The National Association of Disability Examiners
Jennifer Pounds, President
Presented to the
Committee on Ways and Means
Subcommittee on Social Security
United States House of Representatives
September 6, 2017
Chairman Johnson, Ranking Member Larson and Members of the Subcommittee on Social Security, Committee on Ways and Means: The National Association of Disability Examiners (NADE) sincerely appreciates the opportunity to offer comment and insight regarding the Social Security Administration’s management of the federal disability programs. The stated purpose of this hearing is, “Determining Eligibility for Disability Benefits: Challenges Facing the Social Security Administration.” NADE believes the challenges facing the disability programs are numerous and we commend the Subcommittee for convening this hearing to explore them.
Who We Are
NADE is a professional association whose purpose is to promote the art and science of disability evaluation. The majority of our members work in the state Disability Determination Service (DDS) agencies where 15,000+ employees adjudicate claims for Social Security and/or Supplemental Security Income (SSI) disability benefits. Our members constitute the “front lines” of disability evaluation. Our membership also includes many SSA Central and Regional Office personnel, attorneys, physicians, non-attorney claimant representatives, and claimant advocates. The diversity of our membership, combined with our extensive program knowledge and “hands on” experience, enables NADE to offer a perspective on disability issues that is unique and which reflects a programmatic realism, which we believe, is a critical factor for Members of this Subcommittee to consider.
NADE members are deeply concerned about the integrity and efficiency of the Social Security and the SSI disability programs. Simply stated, we believe those who are entitled to disability benefits under the law should receive them; those who are not, should not. Many of the hearings held by this and other Congressional Committees and Subcommittees have, in recent years, focused on the challenges facing the Social Security disability program.
No other government agency has a greater impact on the quality of life in America as the Social Security Administration (SSA) and the American public will judge the ability of their government to meet their quality of life needs almost solely by the service provided by SSA. It is imperative that the services provided by SSA be of the highest quality. This includes the administration of the Social Security and SSI disability programs. SSA’s mission, clearly stated, is: “To promote the economic security of the nation’s people through compassionate and vigilant leadership in shaping and managing America’s social security programs.”
During FY 2017, SSA will pay approximately $935 billion to nearly 61 million Social Security beneficiaries. SSA will pay an additional $54 billion in Federal benefits to about 8 million SSI (Supplemental Security Income) recipients. The total annual payout of these two programs is nearly $1 trillion! Every month in FY 2017, an average of 9 million workers and an additional 2 million dependents received Social Security disability benefits from SSA. SSA also paid monthly SSI disability benefits to 6 million blind and disabled adults and more than 1 million blind and disabled children in FY 2017. The vast enormity of the disability programs administered by SSA, and their impact on the lives of Americans, cannot be understated. Actuaries forecast 1 in 4 workers currently age 20 will become disabled prior to age 67. Among this group, 67% will have no private disability insurance and will depend on SSA as their only source of income.
The DDS Role in the Federal-State Partnership
Initial and reconsideration (first level appeal) claims for disability benefits are processed in the states by Disability Determination Services (DDSs). These are state agencies working in partnership with SSA to provide public service to individuals applying for disability benefits. The DDSs share a tremendous responsibility to help ensure the integrity of the disability program. Eligibility for disability benefits is difficult and determining eligibility for benefits is equally difficult. The DDSs make complex medical determinations for the Social Security disability programs pursuant to Federal laws and regulations. The vast majority of DDS personnel are state employees subject to their individual state rules and mandates, personnel practices and other issues specific to their respective states. The DDSs adjudicate disability claims at the initial, reconsideration, continuing disability review (CDR) and disability hearing levels. The adjudication of claims for disability benefits must adhere to SSA’s stringent definition of disability* while following a 5-point Sequential Evaluation** approach that requires a determination to be made at each step before the adjudicator can proceed to the next step.
Throughout the 60+year history of the Social Security Administration’s Disability Insurance Program, the disability claims adjudication process has been a Federal-State venture. In the DDSs, an adjudicative team composed of a Disability Examiner (generic title) and/or a Medical Consultant and/or a Psychological Consultant in the DDSs make the initial medical-legal-vocational determination. That initial or reconsideration determination must follow complex and frequently changing Federal rules and regulations and it is essential that those making the determinations possess unique and specific knowledge, skills, and abilities in order to fairly and timely administer the programs.
The Social Security definition of disability differs markedly from any other public or private industry definitions of disability. While other disability programs focus primarily, or even exclusively, on the degree of impairment, the Social Security and SSI adult disability programs are work and function oriented. The SSI child disability program is also function oriented. What this means is that an impairment is considered to be disabling only if it prevents an adult individual from working or a child from functioning in normal age-appropriate activities. The DDS adjudicative team is required, as a matter of routine, to deal with the interplay of abstract medical, legal, functional and vocational concepts.
