[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
SOCIAL SECURITY ADMINISTRATION OVERSIGHT: EXAMINING THE INTEGRITY OF
THE DISABILITY DETERMINATION APPEALS PROCESS, PART II
=======================================================================
HEARING
before the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JUNE 11, 2014
__________
Serial No. 113-126
__________
Printed for the use of the Committee on Oversight and Government Reform
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Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee MATTHEW A. CARTWRIGHT,
TREY GOWDY, South Carolina Pennsylvania
BLAKE FARENTHOLD, Texas TAMMY DUCKWORTH, Illinois
DOC HASTINGS, Washington ROBIN L. KELLY, Illinois
CYNTHIA M. LUMMIS, Wyoming DANNY K. DAVIS, Illinois
ROB WOODALL, Georgia PETER WELCH, Vermont
THOMAS MASSIE, Kentucky TONY CARDENAS, California
DOUG COLLINS, Georgia STEVEN A. HORSFORD, Nevada
MARK MEADOWS, North Carolina MICHELLE LUJAN GRISHAM, New Mexico
KERRY L. BENTIVOLIO, Michigan Vacancy
RON DeSANTIS, Florida
Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Stephen Castor, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director
C O N T E N T S
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Page
Hearing held on June 11, 2014.................................... 1
WITNESSES
The Hon. Carolyn W. Colvin, Acting Commissioner, Social Security
Administration
Oral Statement............................................... 7
Written Statement............................................ 9
APPENDIX
Baltimore Sun article submitted by Rep. Cummings................. 56
Opening Statement by Rep. Cummings............................... 59
Response from SSA to questions from Reps. Lankford and Speier.... 61
Answer from SSA to how much it costs to do a full medical review. 67
June 27, 2013, Statement of ALJ Sullivan, submitted by Chairman
Issa........................................................... 68
Response to Rep Mica's question regarding cooperative disability. 91
SSA response to Rep. Gosar regarding hearing decisions........... 92
SSA response to Rep. Duncan regarding SSDI beneficiaries in
current pay status............................................. 93
SSA response to Chairman Issa regarding National ALJ allowance
rates.......................................................... 94
SSA letter in response to Chairman Issa's questions regarding
ALJs........................................................... 95
SSA response to Rep. Cummings regarding benefits................. 96
SOCIAL SECURITY ADMINISTRATION OVERSIGHT: EXAMINING THE INTEGRITY OF
THE DISABILITY DETERMINATION APPEALS PROCESS, PART II
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Wednesday, June 11, 2014,
House of Representatives,
Committee on Oversight and Government Reform,
Washington, D.C.
The committee met, pursuant to call, at 9:34 a.m., in Room
2154, Rayburn House Office Building, Hon. Darrell E. Issa
[chairman of the committee] presiding.
Present: Representatives Issa, Mica, Duncan, Jordan,
Chaffetz, Walberg, Lankford, Amash, Gosar, DesJarlais, Woodall,
DeSantis, Cummings, Maloney, Tierney, Connolly, Speier,
Cartwright, Lujan Grisham, and Kelly.
Staff Present: Melissa Beaumont, Majority Assistant Clerk;
Brian Blase, Majority Senior Professional Staff Member; Molly
Boyl, Majority Deputy General Counsel and Parliamentarian;
David Brewer, Majority Senior Counsel; Caitlin Carroll,
Majority Press Secretary; Sharon Casey, Majority Senior
Assistant Clerk; John Cuaderes, Majority Deputy Staff Director;
Adam P. Fromm, Majority Director of Member Services and
Committee Operations; Linda Good, Majority Chief Clerk; Mark D.
Marin, Majority Deputy Staff Director for Oversight; Emily
Martin, Majority Counsel; Jessica Seale, Majority Digital
Director; Andrew Shult, Majority Deputy Digital Director;
Sharon Meredith Utz, Majority Professional Staff Member;
Rebecca Watkins, Majority Communications Director; Jaron
Bourke, Minority Director of Administration; Jennifer Hoffman,
Minority Communications Director; Julia Krieger, Minority New
Media Press Secretary; Juan McCullum, Minority Clerk; Suzanne
Owen, Minority Senior Policy Advisor; and Brian Quinn, Minority
Counsel.
Chairman Issa. The committee will come to order.
This second hearing on the Social Security Administration
Oversight: Examining the Integrity of the Disability
Determination Appeals Process, Part II, will come to order.
The Oversight Committee mission statement is that we exist
to secure two fundamental principles: first, Americans have a
right to know that the money Washington takes from them is well
spent and, second, Americans deserve an efficient, effective
Government that works for them. Our duty on the Oversight and
Government Reform Committee is to protect these rights. Our
solemn responsibility is to hold Government accountable to
taxpayers, because taxpayers have a right to know what they get
from their Government. It is our job to work tirelessly in
partnership with citizen watchdogs to deliver the facts to the
American people and bring genuine reform to the Federal
bureaucracy.
The Social Security Disability Insurance Program and
Supplemental Security Insurance Program have both seen
explosive growth over the past decade. Through these programs,
nearly 20 million people receive approximately $200 billion in
annual cash payments.
Yesterday we heard testimony from four administrative law
judges, normally called ALJs, who clearly rubber-stamped the
cases brought before them. Rubber-stamping not because they
agreed with the lower determinations to reject these claims,
but rubber-stamping the lawyers who said my client is disabled,
even though competent administrators beneath had not once, but
twice in many cases, said no.
We heard from ALJs who created their own theories of
disability; who awarded benefits to thousands of decisions
without even holding hearings or considering the evidence; who
failed to utilize medical or vocational experts during their
hearings; who do not understand agency policy and repeatedly
misapplied the rules of the Social Security Administration; and
we heard about ALJs who fell asleep during hearings, who made
inappropriate comments and gestures directed at female
employees.
Every case that comes before ALJs has already been denied
at least once, and sometimes twice. Yet ALJs overturned a
shocking number of these denials. Over the last decade, 191
ALJs reversed at 85 percent or higher these decisions. These
191 ALJs awarded lifetime benefits in excess of $150 billion
tax dollars.
While the ALJs that we featured yesterday do not represent
the majority of judges, not by far, they do represent a
sizeable number of ALJs, and even one incompetent ALJ can waste
billions of taxpayers dollars over the course of his or her
tenure by inappropriately placing individuals on disability for
life.
Many of the ALJs who have demonstrated gross incompetence
and profound misjudgment should be fired, yet action is rarely
taken either by the Social Security Administration or Justice
Department to stop misconduct or even illegal activity.
Today's hearing will address the Social Security
Administration's role in this mess. For years the agency's
barometer for ALJ performance was a quantity of cases that ALJs
decided each year. Prior to 2011, the agency never investigated
whether judges were engaging in proper decision-making. At
multiple hearings now, including yesterday, ALJs told us and
the committee that they felt pressured to meet a quota of
decisions each year. Judges testified they received training
from the agency to speed up their decision-making, including
instructions to set an egg timer limiting reviews to no more
than 20 minutes per case.
Simply put, in the past, the agency's emphasis on high
volume decision-making directly contributed to ALJs likely
awarding benefits to hundreds of thousands of people who simply
were not disabled. Among its many responsibilities, the agency
needs to deal with the ALJs who have lost, or should have lost,
the public trust.
I think it is obvious that all four of the ALJs that
appeared before us yesterday should no longer be trusted to
spend your money in the Disability Trust Fund.
Today I want to know whether Ms. Colvin is going to take an
aggressive approach in removing incompetent ALJs. Thus far, she
has refused to heed my recommendation to take stronger action
with ALJ Bridges, Taylor, even though both received multiple
reviews showing gross incompetence and negligence.
In 2012, the agency did make a necessary reform and it did
finally begin an assessment comparing all ALJs' volume of
decisions and the quality of those decisions. The results of
the study are clear. From the study, there is a ``strong
relationship between production levels and decision quality on
allowances as ALJ production increased. The general trend for
decision quality is to go down.'' Now, to say that less
mangled, quantity reduces quality. While having a reasonable
quantity level allows for at least those ALJs who want to do a
better job to do that better job.
I appreciate the commissioner being here today and
appearing before the committee. Key questions before us are:
What do we do about the people who were wrongly awarded
benefits by ALJs? And how do we fix a system going forward?
I trust the commissioner is, every day, thinking about this
and is prepared to give us her thoughts today and to answer our
questions.
I want to close by reminding all of us on both sides of the
dais this was not a problem of this Administration; this was a
problem that took a decade to grow. ALJs are not political
appointees, per se, but they are people who spend American
taxpayer dollars at a higher rate than virtually everyone else
in Government.
So as we work to fix a problem not created by one
administration, I want us all to show deference to the fact
that the problem is here before us. The problem took a decade
to grow and I look forward to working together to fix it.
I now recognize the ranking member.
Mr. Cummings. I want to thank the chairman.
Let me thank the commissioner for being here. Commissioner
Colvin, we know you have a very difficult job. You are the
steward of the Disability Insurance Program, which is a
critical lifeline for people who become disabled and can no
longer work, and I don't want us to lose focus of that.
American workers contribute to this program out of their
paychecks, hardworking Americans. They need and deserve to have
the Disability Insurance Program that gives them fair and
timely hearings based on medical evidence if they become
disabled and unable to work.
I know you are working hard to get it right. The majority
of the Social Security Administration's 60,000 employees,
including 1500 administrative law judges, are doing the same.
Many of them are my constituents. And, by the way, the people
who are serviced by Social Security are all of our
constituents, and I don't ever want us to lose sight of that.
They tell me themselves how hard they are working to provide
the services that Americans count on. They also tell me that
there have been instances now where one person is now doing the
job that three people used to do. And the fact is your efforts
are working.
Over the last decade, the Social Security Administration
has significantly improved its efforts to collect and analyze
data about judges' decisions; it has expanded training,
improved performance, sharpened disciplinary procedures, and
enhanced efforts to combat fraud. And the chairman is right, if
there are things that you think we need to do to help you
address this issue, you need to let us know, because it is one
thing for us to be up here criticizing the Administration when
we don't give you the resources you need and the backing that
you need to accomplish what you have to accomplish.
Yesterday we heard from a handful of administrative law
judges who fail to meet agency standards for conduct and
professional judgment. No doubt about it. These judges are
outliers who do not reflect the good work of the majority of
administrative law judges. We had four here yesterday. I
understand there are about 1500 in the Nation.
The evidence shows that the agency is committed to
protecting the qualified decisional independence of the judge
corps, and that is very, very significant. These judges act
independently. We heard them yesterday talk about how much they
guard their independence. So you are really walking a real thin
line here. On the one hand you have to make sure they have
independence, but like Chief Judge Rice said in a transcribed
interview, you also, at the same time, have to make sure that
you can't tell them they have to have a certain percentage
going in favor and a certain percentage going the other way. So
it is kind of difficult to do.
That commitment is fundamental to ensuring the integrity of
the program and the rights of American citizens. We are talking
about due process and equal protection under the law. But the
evidence also shows that you are dealing with judges who go
beyond judicial independence and ignore the policies
established by the agencies. There is absolutely something
wrong with that. In fact, you are now pursuing the removal of
judges with the Merit Systems Protection Board, when such
actions were unheard of a decade ago.
It is in all of our interest to get this right. We have a
responsibility not just to highlight problems, but to correct
them when they are identified; and that is why the spotlight
should also shine on this body, us. Our investigation shows
that Congress has failed to adequately fund program integrity
efforts that would curb abuses. Congress has failed to provide
the resources needed by the inspector general. And we all have
a lot of respect for our inspectors general to combat fraud.
And Congress has failed to provide the resources needed to
provide timely access to disability hearings.
Mr. Chairman, I would like to enter into the record an
article from the Baltimore Sun reporting that residents in my
district are waiting for 17 months for hearings.
Chairman Issa. Without objection, so ordered.
Mr. Cummings. We heard testimony during our investigation
that some people waited so long for their hearings that they
died waiting. That they died waiting. That is an outrage and we
are better than that. And that is one grave cost of austerity.
Mr. Chairman, it is time to put our money where our mouth
is. Is the Congress going to invest in the integrity of the
Disability Insurance Program? Is Congress going to adequately
fund anti-fraud units in all 50 States? Is Congress going to
appropriate sufficient resources to eliminate these backlogs?
In my opinion, that is what we have to do and that is what we
must do, and I look forward to your testimony.
With that, I yield back.
Chairman Issa. Thank you.
We now go to the gentlelady from California for a brief
opening statement.
Ms. Speier. Mr. Chairman, thank you.
I would like to wholeheartedly endorse every word of my
ranking member's statement. I think he put it extremely well.
I want to thank the chairman for holding this hearing
today. It is the fifth oversight hearing that we have had on
Social Security disability. The previous three were held in our
Subcommittee on Energy Policy, Health Care and Entitlements,
and again I would like to take note of the leadership of my
colleague, Mr. Lankford, and his leadership on that committee.
During the course of the committee's oversight of Social
Security, we have learned that there is room to do disability
insurance better. We need to have more program integrity, more
prevention of improper payments, and more commitment to
improving quality.
While the agency has taken steps towards reform, it has
become clear that some of the concerns can only be addressed by
Congress with additional resources for quality assurance and
program integrity efforts.
Yesterday's hearing focused on four outlier judges that had
unusually higher allowance rates. In many respects it was a
dismal hearing. It was embarrassing, I think, for many of us to
listen to. They process an extraordinary number of cases, some
without even ever seeing the claimant. In fact, in one case, I
think it was Judge Taylor, of the 8,000 cases that he had,
6,000 of them were done on the record without ever seeing the
claimant. And some cases substituted their own personal beliefs
for expert medical advice.
I do not believe that the judges invited to testify
yesterday were representative of the judge corps. Most of the
ALJs are conscientious public servants and had an allowance
rate of 57 percent last year.
Today I look forward to the testimony from Social Security
officials on the efforts to enhance its ability to oversee ALJs
to ensure consistent and quality decisions. I hope they will
address the concerns raised yesterday and describe the tools
Social Security has put in place to train, discipline, and,
when appropriate, remove ALJs that violate agency policies.
