 hours on Sunday. This Program Center has lost almost 600 positions since the beginning of FY 2005 and is losing a great deal of its institutional knowledge due to the retirement wave. The seven Program Centers nationwide have lost nearly 1,400 positions since the beginning of FY 2005, and can only replace 1 for every 2 losses this year.

In past years, funding shortages have forced SSA to cut back on program integrity activities, such as Continuing Disability Reviews (CDRs), which save $10.30 in program costs for every $1 spent in administrative dollars; and SSI eligibility redeterminations, which save $7 for every $1 spent in administration dollars. This year SSA plans to process only 235,000 CDRs. Due to reductions in processing CDRs in recent years, SSA is expected to have 1.225 million CDRs that should have been worked, but were instead deferred.

How Reduced Investments in SSA Field Offices Have Reduced Services

The level of administrative funding that SSA has received in recent years has affected the agency’s Field Office services in many ways. The following is a summary of a few key impacts:

51% of callers who try to reach a Field Office receive a busy signal.

Since the beginning of FY 2006, SSA’s 1,267 Field Offices have lost over 1,700 Claims Representatives and over 520 Service Representatives.

The combined impact of staffing reductions, the lack of funds for overtime to address ever-increasing workloads, and more visitors coming into Field Offices, has resulted in significant increases in waiting times in many offices for the public we serve. In many of SSA’s larger urban offices, it is not uncommon for the public to wait in excess of two to four hours to be served by an SSA representative.

This year SSA plans to process 1.2 million SSI redeterminations. This is 1 million fewer SSI redeterminations than were processed per year earlier this decade. These reductions are costing taxpayers a great deal of money: Billions of dollars. This is a key reason why the SSI benefit payment error rate has increased from 6.4% to 7.9% from FY 2005 to FY 2006.

Since FY 2006, SSA has reduced the number of Field Offices by about 17 due to closing or merging of offices as the agency attempts to handle its increasing workloads with insufficient resources. SSA has also closed hundreds of contact stations in the past decade.

Impact of the FY 2008 Budget on SSA’s Resources

SSA is planning to hire a net increase of at least 150 Administrative Law Judges this year with the increased funding for FY 2008. A judge clears an average of 500 hearings a year. This should begin to address the very large backlog of hearing claims.

SSA is planning on replacing these losses of positions during the actual period of this Fiscal Year:

7 of 10 losses in Field Offices
1.2 to 1 losses in Teleservice Centers
2 for 5 losses in Payment Centers
1 of 2 losses in the Disability Determinations Services (DDSs)

These replacements will not address the staffing losses that have occurred at the agency over the past several years and will only barely (except for the Teleservice Centers) address the losses this year. Thus, they will clearly not make these critical service components “whole.”

SSA’s New Workload Challenges: The Baby Boomers

SSA will continue to face significant workload challenges in future years. Due in large part to the aging of the baby boomers, the number of workers receiving Social Security retirement benefits will increase by 13 million over the next 10 years. 78 million baby boomers will be eligible for benefits, or over 16,000 per working day. In a recent survey of NCSSMA members, one SSA Field Office supervisor made this fairly typical comment: “We know that the baby boomers will be flooding SSA with applications. At the same time, SSA's baby boomer employees will be retiring too. We need to start hiring in the Field Offices so that the experienced employees can mentor/train the new employees to take over.”

Those retiring have important decisions to make about collecting their Social Security. Many will receive over a quarter of a million dollars in benefits. In fact the maximum benefit at full retirement this year is over $26,000 per year. There are many options to consider when filing for benefits. Should you take your benefit as early as 62 if you are retired? Should you wait until your full retirement age of 66? Or even delay drawing benefits until age 70 and receive an even larger amount? When should a spouse take benefits? When should a widow take benefits? How will working affect your benefits?

These are complicated decisions that will affect the retiree for the rest of their life, and SSA Field Offices have trained Claims Representatives that work with applicants to help them make these decisions. But in order to provide this very important service SSA needs to have a trained staff available.

On average, it takes 3 to 4 years for a Claims Representative to be fully trained. SSA makes a major investment in these positions. SSA is now facing a retirement wave of the employees brought on in the 1970s, resulting in a significant loss of the agency’s institutional knowledge. It is imperative that SSA has an adequate number of Claims Representatives, an extremely important position in the agency. The challenge of the retirement wave is described in this statement by a Field Office Assistant Manager in our recent survey: “We are trying to keep too many plates spinning with continual reductions in staff, due to retirement, promotions, and transfers. The best people; those with the institutional knowledge needed to keep this boat afloat, have been leaving, and will continue to leave. Quality of work has fallen by the wayside to ensure that percentages (goals) are met.”

It is also important to note that the increased effort by SSA to offer an expanded number of internet applications does not significantly reduce the need for trained staff in the Field Offices. Claims filed over the internet need to be thoroughly reviewed by Claims Representatives. There also needs to be a thorough discussion with each applicant for benefits after they file to ensure they understand their options for receiving benefits. This challenge can be seen by a comment by a Field Office Manager from our recent survey: “One would think that the internet availability and the TSCs are taking the majority of the workloads away from the Field Offices. But the reality is that the number of people visiting and calling the offices continues to increase. Having to take care of the public prevents us from processing pending workloads. Claims submitted in electronic format need Field Office intervention/review.”

SSA Lifetime Warranty Service

SSA provides a lifetime of ‘warranty service’ to its beneficiaries. As the number of beneficiaries continues to increase SSA will need an adequate level of staff to provide the service they deserve and expect. The primary position that provides this assistance is the Service Representative position in the Field Offices and Teleservice Centers.

The agency is beginning to see the leading edge of the increasing demands of providing this ‘warranty service’ with the baby boomers now filing. Last year, an average of 870,000 people visited SSA Field Offices each week. Since June 2007, Field Offices have seen a significant increase in the number of visitors every week compared to the same time last year in all but a couple of weeks. Since the beginning of 2008, SSA Field Offices have been averaging about 950,000 visitors per week. In two separate weeks this Calendar Year, SSA Field Offices set all time record highs for recorded visitors. One Manager stated this in our recent survey: “The staff usually feels overburdened with the never-ending volume of interviews. They are usually one after the other daily with no ending. They are in need of time at their desks to process the numerous listings and actions that go with them.”

The above quote is a fairly typical description of life in SSA Field Offices. The staffs are running all day and have little time to train and complete thorough reviews of their cases. In October 2007, the AARP Bulletin published an article sent to approximately 30 million households entitled, “Social Security Meltdown: Will Anyone be Left to Help You?” The article provided a number of examples of how service has been degrading in Field Offices. The article concludes with this statement by a retiring employee: “I think what Social Security is looking at is the perfect storm.” (See: http://www.aarp.org/bulletin/socialsec/the_line_starts_here.html.)

