Social Security chief calls eliminating backlog a ‘moral imperative’

During the last decade, the Social Security Administration has lost 10 percent of its administrative law judges while the number of disability cases awaiting hearings has more than doubled, the agency's top official told Congress on Thursday.

Social Security Commissioner Michael Astrue said litigation and budget cuts have reduced the number of judges in the past 10 years. Currently SSA's Office of Disability Adjudication and Review has a backlog of 750,000 hearing requests, up more than 300,000 since 2000. Processing times for disability hearings have increased by 200 days during the last seven years, and have dramatically and unacceptably damaged many applicants' lives, Astrue testified before a House Appropriations subcommittee.

"Eliminating the hearings backlog is a moral imperative for the agency," he said. "This effort will take several years, but by the end of fiscal 2009, SSA will have laid the groundwork for regulatory and process changes needed and will be driving waiting times down."

Astrue said the agency has made job offers to 144 of the 175 administrative law judges it plans to hire this fiscal year. He also praised President Bush's fiscal 2009 budget request of $10.3 billion for SSA, noting the funding would help the office invest in needed improvements and reduce its hearings backlog by more than 67,000 in one year.

Ronald Bernoski, a judge for 27 years and president of the Association of Administrative Law Judges, testified that additional hiring is only half the solution. No judge, he said, can hear and write 40 to 50 decisions per month without adequate and competent staff support and planning by the agency.

"To hire 175 new judges without hiring the necessary staff is like buying 175 new trucks but only enough fuel to operate 20 of those trucks," Bernoski said. "Under these circumstances, the average productivity per truck or per judge can only decline."

Meanwhile, members questioned whether boosting funding and hiring at SSA were the only solutions to reducing the backlog. Labor, Health and Human Services, Education and Related Agencies Subcommittee Chairman David Obey, D-Wis., probed whether the issue really stemmed from a lack of productivity, especially among administrative law judges and their staffs.

Astrue said that most judges perform at or above the levels expected by the agency, but current law prevents him from disciplining the "bad apples." Some judges have been accused of fraud and domestic violence, he said, while others do not produce cases. One judge, for example, has not produced a case in seven years, he said.

Patrick O'Carroll, inspector general for SSA, testified that a lack of productivity among some judges was having a negative effect on the agency. A review of their caseload performance in fiscal 2006 found that administrative law judges processed cases from a low of 40 to a high of 1,805. Further, about 30 percent of judges processed fewer than 400 cases last year, far less than the 500 expected by the agency, he said.

Rep. Dave Weldon, R-Fla., questioned whether SSA was creating an incentive for most claimants to appeal state-level denials for disability benefits, increasing the caseloads for judges. Weldon pointed to the fact that they award disability benefits in 62 percent of the appeals they hear. "We've created an industry to appeal these claims," Weldon said. "Are we feeding a monster?"

Bernoski said after the hearing, however, that time leading up to a hearing often allows more unearthing of a claimant's medical evidence. He also said the hearing provides judges the opportunity to actually see claimants, who often are accompanied by lawyers. These factors frequently play into the decision to reverse state-level decisions and award benefits, he said.

In addition to hiring more judges, other reforms at SSA currently involve technology investments, Astrue said. In October 2007, for example, the agency rolled out its quick disability determination program, which allows electronic exchange of claims and includes a screening tool to identify claims in which a high probability exists that the claimant is disabled.

Without necessary reforms and sustained adequate funding, Astrue said, the situation will worsen, especially as the first of 80 million baby boomers apply for disability benefits in greater numbers than in previous generations. "We have to do things significantly differently if we have any hope of dealing with these issues." he said.

Astrue urged appropriators to approve Bush's fiscal 2009 budget request. "It's been a difficult and frustrating year. I don't think I have any more important use of my time than to try to make this situation better."