Now, having said that, I think it is very, very difficult
to remove someone, and we need to have a very candid
conversation on what needs to be fixed in order to
appropriately remove individuals who are just, frankly, not
doing the job.
In April of this year, Chairman Lankford and I sent a
bipartisan letter to Social Security that outlined several
reforms and recommendations to improve the disability,
adjudication, and review process to restore confidence in
Federal disability programs. Earlier this week I sent a letter
to the U.S. attorney for the Eastern District of Kentucky
requesting an independent review for prosecution of the
evidence Social Security had gathered with regard to the
administrative law judge and a claimant's representative who
allegedly colluded with fraudulent medical evidence to obtain
disability benefit awards for thousands of individuals.
The fact that Eric Kahn is still in a situation where he
can represent claimants before Social Security in Huntington
and in Charleston, and anywhere else, I guess, in the Country,
because he has now opened offices in California, is a disgrace.
It is an absolute disgrace.
The American people expect and deserve action. I am
concerned that justice has been long delayed in this case.
Administrative actions against the judge and the lawyer have
bene put on hold pending a possible criminal prosecution. While
the inspector general has conducted over 130 interviews,
examined bank and phone records, reviewed decisions, and
collected thousands of documents to build a case, we have heard
nothing out of the U.S. attorney in West Virginia. It is long
past time to prosecute this case and, frankly, it is long past
time for the administration within Social Security to take
action against these people. One of them has retired; one of
them is still processing claims.
Social Security disability benefits are an important
lifeline for millions of American taxpayers with disability. It
is critical that this lifeline is preserved. Our investigation
has focused on identifying improvements to ensure that only
those who meet the eligibility guidelines receive benefits so
that the truly disabled can access this important lifeline and
the American public can have confidence in the disability
determinations process.
Our investigation has also shown that Congress has not
provided the funding the agency needs to fulfill its mandate to
effectively monitor program integrity and save taxpayer
dollars. We know continuing disability reviews, CDRs, as we
refer to them, yield a return of $9.00 for every dollar spent.
Common sense suggests to all of us that some people who are
disabled get better, and there should be an active use of CDRs
to make sure that those who do get better are not continued on
the rolls.
Social Security and the OIG have also established the
Cooperative Disability Investigations Program to coordinate and
collaborate on efforts to prevent, detect, and investigate
fraud in Federal disability programs. Those efforts pay for
themselves many times over. Yet, for some reason, we here in
Congress have refused to fully fund the inspector general and
the agency to carry out its program integrity. If we want
accountability,--I am going to use the same words that the
ranking member did--then let's put our money where our mouths
are and fully fund CDRs.
I look forward to hearing the testimony on improving the
disability appeals process and how Congress can support and
enhance these efforts. Thank you.
Mr. Mica. [Presiding.] I thank the gentlelady.
Mr. Lankford?
There are no further opening statements. Then we will go to
recognizing our witness.
Members may have seven days to submit opening statements
for the record. Without objection, so ordered.
Our sole witness today is the Honorable Carolyn Colvin. She
is the Acting Commissioner for Social Security Administration.
Pursuant to the rules and procedures of our committee, Ms.
Colvin, this is an investigative panel of Congress and we swear
in all of our witnesses, so if you will stand and raise your
right hand.
Do you solemnly swear or affirm that the testimony you are
about to give before this committee of Congress is the whole
truth and nothing but the truth?
[Witness responds in the affirmative.]
Mr. Mica. The witness has answered in the affirmative and I
would like to welcome you.
Since we only have one witness, we won't hold exactly to
the five minutes, but if you could try to summarize your
opening statement and comments. And if you have additional
information that you would like to be made part of the record,
you can request through the chair.
With that, you are welcomed and recognized.
STATEMENT OF THE HONORABLE CAROLYN W. COLVIN, ACTING
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION
Ms. Colvin. Good morning, Chairman Issa, Ranking Member
Cummings, members of the committee. Thank you for inviting me
to discuss the role of administrative law judges, or ALJs, in
our disability appeals process. My name is Carolyn Colvin and I
am the Acting Commissioner of the Social Security
Administration.
We have nearly 75 years of experience in administering the
hearings process. Since 1939, the law has required us to hold
hearings to determine the rights of individuals to Social
Security benefits. We currently employ just over 1400 full-and
part-time ALJs who decide hundreds of thousands of disability
claims each year. The vast majority of all ALJs are
conscientious, hard-working, and take their responsibility
seriously.
Getting the right decision to every person who applies for
disability benefits is important to the agency, the claimants,
Congress, and the taxpayer. Those who have earned Social
Security coverage deserve a decision that is accurate, timely,
and policy-compliant, whether the decision is an allowance or a
denial. Toward this end, we have taken steps to comprehensively
improve our national hearings and appeals process.
As our budget allowed, we made a large investment in
modernizing the hearings process and utilized improvements in
technology. We have developed new methods of capturing
structured data which provides insight into policy compliance
in hearing decisions. We have developed new tools that use the
structured data to provide ALJs real-time access to their
appeals council remand data and provide them individual
feedback.
We collect and then analyze data to identify recurring
issues in decision-making by performing pre-effectuation
reviews on a random sample of allowances and post-effectuation
focus reviews that look at specific issues. By performing these
reviews as allowed by our regulations, we provide ALJs timely
guidance on recurring issues in decision-making, consider
improvements in policies and procedures, and identify training
opportunities for ALJs and other agency employees. Our ability
to perform these reviews, though, depends on the funding we
receive from Congress.
Our continued focus on quality review initiatives allow us
to improve the policy compliance of ALJ decisions to ensure
that individuals who qualify for benefits receive them, and
that those who do not qualify do not receive benefits.
Most ALJs who receive feedback welcome the opportunity to
improve their skills. Let me emphasize that we do not have any
set allowance or denial rates. We do not because our focus is
always on producing quality policy-compliant decisions.
For our hearing process to operate fairly, efficiently, and
effectively, our ALJs must treat members of the public and
staff with dignity and respect, adhere to ethical standards and
agency policy, be proficient at working electronically, and be
able to handle a high volume workload while maintaining quality
and issuing policy-compliant decisions. The vast majority of
our ALJs take seriously their duty to the American public and
perform their duties accordingly, and I commend and thank them
for their service.
We manage our ALJ corps in accordance with the
Administrative Procedures Act and we ensure the qualified
decisional independence of our ALJs. The APA additionally
provides that ALJs are exempt from performance appraisals and
cannot receive awards based on performance. In compliance with
the APA, we can and have taken steps to ensure that ALJs who
refuse to do their jobs properly or who otherwise betray the
public trust would be held accountable for their actions.
Despite the good work of the vast majority of our ALJ corps, it
has been necessary to seek removal or suspension of some ALJs.
To do this, we have to complete a lengthy administrative
process that lasts years and can consume significant amounts of
taxpayer dollars.
Unlike disciplinary actions for other civil servants, the
law requires that ALJs receive their full salary and benefits
until the case is finally decided by the full Merit Systems
Protection Board, even when the ALJ's conduct makes it
impossible for the agency to allow the ALJ to continue deciding
and hearing cases or to interact with the public.
We welcome your support in advancing our goal of providing
every person who comes before our agency a timely, quality, and
policy-compliant decision.
Again, thank you for the opportunity to appear before you
today, and I will answer any questions you have.
[Prepared statement of Ms. Colvin follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Mica. Thank you, Ms. Colvin. We will first recognize
for the purpose of questioning Mr. Lankford.
Mr. Lankford. Ms. Colvin, thanks for being here as well.
Ranking Member Speier and I sent a letter to your office about
a month ago or two months ago. It had 11 specific
recommendations or ideas about how to reform this. It has been
part of this ongoing conversation now, our fifth hearing
dealing with this issue. We continue to collect what are the
ideas that actually solve this problem. We are all very aware
of the problem. How do we actually solve this? We listed 11
specific ideas. The letter that we received back from your
office said this, ``Some recommendations could benefit from
further discussion of our current business processes, the
relative advantages and disadvantages of pursuing the suggested
changes and significant legal considerations. We have to
discuss these recommendations with your staff.''
What we want to know is how do we actually start applying
some of these. I would ask you again, of the 11 recommendations
that we put forward, I would like to receive a response back to
Ms. Speier and I that says of the 11, here are those that we
are already implementing, here are those that we don't think is
a good idea; rather than, hey, we will talk about this at some
point if you want to be able to get together. I think it is a
reasonable request.
Ms. Colvin. I certainly can respond to you about each of
the individual recommendations that you set forth. However, I
did believe that some further conversation would help to
clarify some of the recommendations. If you feel that you would
rather not do that----
Mr. Lankford. No, we are fine with that. We have had
offline conversations. We don't have to be in front of the
cameras to be able to have this kind of conversation. What we
want to see is how do we actually move these into solutions.
What we have tried to clear up from the beginning in these
hearings are what are statutory issues you need help with in
the law. Where do we have a problem in the law that we need to
fix? Where do you already have statutory authority that we just
need to help provide a push and accountability to say how do we
get this done?
So we have no issue to be able to talk through what is our
part, what is your part, but we want to see us make progress on
this.
Ms. Colvin. We would be very happy to do that, Mr.
Lankford. We appreciate the assistance of this committee and we
look forward to working with you.
Mr. Lankford. Okay. We look forward to getting a chance to
be able to get together on that.
Ms. Colvin. All right.
Mr. Lankford. There are several issues that have come up
during these conversations. Yesterday's hearing, as Ms. Speier
mentioned before, was depressing in many ways. It is
frustrating both to be able to see individuals that would claim
judicial independence, but they are basically going to create
their own way. For an ALJ to not have in the medical record in
front of them that there is a back problem, but they ask
someone in front of them do you have a limp and they said yes,
and they give them disability when there is no medical evidence
of that. Do you have a limp should not qualify for $300,000 of
lifetime benefits to the taxpayer. And do you have a limp does
not also say to someone you are not eligible to work in any
location in our economy, which is clearly within the vocational
grid requirements.
When those issues come up, and come up in a focused review,
our frustration is they are rare, and thankfully that they are
rare. We have 191 ALJs that have this very high overturn rate,
and what we are trying to consider is what do you need to help
in the process to be able to help fix this so that you can
bring both training that works--because what we heard a lot
yesterday was, yes, we have training, but it is really training
on writing better; it is not training on writing and on policy
and on how to make decisions. All four of the judges agreed the
training that they received is on writing better opinions
rather than actually making better decisions on it. So that is
one aspect of it.
The second one is when you find someone that needs to be
removed, what do you need from Congress to be able to clarify
the law. As you mentioned in your opening statement, the law
doesn't allow for removal or holding pay or such.
Ms. Colvin. Let me respond first by saying that we expect
all of our judges to issue quality policy-compliant decisions.
Mr. Lankford. Well, we do too.
Ms. Colvin. We respect their qualified judicial
independence, but we also know that they are employees of the
agency, and they are accountable to the agency and to the
taxpayers. So when we identify that there is a problem through
our focus reviews, we do in fact provide very timely real-time
feedback; we provide additional training for those individuals;
and then if they still do not comply with policy, we move
forward with taking the appropriate action.
Mr. Lankford. When you have a focused review, is there any
sense of setting this person aside to say they are not going to
hear cases while they are undergoing a focused review that you
saw problems with, do the training, or are they still taking
cases at the same time?
Ms. Colvin. We do not set them aside; we provide them with
training and work with them to improve those decision-making--
--
Mr. Lankford. So they are still hearing cases though they
are still going through training to say we saw problems in your
focused review, but they are still adding more cases even
during that time period?
Ms. Colvin. We are not able to just remove a judge from
hearing cases because they need additional training. Our
responsibility is to provide that training first, provide them
with an opportunity to improve, and then if they still are not
policy-compliant, we take appropriate action.
Mr. Lankford. Does that appropriate action include not
hearing cases at that point?
Ms. Colvin. It could be. It depends upon what the situation
is.
Mr. Lankford. Here is the ongoing problem that we have: you
have someone that your group has identified to say there are
some problems here in the way they are deciding cases; they
don't seem to be following the basic flow of those five
elements that need to be there. If there is a problem that
rises to the top on that, they don't need to continue to hear
more cases through that time period. We did not have them hear
cases, make sure that they are trained and ready to go so that
the next time they start hearing cases again they are actually
following proper procedure that has been outlined by the law
and by regulations.
Ms. Colvin. It is not that simple, Mr. Lankford. There is a
process that we must go through. We do that. We take the
responsibility of providing correct decisions very seriously
and we take steps immediately to try to----
Mr. Lankford. So how long is that process?
Ms. Colvin. Well, if you talk about the Merit Systems
Review process, we make a referral because we believe that a
judge has either improper conduct or is not policy-compliant,
our experience has been it could be two, three years. It costs
us a million dollars to remove just one judge. So the process
is very lengthy and very costly.
Mr. Lankford. So we have a three-year process for someone
that there is a very clear problem with.
Ms. Colvin. It is not our process, Mr. Lankford. We have to
follow----
Mr. Lankford. I understand. I am just asking the question
how do we fix this? Because we have a three year process,
someone is continuing to hear cases. Approximately $300,000 to
the taxpayer of every single case that they hear if they choose
to put them into the system. It continues to roll on the
taxpayer and we still continue to have a judge that says do you
have a limp? You qualify for Social Security disability.
Now, I understand that is an extreme case, but if that
rises up to that level, which you have a few judges that are at
that level, how do we protect the taxpayer and the integrity of
the system so that if someone is coming for disability and an
ALJ, they are consistent across judges? I know there are
subjective decisions here, but if you come before one judge, it
is a 15 percent approval rating; if you come before another
one, it is a 99 percent approval rating.
Ms. Colvin. Well, I think that you need to understand that
we cannot look at one statistic, whether it is an allowance
rate or a denial rate, to determine whether or not the decision
was a right decision. There is much more----
Mr. Lankford. Yes, ma'am, I do understand that.
