socialNsecurity Appendix K

APPENDIX K

Production Quotas for Judges

ASSOCIATION OF ADMINISTRATIVE LAW JUDGES

Henry Reuss Federal Plaza, Suite 300

310 W. Wisconsin Avenue

Milwaukee, WI  53203

(414-297-3141 X 3009)

December 10, 2004

The Honorable Martin Gerry

Deputy Commissioner

ODISP

6401 Security Boulevard

100 Altmeyer Building

Baltimore, MD  21235

Dear Deputy Commissioner Gerry: 

I am writing to express our deep concern with the administrative law judge quota memorandum we received from Associate Commissioner Thurmond on November 19, 2004.  When we met with the Commissioner in October, we expressed our concern with the relentless pressure from  Associate Commissioner Thurmond for increased administrative law judge case production.  We expressed our concern with its long term corrosive impact on both the due process hearing and the Social Security disability trust fund.  In his last memorandum, Associate Commissioner Thurmond stated that "our disposition per ALJ rate needs to average at least 2.45 dispositions per ALJ - at least 52 dispositions per month (624 dispositions per year)".  Mr. Thurmond's quota is actually closer to 62 dispositions per month since his annual disposition of 624 is based on working the entire month of each and every month of a 12-month year.  With holidays, annual leave and sick leave no judge or agency employee actually works the entire month of each and every month in a year.  

We are extremely disappointed with the administrative law judge production quotas issued by Associate Commissioner Thurmond because they are in violation of law,  a settlement agreement with the agency and our collective bargaining agreement.  This egregious action must be corrected forthwith.  

Production quotas for administrative law judges are contrary to the law.  In 1946 the Congress adopted the Administrative Procedure Act creating the hearing examiner system [now administrative law judges] to protect the public from undue agency influence in administrative hearings.  The United States Supreme Court first addressed the question of the status of Federal administrative law judges in 1951.  The Court stated that the legislative history of the Administrative Procedure Act indicated that enhancement of the status and function of the trial examiner was one of the important purposes of that administrative  reform.  [Universal Camera Corp.  v. National Labor Relations Board, 340 U.S. 474 (1951)]  The Administrative Procedure Act was enacted to address frequent complaints  that agency hearing examiners were "mere tools of the agency concerned and subservient to the agency heads in making their proposed findings of fact and recommendations".   Congress reformed the system by making  hearing examiners "a special class of semi-independent subordinate hearing officers" by vesting control of their compensation, promotion and tenure in the Civil Service Commission to a much greater extent than in the case of other Federal employees.  [Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128 (1953)]  The Supreme Court again reviewed  the process of administrative adjudications in 1978.  The Court said that prior to the Administrative Procedure Act, there was considerable concern that persons hearing cases at the administrative trial level could not exercise independent judgment.  The Court stated that the agency administrative adjudication system "is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him free from pressure by the parties or other officials within the agency."  The Court stated that there can be little doubt that the role of the modern Federal hearing examiner or administrative law judge is "functionally comparable" to that of a trial judge.   [Butz v. Economou, 438 U.S. 478 (1978)]  The Court affirmed this role of the Federal  administrative law judge in 2002.  [Federal Maritime Comm'n v. South Carolina State Ports Authority, 535 U.S. 743 (2002)] 

 Litigation by judges against the Social Security Administration over production quotas has a long history.  A declaratory action brought by ALJ Simon Nash, the HOCALJ in Buffalo, to determine whether an agency policy directive issued to judges to produce 26 dispositions per month was an illegal quota in violation of the Administrative Procedure Act lasted over ten years and resulted in two federal circuit court decisions. [Nash v. Califano, 613 F.2d 10 (2d Cir. 1980) ("Nash I") and Nash v. Bowen, 869 F.2d 675 (2d Cir. 1989) (Nash II)]   Nash II stands for the proposition that administrative hearings shall be conducted in an impartial manner and that fixed case production quotas are a violation of the Administrative Procedure Act.  After a fact-finding hearing the district court found the directive not to be a quota. The Court of Appeals stated:

[W]e agree with the district court that reasonable efforts to increase the production levels of ALJs are not an infringement of decisional independence. In [the] memorandum . . . then Director Trachtenberg indicated that while he was opposed to the fixing of quotas, he was recommending a goal of 26 dispositions per four-week period.  Id. at 680 (emphasis in original).

