[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]



 
                  HIRING OF ADMINISTRATIVE LAW JUDGES
                 AT THE SOCIAL SECURITY ADMINISTRATION

=======================================================================

                                HEARING

                               before the

                    SUBCOMMITTEE ON SOCIAL SECURITY

                                 of the

                      COMMITTEE ON WAYS AND MEANS
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 1, 2007

                               __________

                           Serial No. 110-35

                               __________

         Printed for the use of the Committee on Ways and Means




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                      COMMITTEE ON WAYS AND MEANS

                 CHARLES B. RANGEL, New York, Chairman

FORTNEY PETE STARK, California       JIM MCCRERY, Louisiana
SANDER M. LEVIN, Michigan            WALLY HERGER, California
JIM MCDERMOTT, Washington            DAVE CAMP, Michigan
JOHN LEWIS, Georgia                  JIM RAMSTAD, Minnesota
RICHARD E. NEAL, Massachusetts       SAM JOHNSON, Texas
MICHAEL R. MCNULTY, New York         PHIL ENGLISH, Pennsylvania
JOHN S. TANNER, Tennessee            JERRY WELLER, Illinois
XAVIER BECERRA, California           KENNY HULSHOF, Missouri
LLOYD DOGGETT, Texas                 RON LEWIS, Kentucky
EARL POMEROY, North Dakota           KEVIN BRADY, Texas
STEPHANIE TUBBS JONES, Ohio          THOMAS M. REYNOLDS, New York
MIKE THOMPSON, California            PAUL RYAN, Wisconsin
JOHN B. LARSON, Connecticut          ERIC CANTOR, Virginia
RAHM EMANUEL, Illinois               JOHN LINDER, Georgia
EARL BLUMENAUER, Oregon              DEVIN NUNES, California
RON KIND, Wisconsin                  PAT TIBERI, Ohio
BILL PASCRELL JR., New Jersey        JON PORTER, Nevada
SHELLEY BERKLEY, Nevada
JOSEPH CROWLEY, New York
CHRIS VAN HOLLEN, Maryland
KENDRICK MEEK, Florida
ALLYSON Y. SCHWARTZ, Pennsylvania
ARTUR DAVIS, Alabama

             Janice Mays, Chief Counsel and Staff Director

                  Brett Loper, Minority Staff Director

                                 ______

                    Subcommittee on Social Security

                 MICHAEL R. MCNULTY, New York, Chairman

SANDER M. LEVIN, Michigan            SAM JOHNSON, Texas
EARL POMEROY, North Dakota           RON LEWIS, Kentucky
ALLYSON Y. SCHWARTZ, Pennsylvania    KEVIN BRADY, Texas
ARTUR DAVIS, Alabama                 PAUL RYAN, Wisconsin
XAVIER BECERRA, California           DEVIN NUNES, California
LLOYD DOGGETT, Texas
STEPHANIE TUBBS JONES, Ohio

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public 
hearing records of the Committee on Ways and Means are also published 
in electronic form. The printed hearing record remains the official 
version. Because electronic submissions are used to prepare both 
printed and electronic versions of the hearing record, the process of 
converting between various electronic formats may introduce 
unintentional errors or omissions. Such occurrences are inherent in the 
current publication process and should diminish as the process is 
further refined.


                            C O N T E N T S

                               __________

                                                                   Page

Advisory of April 24, 2007, announcing the hearing...............     2
Advisory of April 26, 2007, announcing a change in time of the 
  hearing........................................................     4

                               WITNESSES

The Honorable Michael J. Astrue, Commissioner, Social Security 
  Administration.................................................     7
The Honorable Linda M. Springer, Director, U.S. Office of 
  Personnel Management...........................................    11

                       SUBMISSIONS FOR THE RECORD

Association of Administrative Law Judges, statement..............    33
Consortium for Citizens with Disabilities, statement.............    35
Edgardo M. Rodriguez, letter.....................................    37
Margo A. Yhap, statement.........................................    38
National Organization of Social Security Claimants' 
  Representatives, statement.....................................    39
Office of Disability Adjudication and Review, statement..........    41
Social Security Administration Office of Disability Adjudication 
  and Review, statement..........................................    43
The Federal Managers Association, statement......................    44


                  HIRING OF ADMINISTRATIVE LAW JUDGES
                AT THE SOCIAL SECURITY ADMINISTRATION

                              ----------                              


                          TUESDAY, MAY 1, 2007

             U.S. House of Representatives,
                       Committee on Ways and Means,
                           Subcommittee on Social Security,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 11:04 a.m., in 
room B-318, Rayburn House Office Building, Hon. Michael McNulty 
(Chairman of the Subcommittee), presiding.
    [The advisory announcing the hearing follows:]

ADVISORY FROM THE COMMITTEE ON WAYS AND MEANS

                    SUBCOMMITTEE ON SOCIAL SECURITY

                                                CONTACT: (202) 225-9263
FOR IMMEDIATE RELEASE
May 1, 2007
SS-2

                Chairman McNulty Announces a Hearing on

                the Hiring of Administrative Law Judges

                 at the Social Security Administration

    Congressman Michael R. McNulty (D-NY), Chairman, Subcommittee on 
Social Security of the Committee on Ways and Means, today announced 
that the Subcommittee will hold a hearing to examine the Social 
Security Administration's (SSA's) ability to hire Administrative Law 
Judges (ALJs) to address the growing disability claims backlog. The 
hearing will take place on May 1, 2007, in room B-318, Rayburn House 
Office Building, beginning at 10:00 a.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 Subcommittee and 
for inclusion in the printed record of the hearing.
      

BACKGROUND:

      
    Nationwide, more than 700,000 people are currently awaiting 
hearings on their Social Security and Supplemental Security Income 
disability claims appeals. Because of this large backlog, severely 
disabled individuals often must wait years to get the benefits they 
need for basic economic survival.
      
    A significant contributor to this backlog is a shortage of SSA ALJs 
to conduct the hearings. According to the Social Security Advisory 
Board, from 1999 to 2005 the number of disability claims hearings 
pending nationwide more than doubled, while the number of ALJs on duty 
remained about the same.
      
    A number of Federal agencies employ ALJs, but SSA is the largest 
employer. The Office of Personnel Management (OPM) is responsible for 
developing qualification standards for ALJs, conducting examinations 
for ALJ candidates, and developing a register of candidates from which 
agencies can hire.
      
    The Social Security Administration's hiring of ALJs in recent years 
has been limited by several factors. First, administrative funding 
shortfalls have limited SSA's ability to hire across all positions, 
including ALJs. In addition, litigation filed in 1997 disrupted Federal 
hiring of ALJs for several years. In August 2003, OPM announced that it 
would develop a new examination for ALJ candidates. Until this 
examination was developed and a new register created, SSA and other 
Federal agencies could hire only from a register from the late 1990s. 
OPM issued new final regulations on the ALJ program in March 2007, but 
a new examination has not yet been announced. Therefore, a new and up-
to-date ALJ register is not yet available for SSA to use in hiring.
      

FOCUS OF THE HEARING:

      
    The hearing will focus on the importance of having an adequate 
number of ALJs to address the growing disability claims backlog; 
barriers to SSA's hiring of ALJs; and the steps that must be taken to 
remove these barriers. In particular, the Subcommittee will explore the 
need to develop an updated register of ALJ candidates, the steps 
involved in this process, and the time frames in which it will occur.
      
    In announcing the hearing, Chairman McNulty stated, ``The Social 
Security Administration needs Administrative Law Judges to help clear 
the backlog, so that persons applying for disability benefits can get 
the support they need as soon as possible. This Subcommittee is 
committed to ensuring that SSA has the resources to hire ALJs and that 
relevant government agencies move rapidly to eliminate other barriers 
to ALJ hiring.''
      

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, http://waysandmeans.house.gov, select 
``110th Congress'' from the menu entitled, ``Committee Hearings'' 
(http://waysandmeans.house.gov/Hearings.asp?congress=18). 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, completing all informational 
forms and clicking ``submit'' on the final page, an email will be sent 
to the address which you supply confirming your interest in providing a 
submission for the record. You MUST REPLY to the email and ATTACH your 
submission as a Word or WordPerfect document, in compliance with the 
formatting requirements listed below, by close of business Tuesday, May 
15, 2007. 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.
      

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

                                 

    [The revised advisory follows:]

ADVISORY FROM THE COMMITTEE ON WAYS AND MEANS

                    SUBCOMMITTEE ON SOCIAL SECURITY

                                                CONTACT: (202) 225-9263
FOR IMMEDIATE RELEASE
May 1, 2007
SS-2R

                     Change in Time for Hearing on

                the Hiring of Administrative Law Judges

                 at the Social Security Administration

    Congressman Michael R. McNulty (D-NY), Chairman, Subcommittee on 
Social Security of the Committee on Ways and Means, today announced 
that the Subcommittee hearing to examine the Social Security 
Administration's ability to hire Administrative Law Judges to address 
the growing disability claims backlog, previously scheduled for 10:00 
a.m. on Tuesday, May 1, 2007, in room B-318, Rayburn House Office 
Building, will now be held on Tuesday, May 1, 2007, at 11:00 a.m.
      
    All other details for the hearing remain the same. (See Social 
Security Advisory No. SS-2, dated April 24, 2007).

                                 

    Chairman MCNULTY. The Committee will come to order. 
Welcome, everyone. Today's hearing focuses on the Social 
Security Administration's (SSA's) hiring of Administrative Law 
Judges, commonly referred to as ALJs.
    ALJs play a critical role at SSA, conducting hearings on 
appeals filed by persons applying for disability benefits. A 
few months ago, this Subcommittee held a hearing on the large 
and growing disability claims backlog. Testimony at that 
hearing dramatically illustrated the tremendous human costs of 
the long delays so many applicants face.
    For example, we heard from a woman from Troy, New York, 
someone in my own congressional district, who lost her home, 
was hospitalized, and even lost custody of her children, while 
she waits for her case to be resolved.
    Testimony at that hearing also starkly pointed out the role 
of resource and staffing shortages in creating this 
unacceptable situation.
    For the past several years, the President's request for 
SSA's administrative budget has been lower than the amount 
requested by the SSA Commissioner, and the amount actually 
appropriated has been lower still. As a result, SSA has been 
unable to hire all the staff needed to process disability 
claims and conduct hearings.
    I worked with my friend, Ranking Member Sam Johnson, to 
urge the Budget Committee to address SSA's lack of resources. 
Many stakeholder organizations did the same, and I am very 
pleased to report that the House-passed Budget Resolution 
assumes additional funding for SSA--$400 million beyond the 
President's request.
    These funds would allow SSA to begin working down the 
disability claims backlog, and also perform critical program 
integrity activities. I will continue my efforts in this area 
throughout the appropriations process. I hope that the result 
will be significantly more funding for SSA next year that will 
enable SSA to hire more staff to address the backlogs.
    What we don't want to face is another obstacle to hiring 
essential staff. Today's hearing will explore other barriers to 
SSA's hiring of ALJs, and in particular, the need to insure 
that an up-to-date register of ALJ candidates is available for 
SSA from which to hire. The existing register of ALJ candidates 
was developed by the Office of Personnel Management, OPM, in 
the 1990s. For several years, hiring from that register was 
disrupted, due to litigation. In the summer of 2003, the 
litigation was sufficiently resolved that OPM could reopen 
hiring from the register.
    At that time, OPM announced that it would be developing a 
new examination for ALJ candidates, which would be used to put 
together a new register. Now, close to 4 years later, we still 
do not have this new register. The Subcommittee has raised 
concerns about this repeatedly over the past few years.
    Following our last hearing, Mr. Johnson and I sent a letter 
to the directors of OPM and the Office of Management and 
Budget, requesting a time line for which the register would be 
completed, and urging OPM to expedite this process. I am 
pleased to note that we have seen some recent progress. OPM 
published a final regulation in March. In the last 2 weeks, the 
Agency has taken other measures to move this process forward, 
including issuing a new qualifications standard.
    However, I am, frankly, concerned that the process has 
taken this long. We cannot afford a repeat of past delays.
    I truly appreciate having both the SSA commissioner, 
Michael Astrue, and the OPM director, Linda Springer, here 
today to address this important topic. We would like to learn 
what SSA's needs are for ALJ hiring, and what barriers to 
hiring SSA faces. We would like to know the steps OPM needs to 
take to develop the new register, and OPM's time line for these 
steps. If there are any obstacles to getting this done, and 
done rapidly, we would like to know about them today.
    [The prepared statement of Chairman Michael McNulty 
follows:]
            Opening Statement of Chairman Michael R. McNulty
                    Subcommittee on Social Security
          Hearing on SSA's Hiring of Administrative Law Judges
                              May 1, 2007
    Today's hearing focuses on the Social Security Administration's 
hiring of administrative law judges, commonly referred to as ALJs. ALJs 
play a critical role at SSA, conducting hearings on appeals filed by 
persons applying for disability benefits.
    A few months ago, this Subcommittee held a hearing on the large and 
growing disability claims backlogs. Testimony at that hearing 
dramatically illustrated the tremendous human costs of the long delays 
so many applicants face. For example, we heard of a woman from Troy, 
New York--someone from my own district--who has lost her home, been 
hospitalized, and even lost custody of her children while she waits for 
her case to be resolved.
    Testimony at that hearing also starkly pointed out the role of 
resource and staffing shortages in creating this unacceptable 
situation. For the past several years, the President's request for 
SSA's administrative budget has been lower than the amount requested by 
the SSA Commissioner, and the amount actually appropriated has been 
lower still. As a result, SSA has been unable to hire all the staff 
needed to process disability claims and conduct hearings.
    I worked with my friend, Ranking Member Sam Johnson, to urge the 
Budget Committee to address SSA's lack of resources. Many stakeholder 
organizations did the same. And I'm very pleased to report that the 
House-passed Budget Resolution assumes additional funding for SSA--$400 
million beyond the President's request. These funds would allow SSA to 
begin working down the disability claims backlog and also perform 
critical program integrity activities. I will continue my efforts in 
this area throughout the appropriations process. I hope that the result 
will be significantly more funding for SSA next year that will enable 
SSA to hire more staff to address the backlogs.
    What we don't want to face is another obstacle to hiring essential 
staff. Today's hearing will explore other barriers to SSA's hiring of 
ALJs, and, in particular, the need to ensure that an up-to-date 
register of ALJ candidates is available for SSA from which to hire.
    The existing register of ALJ candidates was developed by the Office 
of Personnel Management--OPM--in the 1990s. For several years, hiring 
from that register was disrupted due to litigation. In the summer of 
2003, the litigation was sufficiently resolved that OPM could reopen 
hiring from the register. At that time, OPM announced that it would be 
developing a new examination for ALJ candidates, which would be used to 
put together a new register.
    Now, close to 4 years later, we still do not have this new 
register. The Subcommittee has raised concerns about this repeatedly 
over the past few years. Following our last hearing, Mr. Johnson and I 
sent a letter to the Directors of OPM and the Office of Management and 
Budget requesting a time line for when the register would be completed 
and urging OPM to expedite this process.
    I am pleased to note that we have seen some recent progress. OPM 
published a final regulation in March. In the last 2 weeks the agency 
has taken other measures to move this process forward, including 
issuing a new qualification standard. However, I am frankly concerned 
that the process has taken this long. We cannot afford a repeat of past 
delays.
    I appreciate having both the SSA Commissioner, Michael Astrue, and 
the OPM Director, Linda Springer, here today to address this important 
topic. We'd like to learn what SSA's needs are for ALJ hiring and what 
barriers to hiring SSA faces. We'd like to know the steps OPM needs to 
take to develop the new register, and OPM's time line for these steps. 
And if there are obstacles to getting this done--and done rapidly--we'd 
like to know about them today.

                                 

    With that, I would like to yield to my friend, the 
distinguished Member from Texas, and the Ranking Member of the 
Subcommittee, Sam Johnson.
    Mr. JOHNSON. Thank you, sir. Thank you for your comments.
    You know, this hearing is about real people. In need of 
help and answers. With disabilities that deserve a decision as 
soon as possible. I'm going to stray from this, because you 
brought up a good point.
    I mean, the fact of the matter is that since 2003, 4 years 
ago, your agency has defaulted on getting those judges to the 
Social Security Administration so they can get them. I think 
it's criminal--I will repeat that; it's criminal--that you're 
waiting until the end of this year to get it done now, after he 
and I have written you. I am sure my colleagues agree with me.
    I would like to know--there ought to be an emergency 
process that you can convert judges, and give them the names 
they need immediately. Like right now. I would like to know why 
you can't do that. You know, we just don't have enough judges.
    I mean, there was an article in the New York Times today on 
this very issue. Four years is too long. Another year is too 
much longer. So, I would like to hear your answers. I am going 
to close with that. Thank you, sir.
    Chairman MCNULTY. Thank you, Mr. Johnson. I will remind 
other Members that, without objection, they will be able to 
submit statements for the record. With that, I would like to 
introduce our special guests, Commissioner Astrue, and Director 
Springer. We look forward to your testimony, and to possibly 
answering some questions for us.
    We will begin with Mr. Astrue. I would remind you that your 
entire statements are submitted for the record. We would ask 
you to try to summarize the main points, so that we can get to 
the questioning as soon as possible. Commissioner?

