Cheif Administrative Law Judge
Social Security Administration
before the Senate Committee on Homeland Security and Government Affairs
October 7, 2013
Chairman Carper, Ranking Member Coburn, and Members of the Committee:
Thank you for this opportunity to discuss our hearings process. As Chief Administrative Law Judge (ALJ) for the Socia l Security Administration (SSA), I am responsible for overseeing the hearings operation in the Office of Disability Adjudication and Review (ODAR), including approximately 1,500 ALJs. I appreciate this opportunity to discuss our hearings process, which is now responsible for adjudicating over 800,000 cases per year, and the improvements we have made over the past decade.
I also thank the Committee for including recommendations in your recent report on the Huntington hearing office aimed at further improving the hearing process. SSA' s responses to the recommendations are attached to this testimony.
Before discussing our hearings process, I will briefly discuss the vital programs that we administer.
We administer the Old-Age, Survivors, and Disability Insurance program, commonly referred to as "Social Security," which protects against loss of earnings due to retirement, death, and disability. Social Security provides a financial safety net for millions of Americans-few programs touch as many Americans. We also administer the Supplemental Security Income (SSI) program, funded by general revenues, which provides cash assistance to persons who are aged, blind, and disabled, as defined in the Social Security Act, with very limited means.
We also handle lesser-known, but critical services that bring millions of people to our field offices or prompt them to caIl us each year. For example, we issue replacement Medicare cards and help administer the Medicare low-income subsidy program.
Accordingly, the responsibilities with which we have been entrusted are vast in scope. To illustrate, in fiscal year (FY) 2012, we:
- Handled over 56 million transactions on our National 800 Number Network;
- Received over 65 million calls to field offices nationwide;
- Served about 45 million visitors in over 1,200 field offices nationwide;
- Completed over 8 million claims for benefits and 820,000 hearing dispositions;
- Paid over $800 billion to almost 65 million beneficiaries;
- Handled almost 25 million changes to beneficiary records;
- Issued about 17 million new and replacement Social Security cards;
- Posted over 245 million wage reports;
- Handled over 15,000 disability cases in Federal District Courts;
- Completed over 443,000 full medical continuing disability reviews (CDR); and
- Completed over 2.6 million non-medical redeterminations of SSI eligibility.
When the American people tum to us for any of these vital services, they expect us to deliver a quality product. We take pride in delivering caring, effective service. The aging of the baby boomers, the economic downturns, additional workloads like the growing demand for verifications for other programs, and tight budgets increase our challenges to delivering quality public service.
Program Integrity Work
Further, while outside my direct scope as Chief ALJ, as Acting Commissioner Carolyn Colvin has explained, budgets also have affected our ability to conduct vital program integrity work. which helps ensure that only those persons eligible for benefits continue to receive them. It has been our agency's long standing commitment to issue the right decision to the right person at the right time. By focusing on this commitment, we demonstrate our stewardship and preserve the public's trust in our programs. Although we estimate that we save the Federal government $9 per dollar spent on continuing disability reviews (CDRs), we have a backlog of 1.3 million CDRs because we have not received annual appropriations that would allow us to conduct all of our scheduled CDRs.
The FY 2014 President's Budget includes a legislative proposal that would provide a dependable source ofmandatocy funding to significantly ramp up our program integrity work.1 In FY 2014, the proposal would provide $1.227 billion, allowing us to process hundreds of thousands more CDRs.2
Appreciation for the Committee's Efforts
Many people with severe disabilities depend on their hard-earned Social Security benefits for life's necessities. While rare, schemes that undermine the public trust in these vital programs can hurt us all. Any attempt to compromise the disability programs is unconscionable. We want to be clear on this point. We continue to analyze and explore all possible avenues regarding the issues identified by and through the work of this Committee, the other examining organizations, and our employees.