I am over time, Mr. Chairman. I apologize for that, but let
me just say if you are a small community bank, when the
regulator comes in, he looks at every other community bank and
how they do loans, and if you are an outlier, you get extra
attention, because that is the way they are overseeing from the
FDIC and the OCC. Any outlier number that sits out there, you
don't have a ``quota,'' but if your numbers are odd compared to
everybody else around you, you are going to get extra
inspections. All we are asking is would that occur with Social
Security in the disability process, that if you have an
outlier, whether they are on the low side or the high side,
someone is looking at that, saying why is this number so odd.
Ms. Colvin. You are aware that we do focused reviews. We
cannot single a judge out simply because of his allowance rate
or his denial rate. But if we find that there are problematic
policy decisions, we can work with that individual for further
training and ultimately take action, if necessary.
Mr. Lankford. So is that the law, that you can't single
them out because of high allowance rates?
Ms. Colvin. That is the law.
Mr. Lankford. Okay, then we need to fix that for you,
because that is trapping it. That is the kind of stuff we are
talking about. We all see the problem. We need to know what is
our responsibility and what is yours so we can fix that.
Ms. Colvin. Mr. Lankford, I think it is important again to
just emphasize that allowance rate or denial rate does not
necessarily indicate that the decision that was made is an
incorrect decision.
Mr. Lankford. I understand.
Ms. Colvin. So there are other variables that we have to
look at.
Mr. Lankford. By the way, we should probably pass it on to
the FDIC as well, because they do that same treatment for banks
and they have the exact same response.
With that, I yield back.
Chairman Issa. [Presiding.] I just want to clarify, then we
will go to the ranking member.
You are saying that it is the clear, four square of the law
and you have no ability? You are not saying that it is your
interpretation, etcetera? You are saying you have absolutely no
authority under the law to do anything different, or these are
rules and policies and interpretations of the Social Security
Administration?
Ms. Colvin. When you say to do anything different, law has
been very clear that we have to respect the judicial
independence, that we cannot look at a judge's allowance rate
or denial rate as a factor in determining whether or not that
judge is qualified to do the job that they are doing; that
there are many other considerations. There is also a process
involved if we determine that we are going to take action and
that has to be----
Chairman Issa. I appreciate that, but the subcommittee
chairman has done a great job of reviewing this and the only
thing he didn't hold you responsible for is if you can't
consider the ALJ wrong and there is a 99 percent reversal, then
are you looking at the people that were wrong 100 percent of
the time in their--in other words, if there is a 99 percent
reversal and there is a 57 percent average, then somebody is
screwing up 30 percent below and you are not restricted from
asking whether the previous rejecters 1 or 2 were right or
wrong, are you?
Ms. Colvin. If we do a focused review and we identify
policy problems, we are able to determine whether or not that
case needs to be placed in our CDR or moved ahead in our CDR
workload. When we have the resources to do all of our CDRs,
those cases will automatically be reviewed. But since we don't,
if we do a focused review and we see that there is a policy
problem in that area, and that individual may, in fact, have
been determined to be disabled when, in fact, he was not, it
was an error, then we could, in fact, move that forward for a
CDR.
Chairman Issa. Thank you.
The ranking member is recognized.
Mr. Cummings. Let me ask this. I tell you, Commissioner
Colvin, I am going to ask you some questions about the judges,
but there are people in my district who are denied the two
times. They keep the two times denial and then they say they
are overturned. And in the process they go broke; they have
nothing to live on. And I am concerned about these four outlier
judges, but I am also concerned about people like the man that
had stage 4 prostate cancer that died before he could get
disability. And I see it over and over again.
So I am going to ask you some questions about what happens
in stage 1 and 2. In other words, you have two people,
apparently, who make a judgment when a case first comes in, is
that right? There are two stages, right?
Ms. Colvin. Yes.
Mr. Cummings. And I also know that a lot of people in
minority communities don't have doctors; they don't have
lawyers. So they come in, and as I understand it, and this is
just based on talking to constituents, they come in. So what
happens then? They say I am disabled. We are getting the
impression that these are golden decisions, these first two
tiers, and I am just wondering what happens there.
Ms. Colvin. That is an erroneous assumption, and I am glad
you raised that. When the decisions are made at the DDS level,
they have not seen the individual. When they get to the ALJ
level it is almost a new case. First of all, it is generally a
year or longer before that ALJ hears that case. New evidence
has developed; the person has the ability to testify about
their condition, which does not happen at the first two stages;
they have the ability to bring in expert witnesses to also
substantiate their findings. In addition, you have additional
deterioration. If the person has been waiting more than a year
and has a disability, their medical condition is progressing
during that time, so many times, by the time the case gets to
the ALJ, there is new evidence and the person's condition is
such that it would now make them eligible for disability, where
a year or two years earlier it may not have. Remember that for
a very long time we have had cases that are well over a year
old by the time they get to the hearing level.
Mr. Cummings. And those are the people, again, who had
nothing and who continue to suffer with nothing. I know of
people who had to go and live with relatives, trying to make it
off of zero. So let me ask you another thing. The chairman
talked about this issue of over the years people asking, that
is, people in authority at the commission, telling judges to
move the cases faster. I didn't hear this testimony, but I am
sure he did, something about 20 minutes a case. I didn't hear
that yesterday. I think I was here the whole hearing, but I am
sure that is accurate. Tell me about that.
Ms. Colvin. Well, I have no knowledge of that. That would
not be sanctioned within this organization while I am here. We
stress the fact that we expect a quality decision, that it has
to be policy-compliant. Yes, we want a timely decision because,
just as you mentioned, we have thousands of people waiting for
benefits to which they have paid into the system and earned.
But we don't want them to rush through making a decision and
make the wrong decision. We do quality throughout our process.
We do a number of reviews prior to pre-effectuation, prior to
payment, which we had not done before. There has to be a
sampling. And then, of course, we can do the focused reviews
that we talk about. So we are always focused on quality.
I am not going to speak to what happened five or ten years
ago, but I will tell you that that is unlikely occurring in
this organization at this time.
Mr. Cummings. Now, several of the committee hearings have
discussed continuing disability reviews, called CDRs, which are
periodic re-evaluations to determine if beneficiaries are still
disabled or have returned to work and are no longer eligible
for benefits. These are mandated by law, is that correct?
Ms. Colvin. That is correct.
Mr. Cummings. We have learned that CDRs are very cost-
effective, estimated to save the Federal Government on the
average of $9.00 per CDR. Yet, there is a backlog of 1.3
million CDRs. What is that about?
Ms. Colvin. It is about funding. Congress has been
unwilling to fund the CDRs even though it has been demonstrated
to be cost-effective. When I was here on my first tour of duty
in 1994, Congress worked with us and gave us seven years of
funding that we knew would be sustained and adequate, and we
were able to totally eliminate the backlog. So if we really
want to ensure that people are not on the rolls who are not
supposed to be on the rolls, we need to be able to do the CDRs.
But we can only do the number that we are funded for.
This year we are funded to do 510,000 and we will do those.
Next year, in the President's request, we are expecting to be
able to do 880,000. But, again, that doesn't count now for the
ones that are coming due this year, so we will still have a
backlog.
It has been demonstrated that when Congress funds us we
deliver; we can tell you exactly what we can do for the dollars
that you give us. But we have not been adequately funded for
this program integrity work.
The other concern I have is that even though we got an
increase in our budget this year, the increase is primarily
program integrity. There was no focus on the direct services
and the people that are still waiting to get the benefits that
they deserve, it was only a focus on getting people off the
rolls who should no longer be there. We need to balance that.
We need to get people off the rolls who are no longer disabled,
but we also need to have resources that will allow us to
expedite these applications that are pending, where people are
waiting to be served who have earned the benefit and will die
before they get that benefit because we don't have the
resources.
Mr. Cummings. On this subject, yesterday Senator Coburn,
who I have a phenomenal amount of respect for, said a number of
things about the CDR situation, and I agree with him. The
committee invited him and the ranking member of the Committee
on Homeland Security and Governmental Affairs to provide
testimony on the findings from his investigation into the
Social Security Administration adjudication process and
oversight of ALJs. Senator Coburn stated that he believed a lot
of CDRs are just a postcard mailed to somebody that says are
you still disabled. And Senator Coburn then suggested a reform,
and I just want to know your reaction to this.
Ms. Colvin. Again, I think----
Mr. Cummings. Are you familiar with what he said?
Ms. Colvin. I am very familiar. I don't agree with him.
Mr. Cummings. Okay.
Ms. Colvin. We are not able to do medical reviews for every
single individual and, therefore, we have used a process that
determines which ones we can mail to, and they answer five
specific questions, and based on that we are able to determine
whether or not they need a full medical review. But we validate
that every year. We take a statistically valid sample, about
60,000, and we do the full medical review, and in every
instance so far, over the years, it has proven that the model
that we use is correct.
We have to use our resources wisely. It costs us $0.20 to
do a mailer. I don't know what it costs to do a full medical
review, but it is costly.
Mr. Cummings. But let me just tell you what he said. He
said what needs to happen--and I think you need to consider
this--I believe is that people who we know are going to be
permanently disabled and know that the medical science and the
medical record would show there is not going to be a way for
them to get into the workplace, those should never have a
continuing disability review. Hear me now. And I agree with him
on this. What we should do is re-categorize those who get
disabilities; ones that should be a short-term, ones that have
a chance, and then ones that have no chance, and then
concentrate, but it needs to be a CDR. So, in other words,
some----
Ms. Colvin. I think our current model, though, is very
similar to what Senator Coburn discussed, because we do diary
them. Our regulations require that we do them every three
years. But we look at the categories when we do our diary;
those likely to improve, those not likely to improve. So we are
certainly are focusing on those likely to improve, and the
model is such that we are trying to look at those who are more
likely to improve. And, as I said, normally, when we would be
doing a CDR every three years if we had the resources anyway.
We simply have to try to do those that are more likely to fall
into the category where they are no longer disabled because we
don't have resources to do every single one.
Mr. Cummings. Madam Secretary, I have run out of time,
almost at the same time the previous speaker had, but I just
want to say this. We want to get this right.
Ms. Colvin. We do too.
Mr. Cummings. Yesterday I said something that my mother
told us years ago. She only had a second grade education, but
she said you can have motion, commotion, and emotion, and no
results. The people who suffer are the people who are the
constituents I talked about a little bit earlier. So we need to
get this right. These judges, if they are not doing the right
thing, we want to work with you to get it done. If they don't
belong there, if they don't want to follow procedures--I talked
to the chairman yesterday. I said, when these people come in,
they apparently come in and say they are going to obey certain
procedures. And if they are not going to do that, I think we
have to address that. And, by the way, judges, with regard to
Social Security, they are not the only bad judges. By the way,
we see them in State courts and other places, too. But, again,
we are talking about the outliers.
Thank you, Mr. Chairman. I appreciate it.
Chairman Issa. Most welcome.
I now ask unanimous consent the statement of Judge J.E.
Sullivan, U.S. Administrative Law Judge, from June 27, 2013, be
placed in the record. Without objection, so ordered.
Chairman Issa. Administrator, this judge is the one who
gave us the testimony under oath that, in fact, an egg timer
was part of his training. I presume that you believe that what
he said under oath is true. Her. I am sorry, that she said is
true.
Ms. Colvin. I don't have any reason to question it. I am
just saying that that is not something that we would sanction.
Chairman Issa. But you did sanction it. The judge was
trained in and testified under oath. So I hope you will take
back the assumption that, unless she lied, the testimony you
should review and find out how it was sanctioned.
Ms. Colvin. Did she indicate when that occurred?
Chairman Issa. You will have a copy of the testimony.
Mr. Cummings. Mr. Chairman, in fairness, I think she--how
long have you been there?
Chairman Issa. She has been there for decades.
Ms. Colvin. I have been acting for 14 months.
Chairman Issa. Ma'am, how long have you been part of Social
Security?
Ms. Colvin. I have been the acting commissioner for 14
months.
Chairman Issa. How long have you been before that?
Ms. Colvin. I was there under Mike Astrue for two years.
But, remember, he was the commissioner and he determined----
Chairman Issa. That is the entire time that you have been
with Social Security?
Ms. Colvin. Oh, I was there at Social Security back in 1994
to 2001.
Chairman Issa. Okay. So you have been there during decades,
and there was a relatively small----
Ms. Colvin. Not decades. I was there six years prior----
Chairman Issa. Six years, two years, and 14 months.
Ms. Colvin. Yes.
Chairman Issa. Okay, so for these 20 years from 1994 that
are shown here, from 1994--if you put it up on the board--from
1995 or 1996 fiscal year, where the Congress provided $4
billion in funding, until let's say 2010, when they provided
over $10 billion. You keep talking about resources. These are
decisions Social Security made in disabilities. These CDRs,
when Congress stopped giving you specific mandates and set-
aside money, but the total amount of money was still going up,
and, by the way, this was during the Bush Administration, in
2002, with approximately $5.5 billion, if I am reading the
numbers right, there were 900,000 CDRs. As the amount rose in
the coming years, this blue line there is, in fact, the money
going up and the red is the CDRs going down. That is a choice.
That is a choice. We did not restrict your ability. We did not
deny you the ability to do CDRs.
So during the period of time in which you were there the
first time, your CDRs were going up like crazy. You had
earmarked money, an order to do it. The money kept going up.
When the earmark disappeared, it went down. And, by the way, I
want to note that this was during the Clinton Administration
that a great job was done. During the Bush Administration a
crummy job appears to be done when it came to reviews.
Ms. Colvin. I wasn't there.
Chairman Issa. And during the Obama Administration it has
been going back up.
The point, though, is that the money is going up. The
resources are going up at times when it is going up and when it
is going down. That is a chart that shows no correlation
between money and your decision to do CDRs, wouldn't you agree?
Ms. Colvin. No, I would not agree. First of all, I have not
seen your data, and I would like my actuary to look at it.
Chairman Issa. It is not my data, it is yours.
Ms. Colvin. Well, I would like my actuary to look at it and
see if his interpretation is the same. But, secondly, our CDRs
and the numbers that we are allowed to do are clearly indicated
in our budget each year. So when you say we have the
flexibility to do how many we want, that is not accurate. We
have identified very specifically how many we are expected to
do.