  STATEMENT OF THE HONORABLE MICHAEL J. ASTRUE, COMMISSIONER, 
                 SOCIAL SECURITY ADMINISTRATION

    Mr. ASTRUE. Thank you. Mr. Chairman and Members of the 
Subcommittee, I am pleased to be here today to discuss the 
Social Security Administration's (SSA's) disability 
determination process, and the importance of administrative law 
judges (ALJs) in that process.
    Before I go any further, I want to thank you, Mr. Chairman, 
and all the Members of this Subcommittee, for your support. We 
fully understand how important that support has been, and we 
are grateful for it.
    I would like to start with some strategic context. Since 
2001, Congress has appropriated, on average each year, about 
$150 million less than the President has requested. The dollar 
value of this differential is equivalent to processing an 
additional 177,000 initial claims, and 454,000 hearings.
    The added money in March's continuing resolution allowed us 
to avert 6 to 10 days of furloughs, and to slow the rate of 
attrition. But it is important to remember that we will still 
end this year with substantially fewer employees than we had 
when we started the year.
    During this same time period, our workloads have increased, 
both due to demographics and new statutory responsibilities. 
The baby boomers not only start retiring in January, they are 
increasingly filing for disability, as they age.
    Moreover, Congress has asked SSA to engage in new 
responsibilities in Homeland Security, Immigration, Medicare 
part B, and Medicare Part D. With so many of the Agency's 
activities mandated by law, other activities have suffered 
disproportionately. We went from 790,000 medical continuing 
disability reviews (CDRs) in 2002 to 290,000 medical CDRs last 
year, a shift that makes a permanent negative impact on the 
trust fund. Field offices are harried. Hearing offices have 
lost support staff and productivity, and we have not hired 
sufficient administrative law judges to handle a caseload that 
has doubled in the past 5 years.
    As you know, in 2006, SSA revised the disability 
determination process to increase accuracy, consistency, and 
timeliness. The new Disability Service Improvement, DSI, 
process was rolled out in the Boston region in August 2006, and 
builds upon SSA's electronic disability folder. In February and 
March, we engaged in an intensive review of DSI. We found mixed 
results.
    Early accomplishments include the success of QDD, the Quick 
Disability Determination program. Using a computer model to 
identify the cases most likely to be allowed, the States have 
decided 97 percent of these cases within the required 21 days, 
and they have a mean decision time of 11 days. About 85 percent 
of these cases have been allowed during the initial review, and 
more have been allowed with additional documentation. This is 
good news.
    We plan to build on the success of the QDD tool by greatly 
improving our ability to make decisions, so that claimants with 
conditions such as a confirmed case of pancreatic cancer or 
ALS, Amyotrophic Lateral Sclerosis--Lou Gehrig's Disease, are 
approved for disability within the 11 days that we have proven 
we can do. It is both efficient and compassionate for us to do 
this.
    Another electronic program developed as part of DSI is a 
decision tool for use by ALJs called the Findings Integrated 
Template, commonly known as FIT. About 80 percent of the ALJs 
are now using it voluntarily, and the ALJs who use it have a 
significantly lower rate of remands from the Appeals Council. 
These remands cause significant costs and delays, and thus, we 
are in the process of requiring all ALJs to use this new tool 
by the end of this year. We expect that this change will bring 
good news.
    We have also accelerated and expanded recent efforts to 
address the ``aged'' cases, those cases that involve waiting 
for 1,000 days or more for a hearing. This is America, and an 
American should not have to wait 3 or 4 years for his or her 
day in court. We have established as our goal the elimination 
of these cases to a negligible level by the end of this fiscal 
year.
    I am pleased to report that this number has already dropped 
from 63,525 on October 1 of last year, to 17,966 as of last 
week, and we are on target toward our goal to eliminate this 
particularly embarrassing backload. This is long overdue good 
news.
    We have found areas of DSI that are not performing as 
expected, and have taken prompt action to make corrections. We 
found that two of the new electronic systems developed for the 
DDSs, Disability Determination Services, were not ready for 
real-world use, and were, in fact, causing considerable delays 
in processing caseloads. While one of these systems has great 
potential over the long run, both have been pulled for now and 
will be developed further before we try again in a pilot study, 
most probably in 2009.
    We are focusing on refining our primary two systems for 
making us fully electronic, and have used an additional $25 
million over what was planned from our technology reserve fund 
to accomplish that goal this year.
    Under the broader DSI review I mentioned earlier, we are 
evaluating the Federal Reviewing Official, or FedRO, and 
Medical and Vocational Expert System, MVES, for these 
components' effects on processing time, the cost of handling a 
claim, and the program cost to the Social Security trust fund.
    With regard to the Disability Review Board (DRB), we have 
limited actual experience to date, due to the time required for 
claims to reach this stage, but I am concerned about potential 
for confusion and reprocessing of cases if we have two 
different bodies issuing conflicting decisions on my behalf 
over the next 10 years. We are currently evaluating the DRB, 
consulting with OMB, Office of Management and Budget, with 
these concerns in mind.
    I am overdue on the main subject of this hearing, ALJs. Let 
me make two brief points. First, we need to use our ALJs in a 
smarter, more efficient way. Posting all our ALJs in our 141 
hearing offices does not give us enough flexibility to address 
the worst backlogs.
    Electronic hearings have been a successful method to 
address backlogs on an ad hoc basis, and it is time that we 
reserve a percentage of the ALJs in a central office and use 
them exclusively to address the worst backlogs through 
electronic hearings.
    Second, we need more ALJs, and we're aiming at a net 
increase of about 150 ALJs. With support staff, that means 
we're looking at about 750 to 850 FTEs, full-time equivalents, 
a significant reallocation of our discretionary FTEs. With 
rising numbers of appeals being filed, we simply cannot reduce 
the backlog with fewer ALJs than we had in 1997. Last year, our 
ALJs made a record number of decisions, almost 559,000, and we 
still fell behind.
    Let me conclude by saying that I very much appreciated the 
bipartisan support that we have received from both Members and 
the staff of this Committee, and I am looking forward to 
continuing our regular candid discussions until we have a 
system in which we can all take pride. Thank you.
    [The prepared statement of Mr. Astrue follows:]
  Statement of The Honorable Michael J. Astrue, Commissioner, Social 
                        Security Administration
    Mr. Chairman and Members of the Subcommittee:
    I am pleased to be here today to discuss the Social Security 
Administration's (SSA) management of the disability determination 
process for the Disability Insurance and Supplemental Security Income 
programs, and the importance of Administrative Law Judges (ALJs) in 
that process.
    Before I go any further, I want to thank you, Mr. Chairman, and the 
Members of this Subcommittee for your support. I fully understand how 
important that support has been, and I am grateful for it. In addition, 
I want to recognize the hard work and service of the employees of SSA 
and the State Disability Determination Services (DDSs). They understand 
the importance of our programs and provide the best service they can.
    We recently passed an important milestone; for the last 50 years, 
the Disability Insurance program has helped disabled workers and their 
dependents cope with the loss of income due to severe disability. Along 
with SSA's stewardship of the Supplemental Security Income program, SSA 
employees work every day to provide vital service to disabled 
Americans. While the accomplishments in SSA's disability programs are 
many, today I would like to discuss several areas of concern and our 
planned solutions.
    I'd like to start with some strategic context. Since 2001, Congress 
has appropriated on average about $180 million less than the President 
has requested. The dollar value of this differential is equivalent to 
processing an additional 177,000 initial claims and 454,000 hearings. 
The added money in March's continuing resolution allowed us to avert 6-
10 days of furloughs and to slow the rate of attrition, but it is 
important to remember that we will still end the year with 
substantially fewer employees than we had when we started the year.
    During this same time period our workloads have increased both due 
to demographics and new statutory responsibilities. The baby boomers 
not only start retiring in January, they are increasingly filing for 
disability as they age. Moreover, Congress has asked SSA to engage in 
new responsibilities in homeland security, immigration, Medicare Part B 
and Medicare Part D.
    With so many of the agency's activities mandated by law, other 
activities have suffered disproportionately. We went from 790,000 
medical Continuing Disability Reviews (CDRs) in 2002 to 290,000 medical 
CDRs last year, a shift that makes a permanent negative impact on the 
trust fund. Field offices are harried. Hearing offices have lost 
support staff and productivity, and we have not hired sufficient ALJs 
to handle a caseload that has doubled in the past 5 years.
    The Members of this Committee have been great about making our case 
with others in Congress, and I ask you not only to continue your 
efforts, but to expand them. We need your help.
    Timely passage of the President's requested appropriation for SSA 
is a key first step towards addressing our disability caseload backlog. 
However, I want to acknowledge that we have not addressed the backlog 
problem as quickly as we need to, and that we are moving as fast as we 
can toward providing more efficient and compassionate service to the 
public.
    As you know, in 2006 SSA revised the disability determination 
process to increase accuracy, consistency, and timeliness. The new 
Disability Service Improvement (DSI) process was rolled out in the 
Boston region in August 2006, and builds upon SSA's electronic 
disability folder.
    DSI was implemented in a way to allow us to monitor the effects 
that the changes are having in the Boston region, on our entire 
disability process, and the Federal courts. The lessons that we learn 
in the early stages of implementation will help SSA as we continue to 
evaluate changes needed to improve the disability determination 
process.
    In February and March, we engaged in an intensive review of DSI. We 
found mixed results.
    Early accomplishments include perhaps the best news so far out of 
DSI, the success of QDD--the Quick Disability Determination program. 
Using a computer model to identify the cases most likely to be allowed, 
the states have decided 97 percent of these cases within the required 
21 days and they have a mean decision time of 11 days. About 85 percent 
of these cases have been allowed during the initial review, and more 
have been allowed with additional documentation. We plan to build on 
the success of the QDD tool by greatly improving our ability to make 
decisions so that claimants with conditions such as a confirmed case of 
pancreatic cancer or ALS are approved for disability within the 11 days 
we have proved we can do. It is both efficient and compassionate for us 
to do this.
    Another electronic program developed as part of DSI is a decision-
tool for use by ALJs called the Findings Integrated Template (FIT). 
About 80 percent of the ALJs use it now voluntarily, and ALJs who use 
it have a significantly lower rate of remands from the Appeals Council. 
These remands cause significant costs and delays. We are in the process 
of requiring that all ALJs use this new tool by the end of this year.
    We also found areas of DSI that are not performing as expected, and 
have taken early steps to make course corrections.
    I am committed to making the changes internal to SSA and in SSA's 
policies that are needed to continue our dedicated service to disabled 
Americans. We are going to reorganize the Office of Disability and 
Income Support Programs to better align our organizational structure 
with this mission, and we have already received some helpful advice 
from the Inspector General, who, at my request, has completed a first 
draft of an organizational audit.
    We found that two of the new electronic systems developed for DDSs 
were not ready for real-world use, and were in fact causing 
considerable delays in processing caseloads. While these systems have 
great potential over the long-term, they have been pulled until they 
are more developed. We are focusing on refining our primary two systems 
for making us fully electronic, and have used an additional $25 million 
from our technology reserve fund to accomplish that goal.
    We have also accelerated and expanded recent efforts to address the 
``aged'' cases--those cases that involve waiting for 1000 days or more 
for a hearing. This is America, and an American should not have to wait 
3 or 4 years for his or her day in court. We have established as our 
goal the elimination of these cases to a negligible level by the end of 
this fiscal year, and I am pleased to report that this number has 
already dropped from 63,525 on October 1 of last year to 17,966 as of 
last week.
    Under the broader DSI continuous-monitoring implementation strategy 
I mentioned earlier, we are evaluating the Federal Reviewing Official, 
or FedRO, and Medical and Vocational Expert System (MVES) for these 
components' effects on processing time, and accuracy, and the costs of 
handling a claim, and the program costs to the Social Security Trust 
Funds.
    With regard to the Disability Review Board, we have limited actual 
experience to date due to the time required for claims to reach this 
stage, but I am concerned about potential for confusion and 
reprocessing of cases if we have two different bodies issuing 
conflicting decisions on my behalf over the next 10 years. We are 
evaluating the DRB, and its counterpart--the Appeals Council--under the 
current process, with these concerns in mind.
    I am overdue on the subject of this hearing--ALJs. Let me make two 
brief points. First, we need to use our ALJs in a smarter, more 
efficient way. Posting all our ALJs in our 141 hearing offices does not 
give us enough flexibility to address the worst backlogs. Electronic 
hearings have been a successful method to address backlogs on an ad hoc 
basis, and it is time that we reserve a percentage of the ALJs in a 
central office and use them exclusively to address the worst backlogs 
through electronic hearings.
    Second, we need more ALJs, and we're aiming at a net increase of 
about 150 ALJs. With support staff, we're looking at about 750-850 
FTEs, a significant reallocation of our discretionary FTEs. With rising 
numbers of appeals being filed, we simply cannot reduce the backlog 
with fewer ALJs than we had in 1997. Last year, our ALJs made a record 
number of decisions--almost 559,000--and we still fell further behind 
with a total number of 730,659 cases pending as of March 30 of this 
year. This kind of commitment, however, means we need to evaluate the 
costs of other changes in the disability determination process.
    Let me conclude by saying that I have very much appreciated the 
bipartisan support we have received from both Members and the staff of 
this Committee, and I am looking forward to continuing to have our 
regular candid discussions until we have a system in which we can all 
take real pride.

                                 

    Chairman MCNULTY. Thank you, Commissioner.
    Director Springer?

 STATEMENT OF THE HONORABLE LINDA M. SPRINGER, DIRECTOR, U.S. 
                 OFFICE OF PERSONNEL MANAGEMENT

    Ms. SPRINGER. Thank you, Mr. Chairman. I am pleased to have 
the opportunity to appear before you this morning to discuss 
the role of the Office of Personnel Management, with respect to 
the hiring of ALJs, and our most recent activity with respect 
to this issue.
    I do want to begin with an assurance to everyone here that 
OPM is committed to working with both the Social Security 
Administration and our other Federal partners to be sure that 
we have a full register of ALJs.
    I want to begin by describing how we got to this point. 
Consistent with our civil service law, the Veterans Preference 
Act, and the APA requirements, OPM is responsible for 
establishing ALJ qualifications, for administering the 
examination, and for maintaining a register of qualified ALJ 
candidates. By law, OPM cannot delegate that examination to any 
other agency.
    In 1999, that register was suspended, following an adverse 
ruling in litigation before the MSPB, referred to as the Azdell 
litigation. Azdell had brought suit in 1997, arguing that the 
candidate evaluation process gave unfair advantage to veterans. 
OPM disagreed with that, and petitioned for review by the U.S. 
Court of Appeals for the Federal circuit. OPM ultimately 
prevailed.
    As a result, in July 2003--6 years of time from when the 
suit was first brought--the Federal circuit mandate was issued, 
implementing the court's decision in our favor. Immediately, in 
August of 2003, OPM refreshed the register by verifying that 
candidates on the existing register were still actively 
interested in ALJ positions. We removed those that were not, or 
were not reachable.
    Between 2003 and 2007, OPM also added over 100 new 
applicants: eligible veterans, and other persons who had 
completed applications pending during the litigation. When the 
reconstituted register was made available for Agency use in 
2003, there were 1,730 ALJs on the list. Subsequently, we 
resumed work on a new regulation and examination.
    It's important for you to understand that agencies have 
been hiring ALJs, both during and after the Azdell litigation. 
Because OPM was particularly sensitive to Social Security's 
needs for ALJs, in 2001, during this stay, we litigated a 
motion to lift the stay, just for Social Security, so that they 
could continue to hire off the register.
    As you can see from the chart, Social Security received ALJ 
hiring certificates from OPM in 2001, in 2004, and in 2006, 
leading to hires of 126, 200, and 37 ALJs, respectively, for a 
total of over 560 between 1997 and 2007 ALJ Social Security 
hires.
    At the end of 2005, OPM published a proposed rule to 
streamline existing ALJ regulations. We received a large number 
of comments with extensive recommendations. We undertook a 
careful review of all those comments, and subsequently 
published the final rule in the Federal Register on March 20th 
of this year. The rule took effect on April 19th.
    During this same period, we also revamped the 
qualifications standard. Concurrent with publishing the new 
rule, we posted draft a qualifications statement on OPM's 
website. We received comments on that, took them into account, 
and posted the final version of the qualifications standard on 
April 20th. Throughout this process, the register never had 
fewer than 1,000 candidates.
    As you can see on our next chart, we expect the ALJ vacancy 
announcement to be open on our usajobs.gov website, and this 
addresses the timeframe that we are now under for refreshing 
the registry. New ALJ candidates will need to submit their 
accomplishment records, which OPM will review and score, 
followed by written demonstrations that are also part of the 
process. We will have structured interviews with ALJ 
candidates.
    My expectation is that we will be able to complete the 
process and proceed to final scoring and a new register by this 
fall. So, it is not a year. We're talking months, not a year to 
have the register refreshed by this fall.
    Mr. Chairman, I will continue to work closely with your 
Subcommittee. I appreciate your interest. I will also work 
closely with our Federal partners, and very specifically, SSA, 
as the new register is established during the balance of this 
period.
    I would be happy to address any questions that you have.
    [The prepared statement of Ms. Springer follows:]
Statement of The Honorable Linda M. Springer, Director, U.S. Office of 
                          Personnel Management
    Mr. Chairman and Members of the Subcommittee:
    I am pleased to have the opportunity to appear before you this 
morning to discuss the role of the Office of Personnel Management (OPM) 
with respect to the hiring of Administrative Law Judges (ALJs), and our 
most recent activity with respect to this issue. Let me begin with an 
assurance to everyone here that I am committed to working very closely 
with the Commissioner of the Social Security Administration (SSA) and 
our other Federal partners to ensure the Government has an effective 
Federal civilian workforce, which includes ALJs. I certainly recognize 
and appreciate the importance of the work ALJs need to do with respect 
to Social Security disability cases.
Background
    By way of background, the ALJ position, originally referred to as 
``hearing examiner'' was first authorized by Congress in the 
Administrative Procedure Act (APA) more than 60 years ago. The APA was 
designed to ensure fairness and due process in Federal agency 
rulemaking, and the hearing examiner positions were established to 
provide aggrieved parties an opportunity to have their concerns heard 
on the record through a hearing. The APA also provides statutory 
protections to ensure that ALJs have decisional independence from undue 
agency influence. Some of these protections included making the 
positions independent of the employing agencies with respect to 
appointment, tenure, and compensation.
    The most recent data available to OPM show there are over 1,400 
ALJs serving in the Federal Government, 1,100 of whom work at SSA with 
the remainder primarily at the Department of Health and Human Services, 
the Department of Labor, and the National Labor Relations Board. The 
data show that most ALJs tend to remain in their positions longer than 
most Federal employees--ALJs retire on average with 32 years of service 
at age 70--this is in contrast to other employees who, on average, 
retire with 28 years at age 59.
Role of OPM 
    Consistent with civil service law, the Veterans Preference Act, and 
APA requirements, OPM is responsible for establishing ALJ 
qualifications, for administering the ALJ examination, and for 
maintaining a listing of qualified candidates for ALJ employment by 
Federal agencies. By law, OPM cannot delegate the ALJ examination to 
any other agency.
    In 1999, the current register was suspended following an adverse 
ruling in litigation before the Merit Systems Protection Board, then 
referred to as the Azdell litigation (now referred to as Meeker v. 
OPM). OPM petitioned for review by the United States Court of Appeals 
for the Federal Circuit, and ultimately prevailed. After the Federal 
Circuit mandate was issued, in July 2003, OPM refreshed the ALJ 
register by verifying that candidates on the existing register were 
still actively interested in ALJ positions (removing those who were not 
interested or were not reachable). Between 2003 and 2007, OPM also 
added over 100 new applicants (these applicants included veterans who 
were 10-point preference eligibles, and other persons who had completed 
applications pending during the litigation).
    After the conclusion of the Azdell litigation in 2003, we closed 
the ALJ examination to new applicants, (with the exception that we 
continued to accept applications from 10-point preference eligibles as 
allowed by law), reconstituted the ALJ register, and made that register 
available for agency use. At that time, there were 1,730 ALJs on the 
register. Subsequently, we resumed work on the examination, which as 
you may know, is a complex multi-step examination process.
A Look at ALJ Hiring
    It is important for you to understand that agencies have in fact 
been hiring ALJs both during and after the Azdell litigation. In the 
case of the Social Security Administration, 562 ALJs have been hired 
since 1997. Because OPM was sensitive to the Social Security 
Administration's need for ALJs, we litigated a motion to lift the stay 
expressly for the purpose of allowing SSA to hire off of the register. 
As a result, SSA hired 126 ALJs in 2001. After the Azdell litigation 
concluded, from 2003-2005, OPM issued 7 certificates of eligibles to 
SSA in the 2003-2005 period, and as a result, SSA hired another 200 
ALJs. More recently, in 2006, SSA hired an additional 37 ALJs.
The New ALJ Examination/Assessment Process
    At the end of 2005, OPM published a proposed rule to streamline 
existing ALJ regulations by removing redundant procedures and outdated 
information, clarifying bar membership requirements, and ensuring that 
the ALJ examination process operates in a manner similar to other OPM 
competitive examinations. As a result, we received a large number of 
comments from a variety of sources with extensive recommendations. We 
undertook a careful review of all comments received. Subsequently, we 
published the final rule in the Federal Register on March 20, 2007. The 
rule took effect on April 19, 2007. During this same time period, we 
revamped the qualifications standard. Concurrent with the publication 
of the proposed ALJ rule, we posted a draft qualifications statement on 
OPM's website. We received comments on the draft qualifications and 
took them into account in drafting the final version, which was posted 
on OPM's website on April 20, 2007. Throughout this process, the 
register never had fewer than 1,000 candidates.
    OPM has also now published its new qualification standards for 
ALJs, and we expect to open the ALJ vacancy announcement on our 
USAJOBS.gov website within the next few days with the goal of 
completing our initial reviews early this month. New ALJ candidates 
will need to submit their accomplishment records which OPM will review 
and score, followed by written demonstrations, which are also part of 
the scoring process. Structured interviews with ALJ candidates will 
then be scheduled and my expectation is that we can complete that 
interview process and proceed to final scoring and establishment of a 
new ALJ register by late fall. This sequence of events is presented in 
the attachment to my statement.
Conclusion
    Mr. Chairman, I will continue to work closely with your 
Subcommittee and with Commissioner Astrue to ensure we meet the needs 
of SSA and our other Federal partners--through the existing ALJ 
register and the new register being established this year. I would be 
happy to further address any questions the Subcommittee may have.