We appreciate the Committee's interest and efforts in helping us to further improve our programs and processes through its investigation and report on the former situation in our Huntington hearing office. Hearings like this one bring to light shared concerns and help identify effective solutions. Since the beginning of this Committee's investigation, the agency has cooperated fully. We welcomed staff members in our offices and made dozens of employees available for interviews. When the Committee sought documents, the agency worked quickly to provide the Committee with hundreds of thousands of electronic and paper documents.
We also appreciate that the Committee's efforts have led to a positive development. With the benefit of the Committee's work, we now have reliable evidence that certain cases contained pre-completed forms without an independent review of findings, which is sufficient to show 'similar fault' under the Social Security Act3. Based on this new evidence, we can redetermine these cases consistent with the requirements of the Social Security Act. The agency will review the affected cases and disregard the tainted medical evidence. If the remaining evidence does not support the original allowance, we will provide the beneficiary the opportunity to submit additional medical evidence before making a final determination. Beneficiaries will receive notification if we ultimately terminate their benefits and assess an overpayment. We are in the process of identifying and reviewing those cases and will be glad to update this Committee on our redeterminations as we progress with our reviews. While we welcome any opportunity to continue our conversation about SSA's hearings operation, we hope the Committee understands that the agency is limited in sharing certain information in a public forum. As you know, the Committee's investigation is not the only investigation of the Huntington hearing office. The Department of Justice and our Office of the Inspector General (OIG) also have conducted investigations - with which we are cooperating fully and these investigations remain open. Until they are completed, we are not able to take certain actions. While we do not condone inappropriate behavior, we must protect the integrity of the ongoing investigations and adhere to the requirements of the law.
Significant Action Following The Investigation
I want to emphasize that when the issues in the Huntington office emerged, we took significant management action to improve our hearings process to help detect and prevent future abuses. We immediately closed loopholes, strengthened our business processes, and enhanced internal controls. We implemented measures to ensure that the employees of the Huntington office complied with long-standing agency policies. Where we received clearance that our actions would not affect the ongoing investigations, we also commenced our own internal administrative investigations on several related matters.
We strengthened the agency's policy for management officials to assign cases to ALJs in rotation. Since 2006, our policy is, to the extent practicable, to assign cases on a first-in and first-out basis. We learned that there was a technical loophole in our electronic case management system that allowed an individual to assign cases to himself in violation of agency policy. Our system now prevents this practice. We also issued a series of national reminders about the importance of adhering to long-standing policies, including case assignment and case rotation.
In addition, we established a national policy capping the total number of cases assigned to an ALJ in a given year. In July 2011, we set the cap at no more than 1,200 case assignments per year. In November 2012, we reduced that number to 960 case assignunents per year. Effective October 1, 2013, we reduced that cap to 840 case assignments per year.
We also went "back to basics" to refresh managers on rules about time and attendance, and leave. We held calls with all Regional Chief ALJs and managers to reinforce the importance of leave rules and to discuss how to handle situations involving employees with low leave balances. In fact, we required all managers nationwide to take leave management training.
We launched a campaign for all of our hearing office employees and managers entitled "if you see something, say something," encouraging any employee who believes that he or she has witnessed something inappropriate to report it immediately to the OIG. We also told our managers that they need to take appropriate action when employees raise concerns. In addition, we augmented our existing ethics training for all agency judges.
Comprehensive Improvements in the National Hearings Process
While we took these specific actions to address some of the alleged issues, we must emphasize that over the last ten years we have proactively implemented numerous changes to comprehensively improve our national hearings process. We have made a huge investment in modernizing the hearings process - not an easy undertaking given the size of our adjudicatory system that must decide hundreds of thousands of cases each year.4 We have fully implemented one of the largest electronic processing and record keeping systems in the world, which moved us from a largely paper-based process to an electronic one that provides additional efficiencies and management tools. This electronic infrastructure has helped us to conduct over 150,000 video hearings annually and to ensure nationwide consistency with uniform electronic business processes for our hearings operation. The Administrative Conference of the United States (ACUS) has cited SSA's video hearings process as a best practice for all Federal agencies.
