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Charting the Future ofSocial Security’s Disability
Programs:
The Need forFundamental Change
Social Security Advisory Board
January 2001
Social Security Advisory BoardAn independent, bipartisan Board created by the Congress and appointed by the
President and the Congress to advise the President, the Congress, and the Commissioner ofSocial Security on matters related to the Social Security and Supplemental Security Income programs
TABLE OF CONTENTS
EXECUTIVE SUMMARY..............................................................................i
I. THE DISABILITY PROGRAMS NEED IN-DEPTH REVIEW......................................................1
II. MAJOR ISSUES NEED TO BE ADDRESSED.............................3
A. Are disability decisions consistent and fair?....................................3B. Is disability policy being developed coherently
and in accord with the intent of the Congress?..........................5C. Can today’s administrative structure support
future program needs?..............................................................6D. Is Social Security’s definition of disability
appropriately aligned with national disability policy?..............9
III. REFORM SHOULD HAVE CLEAR GOALS AND OBJECTIVES...............................................................11
IV. THE ELEMENTS OF REFORM ARE CHALLENGING............................................................12
A. Strengthen SSA’s capacity to manage............................................12B. Change the disability adjudication process...................................16C. Align policy and administrative capacity ................................26D. Examine ways to improve incentives for
early rehabilitation and employment ................................27
V. CONCLUSION: CONSTRUCTIVE CHANGE AND ADDITIONAL RESOURCES ARE REQUIRED ..................29
GLOSSARY....................................................................................................31
THE SOCIAL SECURITY ADVISORY BOARD.....................................33
How the Board Conducted Its Study
Over the last four years the Board has conducted an extensive study ofthe Disability Insurance and Supplemental Security Income disabilityprograms. We have met with thousands of Social Security Administrationand State agency employees in field offices, Disability DeterminationServices, hearing offices, and regional offices in all parts of the country. Wehave met many times with SSA officials responsible for operations, budget,policy, systems, hearings and appeals, and other core functions of the agency.The Board has consulted with union officials, disability advocates, andoutside researchers. We have also conducted public hearings on the disabilityprograms and service to the public.
The Board has issued three related reports: How SSA’s DisabilityPrograms Can Be Improved (August 1998), How the Social SecurityAdministration Can Improve Its Service to the Public (September 1999), andDisability Decision Making: Data and Materials (January 2001).
EXECUTIVE SUMMARYThe nation’s two primary disability programs – Social Security Disability Insurance (DI) and
Supplemental Security Income (SSI) disability – today provide vital income support for about10 million individuals. These programs have grown rapidly in recent years to the point where infiscal year 2001 they are expected to account for about $90 billion in Federal spending, or nearlyfive percent of the Federal budget. In 2001, about two-thirds of the Social SecurityAdministration’s $7.1 billion administrative budget, nearly $5 billion, is expected to be spent ondisability work. As the baby boomers reach the age of increased likelihood of disability thegrowth in these programs will accelerate.
This projected growth threatens to overwhelm a policy and administrative infrastructure thatis already inadequate to meet the needs of the public. Long-standing problems are growing moreacute and new ones are emerging. There are wide variations in decision making betweendifferent regions of the country and different levels of adjudication, raising questions aboutwhether claimants are being treated consistently and fairly. Major changes have been made inhow disability is being determined. Most of these changes have been made as the result of courtdecisions and have never been reviewed by the Congress. The disability administrative structure,established when the DI program was created nearly 50 years ago, is ill-equipped to handletoday’s massive and complex workload. Many also believe that Social Security’s requirementthat claimants prove they cannot work is inconsistent with the Americans with Disabilities Actand at odds with the desire of many disabled individuals who want to work but who still needsome financial or medical assistance.
The purpose of this report is to provide the new Administration and the new Congress with aframework for considering the fundamental changes that need to be made if the disabilityprograms are to meet the challenges they are facing. Some of these changes would requireCongressional action. Others would require at least the implicit concurrence of the Congressbecause they are likely to require additional administrative resources. We believe that, takentogether, these changes would accomplish fundamental reform.
The structural reforms that should be considered include: changing and strengthening SSA’sadministrative structure to improve the agency’s capacity to provide appropriate leadership inareas of both policy and procedure; reforming the disability adjudication structure, including thepresent Federal-State arrangement and the appeals process; and changing the provisions forjudicial review.
The issue of whether present policies provide sufficient assistance and incentive foremployment also needs careful review. Funding should be provided for comprehensive researchon ways to encourage rehabilitation and employment early in a period of disability.
Finally, disability policy and administrative capacity urgently need to be brought intoalignment. Over the last decade and a half SSA has issued numerous regulations and rulings thatrequire more time and expertise on the part of disability adjudicators than was the case in thepast. Over this same period, workloads have grown substantially and resources have been highlyconstrained. Today there is a large gap between policy and administrative feasibility that needs tobe bridged by introducing changes in policy, in institutional arrangements, or in funding – or mostprobably, in all of these complex facets of an interwoven process.
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FACTS ABOUT THE DISABILITY PROGRAMS
SOCIAL SECURITY DISABILITY INSURANCE (DI) is an insurance program thatprovides disability benefits based on previous employment covered by Social Security. It isfinanced out of Social Security payroll taxes (0.85 percent each for employees and employers).The cost of the DI program for fiscal year 2001 is estimated at about $60 billion (includingadministrative costs).
To be eligible for DI benefits a worker must:• have a medically determinable physical or mental impairment that has lasted or is
expected to last at least 12 months or result in death and that prevents him/her fromperforming any substantial gainful activity (requirements differ for those disabledbecause of blindness);
• be fully insured, i.e., have at least one credit for work in employment covered by SocialSecurity for each year after age 21 and prior to the year he or she becomes disabled; and
• meet a recency of work test, which requires that workers age 31 or older (other than thosedisabled by blindness) must have worked in covered employment at least 20 of the 40calendar quarters ending with the quarter in which the disability began, and that youngerworkers have proportionally less recent covered employment.
At the end of calendar year 2000, Social Security Disability Insurance paid:• benefits to 5.0 million disabled workers;• family benefits to over 1.6 million spouses and children of disabled workers; and• an average monthly benefit of $755 to disabled workers.
SUPPLEMENTAL SECURITY INCOME (SSI) is a means-tested income assistanceprogram for aged, blind, and disabled individuals (regardless of prior workforce participation)and is funded from general revenues of the Treasury. The SSI disability program is estimated tocost about $28 billion in fiscal year 2001 (including administrative costs).
To be eligible for Federal SSI disability benefits an individual:• must, if age 18 or older, meet the Social Security definition of disability, or, if under age
18, have an impairment that results in marked or severe functional limitations;• cannot have monthly countable income in excess of the current Federal benefit rate ($530
for individuals and $796 for a couple);• cannot own real or personal property (including cash) in excess of a specified amount
($2,000 for individuals and $3,000 for couples); and• must meet certain other requirements relating to citizenship, residence, and living
arrangements.
At the end of calendar year 2000, Supplemental Security Income paid:• benefits to about 4.4 million low income disabled adults and about 0.8 million disabled
children.
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I. THE DISABILITY PROGRAMSNEED IN-DEPTH REVIEW
The nation’s two primary disabilityprograms – Social Security DisabilityInsurance (DI) and Supplemental SecurityIncome (SSI) disability – are a vital butcomplex part of the nation’s social insuranceand welfare systems, requiring vigilantattention in order to keep their policy andadministrative structures sound and up to date.
Today, more than 135 million Americanworkers are insured for Disability Insuranceand rely upon this protection in case of seriousillness or accident. About 6.6 million peopleare now receiving Disability Insurancebenefits, and nearly 5.2 million disabled andneedy adults and children, many of whomwould otherwise be living in serious poverty,are receiving SSI disability benefits.
These programs have grown steadily overthe years to the point where in fiscal year 2001they are expected to account for about $90billion in Federal spending, or nearly fivepercent of the Federal budget. They require a
Chart 1. - DI and SSIDisability Payments, CY 1960-2009*
(1999 Dollars)
Bill
ions
SSI
As the baby boomers reach the age ofincreased likelihood of disability the growth inthese programs will accelerate. The SocialSecurity Administration’s actuaries projectthat between now and 2010 the number of DIbeneficiaries will increase by nearly 50percent, and the number of SSI disabilitybeneficiaries will increase by 15 percent.
This projected growth in the number ofdisability claimants threatens to overwhelm apolicy and administrative infrastructure that isalready inadequate to meet the needs of thepublic.
growing portion of the time and attention ofSocial Security Administration (SSA)employees at all levels. In fiscal year 2001,about two-thirds of the agency’s $7.1 billionadministrative budget, nearly $5 billion, isexpected to be spent on disability work. Interms of management time, the disabilityprograms appear to be even greater than thesenumbers suggest.
10
8
6
4
2
0
Mill
ions
Chart 2. - Number ofDisability Beneficiaries*
CY 1960 - 2009
DISSI
140
100120
80604020
0
estimatedhistorical
estimatedhistorical
1960
1970
1980
1990
2000
2009
TotalDI
1960
1970
1980
1990
2000
2009
1
This projected growth in the number of disabilityclaimants threatens to overwhelm a policy
and administrative infrastructure that is alreadyinadequate to meet the needs of the public.
* Excludes administrative costs
*Some individuals receive both SSI and DI benefits.
In recent decades, disability policy hascome to resemble a mosaic, pieced togetherin response to court decisions and otherexternal pressures, rather than the result of awell thought out concept of how theprograms should be operating. Compoundingthe problem, the disability administrativestructure, now nearly a half century old, hasbeen unable to keep pace with the increasingdemands that have been imposed upon it.Policy and administrative capacity aredramatically out of alignment in the sensethat new and binding rules of adjudicationfrequently cannot be implemented in areasonable manner, particularly in view of theresources that are currently available.