Second----
Chairman Issa. Okay, well, let's go through----
Ms. Colvin.--you gave----
Chairman Issa. Ma'am, this is not the Senate; you can't
filibuster.
Ms. Colvin. All right.
Chairman Issa. The fact is that you are talking about hard
it is to fire a judge, but what you are missing is a judge that
rubber-stamps 100 percent of the time, when good faith belief
is that anything above about 57 percent is probably above
average and above 85 percent should give you a caution, you can
save money by putting them on administrative leave and paying
them to do nothing versus the false positives they are giving.
Having said that, I am going to ask you just a couple quick
questions, because I, like the ranking member, see a problem
and see somebody telling me just give me more money. And I
don't think you doubt that that blue line is more money that is
coming in every year under Republicans and Democrats.
Consistently that line goes up.
So the real question here is why were you giving awards to
some of those four people that were in front of us today,
awards for volume, and, in fact, not checking in any way,
shape, or form whether or not they were out of the norm in the
amount of approvals they were giving for disability?
Ms. Colvin. We do not give awards to judges. I think the--
--
Chairman Issa. Letters that effectively are awards.
Ms. Colvin. They are letters that go to offices, but not to
individual judges. Again, that is something that happened in
the past; that is not something happening today. In fact,
letters are going out to offices commending them for their
quality decisions, not for the number of decisions that they
make, so a lot has changed, and even Senator Coburn recognized
that there have been many changes.
Chairman Issa. Exactly. Once Senator Coburn and 60 Minutes
made it clear that you were providing benefits to people that
did not deserve it in large amounts, including, in some cases,
people who were colluding with the lawyers bringing the cases,
miraculously, your ALJs are now reversing, aren't they? They
are, in fact, lowering the amount of claims they give. Are they
denying people benefits that are entitled to them or are they,
in fact, more accurate today than they were before light was
shed on this problem?
Ms. Colvin. I think it could be a combination of both. I am
not going to----
Chairman Issa. Ma'am, you were the commissioner. You have
been the acting commissioner for 14 months. You have an
obligation to give me a decision. Are we, in fact, denying
claims that should be granted in great numbers as a result of
this reduction?
Ms. Colvin. I do not believe that we are denying claims in
great numbers.
Chairman Issa. Then, by definition, the reduction is a
reduction to a truer number, and we were falsely giving people
benefits that were not entitled to them, wouldn't you agree?
Ms. Colvin. I would not agree.
Chairman Issa. Ma'am, you know, it is amazing that you want
to come in here with a problem that up and down the dais we all
agree is a problem, that there are too many people who are
getting claims too slowly. But one of the reasons that the
people who deserve these things are getting them slowly is we
are clogged with a lot of people who should not get them who
know that the lottery will give them to them in high numbers.
Ms. Colvin. I do not agree with that statement or that
assumption at all.
Chairman Issa. You know what is amazing? You don't agree
with it, but you are running an organization that is costing us
billions of dollars in benefits given to individuals who do not
deserve it. You tell me you can't fire the ALJs; you tell me
you can't do it; you tell me the law won't change it----
Ms. Colvin. I never told you we couldn't fire ALJs.
Chairman Issa. You said----
Ms. Colvin. In fact, you know that we have taken action
against a number of judges. We have had over 15 judges----
Chairman Issa. We had four yesterday who said things like
they could see pain.
Ms. Colvin. You know that there are a lot of actions being
taken right now. I am not going to discuss actions here that
will jeopardize a case or litigation that might be occurring,
but you know that there are a lot of actions right now----
Chairman Issa. Okay, let me ask you just one last question.
Ms. Colvin. Yes.
Chairman Issa. And I appreciate the indulgence of the
ranking member.
Do you believe that Congress needs to give greater
authority, not greater money, greater authority, to fire, to
reform, to review if you are, in fact, going to represent the
American people's best interest of their tax dollars?
Ms. Colvin. I am not prepared to answer that question. I
think that I would have to look at what the Merit Systems
Review Board challenges are. I think that perhaps there could
be some improvements there.
Chairman Issa. Mine was a much broader question; it was
actually a soft ball right over the plate. For example, do you
believe that we should give you the ability to do de novo
review of judges whose decisions are, in fact, above the norm?
Ms. Colvin. I don't believe that an allowance rate or a
denial rate is sufficient to make a decision in that respect.
Chairman Issa. So, in other words, if somebody is giving
100 percent approval, you don't think it is reasonable to give
you the authority to review the review?
Ms. Colvin. We have the authority to do a review.
Chairman Issa. You didn't do it.
Ms. Colvin. We cannot single out a judge, a specific
judge----
Chairman Issa. Well, only one judge gets 100 percent. Why
wouldn't you do it?
Ms. Colvin. Mr. Issa, we are doing focused reviews on those
cases where we have identified problems.
Chairman Issa. I asked you about judges. I asked you about
authority, and you won't give me an answer.
Ms. Colvin. We don't have the authority to do that.
Chairman Issa. You cannot think of one piece of authority
that Congress could give you, one change that Congress could
give you that would empower you to protect the taxpayer better?
Ms. Colvin. I think that we need to respect the fact that
there has to be qualified judicial independence, but we also
have to identify ways to----
Chairman Issa. Ma'am, I asked you a question and I just
want the answer to the question. You cannot, here today, if I
hear you correctly, identify one area of authority or
flexibility--not money; authority or flexibility--that would
enhance your ability to protect the American people's taxpayer
dollars?
Ms. Colvin. I would be very happy to give you a thoughtful
response at a later time on that.
Chairman Issa. Ma'am, I will look forward, I will keep the
record open for days or weeks to get your thoughtful response
on congressional action that would give you greater flexibility
or authority that would help protect the American taxpayer.
Ms. Colvin. I would be very happy to look at that, Mr.
Issa.
Chairman Issa. I thank the gentlelady.
We next go to Mr. Cartwright.
Mr. Cartwright. Thank you, Mr. Chairman.
I thank you, Acting Commissioner Colvin. Thank you for
coming today and I certainly thank you for service in this
hugely important work done by the Social Security
Administration.
And I am concerned. I am concerned certainly about outliers
and judges who act badly. I share the ranking member's
statement that there are bad judges everywhere and in every
court that we ought to worry about.
But I am mostly concerned this morning about making policy
decisions based on statistics that may be skewed and
perceptions that may be incorrectly made on anecdotes. I think
it is a mistake to make policy decisions based on these things.
Certainly, we heard from four judges who may very well fit in
the category of bad ALJs. We heard Mr. Lankford, who
unfortunately is not here right now, talk about 191 ALJs out of
1,400 who are way above average in allowing claims.
And one thing I wanted to touch on there was, and you said
this, that current law prohibits you from reviewing judges
based on their allowance rates or their denial rates alone.
That may make sense. But one thing I wonder is, what about the
judges who are denying claims way too much? I hear this. I know
lawyers that are advocates and non-lawyers who are advocates
for Social Security disability claimants who say they are
denying more than ever these days. People who with legitimate
injuries, disabilities, are not getting their claims allowed.
And so there is anecdotal evidence on both sides of the
ledger here. I wanted to ask you about that. First of all, do
you agree that there are 191 ALJs out of 1,400 that are
granting too many, allowing too many claims?
Ms. Colvin. I don't have the exact number of the outliers,
but I will acknowledge that we have had outliers. But if you
notice, we have had a tremendous decrease in the number of
outlier judges over the last several years.
Mr. Cartwright. So let's touch on the outliers that are
granting too few appeals, who are denying claims. First of all,
I think it is something we could all agree on, that in a
universe of 1,400 ALJs and all of the thousands and thousands
of disability claims that come in, that there are some
legitimate disability claims that get denied. And those appeals
are denied. Would I be correct in that?
Ms. Colvin. You are correct. In SSA we really focus on the
right decision, a quality decision. I don't focus much on
whether it is a denial or an allowance, but is it the right
decision. And certainly, if we have someone who we believe that
their number of denials is too high, then that is going to be a
situation that we are going to be as concerned about as if we
thought that they were out of the norm for the number of
allowances that were made. Because people have a right to know
that they are going to get a decision that is a quality
decision and that is policy-compliant and also timely.
Mr. Cartwright. So we know that there are going to be some
judges out there that are just not being fair and are just not
allowing claims that should be allowed, where we have
legitimate claims where people have no money coming in because
they can't work, they are disabled, and still they lose their
case. And my question is, as much as we talk about trying to
figure out ways to get rid of bad judges who grant too many
claims, don't we also want to look at ways to get rid of judges
who deny too many claims? Would that be a fair statement?
Ms. Colvin. Sir, I think what you are saying is exactly
what I said. We want to make sure we get it right, that we get
the right decision. We have increased our data collection and
our data analysis so that we can look at decisions to see where
there are problematic policy decisions and we can provide
timely feedback to the judges.
Mr. Cartwright. Commissioner Colvin, let me ask you this.
You have been paying attention this week. How about those bad
judges that have been denying too many claims? Were any of them
invited to testify in front of Congress this week? Who were
denying people legitimate claims?
Ms. Colvin. An interesting question, sir, no, they were
not.
Mr. Cartwright. They were not invited?
Ms. Colvin. They were not invited.
Mr. Cartwright. I yield back, Mr. Chairman.
Chairman Issa. If the gentleman would take note, there was
no minority witness. I certainly hope you considered inviting
the administrative law judges, the one who was below 15 percent
allowance. I guess not.
With that, we go to the gentleman from Florida, Mr. Mica.
Mr. Mica. Thank you, Mr. Chairman, Ms. Colvin.
So you have 1,400 of these administrative law judges. And
you have 191, I guess, that fell into one of these categories.
Pretty high overturn ratings. Then you have some that the other
side has spoken to, I guess were a few that have gone the other
way.
How many of these judges have been put on administrative
leave since you have been there?
Ms. Colvin. I don't have that exact number.
Mr. Mica. Two? Five? Ten? Twenty?
Ms. Colvin. Are you saying in the last year?
Mr. Mica. Just the total, yes, the 13 months that you have
been there.
Ms. Colvin. I will give that to you shortly.
Mr. Mica. Will somebody from the back provide that
information?
Ms. Colvin. Yes. I will be able to give that to you before
we leave here today.
But I will say that since I have been the Acting
Commissioner, we have some 25 percent decrease, we had outliers
that were 25 percent, we are down now to less than 3 percent.
Mr. Mica. I want to know how many we have put on
administrative leave in the 13 months. The 13 months you have
been acting kind of disturbs me, because it is a pretty
important position. You have pretty important responsibilities.
It is one of the biggest agencies in government. And certainly
with the discretion in cases like this to grant disability
claims.
What is the problem with your getting confirmed. Are you
before the Senate, are you approved by the Senate?
Ms. Colvin. No, sir.
Mr. Mica. Have you been submitted by the President to the
Senate?
Ms. Colvin. No.
Mr. Mica. So you are just sort of acting in limbo?
Ms. Colvin. I am running the agency, sir.
Mr. Mica. That concerns me, because I have been in Congress
a while. It is difficult enough when you have somebody who is
confirmed, let alone someone who is in an acting position, to
get things done. And that is to your detriment to administer
one of the most important agencies in government.
These administrative law judges are appointed by whom?
Ms. Colvin. They are selected through the civil service
process. So the Deputy Commissioner, Glenn Sklar, who is over
the ALJ operation, would be the selecting officer.
Mr. Mica. Does OMB participate?
Ms. Colvin. No.
Mr. Mica. They do not.
Ms. Colvin. No.
Mr. Mica. And then they are given lifetime tenure?
Ms. Colvin. Yes that is not an SSA decision.
Mr. Mica. And that is set by law?
Ms. Colvin. Yes.
Mr. Mica. I think that is something else we need to change.
I chaired the Civil Service for four years under this
committee.
Ms. Colvin. Mr. Mica, you had asked me about the number.
Mr. Mica. Yes, put on administrative leave.
Ms. Colvin. We have had one removal and two suspensions in
2014. In this year, 2014, we have had one removal and two
suspensions. We have had a total of 15 removals since 2007.
Mr. Mica. It is very difficult to get rid of someone.
Ms. Colvin. Yes. It is very complex.
Mr. Mica. And as I started to say, I chaired Civil Service
for four years. I found it is almost impossible to get rid of
anyone. But they can be removed by you and put on
administrative leave, is that correct?
Ms. Colvin. And we have many actions pending.
Mr. Mica. How many actions pending do you have? Can you let
the committee know on that?
Ms. Colvin. Yes, I am going to do that.
Mr. Mica. Do you have a fraud division?
Ms. Colvin. Yes, we have, well, not a fraud division, our
Office of Inspector General is responsible for fraud
investigations. Our front line employees, most of our
referrals, last year we made over 20,000.
Mr. Mica. How many referrals?
Ms. Colvin. Last year we made over 22,000 disability fraud
referrals.
Mr. Mica. How many of those were pursued to a conviction or
to denying disability?
Ms. Colvin. I think there were only 500. That is one of our
challenges.
Mr. Mica. So 500 out of 20,000 referrals?
Ms. Colvin. Yes.
Mr. Mica. Doesn't sound like a very good batting average.
Do you need more resources?
Ms. Colvin. Now, the Office of Inspector General is
responsible for the fraud investigations. And of course,
resources are always helpful. This year we increased.
Mr. Mica. How many people are in the Inspector General's
office?
Ms. Colvin. That is not under my authority, sir.
Mr. Mica. Could somebody answer that? Maybe we can get that
in the record, too. We want to make certain that you have the
resources to go after people. Twenty thousand and 500 successes
doesn't sound like a good batting average to me.
Ms. Colvin. Well, one of the things I would like to see
increase would be the number of continuing disability
investigation units that we have.
Mr. Mica. How many do you have now?
Ms. Colvin. We have 25. I am increasing the number this
year to 32. But again, it is based on funding.
Mr. Mica. After this hearing, do you think you could show
leadership an attempt to end the factory-like appeals process
that has been demonstrated here the last couple of days?
Ms. Colvin. I think we have already ended it, Mr. Mica. I
think that is something that was occurring, but I think if you
look at the fact that we have reduced the number of cases that
a judge can hear during the year, we have capped that. We have
the reviews in place. We have the tool of how am I doing.