Our electronic systems allow us to monitor the flow ofwork through the hearings operation. Previously, we did not have the robust management information that we have today. While we continue to improve our electronic capabilities, the management information we have today has allowed us to significantly strengthen and improve the integrity and efficiency of our business processes. For example, within the last few years, we have been able to collect data on many aspects of our appeals process that we now analyze to ensure that employee training and policy clarifications are data-driven. Data also help us to identify anomalies.
Our move to electronic processing and record keeping systems have helped us tremendously in addressing one of the greatest challenges facing the agency over the past decade - a massive case backlog. In 2007, there was widespread discontent with backlogs and delays in the disability system. The numbers tell the story. The average wait for a person to receive a hearing decision was over 500 days. Over 63,000 people waited over 1,000 days for a hearing. Some people waited as long as 1,400 days. Congress agreed that these timeframes were unconscionable and made it clear that reducing them should be our top priority.
We decided that we could not take the easy road of short-term fixes on backlogs. We implemented a comprehensive operational plan, initially designed by former Chief ALJ Frank Cristaudo and containing over 30 initiatives, to manage our unprecedented workload. This plan addressed the many issues we must balance in the hearing process quality, accountability, and timeliness. It included increasing the number of ALJs and support staff, increasing the number of hearing offices, establishing national hearing centers, expanding video conferencing to conduct hearings, improving information technology, standardizing business processes, and implementing quality initiatives. In moving forward with this plan, we relied significantly on the support of Congress. In fiscal years 2008 through 2010, Congress provided additional resources, which were critical to support our improvements. Those resources also allowed us to develop the quality program discussed below.
Our efforts were successful. With more employees and judges to decide cases and improved workload management that included wider use of video hearings, we reduced average processing time from an all-time high of 532 days in August 2008, to a low of 340 days in October 2011. Since 2007, we have reduced our national case processing times by approximately 30 percent. We have decided nearly a million of the cases that had been waiting the longest for a decision since FY 2007, and today, we have virtually no hearing requests over 700 days old, with the vast majority of our cases falling between 100 to 400 days old.
However, we must caution that these gains may prove temporary. Because of cutbacks in the budget, the average processing time from the request for hearing date has started trending upwards and is currently at 382 days. Further, due to reduced budgets, we may not be able to perform as many quality reviews or to initiate new quality initiatives. In short, without adequate funding, our gains may soon diminish.
Ensuring High Quality, and Policy Compliant Decisions
Part of our effort to improve the hearings process has focused on quality. Given its vital importance to agency leadership, I will describe in greater detail the steps we have taken. However, before describing our improvements in this crucial area, I first must address an issue that has historically affected the public's perception of our decisional quality. Over the past several decades, we have been accused of sacrificing quality by reflexively denying too many disability claims or by granting them too readily. For instance, in 2007, there were prominent stories in the media about the agency's "culture of denial." Recently, the pendulum has appeared to swing to allegations that our ALJs are approving too many cases. However, these more recent allegations omit a key fact-the allowance rate at the hearing level has declined over the last several years.
Regardless of the recent trend of lower allowance rates, our efforts to improve the hearings operation - and its quality - are not about whether we allow or deny "too many" cases. There is no predetermined or ideal allowance rate. Our focus is on improving the policy compliance of ALJ decisions across the Nation to ensure that individuals who qualify for benefits receive them, and that those who do not qualify do not receive benefits. This particular focus on quality over the past six years has helped to ensure that the right decision is made on a claim for benefits whether it is an allowance or a denial.5 See Figure 1.
The data show that quality is improving. This improvement is not happenstance, but the result of several changes from the way we hire, to the way we train, to the way we give feedback. For denial decisions, we have seen ever-increasing concordance between ALJ decisions and the Appeals Council. We now have increasing amounts of data to detect areas of policy non-compliance on both denials and allowances, and we are using that data to provide better feedback to adjudicators to improve policy compliance.