With the size and projected growth of thedisability programs, it is increasingly urgentto step back and reexamine how they areworking and whether changes in policies,resources, and administrative structure needto be made in order to meet future needs.
It has been more than two decades sinceeither the Congress or the Administration hasreviewed in a comprehensive manner thequestion of whether the disabilityadministrative structure should bestrengthened or changed. Numerousregulations and rulings affecting howdisability decisions are made have been
2
implemented without the review of policymakers. The question of whether thedefinition of disability should be changedhas not undergone close examination formore than 30 years.
The reasons for this lack of scrutiny arenot altogether clear, but reflect, at least inpart, the extraordinarily complex andpolitically sensitive nature of the disabilityprograms. Many policy makers andadvocates are concerned that change maynegatively impact some individuals orgroups in unintended ways. Political issuesrelating to the roles of the Federal and Stategovernments have tended to inhibit even theconsideration of enhanced Federalmanagement of the programs.
But there are problems in the programsthat need to be addressed. Although thereare many capable people working in thedisability system, their efforts will be of littleavail unless they have the tools they need toadminister the program. It is essential forthe new Congress and the newAdministration to conduct an in-depthreview of the disability programs in order todetermine the changes that are required tobetter serve both those who are disabled andthe public at large.
Although there are many capable people workingin the disability system, their efforts will be of
little avail unless they have the tools they need toadminister the program. It is essential for the newCongress and the new Administration to conduct
an in-depth review of the disability programsin order to determine the changes that arerequired to better serve both those who are
disabled and the public at large.
3
Consistency and fairness should befundamental goals of the disabilityprograms. One of the major strengths of theSocial Security retirement program is thatbenefits are paid on the basis of objectiverules that treat people consistently and fairly.A primary reason why the disabilityprograms do not share the same level ofpublic confidence as the retirement programis the perception that determinations ofeligibility for disability are not being madein a uniform and consistent manner.
The Board has assembled data that showstriking differences in outcomes over time,among State agencies, and between levels ofadjudication. Allowance and denial rates,both overall and for specific impairmentcategories, vary widely from State to Stateand region to region. For example, in fiscalyear 2000 the percentage of DI applicantswhose claims were allowed by a Stateagency ranged from a high of 65 percent inNew Hampshire to a low of 31 percent inTexas, with a national average of 45 percent.(Chart 3)
Claims denied by State agencies andappealed to the administrative law judge(ALJ) hearing level are more likely than notto be approved at the hearing level. Thepercent of cases reversed upon appeal to anALJ hearing has varied over the years.
The percentage of decisions at the hearinglevel that were favorable for both DI andSSI claimants stood at 58 percent in 1985,grew to nearly 72 percent in 1995, fell to63 percent in 1998, and grew again to66 percent in 2000. Hearing offices alsovary greatly from State to State in thepercentage of decisions that are decidedfavorably for claimants. In 2000, the rangewent from 35 percent in the District ofColumbia to 86 percent in Maine, with anational average of 66 percent. (Chart 4)
For further discussion and examples of differences indecision making, see the Advisory Board’s January 2001report, Disability Decision Making: Data and Materials.
A primary reason why the disability programs donot share the same level of public
confidence as the retirement program is theperception that determinations of
eligibility for disability are not being madein a uniform and consistent manner.
Chart 3. - State AgencyAllowance Rates for DI Claims
FY 1980-2000
1980 1985 1990 1995 2000
70
60
50
40
30
20
10
0Pe
rcen
t
II. MAJOR ISSUES NEED TO BE ADDRESSED
A. Are disability decisions consistent and fair?
HighState
NationalAverage
LowState
1
1
4
For many years both Members ofCongress and others who have studied thedisability programs have expressed concernabout variations such as these. Analysts ofthe programs have identified many factorswhich they believe contribute toinconsistencies in outcomes, such aseconomic and demographic differencesamong regions of the country, courtdecisions, the fact that the claimant has noopportunity to meet with the decision makeruntil the face-to-face hearing at the ALJlevel, and that the record remains openthroughout the appeals process.
But many who are knowledgeable aboutthe programs – including disability
...as long as variations in decision makingremain unexplained, the integrity and the
fairness of the disability programs are opento question. These programs are too
valuable and important to the Americanpublic for this issue not to be addressed.
examiners in the State agencies as well asadministrative law judges – have long believedthat there are also reasons relating to programpolicy, procedures, and structure that areresponsible for some if not many of theseinconsistencies. As an example, there is awidely held belief that the agency’s qualityassurance reviews, which are conducted byquality assurance units in each region of thecountry, are not being conducted in a uniformmanner.
Despite these long-standing concerns, theagency has no effective mechanism to providethe information needed to understand thedegree to which the programs’ own policiesand procedures – including their unevenimplementation – are causing inconsistentoutcomes in different regions of the countryand different parts of the disability system.
Given the lack of data, there is no way toassess the magnitude of the problem. But aslong as variations in decision making remainunexplained, the integrity and the fairness ofthe disability programs are open to question.These programs are too valuable and importantto the American public for this issue not to beaddressed.
A report completed by The Lewin Group, Inc. and PughEttinger McCarthy Associates, L.L.C. for the Social SecurityAdministration in January 2001, titled Evaluation of SSA’sDisability Quality Assurance (QA) Processes and Developmentof QA Options That Will Support the Long-Term Managementof the Disability Program, includes a discussion of program-related factors that may contribute to differences in decisionaloutcomes.
Chart 4. - Percentage of ALJDecisions Favorable to Claimants*
FY 1985-2000
HighState
NationalAverage
LowState
1985 1990 1995 2000
100908070605040302010
0
Perc
ent
2
2
*Excludes dismissals
5
Chart 5. - State Agency DI Awardsby Basis for Decision
FY 1975-2000
Vocationalconsiderations
1975
1980
1985
1990
1995
2000
Perc
ent
8070605040302010
0
Perc
ent
Chart 6. - State Agency DI Awards byMajor Cause of Disability
CY 1975-199935
30
25
20
15
10
5
01975 1985 1995 1999
Mental disordersNeoplasms (cancer)
The statutory definition of disability isbroad and was designed to evolve in the lightof subsequent administration andinterpretation. Although Congress has notchanged the law for more than 30 years, thedetermination of what constitutes disability haschanged in fundamental ways.
For example, there has been a gradual butpersistent trend away from decisions based onthe medical listings to decisions thatincreasingly involve assessment of function.Since 1983, the percentage of DI claimantsawarded benefits by State agencies on thebasis of meeting or equaling the medicallistings has declined from 82 percent to58 percent, while the percentage awarded onthe basis of vocational considerations has morethan doubled. (Chart 5)
cases their offices process involve issuesrelating to mental impairment.
There have been other significantchanges. Adjudicators must adhere to moredetailed and intricate rules in weighing theopinion of treating sources than was the casein earlier years of the programs. They mustmake a finding on the credibility of claimants’statements about the effect of pain and othersymptoms on their ability to function. Theeffect of these and other changes in disability
B. Is disability policy being developed coherentlyand in accord with the intent of the Congress?
A growing portion of claims involveallegations of mental impairment. Mentalimpairment has become the largest singlereason for State agency DI awards, growingfrom 11 percent in 1980 to 22 percent in 1999.(Chart 6) Although data are not available,State agency administrators and examinershave told the Board that half or more of the
Although Congress hasnot changed the law
for more than 30 years,the determination of
what constitutesdisability has changed in
fundamental ways.
Circulatory systemMusculoskeletalsystem
Meetslisting
Equalslisting
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policy is that disability decision making byboth State agency examiners andadministrative law judges has becomeconsiderably more subjective and complex.
These policy changes have occurredthrough changes in regulations and rulings.A number of the most significant changeshave grown out of court decisions, many ofwhich have not been appealed. None ofthem have been reviewed by the Congressand there is a question as to whether the
experiencing great stress, with every indicationthat the difficulties each is facing will continueto grow unless changes are made.
As the result of growth in the number ofdisability claimants and continued agencydownsizing, field office personnel are nolonger able to provide the kind of assistancemany applicants need to file a properlydocumented claim. They lack the time toexplain program rules and procedures so thatapplicants can understand whether they maymeet the strict requirements of the SocialSecurity disability definition and what items ofinformation they need to document their case.
When the Disability Insurance program wasenacted in 1956, the expectation was that
the program would be relatively small. Butover the last half century, the original Federal-
State administrative structure has had toaccommodate a dramatic growth in program
size and complexity that it has beenill-equipped to handle.
C. Can today’s administrative structure supportfuture program needs?
When the Disability Insurance programwas enacted in 1956, the expectation was thatthe program would be relatively small. Butover the last half century, the originalFederal-State administrative structure has hadto accommodate a dramatic growth inprogram size and complexity that it has beenill-equipped to handle. In addition to workingwithin a fragmented administrative structure,employees at all levels have been buffeted byperiodic surges in workloads and fundingshortfalls.
At the present time, all parts of theapplications and appeals structure are
agency itself has adequately analyzed themfrom the perspective of –
••••• whether the decisions that are beingmade reflect the intent of the Congress,
••••• whether they will improve consistencyand fairness in decision makingthroughout the system, and
••••• whether they are operationallysustainable for a program that mustprocess massive numbers of cases.
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The State agencies that make disabilitydeterminations on behalf of SSA face evenmore difficult challenges. At the same timethat workloads are growing, SSA’sregulations and rulings are requiring Stateagency examiners to make increasinglycomplex and subjective decisions. Thismeans that State agencies should have evermore expert and experienced staff. Yet theseagencies are bound by State-imposed rulesrelating to staff salaries and qualifications.Too frequently, either because of Statelimitations or because of inadequate Federalfunding, the State agencies lack the ability tohire and retain qualified staff and to providethe training they need.