                                 

    Chairman MCNULTY. Thank you to all of our witnesses. 
Commissioner Astrue, let me just start with you. I just--I want 
to spend more time with Director Springer, but I just want to 
get one set of facts on the table at the very beginning. Will 
you just remind us? How many ALJs does the Agency currently 
employ right now?
    Mr. ASTRUE. Yes.
    Chairman MCNULTY. What's the number?
    Mr. ASTRUE. The number of judges we have today in active 
status, meaning those judges who are on duty and processing 
cases, is 1,082. We have, between disability--the chief 
administrative judges, who have primarily an administrative 
role, do not count--my understanding is if you add disability, 
those who have been detailed, those who are in management 
positions, we're at 1,108. So, depending on how you choose to 
define it, it's between 1,082 and 1,108.
    Chairman MCNULTY. How many do you feel as though you need 
to adequately address the backlog?
    Mr. ASTRUE. For the next fiscal year, we are targeting at 
about 1,250. It may be that after that we are going to need 
additional judges, but that's a lot of judges for us to absorb 
in a short period of time.
    That is fairly consistent with all of Commissioner 
Barnhart's testimony in recent years. She generally cited 
numbers between 1,200 and 1,300.
    Chairman MCNULTY. Thank you. Director Springer, let me just 
say that it's really difficult to accept the proposition that 
everything is okay with the old list. The list is outdated. I 
am glad that you are moving now, with all deliberate speed, to 
try to get a new list out there. But I am concerned about past 
performance, that it took the Agency more than 3\1/2\ years, 
since the Register was reopened in 2003, to issue the final 
regulation.
    How can this Subcommittee have confidence that we won't 
have a repeat of the past delays?
    Ms. SPRINGER. I think that the Subcommittee is right to 
hold us to a high standard of timeliness, and it's certainly 
one that I concur with. In my tenure here, which is less than 2 
years, I have tried to speed this up. So, I share your concern 
about getting this back on the right track.
    I think that what caused the--the very deliberate, 
methodical process that took so much time in constituting the 
new regulation was probably driven by the fact that there were 
so many on the list, and it was never below 1,000, 1,300, 1,200 
during that timeframe, prior to--or subsequent to 2003, when 
the list was last updated in a remedial way, if you will.
    I don't think that's a good reason, but--to have been that 
deliberate in all those comments--but I think you can have 
confidence going forward, because we have a very definitive 
time line. The steps are happening quickly. You have--can see 
that the ones have already taken place in closing this comment 
period down, getting the new standards out.
    In a matter of just days, we will begin the process. So, 
you will be able to see. We're not giving you a promise, I'm 
giving you a set of steps that you will be able to see, very 
transparently, that we are taking to get this done.
    Chairman MCNULTY. Okay. Within the Agency, have you 
actually established a work plan, staffing levels, work hours, 
and so on, on this project to make sure that we stay on 
schedule for October?
    Ms. SPRINGER. Yes. Yes, I have. As a matter of fact, after 
I got the call--after the last hearing of the Subcommittee--
from Congressman Pomeroy, I immediately, when I hung up the 
phone, got our leaders together and told them I wanted to see 
the time line very definitively. I shortened it, so it would 
get to the fall, because I knew it was a concern you have.
    So, that actually was--without you realizing it--helped me 
to get this moved along faster.
    Chairman MCNULTY. Okay. I will just make one final 
question. Just to make sure that we keep on track, and that the 
congress is fully informed, I would like you to commit to 
having your staff brief the staff of this Subcommittee on a 
monthly basis, starting now, to make sure that we keep this on 
track. Can you make that commitment to us?
    Ms. SPRINGER. Absolutely.
    Chairman MCNULTY. Okay, thank you. Mr. Johnson?
    Mr. JOHNSON. Thank you, Mr. Chairman. I would like to ask 
permission to enter my full opening statement into the record.
    Chairman MCNULTY. Without objection.
    [The prepared statement of Rep. Sam Johnson follows:]
                     Statement of Rep. Sam Johnson
                    Subcommittee on Social Security
           Hearing on the Hiring of Administrative Law Judges
                 at the Social Security Administration
                              May 1, 2007
                         (Remarks as Prepared)
    Thank you, Chairman McNulty, for holding this hearing on the hiring 
of administrative law judges at the Social Security Administration.
    This hearing is about real people in need of help and answers. 
Those with disabilities deserve a decision on their appealed claim as 
soon as possible.
    Over the past 7 years, the backlog of disability appeals has more 
than doubled in size. Something must be done now.
    One answer is having enough judges to do the job. Today, the agency 
has about 1085 judges, just five less than in 1999. Then the number of 
pending claims per judge was 286. Today, it's 673, an increase of over 
230 percent.
    Yet, when it comes to hiring, Social Security has been forced to 
use a register of judge candidates that has not been substantially 
updated since the late 1990s. Those relying on disability benefits 
deserve better!
    It's the job of the Office of Personnel Management, also known as 
``OPM,'' to assemble this register, and they have been slow to act 
before now. In fact, it's taken close to 4 years for OPM and the Office 
of Management and Budget to publish a final regulation updating their 
administrative law judge program.
    OPM has now promised to move quickly and has taken steps to begin 
the recruitment process. However, because of the expected volume of 
candidates, a new register is unlikely to be available until late fall.
    Of course hiring more judges is only one answer to fixing the 
backlog. Social Security has already implemented a number of changes, 
including electronic claims folders, the use of video-conferencing, and 
disability case processing reforms.
    Commissioner Astrue should, and is, reviewing the effectiveness of 
these initiatives to determine whether further improvements are needed, 
and we look forward to hearing about his work to address the backlog.
    Sufficient funding for Social Security to effectively serve the 
public is another important answer which this Subcommittee continues to 
support and pursue.
    Other answers lie in the amount of support staff who assist the 
judges in preparing their decisions, continuously improving the way 
work is processed and how offices are managed, and finding new policies 
to increase program effectiveness.
    I look forward to hearing from our witnesses on all these issues 
today.

                                 

    Mr. JOHNSON. Thank you. It seemed to me, in your comments, 
Ms. Springer, that you were accusing the Social Security 
Administration of not taking advantage of a list that is huge, 
in your estimation. Is that what you were doing?
    Ms. SPRINGER. I would say that I was trying to point out 
that over 560 hires were, in fact, made off of that list 
since--in relatively recent times, so that the list which has 
been characterized as stale actually was being used, and hires 
were being made in significant numbers by SSA.
    Mr. JOHNSON. Well, wasn't it true that most of those names 
on the list were added in the 90s, and not viable?
    Ms. SPRINGER. The--no, I would not say it was true that 
they were not viable, because, first of all, they had to be 
reinterviewed when they were taken off of the list by the 
hiring agency, so that the 560 would have had to have met a 
certain acceptable standard before they were hired, and that is 
in relatively recent time.
    Additionally, the people on this list are practicing 
professionals. They need to meet certain standards, certain 
professional requirements. They are not just sitting there 
since the original exam was given, doing nothing.
    So--but ultimately, the hiring agency has to reinterview 
them before they take them on. And 560 were hired, over 560.
    Mr. JOHNSON. Do you agree with that statement?
    Mr. ASTRUE. Substantially, yes. If you look at the recent 
history, I think that the fiscal considerations have been the 
biggest barrier on hiring. As the list has aged, we have 
expressed concerns about the list, but we have continued to 
hire.
    It is easier to do the hiring and find candidates that meet 
our standards in the bigger metropolitan areas. As the list 
ages, it gets harder in some of the more remote areas, because 
some of the people don't want to relocate. It's not that we 
fell off the cliff, and not that there weren't any qualified 
candidates on the list. We have hired 27 this year. That was 
early in the year.
    So, the biggest constraint for us has been fiscal, as I 
understand it from the history. Certainly for me, on my watch, 
since I have been here we haven't had the luxury of hiring 
ALJs, because we were worried about being in a furlough 
situation. So, we weren't in a position to do that.
    But, I am very pleased that the list is going to be 
reopened. I have spoken directly to Director Springer. We have 
offered anything that she wants, in terms of our staffing 
resources, to help design the test, grade the test, and 
anything else that she needs to move this along. She has 
responded, I think, very positively to that offer.
    Mr. JOHNSON. Well, I think we are going to try to fix the 
funding operation, aren't we?
    Chairman MCNULTY. Yes, we are. We were in the budget 
process, we had success there.
    Mr. JOHNSON. You didn't answer the question, though. What 
are you doing to speed up the process in the Agency?
    Ms. SPRINGER. Well, to speed up the process, what we did 
was----
    Mr. JOHNSON. You have given us an outline and, you know, a 
schedule. But can you speed it up more?
    Ms. SPRINGER. I think that October, the October date, is as 
fast as we can go, reasonably, with all of the steps, because 
you need to give applicants enough time where the announcement 
is open, you need to give them time to submit their 
applications, to have interviews, to have written review, to 
have scoring. Between now, beginning of May, and October, is 
only a few months. I think we will need all of that time.
    Mr. JOHNSON. But you claim there is a large number on the 
list already. Is that true or false?
    Ms. SPRINGER. There is. There are currently over 1,100 on 
the list.
    Mr. JOHNSON. Okay. Well, what are you doing to try to, you 
know, pick them off?
    Mr. ASTRUE. We would prefer at this point, given Office of 
Personnel Management's assurance that the list is going to be 
open this fall, in terms of the permanent commitments, to hire 
off the new list.
    The average length of tenure right now for our ALJs is 20 
years. Getting the absolute best and most dedicated to public 
service is really important.
    So, while we did hire off this list earlier in this fiscal 
year, in the shorter run, we have been looking at the senior 
judge list as a stop-gap, to the extent that we have a little 
bit of resources that we can squeeze out, to hold on until we 
get the reinforcements. Right now, our preference has been to 
look at the retired judges, bring some of them back, and do our 
best to hold on until we get to the list in October.
    Mr. JOHNSON. Now, you didn't convince me the other day that 
your judges are working a full day. Are they?
    Mr. ASTRUE. There is a report that came out last Friday 
from our Advisory Board that looked hard at this and some other 
issues. Since it came out last Friday, we haven't had a chance 
to fully go over that. I went over some of those numbers with 
the Chairman, though, when I last met with the Board about 10 
days ago.
    Some of the numbers on productivity are disturbing. Most of 
the ALJs are working hard and putting in a solid effort. There 
clearly is a group of outliers, where you look at the 
statistics and you have to be very concerned about the level of 
productivity.
    Mr. JOHNSON. What are you doing about them?
    Mr. ASTRUE. Well, we are taking a look at that, Mr. 
Johnson. We have some constraints. These are civil service 
appointees. We also have the independence of the ALJs layered 
on top of that.
    But we are looking at that and trying to see if there is 
anything new and different we can do to try to make sure that 
people are not performing the way someone in a lifetime 
entitlement position should be expected to perform. We're 
looking really hard to see if there is anything new and 
different that we can----
    Mr. JOHNSON. Do you write performance reports on all of 
them?
    Mr. ASTRUE. No, I don't. You mean, me, personally?
    Mr. JOHNSON. No, but your people.
    Mr. ASTRUE. I don't believe that we are allowed to. I will 
check for the record.
    [The information follows:]

    Federal personnel law prohibits SSA from rating ALJ performance or 
granting ALJs any award or incentive.

    Mr. JOHNSON. All right.
    Mr. ASTRUE. My understanding is, certainly when it comes to 
anything related to the decisionmaking itself, we're not 
allowed to do performance reviews. With regard to productivity 
and personal conduct issues, I believe that we are.
    We have been doing counseling in some of those cases. In 
some of the behavior cases, we have taken ALJs to the Merit 
Systems Protection Board, and I believe some brief suspensions 
have been withheld. I am not fluent with all the details on 
that. We will provide that for the record.
    [The information follows:]

    Unlike other Federal employees, adverse actions against ALJs must 
be evaluated and decided by the U.S. Merit Systems Protection Board 
(MSPB or the Board). An agency may remove, suspend, reduce in grade, 
reduce in pay, or furlough an ALJ for 30 days or less only when the 
MSPB has established and determined on the record after a hearing that 
there is good cause. Therefore, in order to take any of these adverse 
actions against an ALJ, SSA must file a formal complaint with the MSPB 
and prove, at a full due process adversarial hearing, that there is 
good cause for taking the action. The MSPB determines the action the 
Agency can take, and only after the MSPB has issued a final decision 
may the Agency take the action.
    The Board has found that various types of ALJ misconduct constitute 
good cause, and in many cases has authorized an adverse action against 
ALJs. For example, the Board has authorized removing ALJs for 
misconduct that includes the following: long-term tardiness (120 absent 
without leave charges) that led to hearing delays; harassing the Acting 
Chief ALJ and disrupting office mailing operations; retaliating against 
representatives who filed recusal motions; using profane language and 
making demeaning remarks to employees; and refusing to comply with 
supervisory instructions. The Board has sustained 30- to 150-day 
suspensions for conduct including: refusing to hear cases on travel 
dockets; falsifying an employment application; refusing to comply with 
case processing procedures; and making derogatory remarks to co-
workers. The Board has sustained 1- to 20-day suspensions for time and 
attendance abuse and leave violations.
    Regarding ALJ performance, the Board has found that there was good 
cause to take action against an ALJ who disregarded Appeals Council 
rulings. As for productivity, the Board has not specifically authorized 
taking an adverse action against ALJs for poor productivity, but it has 
determined that agencies may bring such actions.
    The Agency, without obtaining Board approval, also may issue formal 
reprimands to ALJs. Recently, the Chief Judge reprimanded an ALJ for 
his continued failure to follow the Agency's time and attendance 
policies and procedures. Further, the Agency has addressed misconduct 
issues by orally counseling ALJs or issuing written counseling letters 
to the ALJ.
    SSA has taken six ALJ conduct cases to the MSPB since 2002. Four of 
these cases are final, and have resulted in sanctions. The MSPB 
authorized SSA to remove one ALJ from his position and suspend three 
ALJs, as follows:

     60-day suspension
     14-day suspension
     1-day suspension

    Two cases still are pending at the MSPB on charges filed in fiscal 
year 2007.