Associate Commissioner Thurmond dispensed with all pretenses that his directive was recommending a goal of 52 dispositions by stating "our disposition per ALJ rate needs to average - at least 52 dispositions per month (624 dispositions per year)."  In Nash II the court was sympathetic to the agency argument that something had to be done since "the Social Security Administration (the "agency") was faced with an administrative crisis due to a backlog of over 100,000 cases."  Id. at 676 and 681. Today the backlog is over 500,000 cases.  We assert this five-fold increase in the backlog is not the fault of the judges and setting quotas that require judges to more than double their production will not solve the problem.  The cause of this "administrative crisis" brought on by the five-fold increase in the backlog has multiple roots which include a sustained economic "down-turn", an aging population and the agency reorganization known as "HPI". 

 The judicial independence for Federal administrative law judges, which is provided for in the Administrative Procedure Act, was codified by excluding them from the Federal employee agency appraisal systems.  [5 U.S.C. sec. 4301]  It is well established that Congress created judicial independence for administrative law judges for the protection of the claimants and not for the protection of the judge.   It should also be noted that  SSA administrative law judges have the sole authority to set the time and place for the hearing of a case.  [20 CFR 404.936]    With regard to travel dockets, a former SSA chief judge issued a memorandum setting forth suggested numbers of cases to be scheduled on hearing trips.  In litigation involving the interpretation of this memorandum, an administrative law judge for the Merit Systems Protection Board held that this memorandum sets forth "guidelines" and "goals" for scheduling cases and other factors, such as the probable duration of the hearings, determined the size of the docket.  In fact, SSA Chief Judge Charles Boyer testified that the numbers set forth in the memorandum were not quotas and there could be variances.  [SSA, v. Stephens, MSPB Case No. CB-7521-97-0048-T-1 (1998)]   It is clear that the law prohibits the agency from imposing case production quotas on administrative law judges to protect the judges from undue agency influence and from the conditions existing prior to the Administrative Procedure Act. 

 Production quotas for administrative law judges are contrary to a settlement agreement that the agency entered into with administrative law judges who were involved in litigation with the agency.  During the 1970's these administrative law judges commenced an action against the agency for interfering with their judicial independence.  In 1979 the litigation ended when the agency entered into a settlement contract with the judges. The settlement contract provided, in part,  that "OHA will not issue directives or memoranda setting any specific number of dispositions by ALJs as quotas or goals."  The agreement further provided that it could not be changed without good faith consultation with both the Association of Administration Law Judges and the ALJ Corps.  [Bono v. United States of America Social Security Administration,  Civil No. 77-0819-CV-W-4 (W.D. Mo. 1979)]  Within a month after the Bono settlement, the General Counsel of the Social Security Administration issued a memorandum to all agency administrative law judges, with reference to the settlement,  that stated, "it is understood that OHA will not issue directives or memoranda which set any specific number of dispositions by ALJs as quotas or goals.  These prohibitions apply to both the headquarters staff and to management officials in the regional and hearing offices as well."  [SSA General Counsel, Mr. Donald A. Gonya, Memorandum, dated July 28, 1979]  No subsequent General Counsel has rescinded this memorandum.

Production quotas for administrative law judges are contrary to the AALJ collective bargaining agreement with the agency.  The contract clearly provides that the work function of an administrative law judge is professional, varied and complex and does not lend itself to standardized production in given periods of time.  The collective bargaining agreement contains the following language:

The Parties recognize that the Judges covered by the terms of this agreement are administrative law judges appointed pursuant to 5 U.S.C. sec. 3105, and are engaged in the performance of duties which require the consistent exercise of discretion, knowledge, and judgment in conducting hearings.  These duties are complex and varied as set forth in 5 U.S.C. sec. 7103 (15)(A)(iv) and are of such a character that the output produced or the results accomplished by such work cannot be standardized in relation to a given period of time.  [Article 5, Section 1]