This improved quality means that the Appeals Council is remanding fewer cases to our ALJs for possible corrective action. The percentage of cases appealed to Federal court is also decreasing. These improvements are not possible without the commitment to quality from our employees. I hope that you and the American public do not allow the bad actions of a few to sully the proven good work of the many.
Another aspect of our operational plan to improve quality has been to leverage the unique vantage point that the Office of Appellate Operations (OAO), under the leadership of Judge Patricia Jonas, has at the final level of administrative review. The Appeals Council (AC) within the OAO has regulatory authority to, on its own motion, review cases before a decision is effectuated (paid). For many years, limited resources, rising backlogs, the inability to provide timely feedback, and concerns about how extensively the AC, on its initiative, could review ALJ decisions6 caused the AC to focus solely on reviewing ALJ denial decisions appealed by claimants and its Federal court workload responsibilities.
In recent years, the AC developed better electronic case processing systems with robust management information, which has permitted the AC also to focus on giving timely feedback to adjudicators. Initially, the data were limited to case information on claimants’ request for review of unfavorable or partially favorable ALJ decisions. However, without data from favorable decisions, we had an incomplete picture of the extent to which adjudicators complied with agency policy.
To address this issue, in 2010, Judge Jonas created the Division of Quality (DQ). DQ considers a random sample of unappealed hearing decisions for possible own motion review. Our regulations prohibit us from selecting cases based on individual offices or adjudicators.
These reviews address concerns in particular claims, but they also support consistent, quality, and policy compliant decision-making throughout the disability adjudication process. Through these reviews, DQ collects data about recurring issues in decision making, analyzes the adjudication of each case beginning with the initial application, suggests improvements in policies and procedures, and identifies training opportunities for adjudicators and other agency employees involved in the adjudication process.7
In addition to this sampling, since 2011, DQ has conducted post-effectuation quality reviews focused on identifying recurrent decisional issues that can be addressed through training, policy clarification, procedural changes, and software, as well as to provide feedback to ALJs, senior attorneys, and hearing offices to improve their adjudication. Unlike the pre-effectuation reviews, we can select a specific ALJ or office.8 Subjects of completed focused quality reviews include hearing offices, physicians, attorney advisors, claimant representatives, and abandonment dismissals of hearing requests.
This data driven approach utilizes feedback tools like “How MI Doing?,” which allows ALJs to see information about their AC remands, including why the case was returned and also to see where their performance fits in relation to other ALJs in their office, their region, and the nation.
In addition, the data collected by DQ provide us with a tremendous tool to identify trends. We review our electronic records for anomalies; when we find them, we look to identify whether such anomalies can be explained or whether administrative action is appropriate. When we suspect fraud or other suspicious behavior, we refer the matter to our OIG.
Training is critical to policy compliance. We continue to improve and expand the training we provide to our ALJs and support staff to help ensure that our hearings and decisions are consistent with the law, regulations, rulings, and agency policy. For example, we are developing training modules related to each of the identified reasons for remand that we will link to the “How MI Doing?” tool. ALJs will be able to receive immediate training right at their desks that is targeted to the specific reasons for the remand.
Since FY 2007, our newly appointed ALJs have undergone a more rigorous selection process and have participated in a two-week orientation, four-week in-person training, formal mentoring, and supplemental in-person training. During my tenure, we have enhanced our continuing education program. We can now gather and analyze common adjudication issues and we provide quarterly continuing education training to all adjudicators to target these common issues. In addition, we have continued our training program, which we began in 2007, to provide in-person technical training for approximately 350 experienced ALJs each year, on a rotational basis. Our emphasis on data driven feedback is giving us the information we need to move from training based on anecdotal information to training on identifiable areas needing improvement.