Mr. Mica. How about suspending agency production goals
until the agency----
Ms. Colvin. We don't have agency production goals.
Mr. Mica. Well, it appears that again, that system, even
though you may not have a formal system, is in place.
Ms. Colvin. Sir, we are a production agency, so yes, we
look at our budget and we determine what we think we can do
based on the budget.
Mr. Mica. Yes, you have target goals.
Ms. Colvin. We have target goals in every aspect of what we
do, yes.
Mr. Mica. Finally, who made the decision to allow,
yesterday we had some of the judges, you don't have to be on
the planet too long to know that what's his name, Judge
Krasfur, shouldn't really be practicing. But you did a focused
review in 2011, he was put on administrative leave and then put
back on the job, is that correct? Are you familiar with that?
Ms. Colvin. I don't know the details of his case.
Mr. Mica. Can you get us for the record who, again,
overrode the decision on the administrative leave? Then he came
back, now he is on administrative leave. Because somebody needs
to be held accountable for allowing someone like that to
continue to serve in an important position like administrative
law judge.
Thank you. I yield back.
Chairman Issa. Thank you. The gentlelady from Illinois is
recognized.
Ms. Kelly. Thank you, Mr. Chair.
The Social Security Disability program has long been a
safety net for Americans whose disability prevents them from
maintaining their employment. The program is an earned benefit
in that workers must meet eligibility requirements for both
insured status and for impairment.
Would you explain what is required to attain insured
status?
Ms. Colvin. What is required?
Ms. Kelly. Yes.
Ms. Colvin. Sufficient earnings for sufficient quarters to
be able to apply to be eligible for the benefit. And so
generally, if a person has, I think, what is the number, is it
10? Yes, 10 years of work, depending upon age, then they would
be eligible for disability. It would be, as I said, 10 years of
work experience, and then SSI is a means-tested program. So
they also would have to meet the income requirements.
Ms. Kelly. If the applicant meets these standards, he or
she must also provide evidence that a severe impairment
prevents him from performing substantial work. Can you
elaborate on the criteria for meeting this standard?
Ms. Colvin. The process is very complex. It means that the
individual is severely disabled, unable to perform prior work
or any work within the job market. And so there are different
variables that would go into that. I would be happy to have
staff brief you on the details, because I think you need a
little bit more information than I can give you right here.
Ms. Kelly. Okay. Our aim is to provide benefits to those in
their period of need, with the ultimate goal of returning
Americans to employment when and if circumstances allow. How
does the agency evaluate the readiness of one to return to work
and are there programs that encourage re-entry into the
workforce?
Ms. Colvin. Yes, we do the CDRs every three years, which
are mandated. At that time, we determined whether or not the
person has improved to the point that they now are able to
return to work. We also have had a number of demonstration
programs to identify what types of interventions might be
necessary to help people to get back to work. You may recall
that we have the Ticket to Work, which helps individuals to
find work and provides some of the support services that they
need in order to get back into the job market.
I will tell you, however, that by the time someone comes
onto our rolls, the majority of them are severely disabled and
they are not going to return to work, although we do have a
small percentage that return to work.
Ms. Kelly. Yesterday our committee held a hearing with the
four judges, as you know, who have approved thousands of
benefits, thousands of benefits costing millions of dollars.
And it makes me uncomfortable that we are not talking about
people, instead, the decision is all about allowances and
denials like they are widgets. Are these widgets, or are these
people with unique stories, facts and circumstances that judges
have to understand and apply to the law?
Ms. Colvin. I will tell you that for me, every number is a
real person, and that is the one thing I emphasize to staff. So
I am as interested in a person who is denied who should not
have been as I am in someone who was allowed who should not
have been. So for me it is quality, quality, quality. I am
always focused on, are we making the right decision. And I say
that we will not sacrifice quality for quantity. So you will
see that in many instances, our numbers are going up, our
waiting times are going up, because we are giving the attention
to the cases that I believe needs to be given.
Ms. Kelly. How many more judges would you feel you need so
that the waiting time is better?
Ms. Colvin. I just authorized ODAR to hire 200 new judges
this year. I don't have a figure on how many I would need to do
all the backlog. But only a judge can hear a case, so if I
don't have judges, I can't hear a case. I would be happy to try
to provide information relative to what the ultimate quorum
would need to be. But we are trying to keep it around 1,500.
Our attrition rate is high, because we have senior staff.
Ms. Kelly. Thank you. I yield back, Mr. Chairman.
Mr. Cummings. I wish the Chairman was still here. He had
said something about while you were at Social Security, that
you promoted certain policy. I don't think you had the chance
to answer that.
Ms. Colvin. Well, I think he was in the wrong. He was
inaccurate. I have never promoted the policy that we would just
ramp out cases. Even when I was here before, we were very
focused on the quality. The agency has made tremendous progress
in being able to hold judges accountable. Because at one time
they said we couldn't hold a judge accountable for even coming
to work or on the number of cases that they were doing or the
quality. So there has been tremendous progress made.
But when I was here, I was primarily involved in
operations, which is our field office operations, from 1998 to
2001. Since I have returned, we have been focusing on quality
throughout the agency, particularly with the disability cases.
Mr. Cummings. Thank you.
Mr. Gosar. [Presiding] I am going to recognize myself now
for questions.
Could you identify your staff that is here with you today?
Raise your hands.
Ms. Colvin. Do you want them to introduce themselves?
Mr. Gosar. No, I just want to see who is all here, I want
to see them nice and high. Can I see them, please?
[Show of hands.]
Mr. Gosar. Ms. Colvin, did you watch yesterday?
Ms. Colvin. Yes, I did, some of it, but your streaming was
not good.
Mr. Gosar. How about staff? Did you watch that? Were you
disturbed?
Ms. Colvin. Absolutely.
Mr. Gosar. I am from western Arizona. The people back home
were seriously disturbed.
Ms. Colvin. So were we.
Mr. Gosar. So when we were talking about quality and you
talked about outliers, do we have a problem? I need to hear you
say that we have a problem.
Ms. Colvin. We have had a problem. It is getting better. As
I mentioned, we have had a 20 percent reduction in the number
of outliers. We are now down to 3 percent of our judges who are
outliers.
Mr. Gosar. So I am going to interrupt you, I need to see
something more.
Ms. Colvin. What do you want?
Mr. Gosar. What kind of time table are we dealing with? Are
we talking to infinity and beyond, or do we have a two-year
problem, looking at enough money to fulfill what we are looking
at?
Ms. Colvin. I am sorry, your question is not clear.
Mr. Gosar. Trust fund, when does it run out.
Ms. Colvin. In 2016, the trust fund will be depleted.
Mr. Gosar. Mayday, mayday, right?
Ms. Colvin. The reserves will have been depleted. We will
still have funds coming in that will allow us to provide 75
percent of the benefit.
Mr. Gosar. But 75 percent doesn't cut it for folks that
actually need it.
Ms. Colvin. Absolutely.
Mr. Gosar. So to me it seems like a CEO is going to be
talking about metrics, about timetables. I want to look at
quality, too. I am a dentist impersonating a politician, so a
lot of this means a lot to me in regards to that.
Talking about yesterday, we have to get back to building
blocks before we can reconstruct stuff. So when I was listening
yesterday, I was mortified that I actually saw judges claiming
that they were doing bench reviews. You said that it is almost
like a new case study by the time they get there.
So it would remand that there would be very few bench
decisions. Would you agree with that?
Ms. Colvin. And in fact, if you look at our data, you will
see that there are very few being done any more. I can provide
you with a chart.
Mr. Gosar. I saw four right there that, boy, I tell you
what, there needs to be a clean sweep right there. I saw four
judges here that although they didn't have a medical license,
they weren't using expert testimony.
Ms. Colvin. There should still be some situations where you
have on the case review, I mean, reviews without a hearing or
decisions without a hearing, on the record reviews. But I am
saying, the number that occur has significantly decreased.
Mr. Gosar. I would like to see those numbers.
Ms. Colvin. All right, we would be happy to provide them.
Mr. Gosar. I like validation.
Ms. Colvin. We have it, we will be happy to provide it.
Mr. Gosar. I would love to see that validation.
Do you need more information from seeing those four judges
yesterday to take action?
Ms. Colvin. No, because most of what you presented
yesterday were our documents that we provided to you. So what
they provided is not a surprise.
Mr. Gosar. So why aren't they all on suspension?
Ms. Colvin. I don't know what their individual situations
are. But as I have said to you, I am not going to interfere
with any cases, whether it is a criminal action or whether it
is an action that could then be affected because of my speaking
out publicly. But we would be very happy to come to you and
talk to you privately or the committee about all the things
that we are doing in this area.
Mr. Gosar. I think America needs to hear it. They don't
need to hear it from just behind closed doors. I think they
need to hear about it all the way across the board.
Ms. Colvin. There are privacy issues, and we also do not
want to jeopardize criminal investigations by giving
information out in public. These are not going to be cases that
are not going to be litigated.
Mr. Gosar. Well, I think a good step is to admonish them by
not allowing them to hear any cases. If you are talking, you
talked earlier about quality. Right there is a good faith
exercise in making sure that we have quality instead of
quantity, wouldn't you say? Putting them on administrative
leave and do you not have that ability to do that?
Ms. Colvin. I would be happy to talk to you later about
individual cases.
Mr. Gosar. Let me ask you a question. Do you not have the
authority to put those individuals that we saw yesterday on
immediate administrative leave? Yes or no?
Ms. Colvin. I have the authority to put individuals on
administrative leave, yes.
Mr. Gosar. Have you put those four on administrative leave?
Ms. Colvin. No, I have not.
Mr. Gosar. Why not?
Ms. Colvin. I think there has to be considerable thought
and there are actions pending.
Mr. Gosar. Oh, my goodness gracious. You didn't see that
yesterday with those four individuals? We had a guy that was
interpreting his own interpretation of what disability was. We
had a gentleman that over here has a conflict of interest. We
had gentlemen saying they knew more about medicine than a
medical doctor. Come on, now.
Ms. Colvin. You don't want to hear my responses, because
you are not listening. Some of them are already out; those
individuals that spoke action has already been taken.
Mr. Gosar. So why not all of them? I mean, I think across
the dais, we are all mortified by the four gentlemen who sat
here yesterday.
Ms. Colvin. We were too.
Mr. Gosar. Then why aren't they all on administrative
leave?
Ms. Colvin. I have given you the answer I can give you,
sir.
Mr. Gosar. You said a few.
Ms. Colvin. I have said that we----
Mr. Gosar. You actually have the jurisdiction, you as the
CEO for the Administration, the Social Security Administration,
witnessed what we saw as despicable responses from four judges.
And you have the ability, which is what you just told me, that
you could put them on administrative leave. And yet all four of
them are not on administrative leave?
Ms. Colvin. My answer is the same. I am not going to
discuss personnel actions here in this forum.
Mr. Gosar. That is the problem we have here right now, is
accountability and actually having a line item, a direction, a
path of holding people accountable. That is what is wrong.
Ms. Colvin. I would be happy to talk to you privately. I am
not going to have that discussion here.
Mr. Gosar. Well, if you can't tell America, that is a
disgrace, especially after what they saw from those four judges
yesterday.
Ms. Colvin. I am not going to jeopardize the actions
because you feel I have not handled things appropriately. That
is your opinion.
Mr. Gosar. I think America's gut opinion, what they saw
yesterday from four judges was disgraceful, absolutely
disgraceful. There is no reason one of those gentleman should
be able to hear one case, whatsoever. And putting them on
administrative leave does not deter any judicial proceedings at
all. That is the problem we have here.
We have less than two years, less than two years.
You had five minutes over time.
Mr. Cummings. I had five minutes because the gentleman who
spoke first----
Mr. Gosar. So now everybody is taking five.
Mr. Cummings. No, no, no, that is not true.
Mr. Gosar. I have been sitting down there watching it.
Mr. Cummings. The first questioner on your side had 10
minutes.
Mr. Gosar. The gentleman is out of order. Reclaiming my
time.
I would love to see what you are looking at, as far as an
orchestrated plan to make sure this is solvent. Not only with
the ALJs, but also I want to make sure we are reviewing the
people who are on the first and second level aspects. Because
those are coordinated aspects there.
I have one last question for you. Is there any reason why
somebody wouldn't have the ability to work? I mean, when you
look at a claim, for perpetuity, there would be very few cases,
would you not agree, that somebody could actually benefit from
doing an alternative job?
Ms. Colvin. I have no idea what your question is designed
to get at.
Mr. Gosar. I am talking about permanent disability. Isn't
there an opportunity or a job that somebody with a disability
can actually do?
Ms. Colvin. I am not a physician, but we apply the policy
and it states very clearly that if the individual is not able
to perform prior work or any work in the job market, then they
are disabled.
Mr. Gosar. Partially or full?
Ms. Colvin. Full.
Mr. Gosar. So it doesn't matter if you had a back injury
and you are out chopping wood?
Ms. Colvin. You have the law, you can take a look at it.
Mr. Gosar. The Chairman actually asked, were there
opportunities, I think Mr. Mica also said, are there
opportunities that we can change in the law to make this more
solvent and better for you to orchestrate a solvent plan.
So with that, who is the next person? Ms. Speier?
Ms. Speier. Mr. Chairman, thank you.
Mr. Chairman, let me just say for the record that it is
very important for us to not jeopardize the disciplinary
actions--he is not listening to me--the disciplinary actions
that are ongoing within the Social Security Administration. And
the Social Security Administration should not be in a situation
where they are tipping their hand as to what strategy they are
using relative to pursuing the actions against those judges. So
I think that is very important, for us not to thwart their
efforts in getting a just decision in the end. That may be why
Ms. Colvin has not been willing to respond to your questions.
But having said that, I think that there are lots of areas
that need to be fixed. And I don't think this will be a first
visit here, Ms. Colvin, or your last. I know it is maybe your
first, but it won't be your last.