 Administrative law judges, like other professional persons, are subject to performance standards that are prescribed by the code of professional conduct that governs their particular profession.  The American Bar Association Model Code of Judicial Conduct for Federal Administrative Law Judges sets forth performance standards in some detail for administrative law judges.  For example, administrative law judges should be faithful to the law and maintain professional competence in it.  Administrative law judges should be patient, dignified and courteous to litigants, witnesses and lawyers and should accord to all persons who are legally interested in the proceeding, or their lawyers, full right to be heard according to law.  The judge should promptly dispose of the business before the court and devote adequate time to his or her duties, be punctual in attending hearings and expeditious in determining matters under submission, and insist that other subordinate officials, litigants and their lawyers cooperate with the judge to that end.  [Canon 3]  We have long advocated that the agency work with the Office of Personnel Management and/or the Office of Government Ethics to have this code of professional conduct adopted as part of the governing regulations for all administrative law judges.  It should also be noted that the Merit Systems Protections Board has stated that it looks to the America Bar Association codes of professional conduct for guidance in disciplinary cases.   

It is very troubling to us to have the Associate Commissioner of OHA issue a memorandum that is clearly in violation of the law, a settlement agreement with the agency, and the AALJ collective bargaining agreement.  It is the core mission of OHA to administer justice to the American public by providing full and fair due process hearings.  This is a right that the American people are entitled to under our Constitution.  The quota memorandum is clearly improper and it infringes on this basic right of the American people.  It will also have an adverse effect on the Social Security disability trust fund by having the result of "paying down the backlog". 

As part of the Redesign Reform Plan for the Social Security disability system, the SSA Office of Workforce Analysis built a computer model to study the time needed to perform the work functions on a disability claim at each step of the process from the initial level to the Appeals Council.  Based on this study, it was determined that the time line for performing the administrative law judge function provided for a range of  25 to 55 cases per month.  [Plan For a New Disability Claim Process, Social Security Administration, September 1994]   Based on this study, administrative law judge case production at any point within this range would be reasonable.  According to recent information that we have seen, each disability case is worth about $150,000 to $200,000 dollars, plus an undetermined amount of medical costs.  If a judge would produce dispositions according to the Thurmond quota schedule, the judge would be devoting less than three hours time to each case.  If one hour is devoted to the hearing, less than two hours would remain for all of the pre-hearing and post-hearing work on the case.  We suggest that it is not reasonable to expect a judge to "churn" out cases in this manner.   The Thurmond quota scheme is  no more than a plan to "pay down the backlog" that will have a devastating effect on both the Social Security disability trust fund and administrative due process.  Moreover, such a plan to "pay down the backlog" may attract unfavorable attention from both  the political arena and the press.  We have had this experience in the past and we do not want to have it occur again.

 The action by the Associate Commissioner of OHA is a serious encroachment on the Administrative Procedure Act and the Constitutionally protected right of a due process hearing.  This egregious act is injurious to the American people and it must be corrected immediately.  We respectfully request an early meeting with you to discuss this very serious affront to our long established system of justice and due process. 

There are other serious and significant issues which negatively impact the administrative judiciary at SSA and should be discussed and resolved at this meeting.  One of these issues involves the absence of any settlements in any of our pending grievances, arbitrations or litigation, or worse, even a scheduled meeting to discuss settlement.  As a result, the clear direction of the Commissioner in Orlando to resolve as many issues as possible will not be honored.  Another serious issue which threatens the efficient and effective functioning of the administrative judiciary at SSA, is the absence of full authority in the chief administrative law judge.  Associate Commissioner Thurmond is not a judge and cannot perform the duties of the chief judge.  Finally, other issues that must be addressed at the meeting include: the absence of a positive labor relations environment at OHA;  the agency's apparent refusal to bargain over certain critical aspects of the electronic folder initiative; elimination of no-cost travel orders; ALJ annual leave parity with the SES; administration of the transfer and Flexiplace articles in the contract; staffing; no apparent attempt by management to address the horribly written draft decisions we face daily and other issues which have been accumulating. 

 All of the above issues are important to the AALJ and we want very much to maintain the positive working relationship we have with the Commissioner, as well as with you and your staff.  Because of this outstanding relationship, we respectively request that you share a copy of this letter with Commissioner Barnhart.