It is important to note that SSA pays out about $600 billion a year to all Social Security beneficiaries including $100 billion to Social Security Disability beneficiaries. It also pays out about $40 billion a year to SSI recipients. With these substantial amounts of funds being paid out it is imperative that the SSA staffs who administer these funds have the necessary training and time to accurately process cases. Otherwise it is pennywise and pound foolish.

SSA’s Inadequate Field Office Telephone Service

SSA also handles an enormous volume of telephone calls to local Field Offices and Teleservice Centers. About 120 million calls are received by Field Offices and Teleservice Centers every year. The 800 Number had a busy rate of 7.5% in FY 2007 and handled about 59 million calls through agents and automation. At the same time over 60 million phone calls are directed to SSA Field Offices each year. In FY 2006, 51% of callers who tried to reach a local Field Office received a busy signal.

The combined pressures of the increasing numbers of visitors and telephone calls can be seen in this recent statement in our survey by a Field Office Manager: “We are juggling the impossible. The employees are dedicated and proud of their service to the public. The shortage of staff makes it even harder to get done what needs to be done in an accurate and timely manner. We have all but given up on answering the phones because there is no one to do it!”

For many years SSA has stated that it wants to improve the 800 Number services. The FY 2009 budget states that SSA plans to have a 10% busy rate for FY 2009 and an average of a 330-second answering time for a call. (This is unchanged from FY 2008.) However, few resources have gone into improving the Field Office telephone service. There is no mention of any additional staffing resources being allocated in the FY 2009 budget to improve the telephone service provided by SSA’s Field Offices.

SSA Field Offices receive slightly more calls than the Teleservice Centers due in large part to language in the Omnibus Budget and Reconciliation Act of 1990. Two provisions in this act that apply are:

Social Security Notices-
Requires Social Security notices issued on or after July 1, 1991, to be written in clear and simple language and to contain the address and telephone number of the local office that serves the individual. If the notice is not produced in a local office, it must include the address of the local office servicing the individual and a telephone number through which that office can be reached.

Telephone Access-
Requires SSA to restore telephone access to local Social Security offices to the level generally available as of September 30, 1989, and to request the publication, in telephone directories, of telephone numbers and addresses of local offices that provide direct telephone access by May 4, 1991…

As a result of the provisions above, all SSA notices must include the local telephone number. This means the public has the telephone number of the local Field Office to call in addition to the 800 Number. SSA must also publish the Field Office phone number in the local phone directories and online for those offices that published their phone number as of September 30, 1989.

Consequently, SSA Field Offices are being overwhelmed with phone calls. This has created two classes of phone service: The 800 Number which provides a barely adequate level of service and the Field Office telephone service, which NCSSMA must describe as deplorable.

Program Integrity Workloads

Earlier this decade, SSA Field Offices were processing 2 million SSI redeterminations and 800,000 medical Continuing Disability Reviews (CDRs) per year. The FY 2009 budget calls for 1,486,000 SSI redeterminations and 329,000 medical CDRs. This is over 700,000 fewer redeterminations and over 450,000 fewer CDRs per year than earlier this decade.

In FY 2006, the agency’s SSI accuracy rate with respect to overpayments was 92.1 percent with an error rate of 7.9 percent, which represented improper payments of $3.2 billion. This is a statistically significant difference from the FY 2005 error rate with respect to overpayments of 6.4%, which represented $2.5 billion in improper payments. SSA directly attributes this increase in the error rate to the reduction in the number of redeterminations conducted in FY 2006.

In the Appendix (http://www.whitehouse.gov/omb/budget/fy2009/pdf/appendix/ssa.pdf) to the President’s FY 2009 budget, it states that $240 million should be used to perform additional CDRs and SSI redeterminations. The language indicates that of this $240 million, $40 million may be used to improve the disability claims process and $34 million may be directed to SSI asset verification. Page 1126 of the Appendix provides a cross reference to the Budget Reform Proposals chapter in the Analytical Perspectives volume.
(See: http://www.whitehouse.gov/omb/budget/fy2009/pdf/spec.pdf ).

Pages 216-219 of the Analytical Perspectives volume cover program cap adjustments and a possible reserve fund for SSA. These pages also mention the possibility of creating a scoring rule in the Budget Resolution for specific program integrity activities. The Analytical Perspectives state that a cap adjustment of $240 million would allow SSA to conduct an additional 140,000 CDRs and 635,000 SSI redeterminations in FY 2009. The Analytical Perspectives also mention that $74 million can be used to improve the disability process and SSI asset verification. This section also states that with $240 million of expenses there would be $2.6 billion in savings. (The Analytical Perspectives also propose a cap adjustment of $485 million in FY 2010 and $518 million in FY 2011.)

On pages 22 and 23 of the Executive Summary: Annual Performance Plan for FY 2009 and Revised Final Performance Plan for FY 2008 (http://www.ssa.gov/budget/2009cjapp.pdf) which are included in the SSA Justification of Estimates for Appropriations Committees (FY 2009), it states that SSA plans to increase the number of SSI redeterminations from 1,200,000 in FY 2008 to 1,486,000 in FY 2009. This is an increase of only 286,000 instead of the 635,000 if a reserve fund were to be set up. Pages 22 and 23 also mention that the number of medical CDRs will increase from 235,000 in FY 2008 to 329,000 in FY 2009. This is an increase of 94,000 instead of the 140,000 if a reserve fund were established.

The Analytical Perspectives pages indicate that by setting up a cap adjustment or adding a reserve fund of $240 million for FY 2009 it would allow the agency to process 349,000 more SSI redeterminations (635,000-286,000) and 46,000 more medical CDRs (140,000-94,000). In order to do this there would need to be a $240 million cap adjustment or the creation of a reserve fund above the President’s proposed funding level of $10.327 billion. Again this would create a savings of $2.6 billion.

Thus, if increased dollars could be set aside for SSA, the number of SSI redeterminations and medical CDRs that SSA performs could be increased substantially. This would result in a significant savings of funds for taxpayers.

The Case for Increased Investment in SSA

As mentioned earlier in this statement, the President’s proposed FY 2009 funding level for SSA’s administrative resources is $582 million above the FY 2008 level. Unfortunately, these additional funds would not provide sufficient funds to cover many very crucial funding needs for SSA. Examples of just a few of the areas that need to be addressed at the agency:

Nearly $400 million of the $582 million would be expended just to address mandatory cost increases such as rent, guards, postage, pay raises, and employee benefits.