Let me ask a couple of questions as it relates to
Huntington. I had a whistleblower in my office yesterday who
described continued retaliation at the Huntington, West
Virginia office. So my question to you is, what is the status
of the managers who retaliated against whistleblowers by hiring
private investigators?
Ms. Colvin. You are aware that Huntington is an open case,
but we removed the ALJ, Andrus I think his name was.
Ms. Speier. I know all about that. But there was also an
investigator that was hired to watch one of your staff that was
working one day at home, and trying to bring some action
against this particular individual, because this individual had
been a whistleblower.
Ms. Colvin. May I get back to you?
Ms. Speier. You certainly can. I would appreciate that.
Ms. Colvin. Okay.
Ms. Speier. So in Huntington, you have a claims
representative who is clearly implicated in his relationship
with Judge Daugherty and bank statements and documents are very
persuasive. Now, the fact that the U.S. Attorney has not taken
action yet does not preclude you from taking administrative
action. Is that correct?
Ms. Colvin. I am not sure of that, Ms. Speier, I would need
to check that.
Ms. Speier. Well, that is pretty fundamental.
Ms. Colvin. Normally when my General Counsel gets involved
and it is a criminal investigation, I sort of take a back seat
until we determine exactly what is going to happen there, so
that we don't do anything that is going to interfere with that
criminal investigation. So I wouldn't be prepared to tell you
that now, but I would be very happy to come back and talk to
you and bring the General Counsel.
Ms. Speier. All right. I think it is important, where you
have a U.S. Attorney who appears not to be taking action, you
have powers to take administrative action and administrative
action should be taken.
Ms. Colvin. We have not given up on expecting that we are
going to get some criminal prosecutions there.
Mr. Speier. I want you to go back with your staff and
determine whether or not, while there is still something
pending, whether or not you can take administrative action.
Eric Kahn should not be allowed to continue to represent
claimants. And as I understand now, he has opened an office in
California as well.
Ms. Colvin. I hear you. I will take a look at that and I
will get back to you on that, Ms. Speiers.
Ms. Speiers. All right. The issue of a lifetime term is one
that I think really needs to be addressed. We have a workers
compensation system in California, it has a very similar
function to the Social Security disability process on the
Federal level. These terms are not for life. And I don't know
the history for giving these judges terms for life, but I think
we have to look into it. I for one believe that we should look
at giving them set terms. I think you are going to see greater
accountability over a period of time.
My time is almost up, but I would like to just ask you one
other question, if I could. Is there anything else that the
agency can do about Eric Kahn separate from the criminal
prosecution?
Ms. Colvin. I would have to get back to you on that.
Because as I said, I have been deferring any action that I
would think necessary until such time as I know what is
happening with the criminal action. I understand that we have
begun to move forward with the administrative process.
Ms. Speier. All right, so you can act independently.
Ms. Colvin. Yes.
Ms. Speier. This has been going on for how many years?
Ms. Colvin. A while. I don't have the exact number of
years, I am sorry.
Ms. Speier. It has been at least five years, correct?
Ms. Colvin. I understand it has been three.
Ms. Speier. Three years.
Ms. Colvin. Still, three years too long.
Ms. Speier. And he is still representing claimants. All
right, my time is expired.
Mr. Gosar. The gentleman from Tennessee, Mr. Duncan, is
recognized.
Mr. Duncan. Thank you, Mr. Chairman.
Commissioner, on 60 Minutes last year the Vice President of
the Association of Administrative Law Judges said this: ``If
the American public knew what was going on in our system, half
would be outraged and the other half would apply for
benefits.'' What is your response to that?
Ms. Colvin. I don't know what they were referencing. We
know that we have many well-deserving individuals who are on
our rolls, that we take every effort to make sure that people
who are not eligible did not get on the rolls. I am not sure
what they were referencing, and they have never shared their
thinking with me.
Mr. Duncan. Let me ask you this. What percentage, I know
the rate of approvals has gone down in the last few years,
since more attention is being called to this, but what
percentage of cases are being decided without a hearing? Do you
have that?
Ms. Colvin. Yes, I can give you that number, not this
second, but I can give that to you because I have a chart here.
Mr. Duncan. One of these judges yesterday had approved
almost 7,000 without a hearing. I just wondered. And without
asking you any specific names, have you referred any judges or
lawyers to the Justice Department for possible criminal
prosecution?
Ms. Colvin. There are personnel actions that are being
undertaken in some instances. As I said, I think it might be
desirable to try to give this committee or those who are
interested a private discussion of all the things we are doing,
so you can see that we are trying to address this
comprehensively.
Mr. Duncan. I know you are trying to do some things in the
Social Security Administration. But are you also working with
the Justice Department on this?
Ms. Colvin. Absolutely.
Mr. Duncan. All right. And let me ask you this. You are
reviewing and have reviewed the judges to determine the number
of outliers. I remember several years ago seeing another report
on 60 Minutes that told about a region or a section in Arkansas
where children were being told that it was easy to get what
they called crazy money from the Social Security
Administration, and were being taught to fake mental illness
and so forth.
Are you also looking at particular offices or regions that
are having higher approval rates than other regions? Do you
look at that also?
Ms. Colvin. As we look at judges, we would have to look at
offices. So yes, we know where the high approval rates are
occurring.
Mr. Duncan. And are there any particular offices or regions
that have extremely high approval ratings or disapproval
ratings at this time?
Ms. Colvin. I don't think that there is any office that is
unique, where it is much greater than elsewhere. As I mentioned
before, the number of outlier judges is now down by 20 percent
to 3 percent of the entire ALJ corps. So we are still
addressing that, still working on that.
Mr. Duncan. Where it says 19.4 million people are drawing
benefits from your two major programs right now, is that
correct?
Ms. Colvin. You mean the current number of recipients?
Mr. Duncan. Right.
Ms. Colvin. Well, we have 16 million beneficiaries. I don't
know how many for disabled.
Mr. Duncan. This is in our committee information, it says
19.4 million.
Ms. Colvin. It is 16 million.
Mr. Duncan. And it says that 3.4 million were approved
between 2005 and 2013.
Ms. Colvin. I don't have that data with me. I can certainly
take a look at that. I don't have the data by year.
Mr. Duncan. What do you think, is there anything that you
feel needs to be done that you don't feel you have the
authority to do at this point that Congress can help you with?
Ms. Colvin. I am taking a look at that now, Mr. Duncan. I
have the letter that came from the committee with
recommendations. I agreed to go back and look at that more
thoroughly. I wanted to have further discussion with staff, and
get some clarification. But I think we will go ahead and just
respond, and then if we need more clarification later, we will
do that.
But we do want to work with the committee. We want to try
to identify the kinds of things that we think might be helpful
to us.
The biggest challenge is the fact that with the qualified
judicial independence, we have to be respectful of that. We
cannot single judges out because of their allowance rate. So we
have to try to get to those from another angle. And then the
ability to remove a judge is very difficult and very complex.
We have to work with the Merit Systems Review Board.
So as we work with those things, if we think there is
anything where Congress might be helpful, we will come back and
talk with you.
Mr. Duncan. Well, one last comment I will make is, I was a
judge for seven and a half years before I came to Congress. The
lifetime terms that Ms. Speier just mentioned, she didn't know
what was behind that, those were started many years ago when
there were far fewer lawyers. And the judges were lower paid
than they are now. What you have now, you have really too many
lawyers and you have lawyers jumping at a chance to become
administrative law judges or federal judges of any type. You
just really don't need these lifetime terms any more. We should
work on that and end the lifetime terms for all the judges we
possibly can.
Thank you, Mr. Chairman.
Mr. Gosar. I thank the gentleman.
The gentleman from Michigan, Mr. Walberg, is recognized.
Mr. Walberg. Thank you, Mr. Chairman.
I am pleased to yield my time to the Chairman.
Mr. Gosar. Thank you very much.
Ms. Colvin, do hearing offices have productivity goals?
Ms. Colvin. I am not aware that we have specific
productivity goals. We have overall national goals.
Mr. Gosar. What are they based on?
Ms. Colvin. Our budget and the number of cases we believe
we can do with the budget that we are going to be allocated.
And that is why we were able to hire, or had funding for the
200 judges that we are going to be hiring this year.
Mr. Gosar. Are you aware that the law requires ALJs to
consider the claimant's entire case record prior to rendering a
decision?
Ms. Colvin. Absolutely.
Mr. Gosar. Isn't that an access point for determining that
they can be put on administrative leave?
Ms. Colvin. I don't believe so. I don't think that one
thing would be the basis.
Mr. Gosar. The requirement for law. Are you aware that
until 2011, the requirement that ALJs consider the entire case
record before reaching a decision was essentially meaningless
before the agency did not even monitor, much less ensure that
the decisions were policy compliant?
Ms. Colvin. I can't speak to that. I am not aware of that
statement.
Mr. Gosar. Frank Cristaudo was the Chief ALJ from 2006 to
2010. During this time period, hundreds of ALJs were approving
nearly all claimants of benefits. When asked in his transcribed
interview whether he was ever concerned that one of his judges
was allowing too many people onto the program, he said no.
Given the data that the committee has presented, do you find
that stunning?
Ms. Colvin. Do I find what stunning?
Mr. Gosar. That almost everybody was placed on the rolls.
Ms. Colvin. I don't know how to answer that. Do I find it
stunning that almost everybody was placed on the rolls?
Mr. Gosar. Yes.
Ms. Colvin. I don't know that I have any data to support
that statement from--who was that, Judge Cristaudo?
Mr. Gosar. Do you know who Judge Cristaudo was?
Ms. Colvin. Of course I do, yes. I would have to see the
data.
Mr. Gosar. Are you stunned that he wasn't aware of any
judges that weren't giving overwhelming approval ratings?
Ms. Colvin. I don't have an opinion one way or the other on
it.
Mr. Gosar. If we gave you that data, could we get an
answer?
Ms. Colvin. I am sorry?
Mr. Gosar. If we gave you that data, could we get an
answer?
Ms. Colvin. Get an answer to am I stunned?
Mr. Gosar. Yes. Okay. Mr. Cristaudo testified that he was
often very concerned about particular ALJs or hearing offices
that were not processing cases quickly enough. Isn't that lack
of a balance a major concern to you?
Ms. Colvin. Well, I would think if he was the chief judge
and he was concerned, he should have taken some action.
Mr. Gosar. Okay. Knowing what we know now, was it a mistake
for the agency to have no quality metrics to evaluate ALJ
decisions as the agency encouraged ALJs to decide more cases?
Ms. Colvin. Well, again, I am not going to focus on the
past. But I certainly believe that you have to have quality
metrics. I am very much into data and using that data for
informed decisions. That is why we focus so much on quality.
Mr. Gosar. So quality metrics is a determining factor that
we would have to look at?
Ms. Colvin. Well, quality is probably the sole factor that
we should be looking at in determining whether or not, in fact,
the decision is a quality decision, a legally, defensible
decision, a policy compliant decision. We certainly want
timeliness in the processing of cases. But we don't want
timeliness to replace quality.
Mr. Gosar. But if we don't look at the past, we are doomed
to repeat it in the future, right?
Ms. Colvin. Certainly. That is why we have made lots of
improvements because we knew that the past was not where we
wanted to be.
Mr. Gosar. Since 2011, the agency conducted 30 focused
reviews of all ALJs with allowance rates in excess of 75
percent. Every one of these reviews found significant problems
with the way these ALJs consider evidence. Are you concerned by
this?
Ms. Colvin. I don't understand the focus of your question.
All of the changes that we are making are designed to improve
what we are doing. So your question about am I concerned about
what we did five or ten years ago, I am not sure I understand
the relevancy of it.
Mr. Gosar. Well, all the judges that you are reviewing have
these types of problems, would you agree?
Ms. Colvin. Well, that is why we are doing focused reviews,
that is why we are doing pre-effectuation reviews. I'm just not
certain I understand what you are trying to get to.
Mr. Gosar. Will you provide the committee with all the
agency's actions taken as a result of the agency's focused
reviews of ALJs?
Ms. Colvin. Can we provide you with?
Mr. Gosar. All the agency's actions taken as a result of
the agency's focused reviews of ALJs?
Ms. Colvin. We have your questions, we will take a look at
what it is that we have available.
Mr. Gosar. Starting in 2007, when Frank Cristaudo was chief
ALJ, ALJs were instructed to issue between 500 and 700
decisions per year, correct?
Ms. Colvin. That is my understanding.
Mr. Gosar. Are you aware there are no underlying studies to
justify the production targets?
Ms. Colvin. That is what I am told.
Mr. Gosar. Are you also aware that neither current chief
ALJ Deborah Bice nor former chief ALJ Frank Cristaudo had no
idea how long it takes an ALJ to decide a case when they are
properly reviewing the evidence?
Ms. Colvin. I am surprised to hear that, since they are
both judges, that they would not know how long it takes.
Mr. Gosar. You made the comment that each individual is an
individual record, did you not?
Ms. Colvin. Is an individual record?
Mr. Gosar. Yes, it is exactly, very personal, I mean, the
chart could be huge, the chart could be small.
Ms. Colvin. Well, I haven't addressed that, you never asked
me.
Mr. Gosar. That it takes more time, I mean, the complexity
of it, if it's a mental health issue, whether it is a complex
medical issue. Wouldn't that kind of make it a personalized
type of format?
Ms. Colvin. I am certainly not a judge and I don't review
cases, but I assume that there would be a variant, yes.
Mr. Gosar. Do you think it is irresponsible to create a
production goal without any analysis to back it up?
Ms. Colvin. I don't have a production goal, so I can't
respond to that.
Ms. Gosar. I would acknowledge the gentleman from Virginia,
Mr. Connolly.
Mr. Connolly. I thank the Chair. Welcome, Ms. Colvin.
I think it is really important to note this is part two of
this set of hearings. And clearly, there is a narrative my
friends on the other side of the aisle want to try to
establish. But they are doing it by, I think, cherry-picking
witnesses who distort the reality. So we get several
administrative law judges with high allowance rates, in some
cases exceeding 90 percent, even though the national average
allowance rate is nowhere near that, it is in fact, 57 percent,
as of last year, the lowest rate since Jimmy Carter was in the
White House in 1979.