  

                                                                                    Sincerely,

  

                                                                                    Ronald G. Bernoski

                                                                                    President

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socialNsecurity Appendix J

APPENDIX J

Testimony of the SSA Commissioner concerning the backlog

House Committee on Ways and Means Investigates Social Security Disability Backlog. This is what the Social Security  Commissioner told the House about the problem.

Statement of The Honorable Michael J. Astrue,

Commissioner, Social Security Administration

Testimony Before the House Committee on Ways and Means

April 23, 2008

Thank you for this opportunity to update you on our efforts to improve our service to the American public.

I would like to start with Social Security’s front door, the field office.  The past few years have been tough for field offices. As overall agency employment dropped from 63,569 in 2003 to 60,206 at the end of 2007, field offices felt the effect of staffing losses more intensely because so many of our activities mandated by law are performed in our field offices. 

As staffing fell, workload burdens grew.  The general population continued to grow, and it got older, which meant more retirement applications and more disability applications.  New state laws aimed at illegal immigrants increased the number of people seeking replacement Social Security cards.  New federal statutes required claims representatives, teleservice representatives, and other field staff to take on complex and time-consuming new responsibilities in Medicare Part D.  This year, our field offices are processing additional requests for 1099s to help taxpayers file for payments under the stimulus bill.

Our field offices do their best, but simply cannot provide the level of service the public expects from the Social Security Administration at recent levels of funding.  This Committee has recognized this problem and I would like to thank you for providing SSA with the resources to better fulfill our responsibilities to the American public. The 2008 appropriations was the first time that Congress has appropriated at or above the President’s Budget request since 1993.

We are grateful to you for your support, and it is helping our field offices and teleservice centers provide improved service.  We will use some of the extra funding to strengthen our direct service operation with the hiring of 3,900 employees, 1,300 employees more than the expected losses for this year.  We are not going to be able to meet our challenges by continuing to ask for more money to maintain the status quo.  Increases in personnel and infrastructure costs alone for the fiscal year that starts this October will be at least $400 million.

To cope with rising workloads and likely fiscal constraints, we have systematically reviewed the information that we routinely request from or provide to the public.  We believe that if we can automate, reduce, or eliminate such information exchanges, we can improve efficiency as well as the quality of our service and the morale of our field employees.  Our Ready Retirement Team has been leading this effort by focusing on streamlining the retirement application process, a logical choice because this past January the first of nearly 80 million baby boomers filed for retirement.

This team already has driven change by determining that retirees born in this country may not need to provide their official birth certificate to prove their age.  Instead, if a retiree alleges a date of birth that satisfies our authentication standards, we will accept the allegation.  This simple change will allow baby boomers to file more effortlessly over the Internet, telephone, or in our offices, employing a more efficient process that will accelerate payment of the first check. Furthermore, field employees will save time on a significant number of claims each year. 

The Ready Retirement Team also has greatly improved the information available to people trying to decide the right date for their retirement.  As we will soon announce, we are planning to provide people highly accurate on-line estimates of their monthly retirement benefits, which we compute by using their actual earnings records.  Our current online estimators are difficult and time-consuming to use, and often fall short on accuracy.  The new version will be simple, easy-to-use, and highly accurate.  Our team worked hard with the technology and with privacy experts to ensure that the negligible risks of inappropriate disclosure of personal information justify the substantial benefits. 

Although our electronic services are usually ranked as the best of all federal agencies, my judgment is they are far from good enough yet to deal with the imminent tsunami of baby boomers’ claims.  After broad consultation with experts and advocacy groups, next month we will be unveiling our new website, which will eliminate some of the visual clutter and be significantly easier for the public to navigate, especially if they are reaching out to us for the first or second time.

Our improved website will introduce the public to the next critical Ready Retirement initiative:  a total overhaul of our online retirement application.  Our current online form was put up quickly about 8 years ago.  It is nowhere near best demonstrated practices, and for most of this decade only about 10% of the public has chosen to apply for retirement online.