For the past several years, our new ALJ training has included a session that explains the scope and limits of an ALJ’s authority in the hearing process, including the ALJ’s obligation to follow the agency’s quality standards, rules and policies, and the Standards of Ethical Conduct for Employees of the Executive Branch. We also have implemented the ALJ Mentor Program, which pairs a new ALJ with an experienced ALJ, who provides advice, coaching, and expertise. Additionally, we provide regular guidance to ALJs through Chief Judge guidance, memoranda, and bulletins, Interactive Video Teletraining sessions, and in response to specific queries from the field. We have greatly improved and expanded our training of new hearing office chief ALJs, hearing office directors, and group supervisors. We have provided periodic training for more experienced hearing office ALJs and managers.
To improve quality further, we are currently piloting the Electronic Bench Book (eBB), a policy-compliant web-based tool that aids in documenting, analyzing, and adjudicating a disability case in accordance with agency policy. We designed this electronic tool to improve quality, accuracy, and consistency throughout the disability evaluation process.
To address concerns about changes to various aspects of our disability programs, we have contracted with the Administrative Conference of the United States (ACUS) to review several issues for us. ACUS has looked at challenging and potentially controversial issues that affect the hearings process, including the submission of evidence and duty of candor, the treating source rule, closing the record, and video hearings. We are actively discussing many of these issues, and we are gathering objective evidence and consider input from all stakeholders, which takes time.
Additionally, as part of a broader government-wide initiative for transparent and open government, we have taken significant steps to enhance the transparency of our hearings process. For example, beginning in 2010, we posted on our website data relating to our ALJs and our hearings operation. In this regard and as part of this government-wide initiative, we disclose publicly for each ALJ the number of case dispositions per year; the number of decisions per year; and the number of dismissals, allowances, and denials per year.
The Agency’s ALJ Corps
In addition to our other efforts to improve the hearings process, we also have worked diligently to improve the quality and consistency of the service that our hearings employees, including ALJs, provide to the public. For our hearing process to operate fairly, efficiently, and effectively, our ALJs must treat members of the public and staff with dignity and respect, adhere to ethical standards and agency policy, be proficient at working electronically, and be able to handle a high-volume workload, while maintaining quality and legal sufficiency. The vast majority of adjudicators care very much about making the right decision and being good stewards of the trust funds. We are committed to helping them do their jobs effectively.
When Judge Cristaudo became the Chief ALJ in 2006, he and other agency leaders focused on strengthening the hearings operation. Judge Cristaudo’s previous experience as a line ALJ, hearing office chief ALJ, and regional chief ALJ provided him significant insight on the importance of holding ALJs accountable to the agency and the American public. Under his leadership, and with the support of other agency executives, the Office of the Chief ALJ made great strides in improving the quality of ALJ decision making and correctly holding ALJs accountable for failure to adhere to agency policy or for engaging in misconduct.
To enhance ALJ accountability, Judge Cristaudo delegated authority to the Regional Chief ALJs to reprimand ALJs – thus giving Regional Chief ALJs an important management tool to address personnel issues that Judge Cristaudo did not have when he held that position. He also established a new office, the Division of Quality Service, to facilitate consistency and accountability nationally. Additionally, recognizing the critical need for hiring outstanding judges, Judge Cristaudo was instrumental in modifying the ALJ hiring process to better identify candidates with exceptional qualities and to eliminate those candidates who lacked the temperament, ability, or character to serve in the critical role of ALJ.
Further, Judge Cristaudo and agency leadership took significant steps to ensure that ALJs who refused to do their jobs properly or who otherwise betrayed the public trust would be held accountable. To this end, he worked closely with other agency components, including the Office of the General Counsel, to pursue appropriate actions. Generally, an informal feedback process worked, but in those cases where the ALJ did not comply and where appropriate, we pursued corrective action.