So let's not distort facts here. Let's not try to
manufacturer a narrative that, in fact, is misleading if not
false.
Commissioner Colvin, is it true that the disability
insurance trust fund is forecast to become insolvent in 2016?
Ms. Colvin. Not insolvent. In 2016, the reserves will be
depleted. Income, or the resources that will be coming in will
allow us to pay 75 percent of the benefit, yes.
Mr. Connolly. Is that a serious thing? Could people be
hurt?
Ms. Colvin. Absolutely. People will be hurt. Congress has
acted before to address that problem. It is not the first time
that we have come to the situation where the reserves were
depleted.
Mr. Connolly. Right. Now again, the insidious nature of the
undertone here in these two days of hearings is to allow the
implication that, I am going to use the word insolvency, that
the possibility of insolvency, impending insolvency, is because
of mismanagement by the agency and administrative law judges
running amok. Is it not true, however, that the trust fund was
forecast to be possibly insolvent 20 years ago by the chief
actuary of the Social Security Administration?
Ms. Colvin. Absolutely, and the trustees. So we have known
and Congress has known for a very long time that we would have
this problem in 2016. And the trustees reports reflect that.
Mr. Connolly. In fact, we had Ms. LaCanfora, the Acting
Deputy Commissioner of the Office of Retirement and Disability,
before this committee in April, or the subcommittee. She
stated, the policy and the process and the management of the
agency is not the cause of the reserve depletion. The cause of
the reserve depletion is demographics. Baby boomers aging,
women entering the workforce.
Do you care to comment on that, Ms. Colvin?
Ms. Colvin. Well, it has all been predicted. It is in our
trustees reports, we have known that we would have the aging of
the baby boomers and that they would be reaching the disability
prone years, we knew more women were entering the workforce and
they would have earnings on their own record. We knew that the
poverty rate is going down, so we would have more children
coming on to SSI rolls. I don't know why Congress expresses
surprise. It is in writing in our trustees reports.
Mr. Connolly. Yes. And well of course, if we really were
determined to avoid a problem or do nothing about it
creatively, we might try to pick on some tertiary issue that is
really quite tangential to the heart and soul of what we are
dealing with here, the reserve depletion.
Ms. Colvin. I need to emphasize that our allowance rate is
44 percent. It is the lowest it has ever been in the last 40
years. In fact, I have many stakeholders who think it is too
low. Of course, Congress thinks it is too high. But there has
been a lot of effort to make sure that people who are on the
rolls are people who deserve to be on the rolls. That is why we
have the CDRs, because the CDRs will identify people who have
improved and will go off the rolls.
So I don't see any valid data to tell me that we have huge
numbers of people on the rolls who are not disabled. In fact,
we have a lot of people waiting who should be on the rolls.
Mr. Connolly. And even if there were too many people, that
is hardly the solution to the issue of the depletion of the
reserve, isn't that right?
Ms. Colvin. Absolutely. Also, when Congress changed the
retirement age, that meant that more people are going to be on
disability until they reach the retirement age. So that also
added to the number of people being on the rolls.
Mr. Connolly. So actually, Congress has something to do
with the nature of the depletion?
Ms. Colvin. Yes.
Mr. Connolly. It isn't just a handful of administrative law
judges who may have excessive allowances, is that correct?
Ms. Colvin. I haven't seen the data, but I cannot believe
that that number that is quoted about the number of dollars
that would result from the allowance rates, I just have not
seen it.
Mr. Connolly. In the past, has Congress intervened when we
have seen us get to a certain level in terms of the depletion?
Ms. Colvin. Several times.
Mr. Connolly. In fact, Congress has reallocated payroll
taxes between Social Security programs at least six times in
the past, is that not correct?
Ms. Colvin. Yes.
Mr. Connolly. And a similar rebalancing would, in fact,
extend the life of the trust fund, allowing for full payment of
benefits through 2033, is that not correct?
Ms. Colvin. That is correct.
Mr. Connolly. So maybe we could spend our time more
creatively here in Congress talking about trying to find a
solution to your problem rather than trying to finger blame in
a tangential way that really begs the question. I yield back.
Mr. Gosar. Would the gentleman like to input why the
minority didn't bring their own witness to this hearing the
last two days?
Mr. Connolly. I don't speak for the minority, Mr. Chairman.
Mr. Gosar. But you are a very articulate member.
Mr. Connolly. Well, I thank the chair.
Mr. Gosar. And they had the opportunity to do so. And it is
acknowledged no minority witness was chosen.
I would like to invite Ms. Lujan Grisham for her time at
the dais.
Ms. Lujan Grisham. Thank you, Mr. Chairman. I appreciate
that, and appreciate that we are having what I consider sort of
two bites at the apple to start to look at disability cases and
the system that Social Security has in place to review those
cases.
I would ask, Mr. Chairman, I have a statement that I would
love to introduce into the record from an attorney in New
Mexico who specializes in these cases and has been an effective
advocate. He uses in his statement about some of the staffing
shortages, information that comes right from the Social
Security office's website.
Chairman Issa. [Presiding] Without objection, that will be
placed in the record.
Ms. Lujan Grisham. Thank you very much, Mr. Chairman.
There are 164 ODAR offices around the Country. How does the
Social Security Administration determine the number of ALJs,
decision writers and other support staff in each office?
Ms. Colvin. I don't think I can give you that. I would have
to get back with you, I need to consult with the deputy for
ODAR on that.
Mr. Lujan Grisham. But, no sense that it is based off the
number of cases that each office receives.
Ms. Colvin. We anticipate that a judge can only carry
certain workloads. Of course, we don't know how many
individuals are going to come into an office who need our
services. But that is why, with electronic services, we can
move
Ms. Lujan Grisham. I would disagree. I think you do know.
In fact, the Albuquerque office currently has the fourth
highest number of cases per administrative law judge in the
country. In fact, I have raised that point in writing, and in
communications with the social Security Administration and have
yet to get what I think is a satisfactory response, and we will
get there, to what we might do about that.
In fact, there are 822 cases per ALJ in the Albuquerque
office. In the 16 other offices in the region, the average
number of cases per ALJ is only 500. Does that sound correct to
you?
Ms. Colvin. I don't know that figure. But one of the things
that we do is, we do move work around to help with
understaffing. We are going to be hiring 200 new judges.
Ms. Lujan Grisham. But certainly none in my region, which
has the highest consistent cases, and identifying staff in
other places, which I appreciate, given that we have 8,700
people in New Mexico who are currently waiting for a hearing on
their case, which creates, as you noted earlier, and I really
appreciate that very much, that you noted there are significant
other policy issues that are affected by not getting these
cases adjudicated timely and by the fact that Congress has made
policy changes that create more of a demand for Social Security
disability.
But when you outsource these cases, it is like putting a
band-aid on a broken leg. If this is where you know you have
significant issues, why aren't we making investments where we
have the greatest backlogs?
Ms. Colvin. Well, because we have them everywhere. We have
the second longest waiting period in my own county of
Baltimore, 17 months, before a case is actually heard. So I am
trying to, with these new judges, look at how we redistribute
cases but we just haven't had the resources.
Ms. Lujan Grisham. And I understand that you do have that,
and you have some offices around the Country with similar
issues. But the Albuquerque office is an outlier among
outliers, given the stats, the high disability cases, the 8,700
people waiting three years before we get anything adjudicated.
Do you think this severe, and let me just repeat that, the
severe understaffing issues, like in Albuquerque, do you think
they are acceptable?
Ms. Colvin. No, I do not. Let me take a look at what is
happening in Albuquerque, because it hasn't come to my direct
attention.
Ms. Lujan Grisham. I really appreciate that, and I know
that these are tough issues and that they are going to take
probably a range of options. But I do want to alert you that I
have had very unsatisfactory, in terms of not getting the
answer that I desire, but getting any suggestions or any
answers about what do about this particular problem, in spite
of reaching out locally, regionally, and nationally.
Given that, when do you think you might be able to
reevaluate Albuquerque's staffing issues?
Ms. Colvin. As I mentioned, we have just authorized hiring.
It is going to take us time to recruit and to train, et cetera.
So I don't want to give you a date that I can't meet. Let me
talk to my staff and get back to you.
Ms. Lujan Grisham. One last question in the limited
remaining time. I mean no disrespect, but this is critical.
Ms. Colvin. I understand.
Ms. Lujan Grisham. I have not received satisfactory,
timely, timely responses. I need you to get back to me.
Ms. Colvin. I will commit to that.
Ms. Lujan Grisham. Two weeks? A month?
Ms. Colvin. Two weeks. I may not have a complete answer for
you, but at least I will be able to get back to you and let you
know what we are looking at.
Ms. Lujan Grisham. I am very grateful and thank you for
your attention to this particular problem. Thank you, and with
that, Mr. Chairman, I yield back.
Chairman Issa. Thank you.
Administrator, in 2011, some of the judges that were here
yesterday got adverse reviews. Yet they are still on the bench
and no action was taken.
Ms. Colvin. When you say adverse reviews, what do you mean?
Chairman Issa. They got negative focus reviews. The ranking
member and I saw those judges, and we are not going to claim
that we are medical experts. But it was pretty clear these four
judges were not doing their job properly. Their incredibly high
numbers are the result of their failure to do their job
consistent with the norm of other judges. They are still on the
bench.
Ms. Colvin. Your question?
Chairman Issa. Yes. Why are they still on the bench? Why
have you not taken action against them that led to their
dismissal in these three years?
Ms. Colvin. I would need to look at their specific case and
see what action is being taken.
Chairman Issa. You came, you watched this hearing
yesterday, you were brought here to answer our questions.
Ms. Colvin. I didn't think you were going to ask personnel
questions, so I didn't come prepared to answer them.
Chairman Issa. We subpoenaed four bad judges, compelled
three out of the four to come when they refused to come in any
voluntary way.
Ms. Colvin. I didn't know that.
Chairman Issa. No one on your staff knew that?
Ms. Colvin. I didn't ask. If they knew, I didn't see a
reason to----
Chairman Issa. Do you not take testimony before Congress
seriously?
Ms. Colvin. Absolutely I do.
Chairman Issa. Then why didn't you prepare for today?
Ms. Colvin. I think I am prepared.
Chairman Issa. You haven't even been able to give me one
answer to a question of what authority or flexibility would
allow you to do your job better. And I appreciate that you want
to give me a thoughtful response, but I have a near zero
thoughtful response after people leave this hearing until the
next time they come back. So although I hope for this not to be
the case, it doesn't appear as though you prepared particularly
well.
Ms. Colvin. You gave me two days. You knew I was out of the
country. You would not negotiate with my staff. I came in and
immediately got ready for this hearing, so to suggest that I
don't take it seriously; I had a death in the family, but
because of the fact that you wanted this hearing today, I
didn't even attend the funeral. So I am really annoyed that you
would suggest that I don't take this seriously.
Chairman Issa. Well, you didn't seem to come prepared to
know about the judges we had yesterday. Are any of the people
behind you able to answer that question?
Ms. Colvin. No, they are not.
Chairman Issa. Couldn't you turn around and look and see?
Ms. Colvin. I am not going to have them discuss personnel
issues here, Mr. Issa. I would be very happy after this meeting
to stay here and answer them, or to give you a private meeting.
But I am not going to discuss personnel actions here in open
forum.
Chairman Issa. I just asked why they were still on the job.
Ms. Colvin. And I am saying, I don't know what the specific
actions are that may or may not have been taken against these
four judges. I would need to have a discussion----
Chairman Issa. Okay, you said that there were no quotas, no
performance. And yet, I am asking that this be placed in the
record, because it cites specific quotes from Burke, Taylor,
Beady and Cristaudo. These are judges who all testified there
were. And they gave numbers.
But let me just, and hopefully that review will help your
people understand that your judges think there are performance
numbers.
And you said that you didn't see a correlation. But isn't
it true that since the cap went down to 600 that, in fact, the
approval rate, or the rubber stamp, as we like to call it from
this side of the dais, has gone down, that, in fact, you are
approving less?
Ms. Colvin. Our approval rate today is 44 percent.
Chairman Issa. That is the total approval rate. Your ALJs
are not 44 percent, are they?
Ms. Colvin. That is our overall.
Chairman Issa. The ALJs overall reversal rate, I guess,
technically, is 44 percent, you are saying today?
Ms. Colvin. No, the average approval rate, the average
national approval rate once you take out dismissals, is 44
percent.
Chairman Issa. That is people who apply and find out they
are not disabled under any definition and then abandon it,
right? That is not at the point of, we are dealing with the
administrative law judges. Are you saying it is 44 percent with
administrative law judges?
Ms. Colvin. No, that would be our overall rate. I would
have to see what the specific number is. But I thought it was
44 percent. But I may be wrong, so I would need to confirm
that.
Chairman Issa. Let me ask you a question, you probably will
have to give me a thoughtful answer over time. But you
mentioned, and in our investigation, and in Senator Coburn's
investigation, and quite frankly, in 60 Minutes' investigation
in what was made very public, there was a practice that seemed
to go like this. In that last few days or weeks before the ALJ
looks at a case, the lawyers who specialize in getting
approvals for their clients come in with new medical
information, slip it into the file and get it in front of the
judge, so the most recent information is usually something new
to be considered. Are you aware of that?
Ms. Colvin. No, I am not.
Chairman Issa. Did do watch the 60 Minutes?
Ms. Colvin. No, I did not.
Chairman Issa. Did you look at anything that Senator Coburn
put out over the last 14 months?
Ms. Colvin. Yes, I have.
Chairman Issa. He talks about that in his report, do you
remember that?
Ms. Colvin. I saw he did.
Chairman Issa. So one question I have for you, and it is a
very straight question, do you have the authority, if there is
new information added, to seize a record, not have it go to the
ALJ and throw it back through the process of review again at a
lower level so that it not be presented to a judge when, in
fact, it is not the same package that was previously rejected?
Ms. Colvin. We are in the process of
Chairman Issa. No, ma'am, I just asked if you had the
authority.
Ms. Colvin. Do I have the authority to?