In order to keep field offices from being totally overwhelmed, we are going to need to drive that online filing figure up from about 13% to 50% over the next 5 years.  The Ready Retirement Team has a  September 27, 2008 deadline for the first step of a two-step implementation, and it has already shown a terrific prototype to advocacy groups, and the Social Security Advisory Board. We found that we could eliminate or simplify the vast majority of the application questions, and that we could use cues, links, streaming video, and other techniques from the best financial services websites to give the public a friendlier, faster, and simpler experience.  We expect the current 45 minutes for the average online retirement filing to drop to an average of 15 minutes.

The second step of the Ready Retirement process requires modification of 39 separate COBOL-based systems and will involve some additional improvements to the form itself. The key improvement will be that our computers will automatically send the claim to payment without the involvement of a claims representative. In the coming years, this one change could free up enormous amounts of staff time.

A similar work-saver that we recently implemented is iAppeals.  As you know, State agencies, called Disability Determination Services, decide disability claims on our behalf at the first two levels of the adjudication process.  Currently, to appeal an adverse Disability Determination Services decision, the claimant or the claimant’s representative fills out a paper form and sends it to a field office, where the staff manually enters the appeal into a system. 

iAppeals, which is now used on a voluntary basis in about 10-15% of all cases, eliminates this unnecessary manual work, reduces the likelihood of human error, and ends one source of delay that contributes to backlogs.  For these reasons, in the coming year, we will propose a regulation that will require claimants’ representatives to use iAppeals; the status quo will be available for unrepresented claimants.

We also are having a separate intercomponent team study the waiting areas in our field offices to improve both the efficiency of the office and the experience of the public.  We expect to roll out many changes in the next year that will improve seating, layout, privacy, signage, and other small, but important, things that make visiting a field office a better experience. 

Last month, I authorized the purchase of new intake kiosks for field offices that will provide a modern, fast, and user-friendly tool for the public to register the reason for their visit.  These kiosks incorporate touch screen technology and are similar to those many Americans use for airline travel.  We are also piloting the use of personal computers in the field office reception area to provide the public with connectivity to the SSA Internet website.  These personal computers provide an option for those people who may not have access to a personal computer, or may not have understood our e-service options, to transact their business with us electronically.

We are looking at using an unobtrusive slideshow presentation to remind people of the documents they need in order to file a claim or receive a new or replacement Social Security card.  Those people who do not have the necessary documentation with them can leave to get it and come back, or call a family member to bring it to them, so that they will have a fully successful visit.  The slides will also provide information about our online and 800 number services so visitors know there are alternatives to visiting a field office the next time they need service.

Before I discuss our efforts to improve our disability process, I want to mention that immigration initiatives and demographic shifts have further strained some field offices with demands for new and replacement Social Security cards.   To ease this pressure, we have moved to specialized card centers, mostly in densely populated and rapidly growing urban areas.  These centers allow us to provide faster, more efficient, and more accurate service to the public. We are co-locating these new centers with field offices because doing so is cost-efficient, provides more career ladder opportunities to our employees, and most importantly, better serves the public. 

Now, I would like to turn to the disability backlogs by starting with an update about our efforts to improve the quality and speed of Disability Determination Services decision-making. In a time of agency contraction, for most of this decade the Disability Determination Services have suffered even deeper cuts than SSA.  We have taken steps to reverse this trend, and I am very pleased that the Disability Determination Services will be able to replace all staff who have left or will leave their agencies this year.  This support is a key part of our effort to bring the number of pending cases at the State level down below 500,000 for the first time since 1999. 

Additional resources are vital, but must be accompanied by our commitment to work smarter.  A valid longstanding Disability Determination Services criticism of SSA is that our medical listings do not provide enough detail and do not keep pace with medical advances.  In making disability determinations, SSA uses the Listing of Impairments (the Listings) which describes impairments that are considered severe enough to prevent a person from doing any substantial gainful activity. Although the Listings are a critical factor in SSA’s disability determination and have been used in millions of cases since their initial development in 1955, I discovered last year that some of the important listings had not been updated for decades.  Updating the Listings on a regular basis will allow disability adjudicators to resolve disability cases more accurately and efficiently.  We have already published several final Listing regulations, and we have developed a schedule to ensure that we update all of our medical listings at least every 5 years.