Many hearing offices have heavy loads ofappeals and are struggling to keep up withtheir workloads. The popular wisdom is thatclaimants whose applications are denied by aState agency need only to pursue their claimsat a hearing with an administrative law judgeand they will likely be awarded benefits. Thedata tend to bear this out. About 80 percent ofDI claims and 70 percent of SSI adultdisability claims that are denied by the Stateagency at the reconsideration level areappealed to the hearing level. In 2000, morethan 75 percent of all hearing level decisionswere favorable in the case of DI claimants, andmore than half were favorable in the case ofSSI claimants.
Chart 7. - DI and SSI Claims Process:Steps and Average Processing Time*
FY 2000
SOCIAL SECURITYADMINISTRATION
SSA Field Offices** DI: 23.2 days SSI: 35.5 days
Office of Hearings andAppeals:
Administrative Law Judges297 days
Office of Hearings andAppeals:
Appeals Council505 days
DisabilityDetermination Services
Initial Decision ***DI: 81.5 daysSSI: 84.5 days
DisabilityDetermination ServicesReconsideration ****
DI: 62.8 days
FEDERAL COURTS18 months
2
34
5 6
* Processing times shown above are additive.** Field office processing time includes all components of the field office work, including taking the claim and processing it after the State agency makes a determination.*** SSA reports DDS initial processing time by programs; average total processing time (DI and SSI) is not available.**** SSA does not have data available for SSI reconsideration processing times.
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STATE AGENCIES
Claimant starts here
Initial Level1,988,425
Reconsiderations584,540
ALJ Dispositions433,584
Appeals Council122,780 **
Federal CourtDecisions***12,011
Number Percent Total 1,106,344 100.0 Initial Applications 759,191 68.6 Reconsiderations 90,805 8.2 ALJs 253,615 22.9 Appeals Council ** 1,999 0.2 Federal Court *** 734 0.1
Number Percent Total 1,106,344 100.0 Initial Applications 759,191 68.6 Reconsiderations 90,805 8.2 ALJs 253,615 22.9 Appeals Council ** 1,999 0.2 Federal Court *** 734 0.1
Allow 38%
Remand22%
Dismiss2%
Deny 74%
Remand48%
Dismiss6%
Deny 39%
Dismiss12%
Deny 29%
Deny 84%
Allow 16%
Allow59%
Allow2%
Allow6%
Deny 62%
Chart 8. - DI and SSI DisabilityDeterminations and Appeals*
FY 2000
8
* Data relate to workloads processed (but not necessarily received) in fiscal year2000, i.e., the cases processed at each adjudicative level may include cases receivedat 1 or more of the lower adjudicative levels prior to fiscal year 2000. Not alldenials are appealed to the next level of review.
** Includes ALJ decisions not appealed further by the claimant but reviewed by theAppeals Council on “own motion” authority.
*** Remands to ALJs by the Appeals Council and Courts result in allowances in about60 percent of the cases.
Total Allowances
Today, there is far less policy guidance forthe disability system by the Social SecurityAdministration than was the case in earlieryears.
Prior to 1972, a special office in Baltimoreprovided unified policy guidance to all Stateagency examiners by reviewing nearly allState agency decisions. When a Federalreviewer disagreed with the decision of anexaminer, there was an exchange of views, aprocedure that helped to further define thepolicy to be followed by all parts of theadjudicative system. Appeals to anadministrative law judge were relativelyinfrequent in the early years of the program,reaching 27,000 in 1969, compared to about490,000 in 2000.
There are currently about 15,000 disabilityadjudicators throughout the disability system.Their qualifications and the rules andprocedures they follow differ, sometimesdramatically. In some instances, a Stateagency adjudicator may be a high schoolgraduate with relatively limited experience. Inothers, the decision may be made by a highly-
educated and well-trained adjudicator withmany years of experience.
Adjudicators may receive vastly differenttraining and draw upon very different resources.For example, State agency adjudicators receivesignificantly more training on medical listingsthan do administrative law judges. As the resultof court decisions, ALJs in some parts of thecountry make their decisions only after seekingthe opinion of a vocational expert on whether anindividual can perform work in the nationaleconomy. These experts are not used at theState agency level. At the hearing level, nearlyall claimants now have an attorney or non-attorney representative. This development hasgreatly impacted the appeals process and, if itshould extend to the State agency level, wouldhave a major impact on the process at that levelas well.
As noted earlier, the disability programs areexpected to continue to grow substantially.Factors such as those described above raisequestions about how well the administrativestructure will be able to meet the challenge ofthis growing workload.
Today, there is far less policy guidance for thedisability system by the Social Security
Administration than was the case in earlier years.
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D. Is Social Security’s definition of disabilityappropriately aligned with national disability policy?
There are many who believe that theSocial Security Act definition of disability,which requires claimants to prove they cannotwork in order to qualify for benefits, isinconsistent with the Americans withDisabilities Act (ADA) and is at odds with thedesire of many disabled individuals who wantto work but who still need some financial ormedical assistance. Recent Ticket to Work
legislation is aimed at helping people who arealready on the disability rolls to return to workby providing increased services and newincentives, but does not fully address thesebasic inconsistencies.
As the General Accounting Office recentlytestified, fundamental weaknesses remain.These include an eligibility determination
Definitions of Disability
The Social Security Act and the Americans with Disabilities Act (ADA) take substantiallydifferent approaches regarding what is meant by “disability.” The Social Security Act has avery strict definition that is designed to identify people who are so disabled that they are unableto work. The ADA has a broader definition designed to prevent discrimination against disabledpeople who wish to work.
Social Security Definition: The Social Security Act considers people disabled only if theyhave an “inability to engage in any substantial gainful activity by reason of any medicallydeterminable physical or mental impairment which can be expected to result in death or whichhas lasted or can be expected to last for a continuous period of not less than 12 months.” Thisdisability has to be so severe as to prevent them from doing any “substantial gainful workwhich exists in the national economy,” whether a specific job is available or not.
The disability must result from a physical or psychological abnormality that is“demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”
ADA Definition: The ADA prohibits job discrimination against an individual because of adisability who could “with or without reasonable accommodation” perform the essentialfunctions of the job.
A disabled person in the ADA means a person with a physical or mental condition that“substantially limits” a life activity, that has a record of such a condition, or is “regarded ashaving” such a condition.
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process that concentrates on applicants’incapacities rather than their capacities, return-to-work services offered only after a lengthydetermination process, and an “all-or-nothing”benefits structure that characterizes individualsas incapable of work.
These same points were made at a publichearing held by the Board on strategies toencourage employment of the disabled.Witnesses stressed that programs and servicesare much more effective when they addresswhat people can do rather than what theycannot do, and that with the manyaccommodations that exist today it is possibleto fit many individuals with disabilities into asatisfying job. Because the nature of work haschanged dramatically in the last few decadespeople with disabilities have many moreemployment possibilities available to themthan existed in a manufacturing economy. TheBoard also heard testimony on the need torefer individuals for vocational rehabilitation
services immediately upon their first contactwith the agency.
In recent testimony the Consortium ofCitizens with Disabilities questioned whetherthe Social Security definition of disabilityadequately captures “the spectrum andcontinuum of disability today. Does it reflectthe interaction of vocational, environmental,medical and other factors that can affect theability of someone on SSI or SSDI to attain alevel of independence?”
The Ticket to Work legislation enacted lastyear authorizes SSA to conduct experimentsand demonstration projects related toencouraging rehabilitation and employment,including earlier referral of individuals forrehabilitation. This demonstration authorityprovides the agency with an opportunity tofind ways to bring greater coherence to thenation’s disability policies.
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III. REFORM SHOULD HAVE CLEARGOALS AND OBJECTIVES
In our August 1998 report on thedisability programs, How SSA’s DisabilityPrograms Can Be Improved, the Boardrecommended ways to strengthen thedisability programs within the presentstructure. These recommendationsemphasized the need of the agency toimprove its management of the programs byproviding joint training of all adjudicators;developing a single presentation of disabilitypolicy that is binding on all decision makers;providing strong and consistent leadership ofthe programs; strengthening the agency’sdisability program policy staff; revising thequality assurance system; and developing acomputer system capable of supporting allstages of the disability process.
These changes are necessary regardlessof whether more fundamental changes areundertaken, and, although it is only abeginning, we are pleased that SSA has takensome steps to respond to a number of therecommendations made in our report.
After two additional years of study of thedisability programs, however, we areconvinced that the issues facing the disabilityprograms cannot be resolved without makingfundamental changes. In our view, thesechanges must be evaluated within the
context of clear goals and objectives whichshould include –
••••• All individuals who are truly disabledand cannot work should receivedisability benefits.
••••• Those who can work but needassistance to do so should receive it.
••••• Vocational rehabilitation andemployment services should bereadily available, and claimants andbeneficiaries should be helped to takeadvantage of them.
••••• Claimants should be helped tounderstand the disability rules andthe determination process.
••••• The disability system should providefair and consistent treatment for all.
••••• The disability system should ensurehigh quality decisions by well-qualified and trained adjudicators.
••••• The disability system should provideexpeditious processing of claims.When cases are complex and requiremore time, claimants should beinformed so that they will understandwhy there is delay.
...we are convinced that the issues facing thedisability programs cannot be resolved without
making fundamental changes. In our view,these changes must be evaluated within the
context of clear goals and objectives....
IV. THE ELEMENTS OF REFORMARE CHALLENGING
In our discussions with employeesthroughout SSA’s massive disability structure,we have heard many expressions of concernabout the agency’s capacity to provide thestrong and coherent management that the sizeand complexity of the disability programsrequire. In our observation, SSA’s ability tomanage is undermined by three majorshortcomings:
••••• There is a lack of managementaccountability.
••••• The policy infrastructure is weak.••••• The agency lacks a quality management
system that can provide the informationneeded to make sound decisions.
Addressing these shortcomings should beone of the highest priorities of reform.
Provide accountability. – Under thecurrent administrative structure, nearly every
component of the agency has a role inadministering the disability programs. Thisdispersion of functions throughout manydifferent entities poses a particularly difficultproblem for the disability programs, whichlack the tightly defined policy andadministrative parameters that are typical ofthe retirement and survivors programs.