In the past several years, it has been necessary to seek removal or suspension of a number of ALJs. The agency strives to ensure that our ALJs adhere to the high standards expected of them, recognizing at the same time that we cannot and would not influence their decision in any particular case. Through the actions the agency brought to the Merit Systems Protection Board, we confirmed, among other issues, that when management addresses case processing it does not interfere with an ALJ’s qualified decisional independence. We also confirmed that ALJs must adhere to the same standards of conduct as other federal employees. To date, the agency appropriately has sought the suspension or removal of over 20 ALJs through final MSPB decisions or resolution agreements resulting in separation from the agency. When it is necessary to remove an ALJ from service, the agency must complete a lengthy MSPB administrative process that lasts years and can consume over a million taxpayer dollars. Unlike disciplinary action for other civil servants, the law requires that ALJs receive their full salary and benefits until the case is decided finally by the full MSPB—even though the ALJ’s conduct made it impossible for the agency to allow the ALJ to continue deciding and hearing cases or to interact with the public. We remain open to exploring options to address these matters, while continuing to provide the best service to the American public.
Over fifty years ago, Congress created the disability program to help some of our most vulnerable citizens. The program has served the American public well, and we would caution against calling its integrity into question based on the actions of a few individuals. The vast majority of our adjudicators care very much about making the right decision and being good stewards of the trust funds, and we are committed to helping them do their jobs effectively.
We deeply abhor any wrongdoing that detracts from confidence in our critical programs. As we have discussed, we have taken many actions to improve the integrity of our hearing process, and we remain committed to preventing and correcting issues that lessen our public service.
Some people seek to connect the former situation in Huntington to overarching concerns about the growth in the disability program. Despite the many opinions about the cause of the growth, as our Chief Actuary has repeatedly explained, the increased size and changed age distribution of the population under 65 is the main driver of long-term disability insurance (DI) program growth and was predicted many years ago.9 For example, the aging of the baby boomer generation accounts for a large portion of the growth in DI awards, as does the fact that more women have joined the labor force and have become eligible for benefits.
We thank you for your interest in helping us improve our service and ensure ongoing confidence in our programs. We also ask for your support for the President’s budget request, which will provide us with funding to continue to improve our hearings process, to improve the integrity of our disability programs, and to reduce improper payments by allowing us to conduct more continuing disability reviews and Supplemental Security Income redeterminations. With past support from Congress, we have made progress in both the administrative and program integrity arenas.
1 These mandatory funds would replace the discretionary cap adjustments authorized by the Balanced Budget and Emergency Deficit Control Act of 1985, as amended by the Budget Control Act. These funds would be reflected in a new account, the Program Integrity Administrative Expenses account, which would be separate. and in addition to, our Limitation on Administrative Expenses (LAE) account. Under the proposal, the funds would be available for two years, providing us with the flexibility to aggressively hire and train staff to support the processing of more program integrity work.
2 With this increased level of funding, the associated volume of medical CDRs is 1.047 million, although it may take us some time to reach that level. By comparison, we conducted about 430,000 CDRs in FY 2013.
3 See section 205(u) of the Social Security Act.
4 The Supreme Court has recognized that we are "probably the largest adjudicative agency in the western world." Heckler v. Campbell. 461 U.S. 458, 461 n.2 (1983).
5 Some observers have raised concerns about the variations in ALJ allowance rates. Regardless of whether an ALJ's determinations fall inside or outside of the mean, we focus on the quality, timeliness, and policy compliance of the decision.
6 Our focus on reviewing ALJ denial decisions was driven, in large part, by the court’s decision in Association of Administrative Law Judges, Inc. v Heckler, 594 F. Supp. 1132 (D.D.C. 1984). That case concerned the “Bellmon Review Program” that targeted for review individual ALJs based solely on their allowance rates. Under the program, individual ALJs with allowance rates of 70% or higher were to have 100 % of their favorable decisions reviewed for accuracy. The court found that this focus on allowance rates was untenable under the law because it could have affected an ALJ’s decision in an individual case.
7 Our focus on reviewing ALJ denial decisions was driven, in large part, by the court’s decision in Association of Administrative Law Judges, Inc. v Heckler, 594 F. Supp. 1132 (D.D.C. 1984). That case concerned the “Bellmon Review Program” that targeted for review individual ALJs based solely on their allowance rates. Under the program, individual ALJs with allowance rates of 70% or higher were to have 100 % of their favorable decisions reviewed for accuracy. The court found that this focus on allowance rates was untenable under the law because it could have affected an ALJ’s decision in an individual case.