    Mr. JOHNSON. Thank you. Thank you, Mr. Chairman.
    Chairman MCNULTY. I thank the Ranking Member. Mr. Pomeroy 
may inquire.
    Mr. POMEROY. Thank you, Mr. Chairman. Commissioner Astrue, 
has the number of pending claims ever been higher?
    Mr. ASTRUE. No.
    Mr. POMEROY. Director Springer, how old is the present list 
today?
    Ms. SPRINGER. There are people who are on the list that 
date back into the 1990s. There are others that have been added 
subsequently, in 2003, in the period where we were able to 
start to add. So, some are a few years old. We have been able 
to add----
    Mr. POMEROY. But this is 1,000. So, the ones you added were 
the ones that came on because of the veterans preference 
issues. The others, how many of the 1,000 do you estimate came 
on this decade?
    Ms. SPRINGER. I would say that probably about--I'm going to 
guess somewhere around 10 to 15 percent.
    Mr. POMEROY. So, most of them go back to the 1990s.
    Ms. SPRINGER. There are many that probably--most probably 
do go back to the 1990s, the later 1990s.
    Mr. POMEROY. Some as early as 1993.
    Ms. SPRINGER. I believe that's possible, yes.
    Mr. POMEROY. So, basically, this would be a candidate pool 
for employment that submitted their application for a job 
somewhere in the years 1993 through 1999. Although you 
indicate, ``Well, we got some this decade,'' that's probably 
less than 10 percent.
    So, as a potential employer, Social Security is looking at 
a job pool where the application came in 10 years ago.
    Ms. SPRINGER. With the one understanding that in 2003, 
every one of the ALJs who were on that registry at that time 
were contacted. If we couldn't contact them, they were taken 
off. When we did contact them, we wanted to be sure that they 
still wanted to be on the list. We didn't readminister a test, 
but there was some refreshment of the list at that time.
    Mr. POMEROY. You refreshed----
    Ms. SPRINGER. But there was no full----
    Mr. POMEROY. You mean you called people whose job 
application had been pending for several years and said, ``Do 
you still want to be considered,'' and they said, ``Yes''?
    Ms. SPRINGER. I believe that's essentially correct, yes.
    Mr. POMEROY. Why we are so concerned--I wish I had this in 
a larger fashion--but we think that this chart, which documents 
pending Social Security claims, shows a very stark correlation 
between the number of ALJs processing claims and the extent of 
the backlog.
    What we had happen in the 1990s, we had a rapidly 
accelerating backlog. Among strategies brought to bear on 
reducing this backlog were hiring a higher number of ALJs. The 
backlog decreased dramatically, as you can see. Hiring stops 
and the number soars to, where the commissioner says, the 
highest ever.
    So, we think that there is a direct relationship between 
the number of ALJs and the backlog. We are mightily frustrated 
that the process of getting a candidate pool for ALJs more 
recent than 10 years old has been such an insurmountable task 
for the OPM.
    Let me just go through some hearing testimony that this 
Committee has received over the last several years, as we have 
tracked this with great interest. In each instance, I will be 
quoting from former Commissioner Barnhart, and I will submit 
this to the record. It's just excerpts of a review of the 
record.
    On July 24, 2003, almost 4 years ago, the commissioner was 
testifying that that day, the case had been ruled in favor of 
OPM. I quote, ``We should be able to begin hiring 
administrative law judges within 6 months, at the outside. 
That's very important. We have been frozen for over 2 years, 
almost 3 years.''
    By the way, I should tell you that I have the highest 
regard for Commissioner Barnhart, so I don't submit her quotes 
in any way as indicative of bad information she is bringing the 
Committee. It is, indeed, the information that we have that has 
brought us to this high frustration that the list has been 
closed.
    A couple of months later, September 25, 2003, asking about 
the ALJs, she says, ``Well, I wish I could give you a better 
report. It's true the issue has been resolved, but now the 
Office of Personnel Management has to develop another register, 
a new administrative law judge register, and go through the 
whole process. I was advised just this week it probably looks 
like the entire process is going to take a year.'' So, she is 
frustrated in 2003. It could take as far as a year, into 2004.
    Well, a year later, almost a year later to the day, 
September 30, 2004, ``We have been advised by OPM that they 
need to redo to the examination, they need to pilot it. 
Therefore, we cannot expect a brandnew register until the end 
of calendar year 2005.''
    So, apparently nothing has been done in the year between 
her testimony, because it's the same old list of things that 
OPM has to do that haven't been begun yet.
    Later--another year passes. So, it's September 27, 2005. 
Commissioner Barnhart states, ``We are, in think, about 100 to 
150 short. The Office of Personnel Management now has to recast 
the entire test, and the factors for eligibility. They have not 
developed a test. Once they develop the test, they have to test 
it, pre-test it.''
    In May of 2006, she indicated that the Office of Personnel 
Management did publish a notice of proposed rule in December. 
``They tell us regulation will be final in about 3 months.''
    Well, then, of course, in February of this year, we learn 
that after all the years you took to get a rule out there, you 
left the rule open for well over a year. It's published in 
December of 2005, and it's--we find out on Valentine's Day of 
this year that that rule is still open. So, we are deeply 
concerned that years have passed before the rule is published, 
and then the rule is just left to sit out there forever.
    In the meantime, the claims mount. This is the bottom line 
on our concern.
    Ms. SPRINGER. Right.
    Mr. POMEROY. This isn't like we can fly speck every 
agency's performance for competence--I wish we could, with the 
oversight dimensions of congress, but we don't have enough 
resources to do that.
    So, what really has attracted us to this fatal flow of 
OPM's management is that the case--the backlog is skyrocketing. 
In 1998, we had 1,153 ALJs. We had a backlog of 334,524. Today, 
we have, as the Commissioner indicated, 1,082?
    Mr. ASTRUE. 1,082.
    Mr. POMEROY. Maybe 1,100, maybe 1,108 ALJs, in the 1,100 
range. So, we have fewer number today than we had in 1998, and 
our backlog is 716,000 and rising.
    What I fear has happened is that you have got people that--
history shows 65 percent are going to be found to be entitled 
to disability benefits when the ALJ stage of the appeal is 
completed, 65 percent. Yet, they are forced to wait. They can't 
work, that's why they have applied for disability. So, they are 
waiting without income, in despair and in deep poverty, and 
they can't get their cases settled. That's the reality on the 
ground.
    A reality downtown is the Office of Personnel Management is 
fiddling around, years go by before they can even get around to 
all the things they have to get around to, and then they put a 
rule out and it sits for a year, and you still can't hire an 
ALJ today.
    So, I think that this is a deeply disturbing record by the 
Administration, the Office of Personnel Management, in 
particular. It goes back to your predecessor, but it also 
includes your 2 years there. The bottom line is, in my view, 
people are being hurt, some of the most vulnerable people in 
this country are being hurt every day because of bureaucratic 
bungling at OPM that has not given Social Security a qualified 
list of applicants to adjudicate these Social Security appeals.
    Mr. Chairman, my time has long since expired. I would be 
happy to have the director's response to what I have said, but 
I want to commend you and the Ranking Member, Mr. Johnson, for 
holding this hearing, so that we can bring this situation to 
light. I hope something is done very quickly.
    Chairman MCNULTY. We have time. The director may reply.
    Ms. SPRINGER. Thank you, Mr. Chairman. There are a few 
things.
    Certainly we, along with the commissioner and the Members 
of the Subcommittee, hope to see that number go down. To the 
extent that we participate in that directly, it is with respect 
to ALJs, as you say. The other aspects of the adjudication 
process and the review process that are other than ALJ, I can't 
speak to.
    But with respect to the ALJ, there is no question that I 
think everyone at OPM--certainly me, coming in and inheriting 
this--would have wanted to see a compressed, a faster process, 
to getting to that updated list, as Commissioner Barnhart 
expected when she testified. That certainly would have been my 
expectation, and a reasonable expectation.
    That is why, after I got your call, I shortened the 
timeframe for the balance of the steps that needed to be taken, 
which is the only thing I can do. I can't go back and change 
what happened. But what I can do is fix, going forward, and 
make sure that that happens with all due haste.
    Now, the only thing I can say about this interim period 
from 2003 until now, with respect to the quality of ALJs, and 
ALJs available to Social Security and the other Federal 
agencies, is that I know the numbers speak for themselves, that 
over 560 were hired by SSA.
    Now, in many cases, people were not hired. Sometimes that's 
because of geographic constraint. If you need the ALJ in a 
certain geographic area, they may not be willing to relocate 
for that. So, if the numbers had shown that only 5 were hired, 
or 10 were hired, I would have said, ``Oh, shame on OPM, 
particularly, for not having paid attention to that.''
    But the fact that 560 were hired leads me to think that OPM 
felt they could take a more deliberate process in 
reconstituting the exam and the regulation. I don't think 
that's a good reason, but I would imagine that that was what 
they took comfort in. But 560 were, in fact, hired. So, I think 
they felt that the current list, even as old as it was, was 
servicing the community.
    That doesn't mean it should have taken that long, and 
that's why, going forward, we're on a much faster path.
    Mr. POMEROY. If I might respond, Mr. Chairman?
    Of course, that would assume that--your testimony would 
assume that we are holding the existing pool steady. People 
retire every week. So the number is dropping. So, in replacing 
500 and hiring 500, you're replacing some significant number. 
Your contribution to the system, in terms of total number of 
ALJs, is not nearly an addition of 500.
    Additionally, if the people working in OPM are only looking 
at how many names are on a 10-year-old list, and paying no 
attention to the information brought to them by Social Security 
on a skyrocketing backlog, we have really got people working in 
silos, and not aware of a broader picture, because we've got 
a--since 2000, we have got a spiraling number of disability 
claims pending, taking us to the highest point ever.
    A final point I would make, in terms of where we go from 
here. I appreciate the commissioner's thoughts of hiring some 
150 more. That would bring us to 1,263. That--but I want you to 
think more aggressively than that.
    In her September 30, 2004 testimony, the commissioner is 
quoted as saying, ``I believe we need to have around 1,300.'' 
You would bring it to 1,263, if I've got my math right. I would 
just say that right now, the case log, the pending backlog, is 
21 percent higher than it was in 2004, when the commissioner 
wanted to bring it to 1,300.
    Mr. ASTRUE. Right.
    Mr. POMEROY. So, if she needed 1,300 in 2004, you need a 
higher amount to deal with the greatest backlog ever in this 
disability adjudication.
    Mr. ASTRUE. Yes. Mr. Pomeroy, let me respond. Before I do, 
I would like to ask the Chairman for permission to correct the 
record. In the pressure of the moment, I confused my fiscal 
year and my calendar year in an earlier response.
    So, we have, in fact, not hired any ALJs this fiscal year. 
We hired 38 in fiscal year 2006. So, I feel better, having 
corrected the record.
    Mr. Pomeroy, I agree that we probably are going to need 
more in the subsequent years. I think one of the important 
things is to use them effectively, and smarter than we have 
before. I want to make sure that we don't rush. This is going 
to be a big group, in terms of systems, training, and 
placement. There is some limit on our system, in terms of how 
many we can absorb in any 1 year. I am not suggesting that the 
1,250 is a cap for even the year after.
    To get to that 1,250, we are going to need to hit the 
President's budget, plus we're going through a zero-based 
budgeting exercise to try to free up FTEs, because we're going 
to need roughly 800 FTEs when you add in the support staff. 
That's a lot for us, in our situation. When we see what the 
budget situation is, when we have got this next group of ALJs 
trained, it is probable that we will come back the following 
year and ask for more.
    One of the things I think we want to test and see what we 
do in subsequent years is how effective is a centralized group 
of ALJs doing electronic hearings, set up primarily to deal 
with the backlog. We have got some systems and procedures work 
we need to do to get a slightly different system in place. That 
may be part of the answer, over the long run. So, I would like 
to pilot that well, not rush it.
    We have a history of rushing some of our best ideas, and 
not implementing them well. Unfortunately, I think that is part 
of the issue with DSI we're seeing right now. So, if an idea is 
a good one, it is good enough to do it right.
    So, what I would like to say is, it may very well be that 
the trend in outyears is we have fewer ALJs in the hearing 
offices and more in the central office. We want to test that 
concept, make sure we've got it right, make sure claimants are 
happy, make sure you're happy, before we go out and unroll that 
in a much bigger way.
    I think there is a reasonable chance that we will come back 
to you in the subsequent year's budget, and ask for more ALJs, 
based on the success of that experiment. I want to make sure 
that it's a success before we go forward.
    Chairman MCNULTY. Ms. Tubbs Jones may inquire.
    Ms. TUBBS JONES. Thank you, Mr. Chairman. Commissioner, 
Madam Director, I, unfortunately did not hear all of the 
questions from my colleagues. I have actually, however, read 
both of your statements.
    You know, my constituents out there in Cleveland. They 
don't really want to hear all this craziness you all are 
talking--I hate to call it craziness, I should call it 
government mumbo-jumbo--about why their cases are not being 
heard. You know, it sounds like, ``In the outyears, we're going 
to do this, and we're going to examine whether or not the 
administrative judges are being used appropriately.''
    How old is your--how old is the Agency?
    Mr. ASTRUE. The Agency----
    Ms. TUBBS JONES. Yes, the Social Security Administration.
    Mr. ASTRUE. Was founded in 1935.
    Ms. TUBBS JONES. How long have you been using 
administrative law judges?
    Mr. ASTRUE. I would have to go back. A long time. Decades.
    Ms. TUBBS JONES. Turn around. Maybe one of your staff can 
answer. How long----
    Mr. ASTRUE. Let me say, first of all----
    Ms. TUBBS JONES. No, no, no.
    Mr. ASTRUE. No----
    Ms. TUBBS JONES. You're not going to take up my time. I'm 
going to ask questions, and you're going to answer my 
questions. How long--how many administrative--how long have you 
been using administrative law judges?
    Mr. ASTRUE. We will submit that answer for the record.
    Ms. TUBBS JONES. I would--I think your staff can tell me 
the answer right now, sir. What's the problem?
    Mr. ASTRUE. Well, if you would hold on, and let me 
consult----
    Ms. TUBBS JONES. No, I don't want to hold on. I want to 
know how long you have been using administrative law judges. 
It's a simple question.
    Mr. ASTRUE. If you want to give me a moment to consult with 
my staff, to make sure that the answer----
    Ms. TUBBS JONES. That's what I asked you to do, sir, turn 
around and talk to them.
    Mr. ASTRUE. Then that's fine. Then I will do that.
    Ms. TUBBS JONES. Thank you.
    Mr. ASTRUE. There is some question of definition. We have 
been using what we would call hearing examiners since 1940. 
Since some time in the early 1970s--and we will provide the 
exact date for the record--we started using what the government 
would call ALJs.
    [The information follows:]

    SSA has employed administrative law judges (ALJs) and their 
predecessors, hearing examiners and referees, since creating the 
hearing process in 1940. The Civil Service Commission began using the 
term ALJ in 1972, and the term was statutorily adopted by Congress in 
1978.