For example, the development of aredesigned disability computer system mayappropriately rest with the Office of Systems,but that entity lacks the program knowledgeneeded to design a system that takes intoaccount the relationships between hearingoffices and State disability agencies, orbetween State disability agencies and theirparent State agencies.
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To build a disability system that can meet the challenges of the future will require changes inpolicy, procedure, and structure. Below we propose a number of changes that we think policymakers in the Congress and in the Social Security Administration should consider. Some of themwould require Congressional action. Others would require at least the implicit concurrence of theCongress because they are likely to require additional administrative resources. We believe theyprovide a framework for discussion that could lead to consensus for change. Taken together, theywould accomplish fundamental reform.
A. Strengthen SSA’s capacity to manage
To build a disability system that can meet the challengesof the future will require changes in policy, procedure,
and structure....we propose a number of changes that wethink policy makers in the Congress and in the Social
Security Administration should consider.
For a description of the responsibilities of 14 SSA staffcomponents that are involved in the administration of thedisability programs, see the Advisory Board’s report, DisabilityDecision Making: Data and Materials, January 2001, p. 119.
3
3
There are a number of ways this could beachieved. The Commissioner may determinethat, given the importance of the disabilityprograms, it is the Commissioner who is themost appropriate person to assume directresponsibility for coordinating the manyaspects of their operation. If the magnitude ofthe Commissioner’s other responsibilities isdeemed too great to make this feasible, theCommissioner could assign this responsibilityto the Deputy Commissioner. An additionaloption would be to appoint another high levelindividual, who would report directly to theCommissioner and would have authority tomake decisions that cut across functional lines,to manage the programs. Still another optionwould be to restructure the agency so thatdisability-related functions could becoordinated more coherently than under theagency’s present functional organizationalarrangement.
Strengthen the policy infrastructure.– In recent years, SSA has taken several stepsdesigned to strengthen the policy base for thedisability programs. In 1994 it promised that itwould develop a single presentation of policyto guide all adjudicators, a so-called “onebook.” In 1996 it attempted to bring Stateagency and ALJ decision making closertogether by issuing nine new policy rulings.And more recently it has tried to increase itstechnical capacity by hiring some additionalstaff.
These steps have been well intended, butproblems persist.
For many years there have been too manyvoices articulating disability policy.Adjudicators in State agencies and in SSA’squality assurance system are bound byinstructions presented in SSA’s ProgramOperations Manual System (the POMS),
13
4
4 For a description of SSA’s initiatives to improvethe disability process, see the Advisory Board’s report,Disability Decision Making: Data and Materials,January 2001, p. 105.
The Office of Quality Assurance andPerformance Assessment, which isorganizationally separated from the Office ofDisability, operates the quality assurancesystem. In theory, this system simply measuresthe extent to which disability decisions followagency policy with respect to eligibility anddocumentation requirements. In practice, thequality process has a significant ability toshape disability policy, including who gets onthe disability rolls, through subtle messagesimparted by tighter or looser reviews, the kindsof decisions selected for review, or byincreased or decreased sampling rates.
The missions and interests of the manyoffices that are involved in disabilityadministration differ, and no one other than theCommissioner has the authority to bring themtogether. The result too often is dissonanceand stalemate rather than well thought out andtimely action.
We urge the new Commissioner to use theauthority provided in the 1994 independentagency legislation to organize the agency andappoint such personnel as the Commissionerconsiders appropriate in order to ensure greateraccountability and unified direction for thedisability programs.
Under the currentadministrative structure,nearly every component
of the agency has arole in administering
the disabilityprograms....The resulttoo often is dissonanceand stalemate ratherthan well thought out
and timely action.
14
which, according to SSA’s description,provides the “substance” of the law,regulations, and rulings issued by theCommissioner, but does not necessarily followtheir wording. The POMS is supplemented byother administrative issuances from SSA.Administrative law judges and the AppealsCouncil, on the other hand, are bound only bythe statute, along with regulations and rulingsthat have been published in the FederalRegister. They also have their own operatinginstructions in a Hearings, Appeals, andLitigation Law Manual (HALLEX).
We believe a single presentation of policyfor all adjudicators is critical to the objectiveof providing consistent and fair decisions forall claimants and we urge the agency toproceed with this effort as quickly as possible.
We believe a singlepresentation of policyfor all adjudicators is
critical to the objectiveof providing consistent
and fair decisions for allclaimants and we urgethe agency to proceed
with this effort asquickly as possible.
important differences in the perspectives andneeds of adjudicators in both State agenciesand hearing offices. It is also more likely to beinterpreted and implemented uniformlythroughout the disability determinationprocess.
The development of sound disabilitypolicy requires far greater medical andvocational expertise than the agency currentlyhas. Over the years SSA has lost many of itsskilled medical and vocational specialists andthey have not been replaced with sufficientrapidity. As a result, important medicallistings have not been kept up to date to reflectadvances in medical diagnosis and treatmentand vocational guidelines do not take intoaccount the changes that have occurred in theworkplace.
Of perhaps even greater concern is the factthat the Department of Labor’s Dictionary ofOccupational Titles (DOT) is no longer beingupdated. This document, which describes thetypes of jobs that are available in the nationaleconomy, has long served as a primary tool foradjudicators in determining whether a claimanthas the capacity to work. SSA currently has noreplacement for the DOT, leaving a criticalpolicy vacuum at a time when program rulesrequire more and more decisions to be madeon the basis of vocational factors.
To expedite this process we propose thatthe agency combine the knowledge andexperience of employees from both the Officeof Disability and the Office of Hearings andAppeals, bringing them together into a singlepolicy unit. If employees from both of theseoffices participate in writing the agency’spolicy, it is more likely to take into account the
Without a stronger policybase, the quality of
disability decision makingcannot be substantiallyimproved, regardless of
any procedural orstructural changes that
may be made.
Without a stronger policy base, the qualityof disability decision making cannot besubstantially improved, regardless of anyprocedural or structural changes that may bemade. This essential foundation must beprovided as quickly as possible.
Establish a new quality managementsystem. – Much of the information theagency relies upon at the present time to assessthe accuracy and consistency of decisionmaking is derived from its quality assurancesystem. As a recent outside evaluation ofSSA’s system has pointed out, however, SSA’scurrent system is of limited value in analyzingoverall performance and in providinginformation that can be used to improve thequality of decision making. Quality should be a central objective of the
disability programs. To make this an operatingreality within the agency, SSA urgently needsto develop and implement a new qualitymanagement system that will routinelyproduce the comprehensive programinformation that policy makers need to guidedisability policy and procedures and to ensureaccuracy and consistency in decision making.Such a system is essential if the agency is to beable to detect problems promptly and correctthem appropriately. It is also needed toevaluate agency initiatives such as processunification, prototype, and hearings processimprovement.
The quality management system shouldincorporate all parts of the disabilitydetermination process. It should ensure highquality and consistency in all regions of thecountry and at all levels of decision making.The information it provides should be madeavailable to persons who are concerned withthe disability programs both within and outsideof the agency.
As the baby boomers rapidly enter theirdisability-prone years, it becomes ever moreurgent for both policy makers andadministrators to have a clear understanding ofwhether the programs are functioning asintended.
...SSA urgently needs todevelop and implement
a new qualitymanagement systemthat will routinely
produce thecomprehensive programinformation that policymakers need to guidedisability policy andprocedures and to
ensure accuracy andconsistency in
decision making.
Lewin, op. cit.5
15
As the baby boomersrapidly enter their
disability-prone years, itbecomes ever more urgentfor both policy makers and
administrators to have aclear understanding of
whether the programs arefunctioning as intended.
5
16
Strengthen the Federal-Statearrangement
Although the law gives SSA the basicresponsibility for administering the disabilityprograms, it requires that disability decisionsbe made by State agencies rather than by SSAitself. The Federal government pays 100percent of the cost.
Whether the disability decision makingauthority should belong to the States or to theagency has been a subject of debate since thearrangement was established nearly fivedecades ago. Proponents of federalizing theprocess have long argued that the Federal-Stateadministrative structure is inherently difficultto manage and that federalization of theresponsibilities of the State agencies isnecessary to ensure high quality, uniformadministration throughout the country. Theyhave questioned the capacity of the States tocarry out Federal policies in an efficient anduniform way.
The issue of federalizing the disabilitydetermination process needs to be examined inthe light of anticipated future needs of thedisability programs. In the short term webelieve it is necessary to strengthen the presentFederal-State arrangement. Underpinning thisview is the fact that, as evidenced by thefindings in the Board’s previous reports, SSAcurrently lacks the administrative and staffingcapacity to take on the significant additionalresponsibility that federalization would entail.Nonetheless, the present arrangement isinadequate to meet the needs of the programs
B. Change the disability adjudication processtoday, and problems need to be addressed asquickly as possible.
There are wide variances among States inareas that can have a major impact on thequality of work that is performed, such asstaff salaries, hiring requirements, training,and quality assurance procedures. Salarylevels in the highest paying State are two anda half times greater than in the lowest paying
There are wide variances among States in areas thatcan have a major impact on the quality of work that isperformed, such as staff salaries, hiring requirements,
training, and quality assurance procedures.
8070605040302010
0
Dol
lars
in th
ousa
nds
Tennessee
Louisiana
Mississip
pi
Average
Michigan
New York
New Jer
sey
Rhode Islan
d
Wyoming
S. Dakota
Connecticu
t
Chart 9. - State Agency AverageExaminer Compensation, Low andHigh States and National Average*
FY 1999
*Average compensation includes full time pay, full timeovertime pay, part time pay, part time overtime pay, and
total employee fringe benefits.
77
6
6 Chart 7, p. 7 shows the various components involved inthe disability adjudication process.
For a discussion of SSA’s urgent need to improve itscapacity to manage the disability programs, see the Board’searlier reports, How SSA’s Disability Programs Can BeImproved (August 1998) and How the Social SecurityAdministration Can Improve Its Service to the Public(September 1999).