The hearings backlog is projected to remain at 682,000 hearings in FY 2009, well over the 312,000 hearings pending at the beginning of this decade. Hearing processing times are projected to still be in the 500-day range in FY 2009. The Appeals Council is not projected to have any improvement in their processing times with the target time staying at 240 days. This is true even with the additional hiring of Administrative Law Judges and many initiatives undertaken by SSA to streamline the hearings process. Most of this is due to the increased number of hearings that are expected to be filed. As a result, more resources will need to be invested in reducing the hearings backlog to a much more acceptable level, thus lessening the severe financial, physical and emotional impact of the protracted wait times.

According to SSA’s Budget Appendix for FY 2009, SSA’s civilian full-time staff employment for Fiscal Year 2009 is expected to drop by about 864 employees. (See line 1001 on page 1126.) This, after already losing thousands of Claims Representatives, Service Representatives, DDS employees and employees in the Payment Centers in the last few years. Based on this level of staffing it is clear there will be little or no resources available to address the very deficient Field Office telephone service. NCSSMA has never seen SSA cost out what level of resources it would take to bring the Field Office telephone service up to the level provided by the 800 Number. We estimate that it would require many thousands more employees in local Field Offices to raise the level of service in these offices to an acceptable level. This single area of concern would justify a substantial increase in appropriated funding for SSA.

At a minimum, we believe SSA Field Offices need to add, on average, at least four members to the staff of an average size office of around 21 employees to address the phone traffic, deal with the increasing number of visitors, especially with the baby boomers filing, and process more SSI redeterminations and CDRs. This investment would certainly have a tangible long-term positive impact on providing improved services at SSA.

SSA Field Offices focus on hiring staff for a career. The base positions in Field Offices are the Claims Representative and Service Representative positions. It is widely acknowledged that the Field Office structure also serves as the future “farm club” for the rest of SSA, as these positions provide the in-depth understanding of the Social Security program necessary to work in management and other staff positions in SSA. An investment in additional Field Office staff would have many years of long-term return for SSA as a whole.

We also believe that a major infusion of resources is needed in the Office of Disability Operations which has over 750,000 actions pending. As mentioned above, the average length of time it takes for a Benefit Authorizer to process a case they are assigned as of the end of January 2008 is 401 days. For Claims Authorizers it is 484 days.

The DDSs have also suffered significant staffing losses. They will need more staff to process additional CDRs. In addition, with increased staffing levels they could review certain hearing cases to see if they can be approved. Since the DDS started looking at some of the hearings last year, they have approved nearly 13,000 cases.

One area where we believe that an increased investment in the disability area would reduce the backlogs and improve the fairness of the program is a truly random review of all initial and reconsideration disability cases. The review would be equally split between approvals and denials. Currently the law requires that 50% of all approved initial and reconsideration Title II disability cases and Title XVI adult disability and blindness cases be reviewed before a final approval is made. The intent of this was to lead to more consistency in approvals in all states as this review is done by SSA (a Federal Review) not the by DDSs.

However no more than 5% of the disapproved cases are reviewed. Thus, at least 95% of the denied cases are not reviewed. As a result, there is no early opportunity to prevent some cases from heading to the Hearings Office. This revised review method might actually be less expensive in the long run as it could reduce the very high cost resulting from a hearing on a case.

The Teleservice Centers need more staff to support the internet workload. The public needs to have online and phone support to contact when they have questions as they are filling out an internet transaction.

What will the cost be to provide these services? If a budget mechanism could be implemented to establish a reserve fund or cap adjustment for SSA this would certainly help pay for additional CDRs and SSI redeterminations to be processed. The President’s budget suggests this amount should be $240 million in FY 2009, $485 million in FY 2010 and $518 million in FY 2011. NCSSMA supports placing at least $240 million into this fund. This is a very wise investment as $240 million would save taxpayers $2.6 billion in savings over a ten-year period.

In addition we support increased funding to begin to bring the Field Office telephone service up to the level of service provided by the Teleservice Centers and to provide the necessary staff to support the increasing number of visitors who need to be provided with a high level of quality advice. The Office of Disability Operations desperately needs more staff. This component receives a very high number of Congressional inquiries. The DDSs also need additional funding to improve their processing of disability cases and to assist the Hearings Offices.

And finally, more resources directed to the Hearings Offices and Appeals Council would lower the backlog.

The AARP Bulletin ran a second article in November 2007 entitled, “They Died Waiting—Lost in Social Security Hell.” (See: http://www.aarp.org/bulletin/socialsec/sick_of_waiting.html). This article along with well over 100 other articles and news reports from all over the country published in the last year describe in vivid detail the damage that the growing backlogs have caused to so many Americans in recent years. We believe we must find a solution to this situation, and soon.

We recognize that Congress will not be able to fund all of these resource needs in FY 2009. The SSA Advocacy Group sent a letter signed by 44 group members to the Office of Management and Budget in November suggesting that SSA’s funding for FY 2009 should be $11.0 billion. We certainly recognize this would represent a considerable increase in SSA’s budget. This is the amount that we believe is necessary to address the many challenges we have cited above. But, at the same time, we believe an additional $200-$250 million above a potential reserve fund of no less than $240 million would begin to immediately address the areas where SSA’s services need to be improved and upgraded. (The reserve fund could be higher to increase savings.) Therefore, the total SSA FY 2009 administrative funding we recommend for FY 2009 is no less than $10.767-$10.817 billion ($10.527-$10.577 billion plus a reserve fund of no less than $240 million). We realize that this is a significant increase in funding, but truly believe it is the level of funding necessary to begin to address the growing challenges faced by the agency. If we do not address these challenges now, there will be a very real and negative impact on the citizens that we are obligated to serve every day.

It is very important to note that SSA’s staff is at its lowest level since 1972, prior to SSA’s assumption of the Supplemental Security Income program, while SSA’s workloads are growing and will continue to grow at a very fast pace. In addition to the increased responsibilities mentioned above, SSA has also assumed responsibility for processing applications for the Low Income Subsidy and Income Related Medicare Adjustment provisions of the Medicare Modernization Act. With staff adjustments made only in 2005, and staffing gains due to MMA long since been lost to attrition.

SSA has a trust fund of about $2.2 trillion dollars. The Social Security Trust Fund is intended to pay benefits to future beneficiaries and finance the operations of the Social Security Administration. The additional funding and investment we are proposing for SSA represent only a very small fraction of $2.2 trillion. Certainly the workers of America deserve to have their taxes utilized to provide a fair and adequate level of service for the very benefits they worked so hard to receive.