In FY 2017, DDSs adjudicated over 2.5 million initial claims and about 600,000 reconsideration claims. DDSs also processed about 800,000 continuing disability review (CDR) claims. The DDS allowance rate was 33% at the initial level and 12% at the reconsideration level. The allowance decisions made by the DDSs account for nearly 77% of all allowances made in FY 2016 and the DDSs were able to achieve this level of service while maintaining an initial accuracy rate of 95%, including an allowance accuracy rate of 98.7%! The average processing time for an initial claim in FY 2016 was 85.6 days while reconsideration claims were processed in 77.1 days. SSA’s Quick Disability Determination (QDD) and Compassionate Allowance (CAL) claims had an average processing time of just 18.5 days! The ability of the personnel within the DDSs to adjudicate these cases timely and accurately carries enormous consequences for SSA and the citizens who rely upon the Agency for assistance. Therefore, it is extremely critical the individuals tasked with this responsibility be highly trained and able to perform their job duties in a professional environment. The DDS adjudicators must be able to translate the medical concept of clinical severity into the legal concept of Social Security disability program severity and the resultant functional restrictions into vocational and/or age-appropriate assessments. In essence, the DDS adjudicators must appropriately and interchangeably, apply the “logic” of a doctor, a lawyer and a rehabilitation counselor.
The Need to Ensure Disability Policy Remains Current
In order for DDSs to make accurate and timely initial and reconsideration determinations on disability claims, it is essential that disability policy established by SSA be current and up-to-date. Until recently, SSA has struggled with this task. However, the Agency has made great strides since 2013 to correct this situation. In 2016-2017, SSA updated four of the medical listings and revised the manner in which disability adjudicators should evaluate treating source opinions. Between FY 2013 and FY 2017, SSA published final rules to update 11 of 15 body systems. These updates and revisions have been very significant. Consider the neurological listings were updated in the fall of 2016, followed by updates to the respiratory listings. These listings had their last comprehensive update in 1986 and 1993, respectively. The mental listings were updated in January, 2017, their first comprehensive update since 1985! SSA is expecting to release updated musculoskeletal listings in 2018. This will be the first comprehensive update for this listing since 1985. NADE is very appreciative of the effort SSA has made to update the medical listings, some for the first time in over 30 years. It is critical the listings should reflect current medical practices and SSA plans to ensure the listings remain current.
SSA has also prepared new policy for how adjudicators are to evaluate treating source opinions and added three (3) medical professionals to the list of “Acceptable Medical Sources.” The updated policy and new additions to the list of acceptable medical sources should improve the service delivery of the DDS as well as the timeliness and accuracy of our determinations.
One update that is urgently needed is a replacement for the Dictionary of Occupational Titles. This source of vocational information used in making disability determinations at all levels was last revised in 1991 and had its last major update in 1977! In previous testimony before this Subcommittee, NADE stressed that the use of 40-year old information to process disability applications does not reflect well with regard to service delivery to claimants or taxpayers. We are pleased that SSA, in partnership with the Bureau of Labor Statistics (BLS) has made significant progress toward a D.O.T. replacement and the Occupational Information Systems (OIS) is expected to be implemented in 2020.
Reduced Budgets and Insufficient Funding
There are many challenges to ensuring that disability determinations are accurate and made in a timely manner. No challenge is more important to the DDSs than insufficient funding caused by reduced budgets. NADE is aware that many problems cannot be solved by throwing more money at the problem but, in the case of timely and accurate decision-making in the disability program, the lack of sufficient funding by Congress on a consistent basis has created a crisis of service delivery in the DDSs and SSA. Since 2010, SSA’s administrative budget has remained static, even while the cost of service delivery has gone up. SSA responded initially to reductions in its budget in those areas that did not directly impact case production. That “luxury” is long gone and recent budget reductions have resulted in hiring freezes that have created a crisis of confidence in the Agency’s ability to serve the public. Hiring freezes have contributed to higher caseloads, increased processing time and diminished accuracy. The resulting less than professional work environment contributes to increased attrition. The investment in time and resources to train a disability adjudicator to become proficient at making disability decisions is significant and the DDSs can’t afford to allow this commitment of resources to continue to walk out the door. This is a program challenge caused by budget constraints imposed by Congress.