    Ms. TUBBS JONES. Great. This is your second time here, and 
we seem to have some complication in dealing. But the reality 
is that I am happy that you have the opportunity to be the 
head, the commissioner of this agency. But more importantly, I 
want my constituents to be happy that they are getting what 
they are entitled to, as recipients of disability.
    But the point we are trying to make here, sir, is at this 
point, this agency, after all these years, ought to have it 
right. They ought to be able to process claims, and deal with 
these workers who are losing their houses, going bankrupt, 
being--because we can't manage to get through the disability 
process in a timely fashion.
    What all of us are looking for, as Members of this 
Committee, both the Republicans and the Democrats, is a means 
by which we have administrative law judges who are processing 
cases quickly--or maybe I shouldn't say quickly--they are 
processing them in a fashion that allows the disability 
claimants to get a fair, impartial hearing in a timely manner.
    I want to talk to Ms. Springer for a moment. This--where is 
this? It's on the end of your statement. This chart represents 
what you are going to do to help us get to a larger number of 
ALJs to process our claims, right?
    Ms. SPRINGER. Yes, ma'am.
    Ms. TUBBS JONES. Early May. Late May to mid-July. Mid-July 
to early September. Mid-July to mid-October, late October. 
There is so much uncertainly in those early/late/mid, that the 
people out in America, who are waiting on their claims probably 
would like a little more certainty. Can you give me an 
explanation of what early May means for ``announcement open and 
minimum qualifications review''?
    Ms. SPRINGER. Early May means----
    Ms. TUBBS JONES. Today is May 1.
    Ms. SPRINGER. Yes.
    Ms. TUBBS JONES. That is early May, right?
    Ms. SPRINGER. In the next few days. I will be glad to get 
back to you, and I committed to the Chairman that each month we 
will give you a very specific update on exactly what we're 
doing. But that first one is in a few days.
    Ms. TUBBS JONES. But--and all the preparatory work that you 
have need to do, you have already taken care of?
    Ms. SPRINGER. Yes, ma'am.
    Ms. TUBBS JONES. In terms of we're through questioning 
whether or not you can hire. We're through the case that kept 
you from hiring. We're through the processing and the 
publication of regulations, and all that kind of stuff?
    Ms. SPRINGER. Yes, ma'am.
    Ms. TUBBS JONES. So, it's all left to your department, or 
your agency, for us to make sure that we get ALJs coming up.
    Ms. SPRINGER. Yes, ma'am.
    Ms. TUBBS JONES. So, when we're back here in late October, 
and we want to find out how many judges you have hired, and 
what the process is in, you will be able to give it to us with 
some certainty?
    Ms. SPRINGER. That is my goal, and I don't want to wait 
until then, I want to give you updates each month on--as we 
finish each of these steps, so that you know that we're on 
track, and we're entirely transparent.
    Ms. TUBBS JONES. How much input does the commissioner have 
in your process?
    Ms. SPRINGER. I discussed the time line with the director, 
to make sure that this--that he is aware of it, number one, and 
also to request that he could help us to provide some support 
for the judging process, and he has agreed to do that.
    Ms. TUBBS JONES. Commissioner, you were with Social 
Security previously. Is that correct, sir?
    Mr. ASTRUE. Yes, that's true.
    Ms. TUBBS JONES. How long ago was that?
    Mr. ASTRUE. Decades ago, from 1986 to 1988.
    Ms. TUBBS JONES. 1986? What were you doing then? I'm out of 
time, okay. Can I get just--what were you--what did you do, 
1986 to 1988?
    Mr. ASTRUE. I was Counselor to the Commissioner.
    Ms. TUBBS JONES. Okay, great. Thank you.
    Chairman MCNULTY. The gentleman from Michigan, Mr. Levin, 
who is a long-time Member of this Subcommittee and the former 
Ranking Member, may now inquire.
    Mr. LEVIN. Thank you, Mr. Chairman, and I will be very 
brief, because while I had to do something else for a few 
minutes, I did hear some of it, and I heard both your opening 
statement and Mr. Johnson's equally eloquent opening statement.
    So, let me just say, you know, when we have cases like this 
in our district offices, it is hard to live with this. It is 
hard to tell people that--who are disabled, and in the majority 
of cases would be adjudicated disabled, who are without 
resources, we tell them that the U.S. Government has months, 
years before we're going to get to their case.
    For them, this is like Katrina. I think there has been a 
combination of incompetence and insensitivity in this--in the 
government. These last years, Congress did not act. To the 
benefit of this congress, we decided to do something.
    I will close with this. I don't know how you people can 
continue doing your work with these results. I don't know how 
you live with yourselves. If you met--what is it--700,000 
people, they came into your offices all at once, and you 
looked, and two-thirds of them were going to get benefits, 
that's more or less--and now they have nothing?
    Mr. ASTRUE. Let me try to answer that, because I think that 
is directed more at me than at Director Springer. I am as 
unhappy as any of you with the situation and the disability 
backlog process. This is why I came back to Washington. There 
is really not much else that's high profile happening at the 
Agency right now. This is a longstanding historic interest of 
mine; it's a professional interest, and it's a personal 
interest. I took my father through this process in 1985.
    Mr. LEVIN. So, are you going to speak out when there is 
inadequate money?
    Mr. ASTRUE. I already have. That's part of my testimony, 
it's been part of every single visit I've taken to the Hill. I 
made three visits last week to Members of the Appropriations 
Committee. I've got one this afternoon. I am doing everything I 
know how to do to move this along.
    I spent 60 percent of my time in the first 6 weeks on this 
disability review. We start every single weekly senior staff 
meeting with a report from Jim Winn, my Associate General 
Counsel, on proposed regulatory and legislative changes.
    At the end of the 6 weeks, we had specs. We have had the 
drafting begin. We are sending things over to OMB. We're not 
trying to package things together for Public Relations 
purposes, the way these things are often done. At every single 
meeting, we ask the question, ``Is there anything we can do to 
move this along faster?''
    I've only been back a couple of months. I am doing 
everything I know to move this along.
    Mr. LEVIN. You are going to meet with the staff every 
month, is that----
    Chairman MCNULTY. Director Springer has committed to 
monthly staff updates between her staff and the staff of the 
Subcommittee, and we are going to keep on schedule with that.
    Mr. LEVIN. I think it is a tribute to what you are doing. I 
think you can expect full fury from these two gentlemen. 
They're good at it. They will have the back-up of all of us.
    I don't--there aren't very many people more vulnerable that 
we have treated more shabbily. You have been here a few years, 
doing this.
    Ms. SPRINGER. If I may? Congressman, for my part, I want to 
acknowledge that the call that I got from this Committee after 
the last hearing helped me to push the OPM process faster. That 
has resulted in our faster time table for getting new ALJs. So, 
our contribution to fixing that backlog, the--just 
specifically, the ALJ piece--will go much faster, as a result 
of the oversight of this Subcommittee.
    So, I appreciate that, and you have got my commitment, not 
only to making the date, but to keeping you updated each step, 
as we go along.
    Mr. LEVIN. Well, good luck. There will be more on your 
case.
    Ms. SPRINGER. That's fine.
    Mr. LEVIN. Congratulations on this hearing.
    Chairman MCNULTY. I thank the gentleman. With the agreement 
of the Ranking Member, we would like to invite distinguished--
--
    Ms. TUBBS JONES. Thank you.
    Chairman MCNULTY [continuing]. Member Stephanie Tubbs Jones 
to continue to inquire.
    Ms. TUBBS JONES. Commissioner, you said the reason you came 
back to Washington is to deal with the disability problem?
    Mr. ASTRUE. Yes, that's correct.
    Ms. TUBBS JONES. Where were you? You said you came back to 
Washington. Where were you?
    Mr. ASTRUE. I was in Boston, which is----
    Ms. TUBBS JONES. What were you doing in Boston?
    Mr. ASTRUE. For 14 years, I was working with biotech 
companies, mostly working in the orphan drug area.
    Ms. TUBBS JONES. Okay. So, now, let me hear what you're 
going to do.
    Mr. ASTRUE. Again, I'm somewhat constrained here, because 
we have got a package of things that we either have sent to 
OMB, or are in the process of sending to OMB. Therefore, I am 
not free to discuss those packages.
    You can see some of the directions in which we are heading 
from the testimony. You can see that we have made significant 
systems changes, which I discussed in my testimony. We have 
made changes to promote the productivity of ALJs by the use of 
the FIT template that I have discussed.
    We have done what we can do extremely quickly, and 
administratively, there is precious little that I am allowed to 
do. So, I am working the process as fast and as hard as I can, 
to the extent that we have administrative things that we are 
doing.
    We have accomplishments. We have made a target of reducing 
those ``aged'' cases. If you had been here during the 
testimony, you would have heard that----
    Ms. TUBBS JONES. I read your testimony.
    Mr. ASTRUE. Okay----
    Ms. TUBBS JONES. I didn't have to hear it.
    Mr. ASTRUE. All right. So, we were up at 63,000----
    Ms. TUBBS JONES. Don't challenge me about whether I was 
here or not, okay?
    Mr. ASTRUE. We were up at 63,000 ``aged'' cases as of 
October 1. We are on track to get rid of that by the end of the 
year. In fact, we are ahead of that pace. We are doing what we 
can, administrativly, as fast as we can. To the extent that my 
hands are tied until I go through procedures and processes, 
that is what I am doing, and I am moving as hard and----
    Ms. TUBBS JONES. Well, what can we do to help untie your 
hands?
    Mr. ASTRUE. Well----
    Ms. TUBBS JONES. What can we do--since you say you're so 
constrained, tell us what we, as Members of Congress, can do to 
help untie your hands, sir.
    Mr. ASTRUE. Sure. The most important thing that you can do 
is make sure that we come in at least at the President's 
budget. That hasn't happened in 5 years.
    There is some joint responsibility for this problem. If 
Congress had appropriated the money requested in the past 5 
years, we would be in a much better situation. We would have 
been able to hire administrative law judges, and make other 
changes. Also, when we go through----
    Ms. TUBBS JONES. Well, you know, in response to that, there 
are a lot of issues that we can talk about, why there is no 
money to appropriate. But I accept that.
    Mr. ASTRUE. If I could----
    Ms. TUBBS JONES. We could appropriate a lot of money.
    Mr. ASTRUE. If I could----
    Ms. TUBBS JONES. What else can I do?
    Mr. ASTRUE. Okay. When we're going through the DSI process, 
it is a very complicated set of proposals. Everyone has things 
they like, and things they don't like.
    One of the concerns that I have going through it is that 
some of the things that are popular in the Congress require an 
awful lot of FTEs. If I have to keep spending those FTEs on 
aspects of DSI that have very little connection with reducing 
the backlog, that is going to tie my hands in doing the things 
that I need to do to reduce the backlog, the most important 
thing being getting a significant number of additional ALJs 
online and using them better and smarter than we have before.
    Ms. TUBBS JONES. So, are you suggesting that DSI is not a 
good idea?
    Mr. ASTRUE. No, that's not what I said. What I have said 
many times before is that it is a complicated package of ideas. 
Some of them are terrifically good ideas. Some of them are good 
ideas that need modification. Some of them appear to me that 
they are not as good as they thought they were, and some of 
them may actually harm the backlog problem, if we were to roll 
them out nationally----
    Ms. TUBBS JONES. Are you suggesting, then, that we need to 
set aside some of the DSI proposals in order to hire 
administrative judges?
    Mr. ASTRUE. We may need to do that. Again, we are working 
very hard to come up with the numbers to try to come up with 
the consensus to do this. I have briefed----
    Ms. TUBBS JONES. So what have you got to say that I----
    Mr. ASTRUE. If I could finish? We have briefed your staff, 
the Committee's staff, on a bipartisan basis about this, as 
this is a work in progress. OMB came up and did a 3-day site 
visit, so that we could try to come up with numbers, so that we 
could come up with solid, agreed-upon costs for some of these 
things so that we could have a conversation, not only 
internally, but with the Committee staff and the Members about 
what's most important, what is the priority, going forward.
    Unfortunately, this was set up as an ``initiative,'' not as 
a demonstration project. It has been harder, therefore, to pull 
numbers out of this that everybody can rely on, than if it had 
been done differently. That's too bad. I am stuck with it. We 
are doing the best we can, as fast as we can. We have been as 
transparent as possible, with staff both on this Committee and 
the Finance Committee about where we are, what we are doing, 
and how we are trying to move quickly to fix this.
    Ms. TUBBS JONES. I am so happy that you are working so hard 
in order--in your new job. But I am confident that you are not 
working any harder than I work every day. So, you don't get 
sympathy about the work hard.
    But let me say this to you, Mr. Commissioner. I would like 
to invite you to Cleveland, Ohio, to talk to my constituents 
who are claimants, who are waiting in line. I invited 
Commissioner Barnhart to Cleveland, she came to Cleveland. She 
had a chance to speak to the staff from your own agency and 
then hear from the people.
    Because we all work hard. All of our goal is to make sure 
that the people of America get what they pay for, meaning the 
money that they put into the process. I look forward to having 
a relationship with you, Commissioner, and having the 
opportunity to work on behalf of the people of America.
    But understand, unfortunately, you took this job in the 
situation that it is in, and you've got to wear it, just like 
all of us wear whatever else happens in the job. So, you know, 
get some thick skin and come on and hang with us. We're ready 
to make a difference.
    Mr. ASTRUE. With all due respect, if I didn't have a thick 
skin, I wouldn't be here. I responded to the implication that 
we weren't doing enough, and I wasn't doing enough, because 
that's not true.
    If the suggestion is that we don't get it, and that we're 
not focused on what the priorities are, that is simply wrong. 
That's not true.
    Ms. TUBBS JONES. Well, you know, Commissioner, in life--I 
know your mother probably told you this--``Don't say it, show 
it.''
    Mr. ASTRUE. With all due respect, this is an 
extraordinarily complicated process. It takes time to change 
some things. We have changed what we can in the short run. We 
have listed that for you. We have gone through with the staff 
in detail about what we're thinking of, what we're trying to 
do, and how we're going through the process. You know, I don't 
have unilateral----
    Ms. TUBBS JONES. That sounds good.
    Mr. ASTRUE [continuing]. Power, you haven't given it to me. 
You haven't----
    Ms. TUBBS JONES. It sound good. Show me.
    Mr. ASTRUE. Fine. We are going to show you.
    Ms. TUBBS JONES. Thank you.
    Chairman MCNULTY. The Ranking Member may inquire.
    Mr. JOHNSON. Thank you, Mr. Chairman. You know, both of 
you, Social Security employs over 80 percent of all Federal 
administrative law judges. Yet, Social Security has almost no 
say in how those judges are recruited, or under what standards.
    I wonder how your agencies work together in drafting a new 
regulation.
    Ms. SPRINGER. If I may, sir?
    Mr. JOHNSON. Sure.
    Ms. SPRINGER. Yes. Social Security gave us comments along 
the way several times, and we--when the proposed regs were out, 
when they were becoming final, when they were being drafted. We 
also gave them additional opportunity to comment beyond what 
the typical community would be allowed to have.
    So, we have worked very closely, not only on the 
regulations, but also on the qualifications standards, because, 
as you say, they are the biggest customer we have in this whole 
process.
    Mr. JOHNSON. Do you have a separate register for Social 
Security?
    Ms. SPRINGER. No, we don't. We don't. It's all one 
register, because the qualifications are designed to be a--meet 
a threshold that should apply to all agencies. We want all ALJs 
to be at a certain level of qualification. So, the same test, 
the same exam, and the same register is available for all 
agencies, whether they are a large customer or a small 
customer.
    Mr. JOHNSON. You feel like your ideas have been included in 
the process?
    Mr. ASTRUE. Yes. I think that while Director Springer and I 
are just getting to know each other, we have talked by 
telephone on these issues, and our staffs do talk with some 
regularity on all of these issues. As I said, I think that the 
working relationship on most issues at the staff level is fine.
    As I said, we are planning on sending a whole slew of our 
people over there to work to try to move this process along. 
From everything I can see, at the staff level, things are 
working just fine.
    Mr. JOHNSON. Thank you both for being here. Thank you, Mr. 
Chairman.
    Chairman MCNULTY. Thank the Ranking Member. Mr. Becerra may 
inquire.
    Mr. BECERRA. Thank you, Mr. Chairman. Thank you for being 
here. I apologize for having gotten here a little late.
    I know you have been asked a number of questions about 
where we are going, and I appreciate some of your responses, in 
terms of trying to bring on the staff that are needed to 
address the backlogs.
    Do you have a level of confidence that you are going to 
receive the dollars from the Administration, through their 
budget request, that you need? I know you have said that you 
have--if you get what the President has requested in his 
budget, that you would be happy with that. But getting what the 
President has requested in his budget, is that enough to get 
you where you need to go to try to markedly reduce this 
backlog?
    Mr. ASTRUE. I think so. I think it will make a significant 
downpayment. I am holding open the question of what we might 
need in the outyears, and whether we need to make some 
adjustment. We're not there yet.
    I think that getting that budget, though, is important. I 
am trying to make a personal commitment. We are trying to visit 
as many Members of the Appropriations Committees as possible. I 
think perhaps we have been guilty of relying too much on all of 
you and your colleagues over at the Finance Committee, and I 
don't want to make that mistake.
    So, I'm going on a regular basis to plead my case more 
broadly and am doing it again this afternoon.
    Mr. BECERRA. Now, do you believe--give us a sense, in a 
year--May 1, 2008.
    Mr. ASTRUE. Yes.
    Mr. BECERRA. What will you have accomplished, if you get 
the moneys that you--that the President requested?
    Mr. ASTRUE. I know people are impatient, and I sympathize 
with that. But it is going to take a little time to turn this 
around.
    Assuming that we get the President's budget, and we can 
hire ALJs on schedule, and there isn't a sudden turn in the 
economy that changes the number of applications in disability 
filers. We don't have precise numbers now--but, in general, we 
think what we're looking to, essentially, hold the line about 
where we are now until early next year.
    We think with the regulatory and legislative proposals 
we've got that hopefully will be out, with further progress on 
the system side, with additional ALJs, we will actually start 
to drive those down some time early next year. I can't give you 
a precise date.
    Our hope is that we can get it going down almost as fast as 
it went up. That's our goal. We think that if we can squeeze 
out of our budget room for the FTEs and the ALJs, and we get 
the budget, we can hire on time, we think that's an attainable 
goal.
    Mr. BECERRA. There were a lot of ``ifs'' in what you said.
    Mr. ASTRUE. There are a lot of ``ifs'' there, that's right.
    Mr. BECERRA. Okay. Is one of the ``ifs'' that, even if you 
get the money, you may not be able to hire the ALJs that you 
need?
    Mr. ASTRUE. I am assuming that that's going to go forward. 
There is pending litigation, and I think my main concern is the 
pending litigation might somehow interfere with our hiring of 
the ALJs. I am hopeful that that won't happen.
    Mr. BECERRA. You're hoping to at least not have the backlog 
increase.
    Mr. ASTRUE. Yes, that's right. We have actually taken some 
risk here. I had some concern--I was very clear with Deputy 
Commissioner deSoto when I came on, that I wanted to make 
reducing the ``aged'' cases a top priority. I understood, 
because those typically take, I believe, an average of 17 hours 
to clear up, that that might have a negative impact on the 
caseload, overall.
    Fortunately, we have been able to bring down those aged 
cases without too bad of an effect on the caseload, overall. 
When we have gotten rid of those ``aged'' cases, hopefully, it 
will be that much easier to keep it approximately level until 
the cavalry comes over the hill.
    Mr. BECERRA. So, do you think you're going to reduce the 
days that it takes to get these cases in and out the door?
    Mr. ASTRUE. Absolutely. I don't think we can do it any 
other way. That's the goal.
    Mr. BECERRA. Okay. But so, what--how many days will you 
reduce the wait, or the time it takes to process a case? What 
are some numbers?
    Mr. ASTRUE. Yes----
    Mr. BECERRA. Next year, May 1, 2008. Tell us, what will 
disability applicants find in a year?
    Mr. ASTRUE. What we are focused on, in terms of the metrics 
right now, is the overall numbers of dispositions, the overall 
number of cases pending, and the number of ``aged'' cases 
pending----
    Mr. BECERRA. You have had to have projected out----
    Mr. ASTRUE. Yes.
    Mr. BECERRA [continuing]. What the dollars will give you. 
If--again, there are lots of ifs--but if things fall in place, 
you hire the ALJs, you don't have problems with the 
litigation----
    Mr. ASTRUE. I don't want to misspeak. We have metrics for 
translating caseload data into average time. I don't think I 
can do that on the top of my head, and I don't want to get it 
wrong. So, if I could, I would submit that for the record.
    [The information follows:]

    The FY 2008 President's budget assumes hearing receipts in FY 2008 
will exceed the number processed in that year, resulting in increases 
to the number of hearings pending and average processing time. In FY 
2008, with full funding of the President's budget, SSA expects to 
process 548,000 hearings. The number of hearings pending is expected to 
increase from 738,000 in FY 2007 to 768,000 in FY 2008. The President's 
budget assumes that the average processing time for hearing decisions 
will increase to 541 days in FY 2008, from an estimated 524 days in FY 
2007, and an actual level of 483 days in FY 2006.