In addition, we have made a special effort to provide guidance to decision-makers on the rare diseases and conditions where we are most likely to delay decisions and make mistakes. This new emphasis on rare diseases and conditions is an important element of our effort to use computer technology to pull the straightforward cases out of the queue and resolve them in an unprecedented brief period of time.  Our retrospective analyses indicate that a surprisingly high percentage of these cases are either decided incorrectly or take an unusually long period of time to adjudicate.

The first piece of what will be a two-track fast-track system is now up and running across the country.  It is called QDD – for Quick Disability Determination – and right now about 2.3 % of all new claims are being identified for QDD processing, and over 96% of them are allowances.  QDD allowances are being decided in an average of 6 to 8 days.  During the next several months, we expect the proportion of cases being identified for fast tracking will increase as we continue to make adjustments to, and test the limits of, the computer model. These adjustments should not affect the processing time nor the allowance rate for QDD cases. 

We are also getting close to piloting the second track, which we are calling compassionate allowances.  These are cases where the disease or condition is so consistently devastating that we can presume that the claimant is disabled once we confirm a valid diagnosis.  By deciding more cases based on medical evidence alone, we can reduce the number of claims that require further review.

Since this is new territory, we do not know what the eventual mix of QDD and compassionate allowance cases will be, but a reasonable guess is that by the end of 2009, about 4 % of our claims will be fast-tracked.  By the end of 2012, that number could be 6% to 9 % of our claims.  I stress, however, that right now these numbers are best guesses and that we will not really know until we have pushed this effort for a longer period of time. 

We have also extended nationwide the Request for Program Consultation, a Disability Determination Services quality initiative that was incorporated into Disability Service Improvement.  As we are speeding up our processing of cases, it is essential that we maintain our focus on accuracy.  An institutionalized forum for communication between Disability Determination Services and SSA on problematic cases is an important part of that effort. 

The Request for Program Consultation provides an electronic forum to resolve disagreements between the Disability Determination Services and our Office of Quality Performance. These disagreements may involve, for instance, whether a Disability Determination Services agency obtained appropriate documentation, applied policy correctly, or decided the case accurately.  The Request for Program Consultation is a web-based application that is available to Disability Determination Services nationwide.  The Request for Program Consultation website allows Disability Determination Services to submit requests electronically and those requests appear instantaneously for review by the Request for Program Consultation Team.  The Request for Program Consultation Team analyzes and resolves cases within seven days.  Prior to this consultation process, Disability Determination Services often waited several months for a definitive resolution on complex cases.  The Request for Program Consultation allows us to gather data on each request and share it with all users so that they may use that information to write better policy and make better decisions. 

As we work to improve the timeliness and quality of our disability determinations, we are also considering longer-term systems improvement.  We will be having important discussions with State administrators in New Orleans next week to discuss a unified information technology system to replace the current 54 separate COBOL-based systems that are increasingly difficult to modify and expensive to maintain.  A similar consolidation effort collapsed in early 1999, but we have been working toward this goal for nearly a year, and I am cautiously optimistic.  If we can obtain a sufficient degree of consensus with our partners in the States in the next few months, we may move forward with this essential improvement provided we have sufficient resources..

We are working on a new software tool called eCAT (Electronic Case Analysis Tool) for use by disability examiners.  eCAT will prompt examiners about questions they should ask and documentation that they need before making a disability determination. The initial model for eCAT was developed by the Pennsylvania Disability Determination Services. Unfortunately, eCAT was implemented prematurely as part of Disability Service Improvement and failed miserably.  The Virginia Disability Determination Services is helping us refine eCAT so that we properly implement a good concept.  While eCAT will not be ready to pilot earlier than next year, it offers the hope of using cutting-edge technology to make faster, more accurate, and better-documented decisions.

I would like to now turn to the hearings backlog.  If you step back and look at the system as an economist would, we have had, for many years, issues of allocation and distribution of resources.  The problem of allocation has been painfully clear – compared to 10 years ago we have about 176 % more disability cases.  We have taken a big step toward resolving that problem by bringing onboard the 175 additional administrative law judges and additional staff to support them.  If we can resolve space issues, we will also bring on another 14 National Hearing Center judges this year.