The attrition rate for DDS staff has been about 15% in recent years. What this means is that a DDS with 400 employees will lose 60 of them in any given year. Over the course of the past two years, that has meant a loss of 120 employees, nearly one-third of the DDS staff. New hiring has been minimal since the DDSs operated during the past two years with only critical hires being approved. As the attrition continues, the work environment within the DDSs can become nearly toxic as remaining staff have to assume almost unimaginable workloads. This, of course, feeds the attrition rate. The DDSs lost 1,623 employees in FY 2017 including 1238 adjudicators. It takes two to four years for most disability adjudicator in the DDSs to become proficient at making accurate and timely disability determinations. The DDSs cannot afford to expend the funds to train these adjudicators only to watch them walk out the door when higher paying, less stressful jobs in the private sector beckon to them.
The DDSs have had to shift personnel and resources from such positions in the DDS as training, quality assurance, professional relations, and even supervision and management and direct all their resources to claim processing to ensure that claims continue to be processed timely and accurately. This shift of resources within the DDSs cannot be sustained on a continuing basis without severe risk. How long, for example, can the DDSs continue to postpone ongoing training for their staff in order to ensure current decision-making is timely before future decision-making is not timely and not accurate because new training was never properly provided? How long can the DDSs allow its quality assurance personnel, trainers and supervisors process cases while abandoning their specific jobs that are critical to the DDS’s ability to provide timely and accurate decisions? NADE would like to point out, for example, that while SSA made significant progress during the past year in updating the medical listings, many DDSs were unable to ensure their staff received anything more than the basic training package because subsequent training was deemed to represent a too costly investment of time away from case processing. It is critical to SSA’s mission that sufficient resources be provided on a consistent basis to ensure the disability program is adequately funded at a level that will maintain the public’s confidence in the program and the Agency’s ability to serve its mission.
Reinstatement of Reconsideration
While about 80,000 claimants were allowed in FY 2017 at the reconsideration appeal step, this option was not available in ten DDSs that were part of the original Prototype redesign in 1997. NADE has repeatedly presented the argument that disability decision-making should be the same across the nation. We suggest Congress should explore the possibility of bringing the reconsideration step back to those DDDs where it has been absent for twenty years. While this will require a significant expense in new hiring and training of personnel, the expectation will be a reduction in the number of claims appealed to administrative law judges, helping to ease the backlog of claims pending at that level of appeal while also improving the processing time of ALJ decisions. With fewer claims to adjudicate, ALJs will be able to make their decisions faster.
NADE also observes that the inadequate hiring caused by insufficient funding plagues not only the DDSs but all components in the disability program, including the ALJ level where new hiring of ALJs has occurred in recent years but their support staff has not received new hires. SSA’s Central Office and its many Field Offices have had to shift resources and reduce their hours of operation to absorb staff reductions caused by ongoing budget constraints. This level of service simply cannot continue for an Agency charged with service delivery to tens of millions of Americans every year, many of whom are our nation’s most vulnerable citizens.
The Impact of Eliminating Single Decision-Maker and Disability Examiner Authority
The Bipartisan Budget Agreement of 2015 required that SSA eliminate the use of the single decision-maker (SDM) in the nineteen DDSs that had this authority. SSA imposed a staggered process to abide by this requirement with the result that the last DDSs using SDM will lose this authority on September 30, 2017. The SDM has been in use since 1997 and its resultant elimination has contributed to higher processing times in the DDSs as well as lower morale and, in some cases, decreases in job grades and salary. This is not welcome news to DDSs who strive to maintain their staff in the face of heavy private industry recruitment. Also, the elimination of SDM means DDSs must have an increase in resources to hire sufficient medical staff to review the claims previously processed by SDMs.
The BBA also required SSA to eliminate Disability Examiner Authority (DEA) for Compassionate Allowance (CAL) and Quick Disability Determination (QDD) claims. These claims are, perhaps, the easiest cases to process in the DDS and they are fast-tracked accordingly. DDSs generally allowed their most experienced disability adjudicators to act with Disability Examiner Authority, ensuring CAL and QDD claims were processed correctly and timely. Statistical data show these claims were adjudicated with a high level of decisional accuracy and timeliness. It should not be necessary for DDSs to have to now impose an additional hand-off and require these claims to be reviewed and signed by a Medical Consultant. NADE believes the loss of DEA will have multiple negative impacts on DDS operations and the timeliness these claims can be produced as well as the cost of case production. Adding time delays to the processing of these claims for which timeliness can be considered essential is not in the best interest of the claimant or the disability program. We urge Congress to reconsider elimination of SDM and DEA and, at the very least, reinstitute DEA for CAL and QDD claims.