State. In addition, State agencies aresometimes subject to Statewide hiring freezesthat can severely limit their ability to processclaims in a timely way.
A change in the law in 1980 gave SSA theauthority to issue regulations to ensure highquality performance, but the agency exercisedthis authority in a limited way.
The agency’s regulations should be revisedto require States to follow specific Federalguidelines relating to educational requirementsand salaries for staff, training, carrying outquality assurance procedures, and other areasthat have a direct impact on the quality of theiremployees and their ability to make decisionsthat are both of high quality and timely.Regulations should also ensure that Statehiring freezes will not apply to State agencydisability operations.
We believe the agency has authority underexisting law to issue new regulations in theseareas. If SSA believes it should have new andmore explicit authority, however, it should askthe Congress to provide it.
Some will argue that attempting to exertgreater Federal authority over the Stateagencies will not be effective. However, thedisability programs are national programs andSSA has an obligation to try to ensure equaltreatment for all claimants wherever theyreside. If any States should decide to withdrawfrom the program, then the agency should beprepared to take over that obligation.
At the same time, SSA also has anobligation to the State agencies to listen totheir concerns and to ensure that they areadequately funded to adjudicate the claims ofState residents on a timely basis and inaccordance with the law.
In our observation, the Federal-Staterelationship is now stronger and morecooperative than it was in earlier years. SSAand the States should work together to enhanceit even more.
In addition, both the Congress and SSAshould review the agency’s present plan toeliminate the reconsideration step in theappeals process, a step that the States arecurrently performing.
...the disability programsare national programs andSSA has an obligation to
try to ensure equaltreatment for all claimants
wherever they reside.
17
In our observation, theFederal-State relationship
is now stronger andmore cooperative thanit was in earlier years.
SSA and the Statesshould work together toenhance it even more.
As part of its disability redesign plan in1994, SSA proposed to eliminatereconsideration on the grounds thatstreamlining the appeals process wouldpromote faster decisions and ensure thatclaimants do not inappropriately withdrawfrom the process on the perception that it is toodifficult or time-consuming to pursue theirappeal rights. SSA is currently “testing” theelimination of reconsideration in 10 prototypeStates. The agency intends to eliminate itnationwide as one of a number of changes itplans to make in the disability determinationprocess.
From the standpoint of claimants,reconsideration was an important step in theearly years of the disability system. In 1959,for example, the reversal rate at thereconsideration level approached 50 percent.In the 1970s, about one in three claimants whorequested a reconsideration had their claimsapproved at that level. Today, thereconsideration reversal rate stands at15 percent, and many believe that it hasbecome merely an unnecessary delaying stepin the adjudicatory process.
It is still unclear what impact theelimination of reconsideration and otherchanges being tested in the 10 prototype Stateswill have on claimants and on the ALJ process.If the evaluation does not clearly show that theprototype changes will produce the hoped-forresults, including significantly fewer appealsto the ALJ hearing level, SSA should considerenhancing the current reconsideration step byoffering claimants a face-to-face hearing andensuring that it involves a de novo review thatis conducted only by highly trained andexperienced individuals.
Reform the hearing process
The formal right of Social Securityclaimants to a hearing was adopted by the
agency in 1940. Initially there were only 12“referees” around the country to hear appeals.But with the enactment of the disabilityprograms the number of appeals began toincrease rapidly. In 2000, SSA’s hearingoffices processed nearly 540,000 appeals,about 85 percent of which were disabilitycases. There are now about 1,000administrative law judges and 6,800 otheremployees to handle the appeals workload.
In addition to becoming a vastly moremassive operation than was originallyenvisaged, the hearing has changed in anotherfundamental respect. Administrative lawjudges have traditionally been required tobalance three roles. They are obligated toprotect the interests of both the claimant andthe government, and to serve as objectiveadjudicator. But as attorney and other thirdparty representation on behalf of claimants hasincreasingly become the norm, ALJs arefinding it difficult to maintain the balance.Nationally, about 80 percent of DI claimantsare now represented by an attorney, a situationthat many believe has made the process tooone-sided.
Finally, in the last 25 years the highvolume of work generated by disabilityappeals has prompted SSA to make periodicefforts to increase ALJ productivity. Thisemphasis on productivity, which many ALJsbelieve has been insufficiently balanced by anemphasis on quality, has generatedconsiderable tension between the agency andthe judges. Many ALJs have viewed SSA’sefforts to exert management control overadministrative matters as an infringement ontheir decisional independence. Therelationship has deteriorated to the point wherethe judges recently voted to form a union, withthe view that this was necessary to have theirviews taken into account.
As the result of our study of thesedevelopments, we make the followingrecommendations.
18
1975 1980 1985 1990 1995 2000
1000
Chart 10. - Number ofAdministrative Law Judges
FY 1975-2000
1200
400
600
800
200
0
Improve the SSA-ALJ relationship.–First, SSA’s relationship with the ALJs needsto be changed from one of confrontation tocooperation. Many ALJs throughout thesystem strongly resent what they perceive asthe agency’s unwillingness to consult themabout changes that are made and to considertheir views. Many believe that the Office ofHearings and Appeals is buried too low in theagency and should be elevated so that the headof the office would report directly to theagency leadership. Others believe that thereshould be independent status for anadministrative law judge organization.
At the same time, ALJ sensitivity tomeasures that might challenge their decisionalindependence has led some to reject even thenotion that the agency has an obligation to tryto ensure that hearing decisions are made aspromptly and consistently as possible. Thereis an understandable tension between theseobjectives, but in our view they are notirreconcilable. We urge SSA and ALJs to worktogether to develop reasonable procedures thatwill preserve the decisional independence ofjudges while also assuring promptness andconsistency in decision making. We alsorecommend consideration of three substantivechanges in the hearing and appeal process.
Have the agency represented at thehearing. – First, the fact that most claimantsare now represented by an attorney reinforcesthe proposition, which has been made severaltimes in the past, that the agency should berepresented as well.
Unlike a traditional court setting, only oneside is now represented at Social Security’sALJ hearings. We think that having anindividual present at the hearing to defend theagency’s position would help to clarify theissues and introduce greater consistency andaccountability into the adjudicative system. Itwould also help to carry out an effective cross-examination of the claimant. Many ALJs havetold us that they are sometimes reluctant to
...SSA’s relationship withthe ALJs needs to bechanged from one of
confrontation tocooperation....We urgeSSA and ALJs to work
together to developreasonable proceduresthat will preserve the
decisional independenceof judges while alsoassuring promptnessand consistency indecision making.
19
As we have met with ALJs throughout thecountry we have been impressed by thethoughtfulness and dedication that many ofthem have demonstrated. Most are dedicatedprofessionals who have much to contribute tothe agency. Their experience and insightsshould be valued and taken advantage of muchmore frequently and consistently than has beenthe case in the past.
...the fact that mostclaimants are now
represented by an attorneyreinforces the proposition,
which has been madeseveral times in the past,that the agency should be
represented as well.
conduct the kind of cross-examination theybelieve should be made because, uponappeal, the record may make them appear tohave been biased against the claimant.Consideration should also be given toallowing the individual who represents theagency at the hearing to file an appeal of theALJ decision.
If the agency is represented at the hearingthere are issues that would have to beaddressed, for example, who would have theresponsibility for performing that function.Whoever had the responsibility would needsubstantially increased resources, at least inthe short run. However, if governmentrepresentation resulted in better-reasoned andjustified decisions at the front end of theprocess, as many believe would be the case,then over time the number of appeals shouldgo down, with savings to both the system andto claimants. The problem of representationfor claimants who do not have it would alsohave to be addressed, but this is an issue thatwith a good faith effort should be able to beworked out.
20
Close the record after the ALJhearing. – Second, Congress and SSA shouldreview again the issue of whether the recordshould be fully closed after the ALJ decision.Following legislation in 1980, SSA issued aregulation that bars the submission of newevidence that pertains to a period after the ALJhearing decision, but allows new evidence tobe submitted if it relates to the period on orbefore the date of the decision.
...if governmentrepresentation resultedin better-reasoned and
justified decisions at thefront end of the process,as many believe would bethe case, then over timethe number of appealsshould go down, with
savings to both the systemand to claimants.
Leaving the record open means that thecase can change at each level of appeal,requiring a de novo decision based on adifferent record. SSA has no data on thepercentage of cases that are remanded back toALJs that involve new evidence, but manyALJs have told us that in their observation it ismore than half and that it adds substantially totheir workload. They argue that leaving therecord open provides an incentive forclaimants’ representatives to withholdevidence in order to strengthen an appeal at alater stage. They also believe that it givesrepresentatives an incentive to prolong the casein order to increase their fees. Other ALJs donot believe that representatives hold backevidence for these reasons. If evidence is heldback, they maintain, it is because the rules forpresenting evidence are lax and representativesdo not take the time or spend the money toobtain additional evidence unless required todo so as a result of an unfavorable hearingdecision.
...Congress and SSA shouldreview again the issue of
whether the record shouldbe fully closed after the
ALJ decision.
21
Closing the record would heighten theneed to develop the record as fully as possiblebefore the decision is made in order to ensurethat claimants are not unfairly penalized.Closing the record would not preclude filing anew application.
Consider new rules for claimantrepresentatives. – Third, we recommend thatconsideration be given to establishing a systemof certification for claimant representatives.Federal rules would regulate the representationof claimants. Consideration should also begiven to establishing uniform procedures forclaimant representatives to follow, such asrequiring them (absent good cause) to submitall evidence a specified number of days priorto the hearing and to certify that the case isfully developed and ready for a hearing. Theobjective would be to provide for a moreorderly and expeditious hearing procedure thancurrently exists.