Chairman Issa. Do you have the authority to do that. Every
time a lawyer at the last minute puts in additional information
about his client, do you have the authority to have it go back
through the review process and not go to the judge?
Ms. Colvin. No.
Chairman Issa. Would you like that authority?
Ms. Colvin. No.
Chairman Issa. Why not?
Ms. Colvin. We have a pending regulation that will require
all evidence be submitted in a timely way. If that moves
forward, that will resolve our issue.
Chairman Issa. So what you are saying is that no new
information should go into the file even if, in fact, the
patient is getting sicker during that last three, four, five
months waiting for the ALJ?
Ms. Colvin. I don't agree with that at all.
Chairman Issa. Well, I am just asking you. You are the one
that is talking about a proposed regulation.
Ms. Colvin. No. No. My answer is no.
Chairman Issa. No, what? No, you don't think----
Ms. Colvin. I do not believe that if a person is getting
sicker and new evidence is available that it should be
precluded.
Chairman Issa. So if it should be included, and you are
telling me you are going to produce a regulation that says it
has to be produced in a timely fashion, what you are saying is
that you are still going to allow it and it is still going to
go to the ALJ. Is that right? What does your regulating change?
Ms. Colvin. We haven't developed that yet. We are just
beginning to.
Chairman Issa. Okay, so 14 months on the job, years into
this process, 60 Minutes already made it clear that there was
widespread fraud leading to taxpayers losing billions.
Ms. Colvin. Do you believe everything that is on 60
Minutes?
Chairman Issa. Ma'am, you are not going to gain anything
from this side of the dais by telling there isn't widespread
fraud that is the reason that there is a Congressional hearing
that you have been asked to be at.
So making the assumption that there is widespread fraud,
that your ALJs have overly approved in vast amounts, and it has
cost the taxpayers billions of dollars they will never get
back, I would ask you a simple procedural question. That change
is outside the jurisdiction of this committee, but we are a
reform committee. I ask you if any kind of flexibility or
changes in law would help you. You said you would get back to
me. I now ask you about one specific one, which is, did you
have the authority, when new evidence comes in, to send it back
to a lower administrator and not to an ALJ, have it reviewed
and then only have it go to the ALJ if it is, in fact, rejected
again, that they can look at this information, so the
information coming to an ALJ is exactly the information that
has previously been rejected, rather than ALJs constantly
looking at new information at the last minute.
I asked you if, in fact, you had that authority and you
told me about a regulation that doesn't seem to have yet been
finished.
Ms. Colvin. I said no, we didn't have the authority.
Chairman Issa. Would you like the authority?
Ms. Colvin. No.
Chairman Issa. Well, this committee recently gave the
District of Columbia additional authority to change the height
of buildings. But a little bit like the disappointment I had
when I discovered that unanimously, the city council did not
want the authority to make their buildings higher under any
conditions, that they were afraid of having that authority, I
am hearing here today that you can't come up with one piece of
authority that would help you stop the widespread fraud that
this committee, Mr. Cummings, Ms. Speier and others believe is
part of it.
And by the way, I want to note for the record that at least
one ALJ had an allowance record of 15 percent, meaning there
was somebody, at least one on the other extreme, and there are
others that are low. So I am just as concerned about too low as
too high, and trying to help you have the tools to do a better
job. And I am very disappointed you weren't ready here today. I
suspect we will be having another hearing and we will invite
you back, perhaps with more advance time.
Mr. Cummings, do you have closing remarks? The gentleman is
recognized.
Mr. Cummings. First of all, I want to express my sympathy
for your loss.
Ms. Colvin. Thank you.
Mr. Cummings. I am sorry you were not able to make the
funeral.
I want to make sure I understand what happens here. When
there is, and Ms. Lujan Grisham a little earlier, I don't know
if you heard the questions I asked, but I got them from you, in
talking to you. You have a situation in those first two
exchanges where you have people who make a decision. In many
instances, people don't have lawyers, in some instances they
depend on where they are, who they are, they may not have
doctors, medical homes or whatever. So they are denied quite
often the benefits.
Then they go, they basically appeal, to an administrative
law judge, is that correct? Is that right?
Ms. Colvin. Yes.
Mr. Cummings. Now, let me say, the four people that
testified yesterday, I don't think there were any accusations
of fraud, there were issues of whether they followed policy and
good conduct.
Ms. Colvin. Right.
Mr. Cummings. And by the way, there was testimony, if I
recall correctly, that Judge Krasfur is on leave. That is my
understanding.
Ms. Colvin. That is correct.
Mr. Cummings. All right. Now, one of the things that was
said during that hearing, and I want to go to what the Chairman
is getting to, because I really want to make sure I understand
this, one of the things that they said was, one of the judges
or maybe more, that there was a lot of times testimony or
records that would come in later. And that they took that into
consideration. And basically what they were saying is that the
person's condition may have gotten worse, and then there was
submittal of some kind of documents to show that.
So how does that work? When you say that the record is
supposed to be in, in other words, I am not trying to put words
in your mouth.
Ms. Colvin. No, what I was trying to convey was that we
would not want to not have that information provided to the
ALJ. If the person has waited over a year, that is through no
fault of their own. If additional new evidence comes in that
indicates that that condition has deteriorated, that may now,
in fact, make them eligible for a benefit, they are entitled to
have that medical information presented.
So when I said that I would not want the authority to
prevent that information from being presented to the ALJ, that
is what I was speaking to. They should have that information to
be able to make a decision about that case.
Mr. Cummings. Okay, now if I understand the Chairman's
question correctly, I think he was asking about, do you want
the ability to send it back to one of the first few reviewers.
Ms. Colvin. No, because you will start them all over again.
The case is now with the judge, why not provide that additional
documentation that will allow them to make a decision?
Mr. Cummings. Yes.
Ms. Colvin. Why start them all the way back to the
beginning again.
Mr. Cummings. I was thinking about the man in my district
with prostate cancer who died waiting, and a number of others.
So that then, with regard to these folks that came in here
yesterday, you said it several times, you were concerned about
them, right?
Ms. Colvin. Yes, I am concerned, because they're not making
policy-they may not be making policy compliant decisions. But
again, just because of their award rate, we can't make a
determination just on the award. We have to do the reviews,
determine if there are policy decisions that are not being-
policies that are not being followed. One variable is not
sufficient for removal of an ALJ.
Mr. Cummings. I want to make a clarification here. I want
to note that the majority had a staff report yesterday, and in
most of the average lifetime benefit including the benefit from
programs linked to enrollment in a disability program is
$300,000. But this also includes the cost of Medicare and
benefits estimated to be $109,000.
While disability programs incur real costs and provide real
benefits, I wanted to be clear on the cost of the benefits to
the disability trust fund that is the focus of today's hearing.
Ms. Colvin, the source document in the majority's estimate
suggests that the present value of a disability alone is
$163,000, is that right?
Ms. Colvin. I think that is more likely.
Mr. Cummings. Is this consistent with your understanding?
Ms. Colvin. The average benefit is about $1,500 a month, I
think. So I would have to look at the data.
Mr. Cummings. Can you get that information back to me?
Ms. Colvin. Yes.
Mr. Cummings. Because I tell you, I just think about, I
keep hearing this word, entitlement. And sometimes I have to, I
think it is social insurance. Basically people pay into this.
Ms. Colvin. It is an earned benefit.
Mr. Cummings. I think about my father, for 45 years didn't
miss a day, lifting drums, moving chemicals and paid into the
system. I think about the many black men and white men who I
worked with at Bethlehem Steel as a teenager who died, who died
before they could get a penny. I think about folks who truly
are suffering.
I know we use that word entitlement, but the implication is
that people don't pay into the system. And they do. They do.
And they pay over and over and over again. So I just don't want
to lose sight.
And I want to make it very clear. I want us to deal with
the outliers.
Ms. Colvin. I do, too.
Mr. Cummings. I want us to make sure that everybody has a
fair side. I want to reduce the caseloads, I want to do all of
that. And I want the system to work like it is supposed to
work. That is what we are about here, we are supposed to be
trying to make sure that government does what government is
supposed to do. There are some who believe that maybe
government shouldn't exist, but it does, and it must.
So I am just hoping that we can work with you to try to
address some of these issues. And I thank you very much for
being here.
Thank you, Mr. Chairman.
Chairman Issa. Thank you.
Madam, a couple quick things. I have a letter I will ask
unanimous consent to be placed into the record. Without
objection, so ordered.
It is from May 27th, inviting you to this hearing on June
10th. Were you made aware of it?
Ms. Colvin. I was out of the country for two weeks, and I
know my staff negotiated with your staff. I came back to work
on the 9th. And you agreed to have the hearing on the 10th,
then it got moved to the 11th.
Chairman Issa. Well, we moved it to the 11th to accommodate
your request.
So were you doing official business out of the country
Ms. Colvin. No, I was on leave.
Chairman Issa. Okay, so you are on vacation, you find out
you have two weeks before this event. We add an extra day on
the request of your folks. So I am terribly sorry for your
loss, but I just want to make sure the record shows, it wasn't
three days notice. You had two weeks notice.
Ms. Colvin. I was out of the country when the notice came
in. I had already left to go out of the country.
Chairman Issa. Was your BlackBerry turned on?
Ms. Colvin. Absolutely.
Chairman Issa. So you knew there was a hearing in two
weeks, correct?
Ms. Colvin. I knew that the hearing was scheduled for the
10th, yes.
Chairman Issa. Okay, I just want to make sure that we
understand that you did not have as much time to prep as you
would like, because you were on vacation. And I understand
that. That happens.
Ms. Colvin. But I was not here in the country.
Chairman Issa. I understand that you had less time to prep.
I just want to make sure the record indicates it was two weeks
advance notice of the hearing and we added an extra day.
Ms. Colvin. Thank you for your consideration.
Chairman Issa. You are very welcome.
I want to go back through just one last closing point, and
I am not going to ask it as a question, but if you care to
respond to that, I will let you. This is not an adversarial
relationship, when somebody goes up before an ALJ. It is all
one-sided. The judge is very powerful. He or she has to
evaluate what is being brought. Normally in front of the ALJ,
the moving party, disabled or presumed disabled person is
represented by a counsel who is being paid a commission on
successful accomplishment, most often. And they have a
motivation to get the job done, to get something for their
client
So you have an advocate for the client who has resources,
who has medical professionals, if you will, doctors, that
prepare and help the person make their case. Late in the case,
after they have been turned down once or twice, and the ranking
member is right, sometimes they are not represented by counsel
at that time, sometimes they are. After they have been turned
down twice, they come in with new information in the eleventh
hour.
There is nobody from the government who says, hold it, we
want time to cross-examine that information, we want to
consider it, we want to send this patient to an independent
doctor, we want to make sure that this decision is good.
So this documentation comes before a judge, and sometimes a
judge who approves 90 some percent of the time, with new
information not considered by the people who also work for you,
the people who have already evaluated the earlier information.
Now, there is a reason not every case goes directly to the
ALJs. And you know the reason, which is, you have good, hard-
working professionals who are trying to find out whether or not
to grant or not grant disability. Those people, when last
minute information comes in and it goes to the ALJ, they are
denied the best information. They are denied the opportunity to
make a good decision.
Now, procedurally, it happens all the time in courts all
over America. Last minute information comes in, it is sent back
to the lower decision, give us an update. We will low-number it
back, you won't be prejudiced other than the time it takes for
this new information to be properly evaluated. You won't be
prejudiced and you will be low-numbered right back to the
judge.
That technique, if we give it to you, if you are not
empowered to use it, and you never answered the question of,
are you empowered to do it, but let's assume that you are not,
if we give you that ability. That technique means your ALJs are
not looking at cases that could be approved by lower
individuals as far as the rest of your staff that would love to
have had the full information, love to have made the decision
and might have said yes.
That is what I was saying. Of course, I don't want people
to wait, in what we used to call in program, a do-loop. I don't
want them to, every time their condition gets worse and they
submit something to automatically wait another year. But there
is no reason it couldn't go back to somebody whose job it is to
make that first review. They make the first review. If they
approve it, they are off to the races. If they disapprove it,
they come back low-numbered to the judge.
So when you go home over the next days and weeks before we
likely call another hearing to this committee or another
committee of Congress, I want you to really think, and I want
you really to come back with the reforms, flexibility, changes
that Congress could give you, or that you have that you haven't
been using. Because I think that people on this committee, on a
bipartisan basis, do believe that at least in some cases, the
process is failing a person by their waiting too long to get a
determination, waiting too long.
And part of the reason is that the process is broken and
too many people are getting in front of ALJs. If you have a 50
percent reversal rate, that is too high. If you have a 99
percent reversal rate, that is too high. The difference is what
we want, and I believe the injured person or disabled person
needs, is they need to get the right decision as early as
possible at as low a level as possible. If there is a
rejection, they have to understand that unless there is new
information, that rejection will probably stand.
Today that is not the case. The numbers speak for
themselves. So we didn't bring you here to just say we are mad
at you. We are not mad at you. You have only been on the job 14
months and many things have improved during those 14 months.
But I am disappointed that you weren't here with more proactive
ways that we could continue doing a better job for those people
who shouldn't get disability and for those people who should
and aren't getting them or aren't getting them in a timely
fashion. That is the goal of us, this is an entitlement, this
is something that was earned, something that people are looking
forward to as a safety net.
And we are failing them. We are failing them in the time to
adjudication and in some cases we are failing to protect the
American taxpayer against lawyers who are smarter at proving a
disability, or at least giving the image of a disability than
we are at detecting it. On both sides of that, we want to get
it right.
If the dollars spent are exactly the same, will we get it
right? Then Mr. Cummings and Mr. Issa and everyone else on this
dais is happy. And if we get it wrong or people wait too long
for this the way they have at the VA, then we have failed
people who desperately need our help.
That wasn't heard by any one person here today, but
hopefully I have summarized what people on the left and the
right want you to do.
Mr. Cummings?
Mr. Cummings. I don't have anything more, thank you, Mr.
Chairman.
Chairman Issa. Thank you. At that point, we stand
adjourned.
[Whereupon, at 11:53 a.m., the committee was adjourned.]
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