    Mr. BECERRA. If you could, please submit it for the record. 
It would be nice to know, for the money that you get, what the 
American public gets. I think it's important, because of the 
dire situation that you are in, and because of the growing 
caseload that you have, what could be expected.
    It could be that what the President has requested doesn't 
do us enough good, and that we have to go beyond that. If you 
don't tell us that----
    Mr. ASTRUE. Yes.
    Mr. BECERRA. If you're just going to stay stagnant at where 
you were before, that doesn't help all those applicants who are 
waiting hundreds and hundreds of days.
    Mr. ASTRUE. You will know, because as you undoubtedly 
recall, under the independent agency statute, the Congress and 
the public get to see my request, not just the President's 
request. I haven't had a chance to make that first budget 
request yet.
    So, you will be able to see, for this next one and the 
years after, what we are requesting, and presumably have an 
understanding of why. If there is a difference, then you will 
be able to have a dialog with me and the Administration.
    Mr. BECERRA. Thank you. Thank you, Mr. Chairman.
    Chairman MCNULTY. I want to thank all of the Members for 
their inquiries. We are deeply appreciative to both the 
commissioner and the director, for coming here personally.
    I just wanted to make a final comment. Any time that I am 
interacting with someone to try to address a serious problem, I 
try to put myself in their position. I have tried to put myself 
in your position, in assessing how difficult and complicated 
this particular problem is.
    I also ask, as we move forward, that you try to put 
yourself in our position, as representatives of the people, and 
what it's like for us when someone comes in to our office with 
what appears to be a very legitimate case for their application 
for a Federal program like this program. They say to us, 
``Representative, how long is it going to take to get an 
answer?'' We have to tell them, ``Maybe a couple of years.''
    This must stop. This is unacceptable. It is a national 
embarrassment. I want to thank you for committing to what you 
have committed to today. As I see it, there are a number of 
parts to the puzzle.
    But the two major ones are the funding issue, where I 
think, with the help of some of these Members, and with your 
help, we have made significant progress. In the House budget 
resolution, we are $400 million over the President's request. I 
think we are going to get a similar number in the Senate. So, 
we are making progress on that.
    I thank the Members, and I thank you for what you are doing 
with regard to the appropriations process. That is the next 
step. That is what we are working now, to make sure that we 
have a good outcome, as far as the resources are concerned. I 
think we are going to do that.
    The other major part of the puzzle is getting this new 
register. That is why I am thankful, Director Springer, for 
your commitment to stick with this schedule, to give us monthly 
reports, so that we make sure that we're on track.
    If we do those two things this year, we have a reasonable 
chance to do what the commissioner just referred to, and that's 
reversing this trend on the backlog, getting it going in the 
downward direction, and getting the people, the resources, that 
they need and deserve. The hearing is concluded.
    [Whereupon, at 12:22 p.m., the hearing was adjourned.]
    [Submissions for the Record follow:]
         Statement of Association of Administrative Law Judges
    Thank you for the opportunity to provide this statement regarding 
the backlog of disability cases at the Social Security Administration, 
Office of Disability Adjudication and Review. My name is Ronald G. 
Bernoski. I am an administrative law judge who has been hearing Social 
Security Disability cases in Milwaukee, Wisconsin, for over 25 years.
    I also serve as President of the Association of Administrative Law 
Judges (AALJ), a position I have held for over a decade. Our 
organization represents the administrative law judges employed at the 
Social Security Administration and the Department of Health and Human 
Services. One of the stated purposes of the AALJ is to promote and 
preserve full due process hearings in compliance with the 
Administrative Procedure Act for those individuals who seek 
adjudication of program entitlement disputes within the SSA. The AALJ 
represents about 1100 of the approximately 1400 administrative law 
judges in the entire Federal Government.
    In 1946 the Congress passed the Administrative Procedure Act to 
reform the administrative hearing process and procedure in the Federal 
Government. The 1930's had seen a rapid growth of administrative law 
with hearings being conducted by hearing examiners appointed by the 
agencies. The tenure and status of these hearing examiners were 
governed by the Classification Act of 1923, as amended. Under this Act, 
the classification of these hearing examiners was determined by ratings 
given to them by the agency and their compensation and promotion 
depended upon their classification. This placed them in a dependent 
status. Many complaints were voiced against this system with 
allegations raised that the hearing examiners were ``mere tools of the 
agency'' and subservient to the agency heads in their proposed findings 
of fact and recommendations.
    With the adoption of the Administrative Procedure Act, Congress 
provided that hearing examiners (now administrative law judges) be 
given independence and tenure within the existing Civil Service system. 
By making this change, Congress made 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 (now U.S. Office of Personnel Management) to a much 
greater extent than in the case of other Federal employees. This change 
removed hearing examiners from strict compliance with the 
Classification Act and transferred some of the agency controlled 
functions (pay, promotion and tenure) to the Civil Service Commission 
to protect the American public by giving administrative law judges 
decisional independence. Congress also gave the Civil Service 
Commission oversight authority for the hearings system provided under 
the Administrative Procedure Act, which included providing an annual 
report to Congress and appointing needed advisory committees. [See 
Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128 (1953).]
    Before discussing OPM's management of the ALJ program, I would like 
to note that Commissioner Astrue, immediately after his appointment, 
invited us to meet with him to discuss important issues he would be 
facing as the new Commissioner. We did meet with him during the first 
week of April. The principal issue we discussed was the backlog. During 
this discussion we both agreed that in order to reduce the backlog it 
would be necessary to hire additional best qualified applicant judges 
as soon as possible. We mutually agreed to work closely together toward 
this important goal.
    We believe OPM has defaulted on its responsibility to regulate the 
Federal administrative law judge program. It has failed to maintain a 
current register for the agencies to use for hiring new administrative 
law judges (ALJ), and the current register has been closed to most new 
applicants since 1999. It has also abolished the OPM Office of 
Administrative Law Judges leaving no single office or person in charge 
of overseeing this function.
    OPM is solely responsible for the current crisis with the 
administrative law judge register and the hiring process for the 
various agencies, including the Social Security Administration. 
Director Springer, in her written testimony, conceded the current ALJ 
hiring register at OPM has been closed since an adverse ruling by the 
Merit Systems Protection Board in 1999. In that case the plaintiffs had 
challenged the legal sufficiency of the ALJ examination. An appeal of 
the case was taken to the United States Court of Appeals for the 
Federal Circuit and OPM prevailed in a decision issued by the court in 
2003. At that time, OPM had a register found to be legally valid by a 
court and it could have immediately started to receive and process all 
new applications for the ALJ position. This would have allowed OPM to 
provide the agencies with all the new judges needed to meet the 
existing demand, while it worked on developing a new examination 
process for placing names of applicants on a new register. OPM instead 
created the current problem by not resuming the processing of 
applications after the litigation had ended. In fact, OPM has acted as 
if it had lost the lawsuit and not like a party that had prevailed in 
the litigation. According to the data submitted at the hearing by OPM, 
it has provided only 363 new administrative law judges for SSA since 
1999 when the register closed. That is only 45 judges per year, no more 
than enough to keep up with normal attrition.
    OPM is now attempting to establish a new ALJ hiring register, and 
according to its written and oral testimony at the hearing the process 
will not be completed until late October 2007. We fully anticipate that 
the ``time-line'' for the new register will not be strictly adhered to 
and the register will not be completed until January 2008. Social 
Security will then need to request a ``certificate'' of applicants for 
a new judge class. After receiving the certificate, Social Security 
will need to complete its hiring process which consists of 
interviewing, selecting and placing the new judges in hearing offices. 
This process will be followed by a five week ``new judge training 
course.'' We anticipate that this hiring process will delay the 
starting date for these new judges and they will not be hearing cases 
until June 2008, which is over a year from the date of this hearing. We 
believe that this time period could have been shortened by OPM 
processing new applications for the existing register and thereby 
providing new ALJs to SSA in a more timely manner. This approach would 
provide OPM with ample time to establish a new ALJ examination and 
register, while continuing to meet the needs of agencies with new 
judges.
    We anticipate additional litigation which may cause more delay. 
There are several grounds. Since applicants on the existing register 
will be required to qualify under the new ALJ exam, an individual 
harmed by the transition to the new register may challenge the fairness 
of the new procedure. Subsequent to the hearing OPM announced, on May 
4, 2007, that it was only opening the new register for the first 1250 
applicants or until May 18, 2007, whichever occurred first. We feel 
applicant 1251 may protest. We have just learned that OPM closed the 
new register at midnight May 8, 2007. This means that after being 
closed since 1999, the new register was opened for just 4 days. We 
believe that this short time period has denied many best qualified 
applicants the opportunity to complete for a position on the ALJ hiring 
register.
    We believe OPM, by abolishing its Office of Administrative Law 
Judges, directly led to this crisis. This office had been in existence 
in OPM for many years and at one time was headed by an administrative 
law judge. It was through this office that OPM administered the ALJ 
program in the Federal Government, including maintaining the hiring 
register. Several years ago, OPM abolished this office and dispersed 
its responsibilities throughout the agency on a functional basis. There 
is now no office or person in OPM that we know of who is responsible 
for oversight of the ALJ function in the Federal Government. This is of 
great importance, because the Administrative Procedure Act gave OPM an 
oversight and regulatory responsibility over ALJs that it does not have 
for other Federal employees. With this office now abolished, there is 
no effective system in OPM to carry out this vital function. This 
responsibility was entrusted to OPM by the Congress to protect the 
American public by ensuring the decisional independence of 
administrative law judges. Congress in enacting the APA was determined 
to provide a full and fair hearing for the American people that was 
free from undue agency influence over the decision maker judge. OPM has 
breached this trust. At one time OPM was required to file an annual 
report with Congress on the state of the ALJ function in the Federal 
Government. We feel Congress should reinstitute this reporting 
requirement.
    We agree with the statement provided for this hearing by the Social 
Security Advisory Board (SSAB), that ``the fact that a new ALJ register 
has not yet been established in and of itself raises questions about 
whether the ALJ recruitment process, as currently constituted, serves 
the best interests of the Social Security program and the public who 
look to the program for adjudication that is both impartial and 
efficient.'' To paraphrase another SSAB conclusion, OPM has shown that 
it is incapable of providing the American public with the ``best 
qualified'' administrative law judges. We recommend that this program 
be reformed and that the functions formerly performed by the OPM Office 
of Administrative Law Judges be removed from OPM and placed in a 
separate ``Administrative Law Judge Conference of the United States'' 
modeled after the Judicial Conference of the United States which 
administers the U.S. Federal courts. Legislation providing for this 
change was introduced in the 106th Congress (H.R. 5177). The 
Administrative Law Judge Conference was to be headed by a Chief 
Administrative Law Judge who would administer and oversee the 
administrative law judge function in the Federal Government. Therefore, 
we respectfully ask the Chair of this Subcommittee to request the Chair 
of the House Judiciary Committee to investigate the need for this 
reform and for the need for legislation, such as that introduced in the 
106th Congress, to establish an ``Administrative Law Judge 
Conference.''

                                 
         Statement of Consortium for Citizens with Disabilities
    The Consortium for Citizens with Disabilities (CCD) is a working 
coalition of national organizations working together to advocate for 
national public policy that ensures the self-determination, 
independence, empowerment, integration and inclusion of the 54 million 
children and adults with disabilities in all aspects of society. The 
CCD Social Security Task Force focuses on disability policy issues in 
the Title II disability programs and the Title XVI Supplemental 
Security Income (SSI) program.
    People with severe disabilities who apply for Social Security 
disability benefits or SSI disability benefits must wait months for an 
initial decision. And, if it is necessary to appeal an unfavorable 
decision, they may wait years to get benefits to which they are 
entitled. As revealed in the recent hearing held by this Subcommittee 
on February 14, 2007, some people lose their homes and families while 
they wait for decisions. Others deplete their resources and cannot 
afford critical medications and treatments, resulting in increased 
disability and even death.
    The current processing time to get a decision after filing an 
application averages about 3 months. A first level appeal adds, on 
average, 2 more months. If an appeal is filed for a hearing, the 
average wait to get a decision is now an additional 545 days, or more 
than 1\1/2\ years. In some places, the average wait is 900 days or 
almost 2\1/2\ more years. And, there are thousands of cases that are 
approaching the 3-year mark. The average processing times for hearings 
have increased dramatically since 2000, when the average waiting time 
was 274 days. The President's budget proposal for fiscal year 2008 
indicates that average waiting times will continue to grow.
    Reducing the backlog and processing times must be a high priority. 
We urge commitment of necessary resources and personnel to the Social 
Security Administration (SSA) in order to reduce delays so that the 
process is more responsive to claimants and their families. This 
includes hiring additional Administrative Law Judges (ALJs) and the 
staff needed to support them.
    Supplemental Security Income (SSI) and Title II disability program 
cash benefits, along with the related Medicaid and Medicare benefits, 
are the means of survival for millions of individuals with severe 
disabilities. Under the current budget situation, people with severe 
disabilities have experienced long delays in accessing these critical 
benefits.
    We have long-supported the critical role played by the ALJ in the 
disability claims process. A claimant's right to a hearing before an 
ALJ is central to the fairness of the adjudication process. This is the 
right to a full and fair de novo administrative hearing by an 
independent decision maker who provides impartial fact-finding and 
adjudication. For claimants, a fundamental principle of this right is 
the opportunity to present new evidence in person to the ALJ, and to 
receive a decision from the ALJ that is based on all available 
evidence.
    The need to hire additional ALJs is beyond dispute. As noted at the 
May 1, 2007 hearing, there are two main reasons why additional ALJs 
have not been hired: (1) inadequate funding for SSA's administrative 
budget; and (2) the failure of the Office of Personnel Management (OPM) 
to develop a new examination for ALJ candidates. We are optimistic that 
both issues will be addressed in the near future. Both the House and 
Senate Budget Resolutions recommend funding for SSA's fiscal year 2008 
administrative budget that exceeds the President' request. And, only a 
few days after the May 1 hearing, OPM issued a new ALJ vacancy 
announcement.
    At the May 1, 2007 Subcommittee hearing, SSA Commissioner Astrue 
referred to a recent report on ALJs, issued by the Social Security 
Advisory Board (SSAB). Recruiting SSA Administrative Law Judges: Need 
for review of OPM role and performance (Apr. 2007) (available online 
at: www.ssab.gov/documents/ALJ_Issue_ Brief_3.pdf). This issue brief 
discusses OPM's role in the SSA ALJ selection process and finds that 
SSA has unique ALJ needs that differ from other Federal agencies. These 
factors include the ability to handle higher caseloads, the 
responsibility to develop the record, and protecting the interests of 
the parties, since the SSA process is not adversarial. As a result, the 
SSAB concludes that ``[c]onducting Social Security hearings therefore 
requires certain skills that go beyond those needed by government ALJs 
generally.'' SSAB Issue Brief, p. 5.
    The SSAB recommends that Congress consider three options that would 
give SSA a larger role in the ALJ selection process and would make 
``the demonstrated ability to manage a large docket'' a selection 
factor. SSAB Issue Brief, p. 5. The three options recommended by the 
SSAB are:
    (1) A separate OPM register that would use characteristics derived 
from identifying characteristics of current ALJs ``with high quantity 
and quality of work'';
    (2) A single register with supplemental qualifications data, which 
would include the ``candidates' demonstrated ability to manage a large 
docket . . .''; and
    (3) Transfer management of the selection process to SSA. Under this 
option, SSA would be allowed to ``conduct its own selection process'' 
so that it could ``establish criteria that give credit for experience 
with its particular workloads.''
    We urge Congress to proceed with extreme caution on these options. 
The ability to manage a large docket should not necessarily become a 
prime characteristic for selection of an ALJ.
    Further, in order to maintain the critical importance of ALJ 
independence, the selection process should not be transferred to SSA. 
The SSAB recognizes that ``the public . . . has an interest in a 
hearing process that is demonstrably fair.'' We believe that the 
independence of the ALJ system must be preserved. While OPM's recent 
history in the ALJ selection process has not been optimal, continued 
oversight by SSA and Congress should ensure that OPM will be able to 
maintain a current ALJ register that meets the needs of SSA and the 
other Federal agencies that employ ALJs.
    Thank you for this opportunity to submit this statement for the 
record on the important issue of hiring Administrative Law Judges for 
the Social Security Administration.

                                 

                                         Edgardo M. Rodriguez, Esq.
                                   San Juan, Puerto Rico 00902-2287
                                                       May 15, 2007

Committee on Ways and Means
U.S. House of Representatives
1102 Longworth House Office Building
Washington, D.C. 20515

Honorable Chairman Michael McNulty and Members of the Subcommittee on 
Social Security:

    I am a failed applicant for the 2007 Administrative Law Judge 
Examination, who could not submit the application within the 
exaggerated time constraints imposed by the Office of Personnel 
Management (``OPM'').
    After almost 8 years of being closed, the announcement for the ALJ 
Examination which is administered by OPM reopened under Vacancy 
Announcement Number 2007ALJ-134575. This announcement was issued on May 
4, 2007 and would close on May 18, 2007 or until the day on which 1,250 
completed applications were submitted, whichever came first. Despite 
the complexity of the ALJ application, OPM closed the announcement 
because it allegedly received 1,250 applications and closed the 
announcement on May 9, 2007.
    In my case, on the same day that the announcement opened, May 4, 
2007, I opened an OPM account to work with my ALJ application on-line. 
It took me a lot of time and effort to complete the quality, neat 
responses that OPM was expecting of all applicants. During the week 
following the reopening of the Examination, I met with and secured the 
endorsement of four United States District Judges. I did my best effort 
during the limited time constraints imposed by OPM. As a matter of 
professionalism and respect for the position for which I wanted to be 
considered, I put in a lot of hours in my application process. As I 
tried to complete my application, I also had to deal with my work 
demands. By the time that I completed my application, the examination 
announcement was closed, making it impossible for me to submit my 
application. Four or five days was not enough time to complete the ALJ 
application if OPM wanted to create a new register with highly 
qualified candidates. State and Federal judges have to fill out 
applications that take no less than a month to complete.
    I wrote a letter to OPM Director Linda M. Springer to suggest a 
summary remedy in the form of an extension of time to those applicants, 
who, like myself, invested substantial resources to complete the 
application and who were suddenly left out without the possibility of 
submitting our completed applications. But, on second thoughts, I have 
to conclude, however, that I cannot look up to this process as a 
serious thing, and that, with all due respect and fairness, the process 
lacked any legitimacy. For instance, on Friday, May 4, 2007, OPM made 
the announcement only in its USAjobs' website. Some potential 
candidates may have been gone for the weekend without learning of the 
announcement; some potential candidates may have been out of the 
country; some may have been hospitalized; some could have been in the 
middle of an intense litigation, etc. Others may have been gathering 
information not at-hand, such as the required e-mail addresses from 
verifiers and references, etc. I also can imagine that, since the on-
line application process was an innovative feature, many applicants 
under pressure could have submitted their application by mistake, or 
could have made any other type of mistake in the application process, 
thus foreclosing possibilities for other qualified applicants. Perhaps, 
all applicants would have received the lacking due process had OPM 
provided a specific closing date rather than a speculative, uncertain 
event to close the examination. Unfortunately, I think that the whole 
process was vitiated and that if OPM does not set aside its ill-attempt 
to reopen the Register or if Congress does not intervene to provide the 
leadership needed, this wrong can only be remedied through legal 
action, which will further delay the ALJ needs of many agencies. I 
trust that Congress can assist to solve this troubled situation.