Conclusion

We believe that the American public demands and deserves to receive good and timely service for the tax dollars they have paid to receive Social Security. We urge that SSA be given increased funding above the President’s FY 2009 budget request. This additional investment in SSA would certainly begin the necessary process to restore the levels of service that the public deserves from SSA.

On behalf of the members of the NCSSMA and in support of the SSA Advocacy Group, I thank you again for the opportunity to submit this written testimony to the Subcommittee. NCSSMA members are not only dedicated SSA employees, but they are also personally committed to the mission of the agency and to providing the best service possible to the American public. We respectfully ask that you consider our comments and would appreciate any assistance you can provide in ensuring that the American public receives the necessary service that they deserve from the Social Security Administration.

AARP Comments

2008-01-09T16:05:00.000-05:00

December 21, 2007

The Honorable Michael J. Astrue
Commissioner
Social Security Administration
6401 Security Boulevard
Baltimore, MD 21235-7703

Dear Commissioner Astrue:

AARP is writing to comment on the Notice of Proposed Rulemaking (NPRM) published in the Federal Register on October 29,2007, p. 61218, Docket No. SSA-2007-0044. This NPRM seeks to modify the appeals process for all claimants. The disability appeals process is often lengthy and backlogged, but the proposed reform of the entire appeals process is far reaching and will work to the detriment of individuals seeking appeals. Modifying the entire appeals process in a manner that implements a formal, adversarial system that reduces the claimant's ability to introduce evidence denies full and fair consideration. These proposed changes will further complicate a process that is already quite difficult to navigate and deny claimants the opportunity to fully present their evidence. If enacted, SSA's proposed changes would produce a particularly harsh result for those who cannot afford adequate representation and especially burden those claimants whose conditions deteriorate further over time.

AARP is a nonprofit, nonpartisan membership organization that assists individuals over the age of 50 to have independence, choice, and control in ways that are beneficial and affordable to them and society as a whole. We produce AARP The Magazine, AARP Bulletin, AARP Segunda Juventud, NRTA Live and Learn, and provide information via our website, www.aaro.org. AARP publications reach more households then any other publication in the United States.

AARP advocates for policies that enhance and protect the economic security of individuals as they move from work to retirement. Through its research, publications, advocacy, and training programs, AARP seeks to eliminate ageist stereotypes; encourage employers to hire and to retain older workers; and help older workers overcome obstacles in the workplace. Approximately 45 percent of AARP's more than 39 million members are working.

AARP believes that if these proposed changes are enacted, the rights of claimants will be curtailed in three crucial areas.

First, an informal and non-adversarial process will be transformed into a rigid appellate system that denies full and fair consideration. The NPRM imposes strict time limits without good cause exceptions, expands Administrative Law Judge (ALJ) authority without guidance or oversight, and creates requirements that hold individuals seeking appeals to unreasonably high standards.
Second, restrictions on the submission of evidence will be imposed with narrow exceptions, which will cause premature closure of the evidentiary record.
Third, by limiting judicial and administrative review, many individuals will be forced to reapply or file multiple applications.

The goal of a revised appeal process should not be simply to expedite the application and appeals process; it should ensure that claimants receive timely and accurate decisions.

I. A Formal and Adversarial Process Denies Adequate Consideration

The current claims and appeals process is informal and non-adversarial and affords essential flexibility to individuals filing applications and pursuing appeals, particularly for those individuals who lack the means or knowledge to adequately present their claims for benefits and, more importantly, to appeal agency decisions. SSA's proposed changes seek to establish an appeals process that in its own words is "more analogous to that of an appellate court reviewing the decision of a trial court." The changes proposed in the NPRM seek to impose time limits and other requirements which would create a highly complex and adversarial claims process.

Strict Time Limits during the Appeals Process. Under the NPRM, new time limits will be imposed at the appeals level without "good cause exceptions," which means that unless claimants seeking appeals respond within a certain timeframe they forfeit their rights. Time limits without good cause exceptions would be imposed in five important areas: (1) objection to the time or place ofthe hearing must be made 30 days after receiving the hearing notice; (2) acknowledgement of the receipt of the hearing notice must be made five days after receWt; (3) objection to issues in the hearing notice must be made five days before the hearing I];(4) a claimant subpoena must be requested within 20 days before the hearing; and (5) the claimant's briefto the Review Board must be filed either with the appeal or within 10 days of filing the appeal.

Many claimants do not possess sufficient knowledge or the capacity to meet these deadlines. Additionally, many are unrepresented and are trying to cope with the very disability for which they seek benefits. The imposition of time limits without good cause exceptions will prevent claimants from receiving full consideration for their appeals and penalizes people whose disabilities may prevent them from complying with the strict deadlines. Most often, missed deadlines under the current appeals process are due to disabilities or lack of understanding. Fortunately, many ALJs have either postponed or extended time periods for claimants to provide a response. It is unclear whether ALJs will continue to have this authority. Absent good cause exceptions, the flexibility that claimants are afforded currently to accommodate special circumstances will be eliminated.

Expanded ALJ Authority. In addition to the strict time limits suggested in the NPRM, other proposed changes would help create a highly legalistic and formal process. ALJs would have broader discretion during the appeals process, but the rules do not provide guidance on how to execute this expanded authority to ensure that the ALJs do not abuse their discretion. As proposed, the process will be difficult and unfair to unrepresented claimants.

There are four areas under the proposed rules that give rise to these concerns: (1) a claimant's request for a hearing must include a statement that lists "medically determinable impairments" that prevent the claimant from returning to work, but the NPRM does not elaborate on whether ALJs can consider impairments not mentioned or known at the time of appeal or additional impairments, including functional impairments, that limit an individual's ability to respond in a timely manner; (2) ALJs will have broad authority to change the time or place ofthe hearing with limited exceptions; (3) claimants will be required to appear by telephone if, in the ALl's opinion, extraordinary circumstances exist, and it is unknown whether the claimant will have an opportunity to object. The NPRM does not state whether claimants can object to telephone hearings. A telephone hearing should not be imposed unless there are disability-related reasons and a telephone hearing is designed to accommodate the claimant. (4) ALJs will have the discretion to dismiss the appeal with reasonable notice if the claimant fails to appear at a prehearing or posthearing conference, but the exact time limit for providing notice of the dismissal is not listed. Dismissals for failure to appear at pre-hearing conferences will only increase the number of complaints before the Review Board and Federal District courts.