The resource distribution problem is neither obvious nor is its cause clear to me.  Nonetheless, when you look at where we were a year ago, it is clear that there was a longstanding imbalance in Office of Disability Adjudication and Review resources.  In particular, the Chicago and Atlanta regions were dramatically under-resourced compared to the rest of the country.  The hearing offices in many of the most backlogged cities – such as Atlanta, Cleveland and Detroit – were receiving 3-4 times as many filings per administrative law judge as offices in Southern California and New England.

We have moved swiftly to correct this problem.  Where we can address it by changing jurisdictional lines in adjacent locations, we have done so.  As an example, our suburban Pittsburgh office now serves Youngstown and other parts of eastern Ohio to take some of the burden off overloaded offices in Cleveland and Columbus.  For the same reasons, we have reassigned responsibility for cases scheduled for video hearings to less busy offices.  At our site in Toledo, we have video hearing capability, so that now administrative law judges in Boston assist the Toledo office with their video hearings.

Our new National Hearing Center (NHC), which holds video hearings from a central location, also gives us the capability to move cases quickly and flexibly to conduct video hearings in the cities with the worst backlogs.  Right now, our NHC administrative law judges are focusing their efforts on the backlogs in Atlanta, Cleveland and Detroit.  We are planning to expand this NHC initiative as soon as we can and intend to address the backlogs in Miami, Columbus, Indianapolis, and other cities where claimants have been waiting the longest.

With the allocation of the 175 newly-hired administrative law judges, we have made equalizing resources a priority even though we have received some criticism for doing so.  We are sending 10 to Ohio and just 1 to New England.  That is not a regional bias – I am from Boston myself – but a data-driven decision that recognizes that there is a strong correlation between filings per administrative law judge and cases pending.

We have also received some criticism that we are not providing adequate support staff for our administrative law judge corps. In my opinion, that is a fiction designed to sidetrack some of our productivity initiatives.  Since I began as Commissioner, I have increased the number of support staff per ALJ from 4.1 to 4.4.  The number of staff needed to support a disposition will change as we fully implement the backlog plan, but at the moment that number is difficult to project with any certainty.  We know that automating many of our clerical functions will reduce the amount of time spent by staff on more routine tasks, and allow them to absorb additional workloads.  We are also working to standardize our business process, which should result in additional staff efficiencies.  We will continue to monitor the appropriate staff to ALJ ratio as the new processes are implemented. 

While we will still have a handful of offices that will be under-resourced due to various barriers, such as the cumbersome process for adding additional space, we are just months away from no longer being able to offer resource issues as a  defense to poor productivity.  It is time for everyone from senior management to the most junior support staff to commit themselves to finding the best ways to work together to make sure that nobody waits an inexcusable period of time for a final decision on an appeal. 

Performance varies greatly from office to office, and we are working toward having the least productive offices model themselves, to the extent possible, after the more productive offices.  While waiting for the new administrative law judges and support staff to be fully trained and productive, we have done our best to attack the backlogs with a series of administrative and regulatory changes that have slowed the increase in pending cases and slightly reduced average processing times.  We could have made even greater progress, but chose instead to make the important commitment to clear out the most aged cases where the claimant has waited 1,000 days or more for a hearing.  I would like to take a little time to explain why that decision is so critical.

For most of this decade, SSA created rules and incentives focused solely on the most prominent metric for measuring the backlog – total cases pending.  As logical as this decision may seem at first, if you think about it harder you will see that it creates a perverse incentive to focus on the easiest cases and to set aside the difficult ones.  That is what happened until the start of the 2007 fiscal year, when we had about 65,000 cases over 1,000 days old, some of which had been pending for as long as 1,400 days.

Even though these 1,000-day-old cases generally take 5-6 times longer than new cases to resolve, we set the goal of clearing them out by the end of the year.  We came within 108 cases of that goal by the end of FY 2007, and I am happy to report that all of those cases are now gone. From a moral perspective, we had to dedicate our resources to clear out these cases because it is just wrong to let claimants wait an unconscionable length of time in order to meet a hearing-pending goal. 