            Sincerely,
                                               Edgardo M. Rodriguez

                                 
             Statement of Margo A. Yhap, Rodeo, New Mexico
    I am submitting this testimony on behalf of Margo A. Yhap, just one 
of a reported 700,000-1 million American citizens waiting for a 
hearing/appeal for adjudication of their disability claim, which in 
fact, is no different than filing a claim for benefits afforded under a 
health care or car insurance policy which the claimant paid money out 
of pocket for said insurance policy.
    Ms. Yhap's claim was originally filed on 05/27/04, with 
reconsideration denied 07/11/05. The hearing request was noted by SSA 
and notification was postmarked on 9/08/05. No hearing as yet.
    As the recently published New York Times article dated 5/01/07 
elucidates, the backlog in processing claims hearings and appeals on 
denials take an average of 515 days, Ms. Yhap has now exhausted her 
life savings, and now is forced to turn to the State of New Mexico 
General Assistance and food stamps, slipping into poverty with no 
health insurance or income since her last date of employment on 3/31/
03, waiting approximately 1095 days, almost doubling the national 
backlog average, with no hearing in sight. Her paperwork was ``lost'' 
between Nevada and New Mexico after an address change was filed but not 
noted. . . . SSA admitted that error in 2005.
    Considering that it is reported that slightly more than one-quarter 
of all approved claims are awarded after an appeal hearing, and nearly 
two-thirds of the people who appeal ultimately prevail, for this 
claimant, should she ultimately prevail, the suffering and further loss 
of health and stability would be particularly egregious. The prospect 
of an appeal is at this point, traumatic.
    I think I have an idea how bureaucracy works and many of the 
issues. I was in health care administration and the health insurance 
business for 15 years prior to my own disability in 1991, which 
thankfully was won on reconsideration with no attorney. I know that if 
we had habitually treated customers like this, likely the insurance 
commission or some such regulatory agency would have been available for 
recourse or redress. It sure was in my case!
    It appears if this editorial is correct, it is incumbent upon our 
Congress to remedy this unconscionable situation for your constituents, 
who paid into this involuntary system, yet fairly and in good faith.
    In this regard, I believe all state residents should be outraged 
that their own state budgets are stretched, covering what the Federal 
program is intended to, but way scaled back. New Mexico does not offer 
Medicaid to persons involved in adjudication with SSA for disability, 
thus depriving worthy applicants of any ability to state their case. 
The treating physician that actually spends some time with the client 
is allowed to have heavier weight than an IME paid interview. But how 
does one pay for it?
    How fair is this? Sick people, most of whom are found eligible 
years later, if they live, are eking it out on $263.00 general 
assistance and food stamps. . . . Grateful? Yes.
    That does not mean in any way it is acceptable. It's classic 
``Catch 22.''
    At least accused criminals are assigned public defenders when 
forced to defend their rights or innocence and have rights to a speedy 
trial. All we did was get sick and try to access our disability 
program, let alone maintain medical stability and care with no income 
or medical insurance. Then we pay our own attorneys for the privilege 
of accessing our paid insurance policy after starving for years--some 
homeless, some always on the verge.
    Surely, there are priority problems here. What is mirrored back to 
those endlessly mired in this morass is that now that we are unable to 
contribute to the GNP, we are low priority and perhaps disposable.
    Her attorney has no answers . . . the SSA office recently informs 
her that the backlog is due to ``Katrina'' and that to appear she now 
needs to travel across the state to Roswell, but she is disinclined to 
do that, losing her opportunity to be heard in person, as her health 
would not allow such a trip now, and it took her almost 1 year to be 
reimbursed (calling 13 times) for travel to the IME, required by SSA 
well over 2 years ago, making any IME examination pretty irrelevant at 
this point, and as one of her providers who have now written to New 
Mexico Senators, she has worsened as a result of the stress of this 
protracted ordeal.
    Mostly we become so exhausted and find ourselves ``fenced out'' of 
political process--the cost of self-defense too high. For instance, 
though previously perfectly capable of writing this letter, she is not 
able to participate in her ``defense'' of her rights, and to 
effectively express outrage of the systemic neglect we are suffering. I 
took over a week to form this, and a difficult task, but we believe the 
only government worth having is participative, and thus a 
responsibility.
    Her treating psychologist is a Senior Disability Analyst, and the 
treating physician a certified medical examiner. What more could you 
want? At 3 dollars a gallon for fuel, she cannot even afford the trip 
or the wait for travel reimbursement, and will have a telephonic 
hearing. . . . Whenever. Maybe, could someone just look at the file?
    I would appeal to you to provide an appropriate good faith effort 
to Ms. Yhap, and the others like her, many as she is, without spousal 
or family support ``to carry her through.'' Perhaps you are unable to 
conceptualize this, or are not tied to this system, but I can hope you 
would never want to see your friend or loved ones treated in such a 
manner. Please remedy this by hiring enough ALJ's to do the job for the 
system we have put our trust in. Many of our lives depend on you.

                                 
   Statement of National Organization of Social Security Claimants' 
             Representatives, Englewood Cliffs, New Jersey
    Founded in 1979, NOSSCR is a professional association of attorneys 
and other advocates who represent individuals seeking Social Security 
disability and Supplemental Security Income (SSI) disability benefits. 
NOSSCR members represent these individuals with disabilities in 
proceedings at all SSA administrative levels, but primarily at the 
hearing level, and also in Federal court. NOSSCR is a national 
organization with a current membership of nearly 3,900 members from the 
private and public sectors and is committed to the highest quality 
legal representation for claimants.
    The Subcommittee's focus on issues related to the disability claims 
backlog is extremely important to people with disabilities. Title II 
and SSI cash benefits, along with the related Medicaid and Medicare 
benefits, are the means of survival for millions of individuals with 
severe disabilities. They rely on the Social Security Administration 
(SSA) to promptly and fairly adjudicate their applications for 
disability benefits.
    As revealed in the Subcommittee's February 14, 2007 hearing and 
news articles, people with severe disabilities have experienced 
increasingly long delays and decreased service in accessing these 
critical benefits. Processing times have continued to grow, especially 
at the hearing level where the delays have reached intolerable levels. 
In some hearing offices, our members report that claimants wait more 
than 2 years just to receive a hearing, which does not count the time 
for a decision to be issued. And, according to SSA Commissioner Michael 
Astrue, thousands of cases are approaching the 3-year mark.
    It is undisputed that SSA needs more ALJs if there is any hope of 
reducing the disability claims backlog at the hearing level, which is 
now as high as it has ever been. Current statistics demonstrate this 
need:

      The current average processing time at the hearing level 
is nearly twice as long as it was in 2000.
      The number of pending cases is more than two-and-one-half 
times the number in 2000, despite increased productivity by ALJs.
      About the same number of ALJs is currently hearing cases 
as heard cases in 1999, even though there are more than twice the 
number of pending cases.

    We are encouraged that the situation regarding SSA's ability to 
hire additional ALJs will improve over the next year. First, we are 
optimistic, based on the House Budget Resolution, that SSA will receive 
funding for its administrative expenses that more accurately reflects 
its service delivery needs. We applaud the Subcommittee for its efforts 
to increase SSA's Limitation on Administrative Expenses (LAE). These 
efforts have had a very positive impact to date--The House Budget 
Resolution recommends that SSA receive almost $500 million more than 
the President requested.
    In addition, on May 4, 2007, just 3 days after the Subcommittee 
hearing, OPM issued its new ALJ vacancy announcement. The job 
announcement was open for 2 weeks or until 1250 applications were 
received, whichever occurred first. According to the OPM website, the 
job announcement closed on May 10, 2007, after the requisite number of 
applications was received. Despite OPM's delay over the past 4 years in 
making this announcement, we are encouraged that ongoing oversight by 
SSA and Congress will prevent a similar situation from recurring.
    At the May 1, 2007 Subcommittee hearing, the issue of ALJ 
productivity was raised. Commissioner Astrue referred to a recent 
report on ALJs issued by the Social Security Advisory Board (SSAB). 
Recruiting SSA Administrative Law Judges: Need for review of OPM role 
and performance (Apr. 2007) (``Issue Brief'') [available at: 
www.ssab.gov/documents/ALJ_Issue_Brief_3.pdf].
    This April 2007 SSAB Issue Brief discusses OPM's role in the ALJ 
selection process and finds that SSA has unique ALJ needs that differ 
from other Federal agencies. Specifically, the SSAB focuses on the fact 
that ``SSA ALJs handle many more cases and make many more decisions 
each year than ALJs in regulatory agencies.'' SSAB Issue Brief, p. 5. 
As a result, the SSAB concludes that a ``demonstrated ability to manage 
a large docket'' should be a selection factor. We believe that this 
emphasis on productivity is misplaced.
    Over the past 5 years, the backlog has continued to grow as 
receipts have exceeded dispositions, despite a significant increase in 
ALJ productivity. Factors other than productivity, such as an increase 
in applications filed and reduced SSA funding for its administrative 
budget, have contributed to the increased backlog. Nevertheless, 
dispositions by ALJs have continued to grow.
    In a September 2006 report, Improving the Social Security 
Administration's Hearing Process (Sept. 2006) (``SSAB report'') 
[available at: www.ssab.gov/documents//HearingProcess.pdf], the SSAB 
examined the productivity of ALJs from fiscal year 2002 to fiscal year 
2005. While noting that there was some variation in productivity, as 
with any group of workers, the SSAB ``appreciate[d] the strides that 
SSA has made in increasing production.'' SSAB Report, p. 13. And the 
numbers bear this out. The SSAB's review of the data from 2002 to 2005 
shows:

      The productivity of the middle 50 percent of ALJs (those 
between the 25th and 75th percentile) increased:
        2002: The middle 50 percent issued between 254 and 444 
decisions.
        2005: The middle 50 percent issued between 291 and 478 
decisions.
      The productivity of the 10 percent of ALJs with the 
lowest number of decisions increased:
        2002: ALJs in this category issued fewer than 185 
decisions.
        2005: ALJs in this category issued fewer than 206 
decisions.
      The productivity of the 10 percent of ALJs with the 
highest number of decisions increased:
        2002: ALJs in this category issued 537 or more 
decisions.
        2005: ALJs in this category issued 579 or more 
decisions.
      The median ALJ productivity increased:
        2002: The median ALJ produced 350 decisions.
        2005: The median ALJ produced 383 decisions.

    SSAB Report, p. 13. The report makes several other notable points 
about factors that may affect the number of dispositions. First, 
dispositions may be low for some ALJs because, during that period, they 
concentrated on handling Medicare claims, which have now been 
transferred to HHS. Also, some ALJs may have fewer dispositions because 
of other assignments or details, e.g., management or union duties. 
However, overall, the SSAB finds it ``striking'' that fewer ALJs had 
low production numbers and more had high numbers in 2005, compared with 
2002.
    Increased productivity is not, in and of itself, the panacea for 
reducing the backlog. Pressure to dispose of cases may affect the 
quality of decisions, which, in turn, can lead to more appeals to the 
Appeals Council and to the courts. And, the SSAB also was concerned 
that ``there is a small correlation between production levels and 
allowance rates'' that requires monitoring by SSA. SSAB Report, p. 13.
    In addition, low production numbers may not be totally within the 
control of the ALJs. In a point that is directly related to SSA's 
budget concerns and staffing issues, the SSAB recognizes that 
productivity depends not only on the number of ALJs, but also on the 
number of support staff. In 2005, the median office had 4 to 4.5 staff 
members per ALJ. This represents a significant decrease from the 5.4 
staff per ALJ in 2001, at a time when the caseload was much lower.
    Finally, the September 2006 SSAB Report addresses the fiscal 
reality of the current backlog situation, as it relates to 
productivity. Even if the bottom 25 percent of ALJs had increased their 
production to that of the ``median ALJ,'' receipts still would have 
exceeded dispositions. ``It is not reasonable to expect to reduce 
backlogs without adding resources, reducing the influx of hearings, or 
using technology to increase productivity.'' SSAB Report, p. 13.
    Despite the increased production of ALJs over the past few years, 
the SSAB recommends, in the April 2007 Issue Brief, that Congress 
consider three options that would give SSA a larger role in the ALJ 
selection process and would make ``the demonstrated ability to manage a 
large docket'' a selection factor. SSAB Issue Brief, p. 5. We have 
serious concerns about these options.
    The three options recommended by the SSAB are:
    (1) A separate OPM register that would use characteristics derived 
from identifying characteristics of current ALJs ``with high quantity 
and quality of work'';
    (2) A single register with supplemental qualifications data, which 
would include the ``candidates' demonstrated ability to manage a large 
docket. . . .''; and
    (3) Transfer management of the selection process to SSA. Under this 
option, SSA would be allowed to ``conduct its own selection process'' 
so that it could ``establish criteria that give credit for experience 
with its particular workloads.''
    We urge Congress to proceed with extreme caution on all three of 
these options.
    The first two options elevate the ability to manage a large docket 
as one of the prime characteristics for selection of an ALJ. The SSAB 
suggests that data could be obtained from current ALJs to ``identify 
characteristics of judges with high quantity'' of work and that these 
characteristics could be made part of the SSA ALJ selection criteria. 
Whether such information can be ascertained is uncertain, at best. 
Would such criteria lead to many capable applicants failing to make the 
ALJ register? And, as noted in the September 2006 SSAB Report, the 
majority of ALJs, hired under the current process using a single ALJ 
register, have met or exceeded productivity goals.
    The third option would transfer much of the ALJ selection process 
to SSA. We believe that this option poses the most danger to 
infringing, or being perceived as infringing, ALJ independence and 
impairing the fairness of the process. ALJs play a critical role in the 
disability claims process. A claimant's right to a hearing before an 
ALJ is central to the fairness of the adjudication process. We strongly 
support efforts to reduce unnecessary delays for claimants and to make 
the process more efficient, so long as they do not affect the fairness 
of the process to determine a claimant's entitlement to benefits. We 
believe that this option would affect the fairness of the process.
    In the April 2007 SSAB Issue Brief, the SSAB recognizes that ``the 
public . . . has an interest in a hearing process that is demonstrably 
fair.'' SSAB Issue Brief, p. 6. We believe that retaining OPM's current 
role in the selection process best satisfies this goal. While OPM's 
recent history in the ALJ selection process has not been optimal, we 
are optimistic that, with continued oversight by SSA and Congress, OPM 
will be able to maintain a current ALJ register that meets the needs of 
SSA and the other Federal agencies that employ ALJs.
Conclusion
    We appreciate this opportunity to comment on this issue of 
importance to claimants. The delays caused by the disability claims 
backlogs have reached intolerable levels for claimants. One of the 
reasons the backlog has increased so dramatically in recent years is 
the need to hire more ALJs. With the prospect of an improved 
administrative budget situation for SSA in fiscal year 2008 and of a 
new ALJ register, we are encouraged that the dire circumstances faced 
by so many claimants with disabilities who are waiting for decisions 
will improve in the upcoming months.

                                 

                       Office of Disability Adjudication and Review
                                         Knoxville, Tennessee 37929
                                                        May 1, 2007

Subcommittee on Social Security
Committee on Ways and Means

Dear Committee Members:

    The Office of Personnel Management (OPM) recently announced it will 
begin replacing its current register of Administrative Law Judge 
candidates. In light of this fact and the recent history, I ask you to 
encourage the Commissioner of the Social Security Administration to 
request a large certificate of candidates from the current register 
immediately. There are several compelling reasons to take this action 
now.
    First and foremost, the Social Security Administration needs many 
more Administrative Law Judges and support staff now if it seriously 
intends to begin reducing the disability backlog. If we wait to select 
from the promised ``new'' register, the wait is more likely to be 
measured in years rather than months. OPM has been promising this new 
examination and register for over 5 years. Is it reasonable to think 
they will have a new register ready any time in the immediate future? I 
find it very difficult to believe that it will. I do not claim to have 
any inside information regarding the inner workings of OPM, but it 
appears they were still contacting people to obtain basic data and 
asking permission to employ retired ALJ's to serve as additional 
staffing in grading portions of the ``new'' examination. Even if they 
finally begin this new process at the end of the month, it is very 
likely it will take many months to prepare the new register. OPM, like 
SSA, is short staffed and would have to pull personnel from other 
projects and/or bring in new people on a large scale to handle 
thousands of applications. Organizing this team would likely not be 
complete before the end of summer. Then they would need a period of 
time for training. OPM has not processed large numbers of new 
applications since the 1990's. I suspect their new workgroup will take 
time to get up to speed. All these factors lead me to believe that the 
best case scenario for expecting a ``new'' register is closer to the 
end of 2008 rather than 2007.
    I am not confident the ``best case'' will come to pass. I suspect 
there is a high likelihood of delays within OPM due to their own 
staffing problems that could easily run into many more months. Even 
more critical may be the specter of litigation that could postpone 
implementation of the new examination. Given the length and bitterness 
of the Azdell/Meeker litigation, I suspect that some litigation-related 
delays are more likely than not.
    Next, contrary to suggestions occasionally made by Commissioner 
Barnhart, the candidates on the current register are generally as 
qualified as the majority of selectees since 1996. Compare the scores 
of those selectees, subtracting the veterans' points they received from 
their total scores, to those of the top 500-600 candidates on the 
current register. The scores are generally in the same range! It is 
also important to note that this top group of current candidates 
includes a much higher percentage of candidates that actually have 
significant experience in Social Security disability law than any of 
the last several certificates. Therefore, it is perhaps the best 
opportunity SSA has had to hire candidates with such experience at a 
rate higher than the handfuls hired over the past 15 years. I believe 
the records will show that less than 10 percent of Administrative Law 
Judges selected since 1990 had any significant experience in Social 
Security disability law before being hired by SSA. I do not impugn the 
abilities of those judges. They eventually learn the system and become 
productive, but there is no denying that they had a significant 
learning curve. Hiring more candidates who are already ``up to speed'' 
on Social Security law, would undoubtedly result in a more immediate 
impact on the backlog.
    It has been very difficult for SSA to hire candidates with subject 
matter expertise because so few made it on to ``certificates'' for 
selection. A certificate is a list of the top scoring candidates with 
the number determined by multiplying the number of ALJ vacancies by at 
least three. Thus, a certificate for 50 vacancies would have at least 
150 candidates and likely a few more. As a group, attorneys with 
extensive Social Security disability experience have received lower 
scores than those with experience in many other areas. In spite of the 
fact that Administrative Law Judges are supposed to be ``experts'' in 
their field of administrative law, the ``old/current'' OPM examination 
generally gave higher scores for litigation rather than administrative 
law experience. Subject matter expertise was irrelevant to the scoring 
process.\1\
---------------------------------------------------------------------------
    \1\ OPM's avowed argument for ignoring subject matter expertise and 
grading litigation experience higher than administrative experience is 
that agencies, other than SSA, have adversarial hearings. This argument 
might sound valid, but only if the following critical facts are 
ignored.
    1. SSA hires over 80% of all ALJ's. SSA's needs should weigh more. 
It hires 25-200 ALJ's at a time. ``Other agencies'' typically only hire 
one or two at a time.
    2. When the ``other agencies'' select ALJ's administrative subject 
matter expertise outweighs general litigation experience. The NRC will 
not hire an ALJ who has no experience in nuclear regulation. FLRB does 
not hire neophytes in labor law as an ALJ.
    3. It is my understanding the ``other agencies'' typically request 
and receive ``selective registers'' of candidates with subject matter 
experience, or they hire incumbent ALJ's from other agencies in order 
to avoid hiring off the register. Justice (then Professor) Antonin 
Scalia commended agencies that sought ``selective registers'' of 
candidates with specialized experience. (The ALJ Fiasco--A Reprise, 47 
University of Chicago Law Review 57 (1979)). He explained in some depth 
how subject matter expertise should be the overriding factor in 
selecting ALJ's.
    Thus, OPM's argument should carry no weight. Their initial premise 
that litigation experience is critical to ALJ performance is suspect. 
Even assuming it had some validity, the policy is irrelevant to the 
``other agencies'' that would allegedly benefit from it. They do not 
select candidates from the standard register.
---------------------------------------------------------------------------
    The second major factor that pushed most candidates with subject 
matter expertise lower on the register was the impact of OPM's 1996 
change in the application of the veteran's preference. The Association 
of Attorney-Advisors and I fully support our veterans and do not oppose 
its application as it was intended. It was intended to provide veterans 
with a 5-10% boost in their scores, giving them ``a leg up,'' but not a 
``near lock'' on a job. A comparison of the scoring systems makes the 
real impact of the change clear. Assume the following hypothetical 
candidates:

    A.  A non-veteran with 75 base points.
    B.  A non-veteran with 73 base points.
    C.  A non-veteran with 71 base points.
    D.  A 5-point veteran A with a base score of 71.
    E.  A 5-point veteran A with a base score of 67.
    F.  A 5-point veteran A with a base score of 61.
    G.  A 10-point veteran A with a base score of 66.
    H.  A 10-point veteran A with a base score of 61.
    I.  A 10-point veteran A with a base score of 55.

    Under the pre-1996 system the final scores added 10.9 points and 
then added 5 or 10 veterans' points. The final scores, from highest to 
lowest, would be D and G tied at--86.9; A--85.9; B--83.9; E--82.9; H 
and C tied at--81.9; F--76.9; and I--75.9. OPM's 1996 change in the 
scoring system markedly increased the impact of those veterans' points. 
Under the 1996 formula, the base score is multiplied by .3 and 70 
points are added. The final scores of those same candidates, from 
highest to lowest, would be G--99.8; H--98.3; I--96.5; D--96.3; E--
95.1; F--93.3; A--92.5; B--91.9; and C--91.3.
    The decision in the Azdell/Meeker litigation ruled that OPM had the 
authority to implement the 1996 policy. I do not question OPM's 
authority to implement it. I ask whether shifting the impact of the 
preference from a 5-10% boost to almost a 15-30% boost is appropriate 
in selecting ALJ's. It has had the practical effect of making veteran's 
status by far the most important single selection criteria. Veterans 
deserve good treatment and should receive an advantage on re-entering 
the civilian workforce, but the preference was not really aimed at 
senior positions in government. It was certainly not intended as a near 
guarantee of selection.
    If the ``new'' process follows this pattern with an extraordinarily 
heavy emphasis of veterans' points and no ``extra credit'' for subject 
matter expertise it will probably be a surprise if more than a handful 
of new Administrative Law Judges have any Social Security experience. 
There will be hundreds if not thousands of new candidates without 
significant Social Security experience with higher scores than those of 
the vast majority of candidates with Social Security experience.
    Common sense suggests that OPM should change its policies, at the 
very least to give subject matter experience the equivalent of bonus 
points to provide such candidates a reasonable opportunity for 
selection.

            Sincerely,
                                                 James R. Hitchcock
                                            Senior Attorney-Advisor
                                                          President
                                   Association of Attorney-Advisors

                                 

   Statement of Social Security Administration Office of Disability 
                        Adjudication and Review

    I am an attorney with the Social Security Administration Office of 
Disability Adjudication and Review in Kingsport, Tennessee. I am on the 
current ALJ register. I have over 22 years experience working as an 
attorney with this agency. I wish to encourage the Committee to direct 
Mr. Michael Astrue to proceed with immediate hiring of candidates from 
the current register and not to wait until a new register is available.
    As the Committee is aware the need to hire new judges and to get 
them into hearing offices is immediate. There need be no concern 
regarding the qualifications and competence of candidates on the 
current register. Many of us would have been hired years ago were it 
not for the lack of veteran's preference points. I believe all of us 
can agree that being a veteran does not address the issues of 
qualifications and competence but is a means of recognizing the 
contribution of these individuals to our country during a time of need.
    I understand the reason that only 37 judges were hired in 2006 and 
that none have been hired in 2007 is based on lack of funding and not 
on the desire to await a new ALJ register. To that end, I encourage the 
Congress to provide adequate funding to hire at least 100 judges in 
this fiscal year. I don't think U.S. taxpayers understand why the 
Congress has billions of dollars for Iraq and Afghanistan and not a few 
hundred million to employ judges and staff to process disability claims 
in the Social Security Administration.

                                 
             Statement of The Federal Managers Association

    Chairman McNulty, Ranking Member Johnson and Members of the House 
Ways and Means Subcommittee on Social Security:
    On behalf of the Federal Managers Association and the nearly 1,000 
managers in the Social Security Administration's Office of Disability 
Adjudication and Review (ODAR), please allow me to take a moment and 
thank you for this opportunity to present our views before the 
Subcommittee. As Federal managers, we are committed to carrying out the 
mission of our agency in the most efficient and cost effective manner 
while providing those necessary services to millions of Americans.
    Established in 1913, the Federal Managers Association is the 
largest and oldest association of managers and supervisors in the 
Federal Government. FMA was originally organized to represent the 
interests of civil service managers and supervisors in the Department 
of Defense and has since branched out to include some 35 different 
Federal departments and agencies including many managers and 
supervisors within the Social Security Administration (SSA). We are a 
non-profit professional membership-based organization dedicated to 
advocating excellence in public service and committed to ensuring an 
efficient and effective Federal Government. FMA members and their 
colleagues in the SSA Office of Disability Adjudication and Review are 
responsible for ensuring the success of the administration of Social 
Security's disability determination process and in providing needed 
services to American customers.
    As you are keenly aware, the Social Security Administration plays a 
vital role in serving over 160 million American workers and their 
families. Each month, SSA pays out benefits to 48 million 
beneficiaries. Over 7 million low-income Americans depend on the 
agency's Supplemental Security Income (SSI) program to stay afloat in a 
cost-inflating world, and nearly 7.2 million disabled Americans receive 
benefit payments through Social Security Disability Insurance (SSDI). 
In her May 11, 2006 message to the House Committee on Ways and Means 
Subcommittee on Social Security, former-SSA Commissioner Barnhart 
testified that SSA's productivity has increased 12.6 percent since 
2001. Considering the magnitude of its mission, the Social Security 
Administration does a remarkable job administering critical programs.
    In the Office of Disability Adjudication and Review, however, there 
currently exists a backlog of over 737,910 requests for a hearing, an 
increase of over 20,000 since the start of the calendar year. In the 
last 3 months alone (February, March and April), ODAR received 161,722 
new cases, while disposing of 140,469 cases, translating into a growing 
backlog of 7,000 new cases a month. By the end of the current fiscal 
year, this would mean an increase of 35,000 cases added to the backlog. 
It already takes over 500 work days to process a typical request for 
hearing and these delays tarnish SSA's otherwise strong record of 
service to the American public. At the beginning of 2002, SSA had 
468,262 pending hearing requests. In 5 years, that number increased to 
almost 738,000, despite the fact that dispositions are at record 
levels. Unless something is done to reverse this trend, the backlog 
could realistically reach 1 million by 2010 with the aging Baby Boom 
generation.
    As managers and supervisors within ODAR, we are acutely aware of 
the backlogs and the impact these backlogs are having on our ability to 
deliver the level of service the American public deserves. We are here 
to confirm what you've heard several times before--that the ongoing 
lack of adequate staffing levels and resources have contributed to 
these backlogs. If these inadequacies continue, clearing the backlogs 
will be impossible and service delivery will continue to deteriorate. 
In September 2004, we appeared before this Subcommittee to testify on 
the challenges and opportunities facing implementation of a new 
electronic disability process at SSA. At that time, we testified that 
the backlog will not decrease until staffing levels are increased and 
stated a desperate need for additional staffing, a warning which went 
unheeded. We returned in February of this year with the staffing 
situation unchanged and the backlogs significantly larger.
    We at FMA appreciate the attention the Subcommittee has placed on 
examining the reasons for the backlog and addressing remedies to the 
problem. Several Members of the Subcommittee expressed their concerns 
with the list of available Administrative Law Judges (ALJs) for hire at 
SSA at a hearing on May 1, 2007. The Social Security Administration 
employs over 80% of the available ALJs for hire and like you, we find 
it unconscionable that the Office of Personnel Management has not 
updated the registry of ALJs available for hire since 2003. However, we 
would be remiss if we did not express our concerns that the backlog 
cannot be addressed by ALJs alone. Without adequate support staff to 
prepare cases for the judges, both existing and new, we will not 
achieve an increase in hearing dispositions--the only solution to 
reducing the backlog.
    ODAR began fiscal year 2007 with 419,972 pending cases awaiting 
preparation for a hearing. In all likelihood, those cases will 
realistically wait at least 1 year before any action is even initiated 
to prepare the case for review and hearing in front of an 
Administrative Law Judge. Although clericals in hearing offices 
prepared 477,816 cases in FY06, claimants submitted almost 558,000 new 
requests during the same period. As such, the backlog of files simply 
awaiting preparation for review by an ALJ at the close of January 2007 
totaled 413,260 cases; an increase of 19,088 cases since the beginning 
of fiscal year 2006. ODAR's processing time at the end of January was 
an embarrassing 499 days. The American public deserves better service.
    Within ODAR, production is measured by the number of dispositions 
completed per day by an Administrative Law Judge. In FY05 and FY06, 
this record-level figure was 2.2 dispositions per day per ALJ. A work 
year is approximately 250 work days, yielding a reasonable expectation 
that an ALJ can produce an estimated average of 550 dispositions a year 
given the current staffing level limitations. At the end of January, 
SSA employeed 1,088 ALJs, resulting in a best case scenario of 557,150 
dispositions for FY07, which is about the same number of new cases 
filed in a given year.
    Commissioner Astrue said in his testimony on May 1st that he would 
like to add 150 ALJs in fiscal year 2008. That could translate into an 
additional 82,500 dispositions, but only if adequate staff is available 
to prepare the cases for review. While this is certainly a step in the 
right direction, Administrative Law Judges alone will not solve the 
problem. Without additional staffing, the current level of prepared 
work would be distributed among more judges, essentially resulting in 
the same dispositional outcome. We were encouraged by the 
Commissioner's plan to increase full time equivalents (FTEs) by 750-
850.
    Undoubtedly, adequate clerical support is necessary to prepare 
cases for hearing. As it stands, hearing offices do not even have the 
staff to accommodate the current judges, let alone enough staff to 
process the new 46,500 cases the Office of Disability Adjudication and 
Review receives each month. If receipts remained flat, the backlog will 
remain at over 700,000 cases, almost one-third of which are over 365 
days old. At the beginning of FY07, ODAR had over 63,000 cases which 
were over 1,000 days old; a number which is both unacceptable to the 
agency as well as the American people it serves. Commissioner Astrue 
identified these cases as ODAR's number one priority and the backlog 
has since been reduced to just over 14,500. The Commissioner is 
committed to reducing this critical workload to a negligible level by 
the end of the fiscal year. FMA applauds the Commissioner for his 
efforts and we are committed to working with him to achieve this goal.
    With the aging Baby Boom population, it is reasonable to assume 
that receipts will continue to out-pace dispositions. As the requests 
for hearings continue to rise, more is demanded from ODAR staff on all 
levels. The bottom line is that the hearing offices lack sufficient 
staff to process the work on hand much less even begin to work on new 
cases. It should be evident that under the best case scenario, the 
current staffing levels in ODAR barely maintain the status quo. That 
means that the backlog stays the same and processing times continue at 
an estimated 515 days.
    The existing staff must make room for the new cases as they attempt 
to address the backlog. In recent years, however, budgetary constraints 
have forced the agency to hire additional Administrative Law Judges 
without providing adequate support staff to prepare the cases for 
hearing. Last year, then-Commissioner Barnhart repeatedly stated that 
she hoped SSA would hire 100 ALJs in FY07, but funding shortages only 
allowed for less than 40 new hires. We recognize that the Commissioner 
was trying to address the backlog by adding these judges; however, 
additional ALJs without the supporting clerical staff to prepare cases 
in a timely manner will not solve the problem. By following in his 
predecessor's footsteps, Commissioner Astrue will encounter the same 
problems--no matter how many new judges come on board, without clerical 
staff to prepare cases for them, the backlog cannot be addressed.
    As you know, there is currently insufficient support staff to 
ensure optimal ALJ productivity and to handle the backlog. The accepted 
staff to ALJ ratio has been four-and-one-half production staff per ALJ. 
However, this only ensures productivity necessary to handle incoming 
work, not the backlog. For offices with heavy backlogs, the four-and-
one-half to one standard is inadequate. Management and administrative 
employees should not be included in these figures, as they are not the 
employees performing the production work on hearing requests. And, of 
course, staffing shortfalls cannot be remedied without adequate 
funding.
    The solutions to the backlog problem are simply adequate staffing 
levels and timely budgets which will allow us to address the pending 
cases. As of last month, the backlog was at 737,910 requests for a 
hearing. As noted earlier, a trained, productive ALJ, with adequate 
support staff, should be able to produce about 550 dispositions in a 
given year. Approximately 1,000 additional ALJs and 5,000 additional 
support staff would allow ODAR to work down the backlog in 1 year while 
providing timely processing of new cases as they arrive. We at FMA 
recognize that these numbers present a large funding challenge for 
Congress. As such, we support the Commissioner's initial request of 
adequate funding to support 750-850 FTEs in the coming year.
    To enable SSA to meet the goals set forth in the previous 
Commissioner's service delivery plan, Congress must approve a 
sufficient level of funding for the agency. The Continuing Resolution 
(CR) which was signed into law earlier this year was severely 
inadequate to address both the staffing and backlog problem at SSA for 
fiscal year 2007 despite the meager increase SSA received above the 
fiscal year 2006 appropriation. As the Commissioner stated in his 
testimony, since 2001, Congress has appropriated on average $180 
million less than the President has requested. The dollar value of this 
differential is equivalent to processing an additional 177,000 initial 
claims and 454,000 hearings. Without a doubt, this has had a 
devastating effect on the services provided to the American public, as 
evidenced by the situation we are in today.
    The President requested $9.494 billion in FY07; an amount which 
Commissioner Barnhart repeatedly stated was vital to sustain the 
agency. Even if the agency had received full funding, SSA would have 
faced a loss of 2,000 positions, a number which will now be far greater 
due to the CR. The amount approved in the CR will undoubtedly cause a 
profound disruption of service to the American public, including 
significant increases in waiting times at field offices and added 
delays in the processing of appeals.
    To remedy this unfortunate situation, Congress should begin by 
passing the President's 2008 budget request of $9.597 billion for SSA's 
Limitation on Administrative Expenses account. Commissioner Barnhart 
felt the agency was in even greater need and before her term expired, 
she had asked the President to request $10.44 billion for SSA in FY08. 
In addition to having an immediate impact on the current backlog, 
inadequately funding the Social Security Administration for an eighth 
straight year will negatively impact every service area of the agency.
    While the President's budget request for FY08 is a start, it is 
certainly not a cure all solution. Throwing money at the problem will 
not fully solve it without a well-trained, dedicated staff of Federal 
employees willing to avert a crisis in the coming years. I believe this 
is the workforce we have now, strengthened under the leadership of 
Commissioner Barnhart in the last 6 years. As Commissioner Astrue 
stated in his testimony, we must ensure any new influx of staff is 
qualified and properly trained so the agency can continue to provide an 
exceptional level of service to the American people. By fully funding 
the President's request, we can continue this tradition.
    In this era of shrinking budgets, SSA has attempted to maximize its 
use of scarce resources to provide the best possible service to the 
American public. The challenges faced by the managers and supervisors 
are not short term; they are a demographic reality. The same citizens 
putting stress on the Social Security trust fund because they are 
approaching retirement are also entering their most disability-prone 
years. ODAR is struggling to handle the current workload and will be 
hard pressed to manage the anticipated increase in hearing requests 
without additional staff.
    We are the men and women who work with disabled Americans every 
day. We see people of all ages come in and out of our offices seeking 
the services they depend on for survival from the Social Security 
Administration. We are committed to serving a community of Americans in 
need, but we need you to provide us with the necessary resources to 
help them. Thank you for your time and consideration of our views.