Review Board level requirements are too strict. Under the NPRM, the process becomes even more legalistic and formalized at the Review Board level, which replace the Appeals Council. If individuals disagree with an ALl's decision, they can appeal to the Review Board. At the Review Board stage, individuals are presented with requirements that are especially difficult to satisfy without legal counsel. Non-disability claimants are more likely to go through the entire process without legal representation as they must pay their own attorney fees, whereas attorney fees for disability cases are paid directly out of any awarded benefits. The proposed rules create four problematic areas at the Review Board level that are especially troublesome for any unrepresented claimant pursuing an appeal.

1.) The appeal submitted by the claimant must be in the form of a written statement that identifies the errors committed by the ALJ (factual or legal), explains why the decision should be reversed or modified, and cites applicable law and specific facts in the record that support the claimant's argument. Essentially, the NPRM is requiring ordinary individuals to prepare a legal brief. Absent adequate knowledge or the assistance of legal counsel, it is highly unlikely that a claimant will be able to meet these standards. Under the current regulations, the advance notice time limit is seven days, and there is no sanction if the claimant or representative does not appear at the pre-hearing conference.

2.) For the Review Board to consider additional evidence, the NPRM requires claimants to submit a statement accompanying the additional evidence that explains the reasons for this new material and whether the qualifying criteria under the NPRM for the evidence has been satisfied. Here too, claimants will be required to complete the difficult task of drafting what, in essence, is a legal memorandum that would establish reasons for the consideration of additional evidence. The Review Board may obtain additional evidence either by remanding the claim to the ALJ or by obtaining it on its own. However, the NPRM is silent on whether the Review Board is required to share the additional evidence with the claimant before issuing a decision.

3.) The NPRM proposes to revise the standard of review at the Review Board level. AARP maintains that a de novo standard should be used to evaluate a claim at each level of the appeals process. De novo review at each level of the process ensures that benefits are awarded based on all the evidence provided to date, rather than the claimant's ability to obtain representation and/or obtain evidence at prior stages. A de novo standard at each stage ensures that any newly-obtained evidence regarding the claimant's condition can be considered. This standard of review is especially useful for claimants whose condition has deteriorated while awaiting a decision. This allows decision makers to consider new information regarding the disability if it becomes available. The standard of review proposed at the Review Board level is the "harmless error" standard. Under the harmless error standard of review, the Review Board will not change factual or legal errors unless the Review Board finds there is a "reasonable probability that the error, alone or when considered with other aspects of the case, changed the outcome of the decision." Accordingly, the Review Board will take action upon a finding of significant errors of law. However, the NPRM does not define what constitutes a significant error. Nor does the NPRM elaborate on whether the harmless error standard is intended to be more or less lenient than the standards used by federal courts. This could create a serious inconsistency.

4.) The NPRM suggests charging claimants fees for obtaining a copy of the record or the hearing recording unless claimants can establish a "good reason" why they should not pay. Currently, the Appeals Council does not charge a fee for any of those services. Further, the NPRM does not explain what constitutes a good reason for claimants not to pay for those services. If a fee is imposed, then it is also necessary to provide opportunity for claimants to proceed informa pauperis. The imposition of fees to obtain copies ofthe record or the hearing recording will hinder some claimants' ability to adequately prepare and present their appeal before the Review Board. The agency should not impose a fee that would limit access to this system.

II. Restrictions on the Admission of Evidence Unduly Limit the Process

Perhaps the most troubling of the proposed changes listed in the NPRM involve the restrictions on the submission of evidence to the ALJ and the Review Board. Under the NPRM, significant time constraints are placed on an applicant's ability to introduce evidence to support a claim. Claimants will be required to submit all evidence five business days prior to a hearing. Evidence submitted after this deadline will be considered late, and the ALJ will only accept the evidence if the claimant can satisfy one of the following exceptions: (1) SSA's action misled the claimant; (2) the claimant has a physical, mental, educational, or linguistic limitation that prevented the claimant from submitting the evidence timely; or (3) some other unusual, unexpected, or unavoidable circumstance beyond the claimant's control. The NPRM is silent on what recourse claimants have if ALl s abuse their discretion and disqualify evidence that does not, in their opinion, meet any of the three exceptions. This change could lead to additional review and delay the receipt of benefits for eligible individuals.

Following the hearing, but before the ALl issues a decision, new evidence will be accepted if one of the previously mentioned three exceptions is met and if there is a reasonable possibility that the nature of the evidence is such that, when considered alone or in conjunction with the existing record, would affect the outcome of the claim. The strictest of the proposed evidentiary restrictions is imposed at the Review Board level. A claimant may introduce new evidence for Review Board consideration only if SSA's action misled the claimant, the claimant has a physical, mental, educational, or linguistic limitation that prevented the claimant from a timely submission of evidence, and there is a reasonable probability that the nature of the evidence is such that, when considered alone or in conjunction with the existing record, would change the outcome of the claim.

Current Federal law requires that claimants receive a decision based on the evidence adduced at the hearing level. Discovery and examination of evidence obtained through the course of the hearing process is essential for full consideration of the claim. The NPRM reverses federal law by closing the evidentiary record based strictly on time. As a result of closing the evidentiary record prematurely, the individual's condition is frozen in time. Even if the condition further deteriorates as the process moves forward, the ALl will be limited to reviewing evidence as of the closing date of the record. AARP believes that premature closing of the evidentiary record is unreasonable and unfair to the claimant.

Although the proposed rules provide claimants notice 75 days prior to the hearing, which is a tremendous improvement to the 20 days currently provided, it is not always enough time to obtain evidence, especially medical records. The ability to physically possess records in a timely fashion often is not always within the control of the claimant. Although non-disability claimants do not need to obtain medical evidence, the type of evidence they need varies and may not be readily available. Unrepresented individuals bear the responsibility of obtaining evidence to corroborate their claims, but are less likely to have the means necessary to procure the required evidence. Hospitals, medical professionals, and insurance companies take significant time in handling requests for medical records. Requests for medical records are not, nor are they expected to be, prioritized by the health care provider. Further, privacy measures under the Health Insurance Portability and Accountability Act impose restrictions on the disclosure of medical records that delay a claimant's ability to retrieve records within the time prescribed by the NPRM.

Additionally, most claimants are not aware that if they are experiencing difficulties obtaining their records that they can request an ALJ to subpoena their records. Under the NPRM, claimants will be restricted to requesting subpoenas up to 20 days prior to the hearing. Previously, claimants were able to request subpoenas as close as five days prior to the hearing. It is common for claimants to either obtain representation a few days prior to the hearing or arrive at the hearing without evidence and without legal representation because they are unfamiliar with the procedural aspects of the appeals process. In these instances, usually ALJs will reschedule the hearing and instruct the claimant to seek representation. According to the NPRM, it is unclear what the consequences would be to a claimant who obtains representation after the hearing and whether evidence obtained by this representative after the ALJ hearing would be admissible.

