U.S. Congressman Sam Johnson (R-TX), Chairman of the House Committee on Ways and Means Subcommittee on Social Security, and U.S. Congressman Howard Coble (R-NC), Chairman of the House Committee on the Judiciary Subcommittee on Courts, Commercial and Administrative Law, announced today that the Subcommittees will hold a joint oversight hearing on the role of Administrative Law Judges (ALJs) at the Social Security Administration (SSA).  The hearing will take place on Monday, July 11, 2011 in 2141 Rayburn House Office Building, beginning at 3:30 p.m.

In view of the limited time available to hear witnesses, oral testimony at this hearing will be from invited witnesses only.  However, any individual or organization not scheduled for an oral appearance may submit a written statement for consideration by the Committees and for inclusion in the printed record of the hearing.  A list of invited witnesses will follow.

 BACKGROUND:

Under the Social Security Act ((42 U.S.C. 405(a)-(b)), the Commissioner of Social Security is authorized to make decisions about whether individuals claiming disability are entitled to benefits. There are four distinct levels in SSA’s administrative process.  New medical evidence and changes to the claimant’s condition are considered at each of these levels in determining whether a claimant is disabled:

1. An initial determination at the 100 percent federally funded state Disability Determination Service (DDS);
2. A reconsideration, made at the request of the claimant, also at the DDS (except in 10 so-called prototype states where this reconsideration process does not occur and claimants proceed to the next step);
3. A hearing before an ALJ, at the request of the claimant; and
4. A review of the ALJ decision at the Appeals Council, by an Administrative Appeals Judge (AAJ).  These are done at the request of the claimant or under the Appeals Council’s own motion review.

The AAJ may take final action to allow or disallow the claim, or may remand the case back to an ALJ for further action.  The decision-maker at any of these levels acts on behalf of the Commissioner and the decision, if not appealed, becomes the final agency decision.

Section 554 of the Administrative Procedure Act (APA) provides that adjudications required by statute must be determined on the record after opportunity for an agency hearing.  In those adjudications, after the record has been closed and the agency has made its decision, an appeal may be made to the ALJ, who holds an adversarial hearing where argument is heard from the parties, including the government, on the closed record created at the earlier stage.  In contrast, the SSA employs ALJs for the hearings step of the appeals process.  The record remains open through each of the four levels of appeal, including the hearing and the Appeals Council review.  The SSA hearing is described as inquisitorial because the ALJ has the responsibility to develop and evaluate the record, find the facts, consider those facts in light of agency policies and regulations, and issue a decision.  In other words, the SSA hearing is not adversarial; the claimant may have a representative, but the agency does not. 

Statutory protections are included in the APA to ensure ALJs’ decisional independence from their agencies in matters of appointment, tenure, and compensation.  The Office of Personnel Management is responsible for implementing certain sections of the APA, including the appointment of ALJs; the Merit System Protection Board has a role in disciplining ALJs; and consistent with APA requirements, the ALJ employing agency is responsible for managing the ALJs they hire.  In the case of SSA, ALJs are required to follow the agency’s substantive policies and procedures, and SSA has the authority to enforce these requirements as long as they do not interfere with decisional independence.  

With approximately 1380 ALJs, SSA has 85 percent of all federal ALJs; the next largest corps of 70 ALJs is at the Department of Health and Human Services’ Office of Medicare Hearings and Appeals, followed by the Department of Labor with 40 ALJs.

Requests for an ALJ hearing have increased significantly due to the aging of the baby boomers.  In the past three years, these requests have further increased due to the recession.  This has resulted in a corresponding increase in the number of appeals waiting for a hearing by an ALJ.  The SSA has hired a significant number of ALJs in the last three years and has increased hearing operations efficiency through the use of video conferencing, automation and business process changes.  Also, on

October 31, 2007, the Chief Administrative Law Judge issued a memorandum to all ALJs that, for the first time, identified expectations for ALJs to issue 500-700 decisions each year on a timely basis.  According to the SSA, average waiting time for a hearing decision has since been reduced from a high of nearly 18 months in August 2008 to a still-unacceptably high 354 days in May 2011.