We were not satisfied with our initial success, and for FY 2008, we redefined our goal as cases 900 or more days old.  We had 135,000 of the newly-defined aged cases at the start of FY 2008.  I am pleased to report that we are ahead of schedule for completing all 135,000 of these cases this year; we have already completed 63% of them.  Our intention is to reduce the tolerance level again in FY 2009, but I plan to wait until September before doing so. 

I know you recognize that our ability to make continued progress with this workload in the next fiscal year will depend greatly on our fiscal position.  If we do not receive a timely appropriation or must deal with the uncertainties and budget reductions created by a continuing resolution of unknown duration, our task will be much more difficult to accomplish.

Reduction of the aged cases should also produce, later this calendar year, a real benefit for everyone who is waiting.  The aged cases represent a large percentage of the paper cases in the system, and it is extraordinarily inefficient to run two complex hearing office systems instead of one.  What should give everybody on this Committee hope for next year is that the paper cases should be substantially gone by the end of the year – around the same time that most of the new administrative law judges are reaching full productivity.  The convergence of these two events means that we expect to hit the “tipping point” –where both total cases pending and average processing time are declining– sometime in January or February of next year, with the caveat that progress may be slow if we are still under a continuing resolution.

We have other possible improvements in the pipeline. In June, we expect to start a 6-month pilot program with the National Organization of Social Security Claims Representatives, an association primarily comprised of lawyers. In this pilot, we are testing a program that will allow representatives to conduct video hearings from their offices. This initiative should offer convenience and comfort for many claimants, save time for attorneys, and cut down on our investment in bricks and mortar, a cost which increases above the rate of inflation year after year.

We are planning on a test in Michigan which will use the same type of case profiling mechanisms that we used in our successful attorney-advisor and informal remand initiatives to look at cases heading from the Disability Determination Services to Office of Disability Adjudication and Review. 

Michigan is a "prototype" State that does not have reconsideration, and we are looking at ways of providing a quick screening tool to enhance the quality of the initial determinations. What we learn from this screening activity may help us identify cases that can be triaged at an earlier point in the appeals process.

We have started a pilot on centralized processing of notices, which may sound dull, but in theory should save an enormous amount of time for hearing office support staff that then can be used for moving cases.  Regardless of the success of this pilot, at a minimum it will be an opportunity to make Office of Disability Adjudication and Review notices more up-to-date, clear, and user- friendly.

We will continue to improve Office of Disability Adjudication and Review’s basic electronic system.  A new system to help support staff ready files for hearing should be rolling out state-by-state by the end of the year.  We are working on systems that will improve docketing and allow authenticated attorney representatives to access the records to check files for such things as case status and evidentiary development.  As I have said before, there is no magic bullet answer, just a multitude of small nitty-gritty improvements necessary to run a more efficient and compassionate process for the American public.

Before I close, I feel obligated to bring one aspect of last month’s Trustees’ Report to your attention.  Although the combined OASDI trust funds do not reach exhaustion until 2041, the disability trust fund will be exhausted in 2025 under current assumptions.  Although that date is later than the 2019 trust fund exhaustion date for Medicare Hospital Insurance, it is one more reason why Congress needs to work together on a bipartisan basis with the administration to give younger Americans reason to have confidence in the future of Social Security.

To conclude, we have made slow and frustrating progress in fixing our service delivery problems, but we are making progress, and I am grateful to each Member of this Committee for your support.  As I have laid out in this testimony, changes that will take place between Labor Day and the end of the year – streamlined online filing, at least 175 new administrative law judges picking up steam, and the full shift from paper to electronic systems in Office of Disability Adjudication and Review – should produce considerably more improvement next year. Operating under a continuing resolution for a prolonged period of time would worsen a situation already made difficult by years of increasing workloads and limited resources.  It is also essential that we receive the full President’s Budget for FY 2009 in order to keep up with increasing workloads and meet our commitment to eliminate the hearings backlog by the end of FY 2013.  So I ask for your timely support of the President’s budget.

Thank you for this opportunity to lay out in detail our plans and progress, and I will be happy to answer any questions you have.

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