Disability Cases Pending, Pending . . .

By Stephen Barr
Friday, February 29, 2008; Page D04
http://www.washingtonpost.com/wp-dyn...022803625.html

Over the next decade, the Social Security Administration's workload will increase substantially. Retirement claims will jump by more than 40 percent and disability claims by nearly 10 percent.

The first wave of 80 million baby boomers has applied for Social Security, and boomers are likely to seek disability benefits in greater numbers than did previous generations.

At a House hearing yesterday, Social Security Commissioner Michael J. Astrue said the agency may have to reinvent itself -- making greater use of technology and streamlined procedures -- to keep up with the boomers as well as whittle down a disability case backlog.

"Productivity alone cannot fully offset the increase in our workloads," he testified.

Productivity, at least among the agency's administrative law judges, emerged as an issue at the hearing, held by Rep. David R. Obey (D-Wis.), chairman of the House Appropriations Committee and its labor, health and human services, education and related agencies subcommittee.

The testimony raised questions about whether Social Security's 140 offices that handle disability claims are appropriately staffed and whether administrative law judges who rule in disability cases could be more productive.

The hearing process is one of the keys to helping Social Security strike a balance between assisting Americans who cannot work because of illness and need financial help, and protecting taxpayers from fraudulent claims.

But there are enormous challenges. The number of disability cases waiting for a decision has swelled to more than 750,000, causing applicants to wait, on average, 499 days. Despite efforts to control the backlog, delays have increased rather than decreased.

Most Americans seeking disability benefits have been turned down once or twice in their states and file federal appeals with Social Security. The agency's administrative law judges, or ALJs, award benefits in 62 percent of the cases that they hear.

The approval rate reflects the nature of the federal hearing process. ALJs usually work from a more complete medical record and hear directly from the claimants, who are often accompanied by lawyers. Although the ALJs work for Social Security, Congress has awarded them a large degree of independence in how they reach decisions.

Astrue said most ALJs do a good job, but he made it clear he has no power to discipline bad apples in their ranks. He said he is frustrated by his inability to deal with "gross misconduct" by judges, especially those accused of fraud, domestic violence and soliciting prostitution.

Disciplinary actions brought against ALJs end up before the Merit Systems Protection Board, which hears federal employee appeals, resulting in months of litigation and, in Astrue's view, a "paid vacation" for the accused. "I'm offended by that," he said.

Astrue also said that one ALJ has not completed a disability benefit case in seven years, and another completed only 40 cases last year -- far below the 400 to 500 cases that the agency expects judges to finish each year.

Patrick P. O'Carroll Jr., inspector general at Social Security, said it is that kind of performance that is having "a negative effect" on bringing down the disability backlog. In fiscal 2006, he said, the cases handled by ALJs ranged from a low of 40 to a high of 1,805. About 30 percent of the judges processed fewer than 400 cases per year, he said.

But Ronald G. Bernoski, president of the Association of Administrative Law Judges, said the hearing process does not begin and end with ALJs -- it also involves the 6,500 employees in the agency's office of disability adjudication and review. He said no judge, no matter how talented, can write 40 to 50 decisions per month without proper staff support, and he questioned whether Social Security will hire more aides for the judges.

After the hearing, Bernoski called Astrue's remarks about ALJ misconduct "premature," noting that they involved allegations. He also said the inspector general's data could be viewed like a bell curve, with the large majority of ALJs in the middle ranges and highly productive.

Astrue is hiring more ALJs, largely because Congress increased the Social Security budget last year by $148 million more than the White House recommended. Asked by Rep. Betty McCollum (D-Minn.) if he has enough ALJs, Astrue said, "We don't." His goal is to staff up to 1,175 ALJs, but Astrue said the minimum needed is 1,250, which he hopes to reach in fiscal 2009.

Talk Shows

Greg Heineman, president of the National Council of Social Security Management Associations, and Rachel Emmons, the group's Washington representative, will be the guests on "FedTalk" at 11 a.m. today on http://federalnewsradio.com and WFED radio (1050 AM).

Robert M. Kolodner, national coordinator for health information technology at the Health and Human Services Department, will be the guest on the IBM "Business of Government Hour" at 9 a.m. tomorrow on WJFK radio (106.7 FM).