ALJ productivity, award and denial rates can vary significantly.  Based on data provided by the SSA, in FY 2010 74 percent of ALJs met the requested threshold of 500 decisions, however 15 ALJs handled more than 1000 cases and 98 ALJs handled fewer than 100 cases.  Also, nationally, ALJs awarded benefits in 61 percent of cases and denied them in 26 percent of cases and dismissed the requests in 14 percent of cases; however, 54 ALJs consistently awarded benefits in 85 percent or more of their cases and 2 ALJs denied them in at least 80 percent of their cases.  The Social Security Subcommittee has requested that the SSA Office of Inspector General evaluate the most significant cases of variance to see what factors may explain it, and whether SSA is effectively using its management authority to ensure adherence to SSA policies and procedures. That review is now underway.

In announcing the hearing, Chairman Sam Johnson (R-TX) stated, “No one should have to wait months or even years for their hearing decision because of the office or the ALJ their case is assigned to. That’s just plain wrong.  All of us have a responsibility to make things right for workers who paid for and deserve far better service.  At the same time, Social Security must be able to call bad decision-makers and under-performers to account.  I am committed to exploring measures that can be taken to improve productivity, quality, and agency oversight without compromising the right of claimants to a fair and impartial decision on their case.”

“Administrative law judges have an obligation to decide every case efficiently and accurately, but apparently that isn’t always happening at the Social Security Administration,” said Chairman Howard Coble (R-NC).  “The pressure on the system will only increase in the next decade as more and more baby boomers retire.  We need to get in front of this problem before it becomes a crisis, and this joint hearing is a step in the right direction.”

FOCUS OF THE HEARING:

The hearing will examine the role of ALJs, the impact their decisions have on those who have appealed their claim and on taxpayers, and SSA’s overall management of and challenges facing the hearing process.    

DETAILS FOR SUBMISSION OF WRITTEN COMMENTS:

Please Note: Any person(s) and/or organization(s) wishing to submit for the hearing record must follow the appropriate link on the hearing page of the Committee website and complete the informational forms. From the Committee homepage, https://waysandmeans.house.gov, select “Hearings.”  Select the hearing for which you would like to submit, and click on the link entitled, “Click here to provide a submission for the record.”  Once you have followed the online instructions, submit all requested information. ATTACH your submission as a Word or WordPerfect document, in compliance with the formatting requirements listed below, by the close of business on Monday, August 1, 2011.  Finally, please note that due to the change in House mail policy, the U.S. Capitol Police will refuse sealed-package deliveries to all House Office Buildings. For questions, or if you encounter technical problems, please call (202) 225-1721 or (202) 225-3625.

FORMATTING REQUIREMENTS:

The Committee relies on electronic submissions for printing the official hearing record.  As always, submissions will be included in the record according to the discretion of the Committee.  The Committee will not alter the content of your submission, but we reserve the right to format it according to our guidelines.  Any submission provided to the Committee by a witness, any supplementary materials submitted for the printed record, and any written comments in response to a request for written comments must conform to the guidelines listed below.  Any submission or supplementary item not in compliance with these guidelines will not be printed, but will be maintained in the Committee files for review and use by the Committee.

1. All submissions and supplementary materials must be provided in Word or WordPerfect format and MUST NOT exceed a total of 10 pages, including attachments. Witnesses and submitters are advised that the Committee relies on electronic submissions for printing the official hearing record.

2. Copies of whole documents submitted as exhibit material will not be accepted for printing. Instead, exhibit material should be referenced and quoted or paraphrased.  All exhibit material not meeting these specifications will be maintained in the Committee files for review and use by the Committee.

3. All submissions must include a list of all clients, persons and/or organizations on whose behalf the witness appears.  A supplemental sheet must accompany each submission listing the name, company, address, telephone, and fax numbers of each witness.

The Committee seeks to make its facilities accessible to persons with disabilities.  If you are in need of special accommodations, please call 202-225-1721 or 202-226-3411 TTD/TTY in advance of the event (four business days notice is requested).  Questions with regard to special accommodation needs in general (including availability of Committee materials in alternative formats) may be directed to the Committee as noted above.

Note: All Committee advisories and news releases are available on the World Wide Web at http://www.waysandmeans.house.gov/.