In addition, both the Congress and theagency should review the issue of the paymentof attorney fees. Many attorneys complain thatthe current statutory limit of $4,000 for anyone case is unfair to them. But ALJs and otherhearing office employees believe that thepresent law requirement that SSA generallywithhold and pay to the attorney a fee equal to25 percent of the back payment due to aclaimant is often unfair to claimants whoserepresentatives fail to carry out theirresponsibilities appropriately.
Rationalize the role of the AppealsCouncil
When the Social Security Boardestablished the right to a hearing in 1940, itestablished an Appeals Council to handle the
QualityAssurance andOther Special
Reviews 5,360
Chart 11. - Appeals CouncilWorkload
Fiscal Year 2000
NewCourt Cases
14,363
Court Remands
9,813
The Appeals Council performs two basicfunctions. First, it performs a “casecorrection” function by providing a final stepof appeal within the agency for individualswhose claims have been denied by an ALJ. Inaddition, it has authority to review ALJdecisions on its own motion. In 2000, theCouncil conducted preeffectuation reviews ofabout 4,000 allowances. (The percentage ofcases chosen for review has varied over theyears, largely reflecting the volatility of theCouncil’s workload.) Second, it reviews casesthat are appealed to the courts to determinewhether the agency should defend them orwhether it should request the court to remandthem to the agency for the purpose ofaffirming, reversing, or remanding the ALJ’sdecision.
...we recommend that consideration be given toestablishing a system of certification for
claimant representatives.
appeals. As noted above, appeals were heardby a handful of “referees” located around thecountry. They were reviewed by a small staffin the central office. The Appeals Councilevolved into what is now called the Office ofHearings and Appeals. The office now knownas the Appeals Council is a component withinOHA.
Requestsfor Review
106,358
22
In the view of the Board, any proposal forchange in the Appeals Council role shouldinclude an evaluation of how it will impact thequality of ALJ decisions.
Consider changes in the currentprovisions for judicial review
Concerns about national uniformity inpolicy and procedure have led many toconsider whether there is a need for changes inthe current provisions for judicial review bythe Federal courts. The courts frequently issuedecisions that vary from district to district andcircuit to circuit, resulting in the application ofdifferent disability policy in different parts ofthe country. The number of disability cases
As part of its 1994 disability redesign plan,SSA proposed to eliminate Appeals Councilreview of ALJ denials, thereby allowingappeals to go directly to the courts. TheCouncil would continue to review cases thatwere appealed to the courts and decidewhether the agency should defend the ALJ’sdecision as the final decision of theCommissioner. It would continue to seekremand of cases for the purpose of affirming,reversing, or remanding the ALJ’s decision andwould conduct own motion reviews of bothALJ allowances and denials for purposes ofquality assurance.
Several years ago the agency conducted aninitial test of the impact of eliminating AppealsCouncil review of ALJ denials. The testshowed that the number of cases that would beappealed to the courts would likely increasesubstantially. Apparently the agency has notdecided to abandon this proposal, however,because it is currently undertaking a secondround of testing.
We urge both the Congress and the agencyto study carefully the function that the AppealsCouncil is currently performing or that it couldpotentially perform. The Council has beensubjected to much criticism over the years.Many believe that the ALJ decision should bethe final decision of the agency and that toooften decisions by the Appeals Council simplyreflect the substitution of the opinion of oneadjudicator for another.
We believe that the case correctionfunction is important, but how it is conductedneeds to be rethought.
Concerns about national uniformity in policy andprocedure have led many to consider whether there is
a need for changes in the current provisions forjudicial review by the Federal courts.
The Carter Administration proposed toreplace the Appeals Council with a ReviewBoard. Under this proposal, the evidentiaryrecord was to be closed after the ALJ hearing,giving the Board an appellate review rolerather than allowing it to redetermine facts.
We urge both theCongress and the agency tostudy carefully the functionthat the Appeals Council is
currently performingor that it could
potentially perform.
23
Following is a brief example of how court decisions have affected disability policyand procedures in a substantial way.
Since the early years of the Disability Insurance program a number of judicialcircuits have in varying ways addressed the question of how much weight should begiven to the evidence of the claimant’s treating physician. Several ruled that moreweight should be given than SSA provided in its regulations. Although there wasdisagreement among the circuits on this issue, it was not appealed to the Supreme Court.
An important development in this area in recent years was when the 2nd Circuitthrough the Schisler case held in 1986 that its case law should be followed within theCircuit rather than the policy of the agency. The case law held that a treating physician’sopinion is entitled to controlling weight “unless contradicted by substantial evidence.”The district court judge in the Schisler case issued a ruling spelling out this case law andordered SSA to follow it within the Circuit. In 1991, SSA issued new regulatorylanguage describing the circumstances in which treating source opinion should be givencontrolling weight that largely followed the Schisler rule.
*For a detailed listing of major court cases affecting the disability programs, see the Advisory Board’s January 2001 report, Disability Decision Making: Data and Materials, p. 115.
Impact of Court Decisions*
that have been appealed to the Federal courtshas risen substantially over the last decade,from about 5,600 in fiscal year 1990 to about14,700 in 2000. It is projected to climbconsiderably higher in future years, furtherstressing SSA’s Office of the General Counsel,which has the responsibility to handle thesecases, but has insufficient staff to do so evenwith the current workload.
Over the years a number of bills have beenintroduced in the Congress that would createeither a Social Security Court or a SocialSecurity Court of Appeals.
Social Security Court. – Under billsintroduced by Congressmen William Archer,J. J. Pickle, and James A. Burke, all of whomserved as Chairman of theWays and Means
Social Security Subcommittee, a new SocialSecurity Court would be created, which forSocial Security purposes would replace theFederal district courts. There would be a ChiefJudge who would establish uniform court rulesand procedures. Decisions of the Court wouldbe appealed to a single circuit court, either anexisting one or a new separate circuit court.
The principal argument for the SocialSecurity Court is that it would provide greateruniformity in case law throughout the countryand would allow for the more orderlypresentation of issues for resolution by theSocial Security Administration and theCongress. Those who oppose the court haveargued that retaining the generalist judge of thepresent system is necessary to ensure a trulyindependent judicial decision.
24
have played a major role in defining thestandards for disability. Whether existingarrangements for judicial review represent thebest public policy is a legitimate question thatdeserves careful study by the Congress and theSocial Security Administration.
Give field offices increasedresponsibility for taking disabilityclaims
The work the field offices are currentlyresponsible for performing does not includemaking disability decisions. However, theirwork can have a major impact on the quality ofthe decisions that are made at later stages inthe process.
In the early years of the DI program, fieldoffices played the major role in taking anddeveloping claims. Because of the manyoffices throughout the country, employees inthese offices were able to work on a face-to-face basis with claimants. In many offices,
9
The agency is currently testing a new way of handlingdisability claims that gives a single individual (who may beeither an SSA or State agency employee) the responsibility bothfor fully developing the claim and for determining whether aclaimant is disabled. That individual, who is called a DisabilityClaims Manager, is responsible for all contacts with theclaimant.
9
The statutorily-established Commission onStructural Alternatives for the Federal Courtsof Appeals, chaired by Justice Byron White,stated in its final report in December 1998 thatCongress should seriously consider proposalsthat would place judicial review of SocialSecurity cases in an Article I court. TheCommission further observed that if Congressshould at some point take this action, it mightwant to consider placing exclusive appellatejurisdiction over the court in the FederalCircuit. It stated that it would seemappropriate for the standard of review forSocial Security cases to be the same as forveterans’ appeals, namely, a limitation ofappellate review to questions of statutory andconstitutional interpretation.
Social Security Court of Appeals. –Another former Chairman of the SocialSecurity Subcommittee, Andy Jacobs,introduced a bill to establish a U.S. Court ofAppeals for the Social Security Circuit. Thepurpose of the Court was to provide appeal toa single court for all Social Security casesdecided in Federal district courts, therebyeliminating the differing case law that comesout of the 11 Circuit Courts of Appeal.Opponents of the bill argued that it wouldeliminate the “percolation” of ideas throughthe various circuits before review of an issuemight be sought in the Supreme Court.
Few would contest that throughout thehistory of the disability programs the courts
Few would contest that throughout the history of thedisability programs the courts have played a major
role in defining the standards for disability. Whetherexisting arrangements for judicial review representthe best public policy is a legitimate question that
deserves careful study by the Congress and theSocial Security Administration.
Commission on Structural Alternatives for the FederalCourts of Appeals, Final Report, submitted to the President andthe Congress pursuant to P.L. 105-119, December 18, 1998,p. 74.
8
8
claims representatives specialized in takingdisability claims, developing expertise ininterviewing, describing impairments, anddeveloping evidence.
Over time, the pressure of high workloadsand limited resources has pushed the agency toreduce the field office role. In the early 1970s,the responsibility for developing evidence wasgiven to the State agencies and the narrativeinterview providing observations of theclaimant’s disability was generally replaced bya checklist approach. More recently, thepractice in field offices is to encourageclaimants to fill out their own forms and mailthem in. Administrators of several Stateagencies have told us that now more than halfof the claims they receive are teleclaims. Inthese cases, claimants may never be observedunless their claims are denied by a Stateagency and appealed to an administrative lawjudge. As SSA relies more and more on takingclaims by telephone and (in the future) byInternet, the number of claims filed withoutany face-to-face contact is expected to grow.
At the same time, there appears to berecognition within SSA and the State agenciesthat better documentation of the claim at intakeleads to speedier and better disabilitydecisions. Thus, the agency is currentlymaking special efforts to encourage fieldoffices in the States where it is implementingdisability prototype to improve the quality ofthe disability application. Whether substantial
The responsibility of the field office in takingdisability claims is critical and should be carefullydelineated so that the field office function can be
made more effective....Today, many claimants havelittle understanding of what they should do to fully
document their claim. They also have littleunderstanding of what is required to meet thestrict Social Security definition of disability.
improvement will in fact be achieved andsustained is open to question, as pressures onemployees to speed up case processingcontinue and employees have been given noincentives to do otherwise.