8 Because the AC reviews these cases before the agency effects the ALJ decisions, these reviews may affect case outcomes. Either the AC may remand the reviewed case to the hearing office for further development or issue a decision modifying the original hearing decision.
9 This is a different type of review from the one described earlier. Unlike that review, this type of review occurs after the agency effects the ALJ decisions. Therefore, these reviews do not change case outcomes.
10 See Statement of Stephen C. Goss, Chief Actuary, SSA, before the House Committee on Ways and Means, Subcommittee on Social Security (Mar. 14, 2013), available at http://www.ssa.gov/legislation/testimony_031413a.html
SSA RESPONSE TO RECOMMENDATIONS
How Some Legal, Medical, and Judicial
Professionals Abused Social Security Disability
Programs for the Country's Most Vulnerable:
A Case Study of the Conn Law Firm
Committee on Homeland Security and Governmental Affairs
United States Senate
ALJ Consideration of Prior Agency Decision. Judge Daugherty ignored information provided in prior decisions denying benefits and overturned those decisions by relying on information provided by Mr. Conn and his network of doctors that the claimant was disabled. The agency should ensure initial decisions made by the Department of Disability Services ("DDS") to deny benefits are well documented, with specific evidence on why the claimant did not meet the agency's definition of disability. The agency should consider allowing the ALJ to contact the DDS examiner who made the prior decision in the presence of the claimant's representative to ask about the reasons for the prior denial. The ALJ would remain responsible for providing a de novo review of the claim.
Response: We agree that all disability decisions should be well documented, with specific evidence supporting the decision. We require adjudicators at all levels to clearly docwnent and rationalize the evidentiary basis of their adverse decisions. All State DDSs now document initial and reconsideration determinations with eCAT, our electronic case analysis tool that provides a detailed disability determination explanation that is retained in the case file. We think it would be far more expedient for ALJs to review the eCAT than to contact DDS adjudicators directly, and we will issue reminders to ALJs to review the eCAT DDS explanation.
Strengthen ALJ Quality Review Process. Judge Daugherty's approved decisions were not subject to further review or the scrutiny of the appellate process, since his awards of benefits were not appealed by the claimant. It is important the agency strengthen and expand the review of ALJ award decisions by the Quality Division of the Office of Appellate Operations, and that Congress provide adequate funding for that effort. The agency should conduct more reviews during the year and improve ways of measuring the quality of disability decisions. Such information should be made available to Congress.
Response: We agree. For many years, the Appeals Council was not adequately funded to perform its oversight responsibilities. In 2007, when we committed to reducing the hearings backlog, we did not want to sacrifice quality in the process. Therefore, we provided some resources for the Appeals Council to implement quality assurance initiatives and improve ALJ training. Our first step was to collect meaningful data that are the foundation of our reviews. As such, we created the Division of Quality in the Appeals Council that began quality reviews in September 2010. In fiscal year (FY) 2012, we reviewed a random sample of about 7,000 hearing decisions, which is up from nearly 3,700 reviews in FY 2011. In FY 2013, having lost staff in DQ, we did fewer own motion reviews-about 6,100-but maintained post-effectuation focused reviews, which help us to delve into potential problematic areas like those in the Huntington Hearing Office.
Without adequate funding or hiring capability, it is projected that overall staffing levels at the Appeals Council will decrease by 10-20 percent in the next few years. At the same time, we expect the number of filings with the Appeals Council on our mandated workloads- handling Federal court work and claimant appeals of ALJ decision-will increase. We must provide timely responses to claimants on requests for review and respond to courts within mandatory deadlines. Additionally, processing appeals is an important feedback tool for ALJs and is the means of collecting invaluable data used by the DQ.