Although the NPRM states its goals is to make the claims and appeals process more efficient, the evidentiary restrictions proposed will only exacerbate the number of federal court filings. As a consequence of disallowing evidence based strictly on time, claimants will turn to Federal District courts expressly to present evidence that was disallowed by the ALJ. This will increase the Federal court system's caseload, create confusion, and further the inefficiencies inherent in the appeals process.

III. Limited Review Forces Claimants to File Multiple Applications

Under the NPRM, a claimant who is dissatisfied with the ALl's decision may appeal to the newly created Review Board. If the claimant is further dissatisfied with the Review Board's decision, the claimant may appeal to a Federal District court. However, if the ALl's decision is remanded ITomeither the Federal District court or the Review Board, the ALJ hearing the case on remand is limited to considering the case "only with regard to the period ending on the date of the original decision." The current procedures permit claimants to submit additional evidence with respect to deteriorating conditions or when a claimant has not received a final diagnosis. By limiting the scope of review upon remand to the claimant's eligibility on or before the date ofthe first ALJ decision, new claims will be filed because the current condition is barred ITomconsideration. Consequently, the number of initial claims filed will increase, and claimants will be denied the opportunity to receive benefits ITomthe initial filing date. This poses serious problems for those who are unable to work or who otherwise lack the resources to meet their
ongoing living expenses. It also fails to consider the progressive nature of many medical conditions that become increasingly disabling over time.

If these proposed changes were to be enacted, it is unreasonable to require claimants who have endured a lengthy claims and appeals process and who would otherwise be awarded benefits under the current rules to wait five more months after they are awarded benefits upon reapplication. AARP believes the five month waiting period should be waived for those claimants awarded benefits in this type of re-application.

The NPRM also restricts the ALl's discretionary authority to reopen prior ALJ or Review Board decisions. Although the reopening of prior decisions does not occur ITequently,a decision will be reopened if compelling reasons exist for a claimant who did not understand the necessity of appealing an unfavorable decision. Currently, if "good cause" exists, decisions may be reopened within two to four years depending upon the type of claim. The proposed rules eliminate an ALl's discretionary authority to revisit an earlier decision in light of new and material evidence. Not only does the NPRM eliminate the ALl's discretionary authority to reopen a claim, but it also eliminates the "new and material" evidentiary standard as grounds for reopening a decision by an ALJ or the Review Board. Consequently, for new evidence to be considered, claimants will have to file a new claim immediately after receiving an unfavorable ALJ decision even if they are pursuing an appeal. If claimants are forced to file multiple applications for benefits arising out of the same issue or condition, there will be confusion and inconsistency as the NPRM requires the administrative record remain open for some purposes and closed for others.

IV. Consequences of the Proposed Changes
Closing the evidentiary record prematurely and limiting the scope of review on remand not only places onerous requirements on claimants that are hard to understand, but filing an entirely new claim could cause claimants to lose benefits. By filing a new claim to address a condition that has deteriorated since the filing of the original claim, claimants will lose benefits because they will only be eligible for benefits beginning on the effective date of the most recent claim. Under the NPRM, there is no adequate recourse available to individuals who are denied the opportunity to establish their condition at the time of their initial application. As time passes and their condition deteriorates further, claimants should not be denied the opportunity to introduce evidence to substantiate their disability.

Under the proposed rules, claimants will also be required to file new claims if there has been a change in their status following the date of the ALl's final decision even if the condition is related to the original claim for benefits. Yet, Congress has mandated SSA inform claimants of the negative consequences of re-submitting claims for benefits instead of exhausting the appeals process.

The disability appeals process has been informal and non-adversarial, in part, to reflect the medical, mental, and physical limitations of some applicants. The individuals examining these claims evaluate and balance medical, mental, and physical issues to determine whether a claimant is so disabled that he or she can no longer work. These examiners have to take into account the nature of the claimant's job, education level and job skills, and whether the claimant's condition bars him or her nom working a particular job or all jobs. The examiners and ALJs who evaluate these claims must decipher medical reports, identify relevant information, and reconcile conflicting medical opinions on the same condition. Formalizing the process and closing the evidentiary record prematurely would make their tasks even more difficult. A more informal process, than that proposed in the NPRM would provide the flexibility to address all of these concerns and give every claimant full and fair consideration.

V. Alternatives to Reforming the Claims and Appeals Process

There are ways to tackle the appeals backlog without shortchanging the right of individuals to a fair and full hearing on the merits of their case. SSA should consider expanding current disability initiatives and exploring alternatives to address the backlog, such as collaborating with legal services or other non-profit entities to assist claimants with the application process. Under the proposal, the backlog the NPRM seeks to address actually could increase because there will be additional and unnecessary applications that will increase administrative costs and add a new element of confusion. The backlog of claims awaiting hearings or decisions is attributable to a lack of resources and adequate staffing for SSA, which can be addressed though adequate funding for the agency.

Last year, 2.5 million Americans applied for benefits, and this figure is expected to grow by 90,000 each year for the next five years. By the end of 2007, the backlog of initial claims is expected to reach 577,000 and the number of cases pending an appeals hearing could rise to over 750,000. The changes proposed in the NPRM not only impose difficulties for claimants, but also create challenges for SSA and its staff as well as for the federal court system. Workloads will increase due to the filing of multiple applications by denied individuals, and claimants will visit SSA district offices in increasingly large numbers because they do not understand the changes.

These proposed changes are based in large part on a pilot program that was in operation for little over a year. In the NPRM, SSA admits that their experience with the pilot project in Boston found some aspects of the new procedures beneficial "while others have not worked as well as [SSA] anticipated." Before implementing these procedures nationwide, SSA should continue to monitor the pilot program for a longer period of time and evaluate whether the claims process as administered under the pilot program is productive.

Prior initiatives, particularly the Quick Disability Detennination (QDD) process, have yielded great success for claimants suffering from severe impainnents. Under the QDD process, applications from individuals with certain diagnoses are reviewed under an expedited process. This program should be expanded so more conditions qualify for expedited review. Some claimants suffer from such severe disabling conditions and diseases that it is highly likely that they will be awarded benefits. Currently, SSA is considering awarding compassionate allowances to certain individuals who are likely to receive benefits as their application moves through the claims process. The list of conditions that qualify an individual for a compassionate allowance should be expanded to include more diseases, conditions, and disabilities.