The responsibility of the field office intaking disability claims is critical and shouldbe carefully delineated so that the field officefunction can be made more effective. Webelieve that more, rather than less, face-to-facecontact with claimants would improve thedisability process. Today, many claimantshave little understanding of what they shoulddo to fully document their claim. They alsohave little understanding of what is required tomeet the strict Social Security definition ofdisability. There is no way to know whatimpact these factors have on the number andquality of claims that are filed, but anecdotallythey appear to be significant. We questionwhether SSA’s policy of increasing reliance onself-help and teleclaims is consistent with theobjectives of good service to the public,decisional quality, and program integrity.
The agency should develop performancemeasures to hold field offices accountable forthe quality of the disability claims intake workthey perform. Even more important, the SocialSecurity Administration should have aworkforce-based budget that providessufficient resources to field offices so that theyare able to carry out the functions that arerequired.
25
26
Nearly every part of the Social SecurityAdministration has been affected by thedownsizing and restraint on government hiringthat has occurred over the last two decades.But for various reasons, the disabilityprograms in particular have tended to suffer.Important decisions have been made affectingthe disability determination process withoutthe careful attention that their importance haswarranted.
As noted earlier, over the last decade and ahalf SSA has issued numerous regulations andrulings that require more time and expertise onthe part of all disability adjudicators than wasthe case in the past. Over this same period,however, workloads have grown substantiallyand resources have been constrained. Theresult is that disability policy andadministrative capacity are now seriously outof alignment and threaten to become more soas the agency moves toward nationalimplementation of several new initiatives.
Of particular importance are the series ofnine rulings issued by SSA in 1996. They arecommonly referred to as “process unification”rulings, because they were aimed at bringingState agency and ALJ decisions closertogether. Despite the good intentions of theagency, many State agency administratorsclaim that some of the rulings are so complexand difficult that State agency employeescannot adhere to them without spendingsubstantially increased time on a largepercentage of the cases they are adjudicating.In addition, these new rules for adjudicating
C. Align policy and administrative capacitycases require analytical and writing skills thatmany employees do not have.
Because of resource demands,implementation of the rulings has beenproceeding unevenly. For purposes of qualityassurance measurement, SSA is enforcingthem only in the 10 prototype States. As theresult of court challenges, however, threeadditional States are also being required toimplement them, and a number of other States,concerned about being challenged in court,have undertaken to implement them as fully aspossible on their own initiative. SSA’s datashow that in most States where prototype isbeing implemented backlogs are climbingdramatically, despite SSA’s efforts to relievethe State agencies by transferring part of theirworkloads to other States or to SSA itself.
As the number of applications grows,backlogs are growing in other States as well.In many State agencies heavy workloads arecausing employee stress and staff attrition is aserious problem. For example, in 2000,10 States had disability examiner attritionrates of 21 percent or higher. This is a seriousimpediment to public service, given the factthat most administrators believe that it takes atleast 2 years to fully train a disabilityexaminer.
The process unification rulings establishstandards for developing cases that some ALJsbelieve will prove over time to be difficult forthem to meet as well, potentially increasingthe number of cases remanded from the courtsand causing ALJ workloads to grow.
...disability policy and administrative capacityare now seriously out of alignment and threaten to
become more so as the agency moves toward national implementation of several new initiatives.
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The agency’s process unification rulingsand the regulations on which they are basedneed to be reexamined from the standpoint ofboth sound policy and administrativefeasibility. Most State agency administratorsagree that these rulings cannot be implementedgiven the resources that are presently
Missouri
New Ham
pshireAlas
ka
N. Caro
lina
21 22 2422
Chart 12. - State AgencyExaminer Annual Attrition Rates,
Average and High Ten StatesFY 2000
available. The rulings may create a resourceproblem for hearing offices as well.
Both the new Administration and the newCongress will share the responsibility ofensuring that disability policy andadministrative capabilities are properlyaligned. The basic point that needs to beacknowledged is that today there is a big gapbetween policy and administrative feasibilitythat needs to be bridged by introducingchanges in policy, in institutionalarrangements, or funding – or most probably,in all of these complex facets of an interwovenprocess.
Finally, as the Board has recommendedpreviously, the agency should develop acomprehensive work force plan and base itsappropriations requests on this plan, asdirected by the 1994 independent agencylegislation. We hope that both theAdministration and members of Congress willapprove the Board’s recommendation toexclude SSA’s administrative budget forSocial Security from the statutory cap thatimposes a limit on the amount of discretionarygovernment spending.
Kansas
Tennessee
Indiana
Georgia
Delaware
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29282624
Average
S. Caro
lina
13
21
Perc
ent
40353025201510
50
The basic point that needs to be acknowledged isthat today there is a big gap between policy and
administrative feasibility that needs to be bridgedby introducing changes in policy, in institutional
arrangements, or funding – or most probably, in allof these complex facets of an interwoven process.
D. Examine ways to improve incentives for earlyrehabilitation and employment
The Social Security definition of disabilitywas written at a time when most of the workbeing performed in the national economyrequired physical labor. There was littleexpectation that severely disabled individuals
would be able to perform any kind ofsubstantial work.
Over the years the labor market haschanged dramatically, and as passage of the
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Most experts believe thatthe most effective
intervention is to helpdisabled individuals
return to work as quicklyas possible. More
comprehensive researchon ways to improve
incentives forrehabilitation andemployment early
in a period ofdisability is needed.
Included as part of this comprehensiveresearch effort should be a study of whetherproviding some type of short-term disabilityassistance, combined with rehabilitation andemployment services, would improveassistance for those who have disabilitieswhile also relieving pressure on thepermanent disability programs. The studiesthat are conducted should include cost-benefitanalyses. Where needed, specific legislativeauthority and funding for these studies shouldbe provided.
possible. More comprehensive research onways to improve incentives for rehabilitationand employment early in a period of disabilityis needed. This may include new or differentarrangements for cash or medical benefits orfor rehabilitation and employment services.The experience of other countries and of bothprivate and public employers in the UnitedStates should be taken into account.
Americans with Disabilities Act in 1990clearly showed, the attitude of individualswho have disabilities has also changed.Employment for the disabled has become amajor objective of disability advocacy groupsand individuals. The public at large alsoappears to support this objective. But there isgrowing concern that the present definition ofdisability is inconsistent with the objectivesof the ADA.
The issue of whether the presentstructure of assistance to the disabledprovides sufficient help and incentive foremployment requires thoughtful review. Thefact that disability claimants currently mustestablish that they are unable to perform anysubstantial gainful activity in order to qualifyfor cash and medical benefits makes itunlikely that they will be motivated to signup for vocational rehabilitation services, atleast until they are awarded disabilitybenefits, a process that can take up to a yearor even more. The 1999 Ticket to Worklegislation should encourage somebeneficiaries to enter or return to work, but itis aimed at those who have already beendetermined to be disabled and are likely tohave been out of the work force for asubstantial period of time.
Most experts believe that the mosteffective intervention is to help disabledindividuals return to work as quickly as
The issue of whether thepresent structure of
assistance to the disabledprovides sufficient help
and incentive foremployment requires
thoughtful review.
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V. CONCLUSION: CONSTRUCTIVE CHANGEAND ADDITIONAL RESOURCES ARE REQUIRED
Social Security’s disability rolls have grown steadily, and the agency’s actuaries projectcontinued rapid growth as baby boomers reach the age of increased likelihood of disability. Atthe same time, disability policy has been growing more complex, while resources have beenconstrained.
All parts of the disability policy and administrative structure are under increasing stress. Ifthe Social Security Administration is to be able to provide an appropriate level of service to thosewho are disabled and to the public, fundamental changes are needed.
Today, the many thousands of SSA and State agency employees who are responsible foradministering the disability programs lack the tools they need to carry out their work. Thedisability administrative and policy infrastructure is weak, and resources are inadequate to thetask.
These deficiencies manifest themselves in unfortunate ways. The application and appealsprocess is too slow, and there are inconsistencies in decision making among different regions ofthe country and different parts of the disability system. Disability policy and process are difficultfor claimants to understand and difficult for adjudicators to implement and to explain. Disabilityrules and procedures differ in significant ways from one level of adjudication to another.
The problems with the administrative infrastructure begin at the top, where SSA’s currentorganizational structure diffuses responsibility over nearly every component of the agency. Theycontinue throughout the disability system, where a fragmented and uncoordinated administrativearrangement makes consistency and fairness in decision making difficult to achieve.
Problems in the area of policy are equally critical. For many years disability policy hastended to be guided by court decisions and other pressures rather than by a well thought outconcept of how the programs should be operating. Policy is articulated by too many voices, withno single source of policy to which decision makers can turn for guidance and direction. Morefundamentally, there is concern that disability policy is inconsistent with the objective of manydisabled individuals to participate in the economic mainstream through employment.
In this report we have described changes that we think would make the disability programsmore responsive to the needs of claimants and would provide greater accountability andtransparency for the public. We have also emphasized the need to provide the resources that arerequired to provide the public with the high quality of service that it deserves.
We urge the new Administration and the new Congress to undertake a fundamental review ofthe disability programs as soon as possible. This review will require the involvement of manyindividuals and organizations whose views will be diverse and often conflicting. But discussionand debate are needed to clarify the issues and to inform policy makers and the public. Resolvingdifferences and reaching consensus will be difficult, but we strongly believe that major changesin the disability programs are required if they are to serve the needs of the disabled and the publicat large.
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GLOSSARY
Administrative law judge (ALJ): Administrative law judges in SSA’s Office of Hearings andAppeals conduct hearings and make decisions on cases that are appealed by individuals whoseclaims have been denied by State agencies.
Appeals Council: The organization within SSA’s Office of Hearings and Appeals that makes thefinal decision in the administrative review process. When an individual disagrees with thedecision or dismissal of the ALJ, he or she may, within 60 days of receiving the hearing decision,request that the Appeals Council review the decision. The Appeals Council may deny or dismissthe request for review, or it may grant the request and either issue a decision or remand (return)the case to an ALJ. The Appeals Council may also review any ALJ action on its own motionwithin 60 days after the ALJ’s action.