We remain committed to our quality assurance initiatives and strengthening the DQ. We plan to demonstrate our commitment to the maximum extent possible, despite the significant stafting cut in OAO caused by a lack of funding.
Reform the Medical-Vocational Guidelines. Almost all of Judge Daugherty's cases reviewed by the Committee were decided based on the outdated medical-vocational guidelines, which have not been changed since 1980. Those guidelines should be reviewed to determine the reforms needed to update the guidelines to reflect current life expectancy and related ability. Additional studies should be conducted to evaluate whether the current guidelines utilize the proper factors and if they appropriately reflect a person's ability to work.
Response: The medical-vocational rules found in our regulations are rooted in the statutory definition of disability and its requirement that we consider age, education, and work experience in conjunction with residual functional capacity.
We constantly strive to improve our ALJ hearings and are guided by the principles that they must be fair, accurate, and efficient. We are continuing to evaluate if any changes to the medical-vocational rules would enable us to better to meet these goals.
Prohibit Claimant Use of Doctors with Revoked or Suspended Licenses. In some cases, the Conn law firm provided medical opinions from a doctor whose licenses had been suspended or revoked in another state. The agency should prohibit claimants from submitting opinions by doctors whose services, under its existing rules, the agency itself could not accept.
Response: The Social Security Act (Section 223(d)(5)(B)) requires us to "consider all evidence available" in determining if an individual qualifies for disability benefits. Existing law does not permit us to reject existing evidence submitted by a claimant on the basis of the provider's suspended or revoked license. We are continuing to evaluate the issue of medical source licensure and how any potential changes to the current approach would impact the integrity and efficiency of disability decisions.
Strengthen ALJ Analysis of Medical Opinions. Almost all of Judge Daugherty's decisions were based on a medical opinion provided by an attorney-procured medical professional. Many times those opinions were in direct conflict with other evidence in the claimants' files. SSA should provide specific training with regard to how ALJs should use these types of opinions.
Response: We agree that our adjudicators could always use additional training in knowing how to evaluate potentially conflicting evidence. Such evidence could include medical evidence the claimant provides or we gather from treating sources, a report that the claimant submits from an examining source, a report that we request from an examining source, a medical source statement, or the testimony from a medical or vocational expert. Resolving discrepancies in medical evidence can be challenging, and some adjudicators overdevelop or under-develop the record. In 2012, we trained ALlJs on how to evaluate and weigh "medical source statements" from "acceptable medical sources." We defined these terms and discussed the proper approach in weighing medical source statements. We provided ways to articulate the reasons for the weight given to these statements, emphasizing the need to do so in clea,. concise, and accurate language and the need to avoid stock phrases in applying analysis.
Also in 2012, we trained ALJs on how to articulate the rationale in the written decision for every part of the residual functional capacity (RFC) finding, including articulating RFC findings function by function. In addition, we trained ALJs on how to consider not only the objective medical evidence but also how to treat history, opinions, and other factors described in 20 CFR 404.1529, 416.929, and SSR 96-7p. We will consider how we can involve ALJs in determining how to improve tools in this area, such as consulting with ALJs who are currently on detail to the Office of Appellate Operations' Division of Quality.
Focused Training for ALJs. The Oflice of Appellate Operations, Quality Division, should provide training to all ALJs regarding adequate articulation in opinions of legal determinations. This training should emphasize the proper way to analyze and address these issues as required by law, regulation and agency guidance, including how to address obesity and drug and alcohol abuse.
Response: We agree. We conduct reviews to identify common errors in hearing decisions. The results of these reviews thus far show that common errors include the failure to adequately develop the record, lack of supporting rationale, and improper evaluation of opinion evidence. We use this information to develop and implement focused mandatory training for our ALJs and to provide feedback on policy guidance and litigation issues. Since 2012, we have provided training on residual functional capacity, evaluating medical source statements, assessing credibility, effective questioning and writing, dismissals, vocational expert evidence, and overpayments. We have training on childhood disability and drug addiction and alcoholism scheduled for 2014.