The disability application fonn does not allow claimants, legal representatives, and doctors adequate opportunities to fully explain the diagnosis. The initial application fonn needs to be more specific and more easily understandable by claimants. Those filing for benefits should be infonned at the earliest stage in the claims process about the elements necessary to file a complete application for disability benefits. As more individuals become aware of what threshold requirements need to be met to obtain disability benefits, SSA will be able to reduce processing times for some benefits and concentrate its energy on the more difficult cases. If claimants are provided an opportunity at the earliest stage in the process to adequately explain their condition, it could expedite claims processing and even reduce appeals.

VI. Conclusion
AARP applauds SSA for its administrative efforts to reduce the backlog by addressing those claims that have been waiting the longest, 1000 days or more. In doing so, SSA has been able to reduce long wait cases from 63,000 in 2006 to 108by the end of September 2007.[8]Given the continued backlog and the shortage of agency resources, AARP understands the agency's interest in making other changes. However, AARP cannot support changes to the claims and appeals process that come at the expense of claimants. Reforms to the claims and appeals process must maintain flexibility and the de novo standard of review. The agency can best reduce the backlog by receiving adequate funding.

AARP appreciates the opportunity to provide comments on the proposed amendments to SSA's claims and appeals process. If you have any questions or need further assistance, please do not hesitate to contact Evelyn Morton of the Federal Affairs staff at (202) 434-3760.

Sincerely,

David Certner
Legislative Counsel and
Director of Legislative Policy
Government Relations and Advocacy

footnotes omitted

Charles T. Hall Comments On Proposed Procedural Rules Changes

2007-12-28T14:00:00.000-05:00

First, I believe that additional time should be allowed for the submission of comments upon these proposed regulations. Given the scope of this proposal, 60 days is too short a period of time for comments. Further, the comment period ends just after Christmas, making it difficult for many to get their comments in on time. I urge that the time period be extended for at least one month.

In general, I oppose the proposed new regulations. I do not believe that they will benefit Social Security Disability claimants. The goal of these proposed rules seems only to save money.

I am concerned that the savings estimate in the NPRM is misleading. The indication is that these new rules would save $1.5 billion over ten years. However, Social Security's own Chief Actuary has said that the new rules would shortchange claimants by $2 billion over ten years. This is a significant difference which makes the NPRM misleading.

Many of my concerns about these proposed rules have to do with aberrant administrative law judges. The vast majority of Administrative Law Judges (ALJs) are reasonable. However, there is an aberrant element, perhaps 5% of ALJs, who regularly engage in bizarre behavior. Even when dealing with the 95% of ALJs who are generally reasonable, human nature is such that sooner or later any of them will get carried away and behave in an unwise manner. These proposed rules give tremendous discretion to ALJs to exclude medical evidence, with little capacity to check abuses of discretion at the Review Board.

The change of name from "Appeals Council" to "Review Board" is unnecessary. Any name change of this sort involves expense and inconvenience, as signs, stationery and manuals must be changed. I see no compelling need for this name change at a time when the Social Security Administration's funding is low. I urge that the name remain "Appeals Council."

Proposed rule 404.933(a)(3) requires that a claimant give specific reasons for disagreeing with a reconsideration determination. However, the proposed rule does not set forth any punishment for failing to do so. Is this grounds for dismissal of a request for hearing? I think the answer should be no, but without a statement to this effect in the regulations, I fear that some ALJ's will dismiss requests for hearings on this ground.

Similarly, in proposed rule 404.933(a)(4), there is a requirement that a claimant give a statement of medically determinable impairments along with a request for hearing. Again, is there some punishment for failing to do so or for failing to be exhaustive in listing these impairments? Might an ALJ dismiss a request for hearing for failure to list impairments? Might an ALJ refuse to consider impairments not listed by a claimant? Claimants often seek to hide mental illness from the Social Security Administration, even when it is their primary disabling impairment. Should claimants be punished for this sort of failing?

In general, proposed rule 404.933 seems as if it could introduce some form of rules of pleading to the Social Security regulations. I believe this is inappropriate.

Proposed rule 404.935(b) requires that records be "submitted" five business days before a hearing. What does "submitted" mean? If medical evidence is "submitted" by mail, is it submitted at the time it is mailed or at the time it is received? Is medical evidence "submitted" when it is received by the Social Security Administration, or is it "submitted" when some Social Security employee gets around to actually incorporating it into the claimant's file? These are far from abstract questions. Claimants and attorneys will be submitting medical evidence by mail for many years to come. Social Security does not have enough employees to quickly process medical records, even when they are submitted electronically, much less when they are submitted by mail. Some Social Security employees are all too quick to blame others for their own shortcomings.

In general, I regard the time limit on the submission of medical records in proposed rule 404.935 as unnecessary and unwise. I believe that Social Security is going after a mosquito with a sledgehammer. The problem of late submission of medical evidence, while annoying to ALJs, does not cause significant delay. Any effort to prevent this is going to cause the denial of meritorious social security disability claims on procedural grounds.

Proposed rule 404.935(b)(5) provides that Social Security's Office of General Counsel "may" seek enforcement of a subpoena. Why is the Office of General Counsel not required to enforce subpoenas issued by ALJs?

Proposed section 404.936 requires only that a claimant be given "reasonable" notice of a change in the time and place of a hearing. If we go to a 75 day notice of hearing, it is to be expected that there will be far more changes of the time and place of hearings, because there is more time for things to happen between the time the hearing is scheduled and the date of the hearing. I urge that claimants be given at least twenty days notice of a change of the time or place of a hearing.

Proposed rule 404.939 provides that a claimant may only object to the time or place of a hearing within 30 days of receiving notice of the hearing. However, many problems relating to the time and place of a hearing only become apparent to the claimant as that date approaches. Transportation difficulties, in particular, are often apparent to the claimant only when the date is close at hand.

The point of proposed rule 404.944(a) appears to me to be to allow ALJs to exclude the news media from hearings. Hearings should be open to the news media if the claimant wants this to be the case. What does the Social Security Administration have to hide? I am also concerned with this proposed rule since it gives ALJs authority to exclude a claimant's family and friends from a hearing. There are practical reasons to limit the attendance of family and friends at hearings. Most hearing rooms have only limited seating space. However, there is always room for at least one or two additional people in the hearing room. Most claimants are apprehensive about their hearings and prefer to have at least one family member or friend accompany them into the hearing room. Preventing them from bringing a family member or friend into the hearing room seems unnecessarily harsh to me. This is particularly a problem when one is dealing with individuals suffering from a panic disorder. Most people who suffer from a panic disorder can go into a hearing and be reasonably calm as long as they have a "security figure" accompany them. The "security figure" is generally a family member or friend whom they trust. As long as this person is along, the claimant is unlikely to have a panic attack. Any effort to prevent the claimant from bringing along the family member or friend is likely to result in the hearing not taking place or the claimant having a panic attack during the hearing.