The CDR Claims Process and Impact of MIRS
When a claim is approved for disability benefits, a diary is established for that claim to be reviewed again after a certain period, usually three (3) to seven (7) years, to determine if the disabling condition continues. After the diary expires, the DDS conducts a Continuing Disability Review (CDR) during which the Medical Improvement Review Standard (MIRS) is applied to determine if the claimant’s impairment has medically improved. MIRS was established in 1984 after a mandate from Congress and requires that benefits continue unless the beneficiary’s disabling condition has shown medical improvement and the medical improvement is related to the ability to work. In effect, MIRS turns the tables on the federal disability program. During the initial application process, the burden is on the claimant to prove they are disabled. At the CDR level, the necessity to apply MIRS shifts the burden to SSA and the DDS to prove there has been significant medical improvement related to the ability to work. The MIRS standard is very stringent and, as a result, few claims are actually ceased by the DDS and many of the initial cessation determinations proposed by DDSs are reversed on subsequent appeal. The majority of cessations processed by DDSs are the age 18 redeterminations, claims processed for adults who have recently attained the age of 18 and were allowed benefits as children. These claims are re-examined by the DDS using adult criteria to determine if disability continues. MIRS does not apply to age 18 redeterminations. Instead, the DDS makes a new initial determination whether the claimant has an impairment that continues to be disabling based on adult criteria.
To process a CDR claim, the disability examiners are required to compare a beneficiary’s current condition to the beneficiary’s condition at the time of the most recent medical decision, whether that is the initial allowance decision or the most recent CDR continuance decision. Because of MIRS it is not unusual to find a CDR claim where the disability examiner would not currently find the beneficiary disabled, but must continue benefits because significant medical improvement cannot be shown.
CDI and Other Anti-Fraud Initiatives
Every instance of fraud within the disability program has a negative impact on America’s trust in the ability of SSA and its components to deliver on its promise to administer these programs in a manner that reduces the potential for fraud or similar fault. NADE is pleased SSA has moved forward to expand the continuing disability investigation units (CDIUs) in the DDSs. CDI and other anti-fraud initiatives are beneficial to the disability trust fund and to the public’s perception that disability payments should be reserved for those who are truly disabled. We support SSA’s ongoing efforts to ensure all DDSs have access to a CDI unit by 2020.
NADE would like to point out to the Members of this Subcommittee that SSA’s Inspector General has previously commented on numerous occasions that SSA’s best defense against fraud is the well-trained disability examiner. NADE would add the caveat that the well-trained disability examiner must also have a manageable caseload. We also wish to stress to the Subcommittee that the Inspector General has previously pointed out the majority of fraud in the disability program, to date, has been detected by the front line disability examiner in the DDS. Therefore, it is critical that adequate funds be consistently appropriated to ensure DDSs have sufficient staff and resources to not only produce disability decisions that are timely and accurate but that their caseloads be manageable and they have received sufficient training to perform their jobs so that they can continue to detect those instances when some individuals attempt to defraud the program.
Increased Efforts for Consistency Between DDSs and ALJs
NADE applauds SSA’s recent efforts to bring consistency between the DDS and ALJ determinations. There has been improvement in documentation of rationales at the DDS level with the eCAT tool and the soon to be implemented Disability Case Processing System (DCPS) is expected to improve on this process. SSA has begun providing additional policy and medical training for ALJs, resulting in a decrease in the overall allowance rates by ALJs. When a claimant appeals a denial decision to the ALJ, they have the right to be represented at the hearing. NADE concurs with the right of representation, as this is a privilege granted under our country’s system of justice. However, that system of justice is also predicated on the concept that both parties to a dispute are represented at a hearing before an impartial third party. Such is not the case in ALJ hearings where only the claimant is represented. The DDS decision must stand on its own and can be interpreted by the ALJ in whatever manner they wish to do so. Frequently, the ALJ must attempt to defend the DDS decision while attempting to remain an impartial judge. Such an effort can create the appearance of bias and NADE wonders whether it would be beneficial to have the DDS determination represented at the ALJ level.
SSA has also initiated Target Denial Reviews of DDS reconsideration decisions, using a predictive model to assess certain reconsideration denial claims that could likely be reversed by an ALJ and returning these claims to the DDS for a subsequent re-assessment and possible reversal to an allowance. In recent years, this process has resulted in thousands of claims being reversed to an allowance by the DDS, thereby reducing the pending backlog of cases at the ALJ level.