Proposed rule 404.946(b) states that an ALJ can consider additional issues not mentioned in the notice of hearing. Must an ALJ give notice that he or she is about to consider additional issues? I have seen instances in which an ALJ decided after a hearing to consider some issue which was unknown to me and to my client and to issue a decision denying my client based upon matters upon which we were not allowed to comment. I believe this to be inappropriate and a denial of due process. I urge that proposed rule 404.946(b) be amended to require notice of the consideration of additional issues.

I do not understand proposed rule 404.957(b). What is the difference between subparagraphs 1 and 2? Will the claimant always have the right to explain his or her failure to appear?

In proposed rule 404.961(b), an ALJ may require a "pre-hearing statement." Does this mean that each individual ALJ can set forth their own requirements for a "pre-hearing statement?" It seems to me that the Social Security Administration cannot comply with the Paperwork Reduction Act unless there is a standardized "pre-hearing statement" form. I am concerned that each ALJ will attempt to be a rule unto himself or herself, with some of them making burdensome and unnecessary requirements upon claimants and their attorneys and seeking to enforce these requirements by dismissing requests for hearings or refusing to consider issues. In general, I regard "pre-hearing statements" as unnecessary in the vast majority of cases. I see a strong potential for abuse by aberrant ALJs.

Proposed section 404.967(c) allows the Review Board to identify issues that impede consistent adjudication. When the Review Board does identify such issues, will this identification be done in a public way? If the Review Board is to have this function, I believe that it should be done publicly.

Proposed rule 404.970 has to do, in part, with what has traditionally been called "bureau protests." The problem I have observed over the years with "bureau protests" is that the "bureau" gives no notice of the protest to the claimant and his or her attorney at the time the protest is sent to the Appeals Council. This seems like an ex parte contact to me. On several occasions I have received "proposed decisions" from the Appeal Council after bureau protests. I was allowed only a brief period of time to comment. It appeared that the decision had already been made and that I had no ability to comment upon the matter when it was actually under consideration. This is denial of due process. If there are to be "bureau protests", the "bureau" should give notice to the claimant and his or her attorney at the same time that notice is sent to the Appeals Council or Review Board.

In proposed rule 404.971, there is a mention only of a "substantial evidence" standard of review. There is no mention of any review for denial of due process. Elsewhere in the regulations, there is a suggestion that the Review Board is supposed to consider due process violations, but this is not given as specific grounds for reviewing an ALJ decision. I believe this should be amended to allow Review Board review to correct denials of due process.

Proposed rule 404.971 would enact a "harmless error" standard. Is there "harmless error" when one is dealing with serious denials of due process? Let me give extreme examples. What if an ALJ were drunk at a hearing? Should the Review Board be considering the question of whether the ALJ might have still denied the claim even if he or she had been sober? What if the ALJ refused to allow the claimant's attorney to ask any questions of the claimant? Should the Review Board be wondering whether the result would have been the same even if the attorney had been allowed to do his or her job? What if the ALJ requires a child SSI claimant to testify without his or her mother or father in the room? Again, should the Review Board even be considering the question of whether the result would have been the same if the ALJ had behaved properly? Serious denials of due process should require a remand regardless of whether the result might have been the same even without the denial of due process.

Proposed rule 404.972 seems to me to mean that if the Review Board or a United States District Court remands a case that the remand is for consideration of a closed period of disability only. I find this so bizarre that I think that the regulations should make this very clear. If this is not what the Social Security Administration intended, I think that what is meant should be made very clear. If the Social Security Administration does not intend that remands be only for closed periods, how are we to deal with the possibility that the claimant has improved after the previous ALJ decision? Is the ALJ obliged to give the claimant disability benefits continuing up to the date of the new decision, regardless of any evident improvement? What if the claimant were recovering from a leg fracture at the time of the first ALJ decision, but by the time of the hearing on remand, the claimant walks into the room and it is obvious that he or she has recovered from the fracture? Is the ALJ not allowed to consider the evident medical improvement?

I believe that Proposed Rule 404.973 which would close the record after the ALJ decision is unwise. It is confusing and will lead to much litigation. What if the issue that the claimant seeks to raise on appeal is the ALJ's refusal to order a consultative examination when requested by the claimant? Can the consultative examination be ordered on remand? If the consultative examination cannot be ordered on remand, is there any effective review of the ALJ's exercise of discretion on this point? If a consultative examination can be ordered on remand, why would the claimant not be allowed to get a comment from his or her own physician upon the consultative examination report?

Proposed rule 404.974(a) allows the Review Board to make the claimant pay for a copy of his or her file when he or she requests review. This is inappropriate. Many claimants are indigent. Even if they are not indigent, it appears inappropriate to me to require this.

I believe that proposed rule 404.989 is inappropriate. There is no reason to exclude reopening on the grounds of new and material evidence just because the prior decision was issued by an ALJ. This is intended only to save money. There are circumstances in which an ALJ decision was based upon the then current medical understanding of the claimants condition which is later found to have been erroneous. Let me give you an example. I once had a claimant who had a hearing during which he complained of mental confusion. The mental confusion was attributed at the time to mild depression and the claim was denied. However, a year later, the claimant was hospitalized. A brain scan showed a brain tumor. After this, it was clear what had been causing the mental confusion all along and that the mental confusion that the claimant suffered was severe. Why would the Social Security Administration want to prevent reopening in such a circumstance? Clearly, this claimant had no opportunity to submit the medical evidence earlier.
Currently, the rules require good cause for the submission of new evidence to the Appeals Council or to a Federal Court. Why is this not enough? If the Social Security Administration believes that claimants or their representatives are abusing this, would not a simple memorandum to the Appeals Council directing its members to strictly enforce this provision be enough?

In general, I urge that the NPRM be withdrawn. There have already been dramatic signs of Congressional opposition to these proposed rules. Should these proposed rules be adopted in 2008, it is likely that they will be overturned by Congress in 2009. Why bother?

Backlog Report -- December 2007

2007-12-14T16:30:00.000-05:00

House Letter On SSA Funding -- Part I

2007-12-09T15:35:00.000-05:00

House Letter On SSA Funding -- Part II

2007-12-09T15:32:00.001-05:00

Senate Letter To Harkin And Specter

2007-12-09T15:12:00.000-05:00

September 13 Astrue Letter -- Part I

2007-10-16T13:05:00.000-04:00

September 13 Astrue Letter -- Part II

2007-10-16T13:02:00.000-04:00

September 13 Astrue Letter -- Part III

2007-10-16T13:01:00.001-04:00