NADE believes SSA’s ability to provide timely customer service is critical. No other agency in government has the potential to impact so many people and the vast majority of Americans will judge the government’s ability to serve their needs based on how effective and how efficient SSA is able to meet their needs. SSA is America’s “Window” to its government. It can ill afford to fail in its mission. SSA and its DDS partners must be provided with the resources necessary for the Agency to achieve its mission in a timely manner. The growing complexity of the Social Security and SSI Disability Programs, coupled with the need to produce a huge volume of work, justifies even more the need for adequate resources in order to provide the service the American public has come to expect and deserve from SSA. We refer the Members of the Subcommittee to review the complex job of the Disability Examiner as published by NADE in 2004 at https://www.nade.org/nade-board-approves-disability-examiner-position-paper/.
In FY 2008, this Subcommittee held a hearing to address the challenges facing the Social Security disability program. The Subcommittee’s Chairman in 2008 offered the observation that “constant under-funding of the disability program by the Congress over the past two decades had contributed heavily to the current crisis.” NADE notes that another decade has passed and we do not dispute such wisdom! The past two decades have shown that when SSA receives consistently adequate funding, it can increase the timeliness and accuracy of disability decisions at all levels and reduce the backlog of claims pending for hearings. When SSA does not receive adequate funding, the backlogs and wait times grow. The timeliness of decision-making and the accuracy of those decisions are negatively impacted. Chairman Johnson noted in his opening remarks the amount of time from filing an initial application to getting a hearing is over two years. The Chairman commented, “All of these people deserve an answer in a timely fashion.” NADE agrees. This is a problem in which Congress shares responsibility and Congress has the power to help resolve the problem. Congress must recognize the cost of doing business and serving the public cannot be ignored and Congress must appropriate adequate funding on a consistent basis so SSA and the DDSs can fulfill their mission.
Social Security can and must do better in fulfilling its promise to America. NADE stands ready, willing, and able to assist in fulfilling that promise. People with disabilities, already burdened by the challenges of their illness/injury, are often in desperate need of benefits to replace lost income. They deserve, and should receive, timely and accurate decisions through a fair and understandable process. The challenge to all of us – SSA, DDS and Congress – is to ensure the disability determination and appeals process fulfills its mission and this challenge must be met.
We commend the Subcommittee for exercising its oversight authority and we look forward to working with the Subcommittee to achieve the goals we have outlined in this statement.
* Definition of disability for adults
Under title II and title XVI, we consider a person disabled under Social Security rules if he or she has a medically determinable physical or mental impairment (or combination of impairments):
- that prevents him or her from doing any substantial gainful activity (SGA), and
- has lasted or is expected to last for a continuous period of at least 12 months, or is expected to result in death.
NOTE: The definition of disability also applies to persons applying for child’s insurance benefits based on disability before age 22 and for disability benefits payable after December 1990 as a widow(er) or surviving divorced spouse.
Definition of disability for children under age 18
Under title XVI, we consider a child under age 18 disabled under Social Security rules if:
- the child has a medically determinable physical or mental impairment (or combination of impairments) that:
- causes marked and severe functional limitations;
- has lasted or is expected to last for a continuous period of at least 12 months, or is expected to result in death; and
- the child is not doing any SGA.
** The steps of adult sequential evaluation of disability
1. Step one considers work activity – Is the claimant engaging in substantial gainful activity (SGA)?
- If yes, the claimant is not disabled.
- If no, the sequential evaluation continues.
2. Step two considers whether the claimant has a severe impairment(s) – Does the claimant have a medically determinable impairment (MDI) (or combination of MDIs) that is both severe and meets the duration requirement?
- If no, the claimant is not disabled; and
- If yes, sequential evaluation continues.
3. Step three considers whether the claimant’s impairment(s) meets or medically equals a listing – Does the claimant have an impairment(s) that meets a listing, or is medically equal to a listing in appendix 1, and meets the duration requirement?
- If yes, the claimant is disabled; and
- If no, the sequential evaluation continues.
NOTE: Before the sequential evaluation continues, we determine the claimant’s residual functional capacity (RFC).
4. Step four considers whether the claimant’s impairment(s) prevents performance of Past Relevant Work (PRW) – When comparing the RFC with the physical and mental demands of the claimant’s PRW, we must consider two questions:
Does the claimant retain the capacity to perform any PRW as he or she actually performed it?
Does the claimant retain the capacity to perform any PRW as generally performed in the national economy?
- If the answer to either question is yes, the claimant is not disabled.
- If the answer to both questions is no, the sequential evaluation continues.
NOTE: Consider the Special Medical Vocational Profiles after evaluating step four and before evaluating step five. If one of the special medical-vocational profiles applies, the claimant is disabled and the sequential evaluation ends.
5. Step five considers whether a claimant can make the vocational adjustment needed to perform other work – Does the claimant have the ability to make an adjustment to any other work, considering the claimant’s RFC, age, education, and work experience?
- If yes, the claimant is not disabled.
- If no, the claimant is disabled.