Equals listing: A step in the sequential evaluation process. Regulations issued by SSA include aListing of Impairments which describes, for each major body system, impairments that areconsidered severe enough to prevent a person from doing any substantial gainful activity. Adetermination that an impairment is equal in severity to the criteria in the listings is sufficient toestablish that an individual who is not working is disabled within the meaning of the law. (Seesequential evaluation process.)
Hearing: The level following reconsideration in the administrative review process. The hearingis a de novo procedure at which the claimant and/or the claimant’s representative may appear inperson, submit new evidence, examine the evidence used in making the determination underreview, give testimony, and present and question witnesses. The hearing is on the record but isinformal and non-adversarial.
Hearing office: One of the 138 locations of SSA’s Office of Hearings and Appeals at whichhearings are held.
Hearings Process Improvement initiative: A plan which SSA is implementing in its hearingoffices with the goal of reducing processing time and increasing productivity in the hearingsprocess through process improvements, group-based accountability, and automation.
Medical listings: A common term for the Listing of Impairments issued by SSA as part of theregulations on determining disability. The listings describe, for each major body system,impairments that are considered severe enough to prevent a person from doing any substantialgainful activity. An impairment that meets or equals the criteria in the listings is sufficient toestablish that an individual who is not working is disabled within the meaning of the law.
Meets listing: A step in the sequential evaluation process. Regulations issued by SSA include aListing of Impairments which describes, for each major body system, impairments that areconsidered severe enough to prevent a person from doing any substantial gainful activity. Animpairment that meets the criteria in the listings is sufficient to establish that an individual who isnot working is disabled within the meaning of the law. (See sequential evaluation process.)
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Process unification: An SSA initiative with the objective of fostering similar results on similarcases at all stages of the administrative review process by the consistent applications of laws,regulations and rulings. Process unification activities include training, development of a singlepresentation of policy and enhancing documentation and explanations at the DDS level.
Prototype: The implementation of elements of a redesigned disability process in 10 States(known as “prototype States”) in preparation for national implementation. This prototype beganin October, 1999. The elements of the prototype are: elimination of reconsideration; anexpanded role for disability examiners to make decisions without approval of a medicalconsultant; the opportunity for a telephone conference with an adjudicator for claimants whoseclaims would receive an unfavorable decision; and enhanced rationales for decisions.
Reconsideration: An independent reexamination by State agencies of all evidence on recordrelated to a case. It is based on the evidence submitted for the initial determination plus anyfurther evidence and information that the claimant or the claimant’s representative may submit inconnection with the reconsideration. A reconsideration determination is made by a differentdisability examiner and physician/psychologist from the ones who made the originaldetermination.
Sequential evaluation process: The five-step process used in determining whether an individualmeets the definition of disability in the law. A determination at any step that an individual isdisabled or not disabled ends the process. The steps are:1) Substantial gainful activity — If the claimant is, in fact, continuing to work and that work isfound to be substantial gainful activity the process calls for a finding that he or she is notdisabled.2) Not severe — If it is determined that the claimant’s medical impairments are not severe, i.e.,do not significantly limit the ability to perform basic work activities, he or she is not disabled.3) Listing of Impairments — If the claimant meets the criteria for an impairment listed in theregulations, or has an impairment or combination of impairments that is medically equivalent, heor she is to be found disabled.4) Relevant past work — If a claimant’s impairments do not prevent performance of relevantwork he or she has done in the past, he or she is not disabled.5) Other work — At this step, if a claimant, considering age, education, and work experience,cannot do other work which exists in the national economy, he or she is found to be disabled.
State agency: A common term for Disability Determination Services, the State agency whichmakes the initial and reconsideration determinations of whether a claimant is disabled or abeneficiary continues to be disabled within the meaning of the law.
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Establishment of the Board
In 1994, when the Congress passed legislation establishing the Social SecurityAdministration as an independent agency, it also created a 7-member bipartisan Advisory Boardto advise the President, the Congress, and the Commissioner of Social Security on mattersrelating to the Social Security and Supplemental Security Income (SSI) programs. Theconference report on this legislation passed both Houses of Congress without opposition.President Clinton signed the Social Security Independence and Program Improvements Act of1994 into law on August 15, 1994 (P.L. 103-296).
Advisory Board members are appointed to 6-year terms, made up as follows: 3 appointed bythe President (no more than 2 from the same political party); and 2 each (no more than one fromthe same political party) by the Speaker of the House (in consultation with the Chairman andRanking Minority Member of the Committee on Ways and Means) and by the President protempore of the Senate (in consultation with the Chairman and Ranking Minority member of theCommittee on Finance). Presidential appointees are subject to Senate confirmation. Boardmembers serve staggered terms.
The Chairman of the Board is appointed by the President for a 4-year term, coincident withthe term of the President, or until the designation of a successor.
Members of the Board
Stanford G . Ross, ChairmanStanford Ross is a partner in the law firm of Arnold & Porter, Washington, D.C. He has dealt
extensively with public policy issues while serving in the Treasury Department, on the WhiteHouse domestic policy staff, as Commissioner of Social Security, and as Public Trustee of theSocial Security and Medicare Trust Funds. He is a Founding Member and a former Director andPresident of the National Academy of Social Insurance. He has provided technical assistance onSocial Security and tax issues under the auspices of the International Monetary Fund, WorldBank, and U.S. Treasury Department to various foreign countries. He has taught at the lawschools of Georgetown University, Harvard University, New York University, and the Universityof Virginia, and has been a Visiting Fellow at the Hoover Institution, Stanford University. He isthe author of many papers on Social Security and Federal taxation subjects. Term of office:October 1997 to September 2002.
Jo Anne BarnhartJo Anne Barnhart is a political consultant and public policy consultant to State and local
governments on welfare and social services program design, policy, implementation, evaluation,and legislation. From 1990 to 1993 she served as Assistant Secretary for Children and Families,Department of Health and Human Services, overseeing more than 65 programs, including Aid toFamilies with Dependent Children, the Job Opportunities and Basic Skills Training program,
THE SOCIAL SECURITY ADVISORY BOARD
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Child Support Enforcement, and various child care programs. Previously, she was Minority StaffDirector for the U.S. Senate Committee on Governmental Affairs, and legislative assistant fordomestic policy issues for Senator William V. Roth. Ms. Barnhart served as Political Director forthe National Republican Senatorial Committee. First term of office: March 1997 to September1998; current term of office: October 1998 to September 2004.
Martha KeysMartha Keys served as a U.S. Representative in the 94th and 95th Congresses. She was a
member of the House Ways and Means Committee and its Subcommittees on Health and PublicAssistance and Unemployment Compensation. Ms. Keys also served on the Select Committee onWelfare Reform. She served in the executive branch as Special Advisor to the Secretary ofHealth, Education, and Welfare and as Assistant Secretary of Education. She was a member ofthe 1983 National Commission (Greenspan) on Social Security Reform. Martha Keys iscurrently consulting on public policy issues. She has held executive positions in the non-profitsector, lectured widely on public policy in universities, and served on the National Council onAging and other Boards. Ms. Keys is the author of Planning for Retirement: Everywoman’sLegal Guide. First term of office: November 1994 to September 1999; current term of office:October 1999 to September 2005.
David PodoffDavid Podoff is visiting Associate Professor at the Department of Economics and Finance at
the Baruch College of the City University of New York. Recently, he was Minority Staff Directorand Chief Economist for the Senate Committee on Finance. Previously, he also served as theCommittee’s Minority Chief Health and Social Security Counselor and Chief Economist. Inthese positions on the Committee he was involved in major legislative debates with respect to thelong-term solvency of Social Security, health care reform, the constitutional amendment tobalance the budget, the debt ceiling, plans to balance the budget, and the accuracy of inflationmeasures and other government statistics. Prior to serving with the Finance Committee he was aSenior Economist with the Joint Economic Committee and directed various research units in theSocial Security Administration’s Office of Research and Statistics. He has taught economics atthe University of Massachusetts and the University of California in Santa Barbara. He receivedhis Ph.D. in economics from the Massachusetts Institute of Technology and a B.B.A. from theCity University of New York. Term of office: October 2000 to September 2006.
Sylvester J. SchieberSylvester Schieber is Director of the Research and Information Center at Watson Wyatt
Worldwide, where he specializes in analysis of public and private retirement policy issues and thedevelopment of special surveys and data files. From 1981 to 1983, Mr. Schieber was the Directorof Research at the Employee Benefit Research Institute. Earlier, he worked for the SocialSecurity Administration as an economic analyst and as Deputy Director at the Office of PolicyAnalysis. Mr. Schieber is the author of numerous journal articles, policy analysis papers, andseveral books including: Retirement Income Opportunities in An Aging America: Coverage andBenefit Entitlement; Social Security: Perspectives on Preserving the System; and The Real Deal:The History and Future of Social Security. He served on the 1994-1996 Advisory Council onSocial Security. He received his Ph.D. from the University of Notre Dame. Term of office:January 1998 to September 2003.
Gerald M. Shea*Gerald M. Shea is currently assistant to the president for Government Affairs at the AFL-
CIO. He previously held several positions within the AFL-CIO, serving as the director of thepolicy office with responsibility for health care and pensions, and also in various executive staffpositions. Before joining the AFL-CIO, Mr. Shea spent 21 years with the Service EmployeesInternational Union as an organizer and local union official in Massachusetts and later on thenational union’s staff. He was a member of the 1994-1996 Advisory Council on Social Security.Mr. Shea serves as a public representative on the Joint Commission on the Accreditation ofHealth Care Organizations, is a founding Board member of the Foundation for Accountability,Chair of the RxHealth Value Project, and is on the Board of the Forum for Health Care Qualityand Measurement. He is a graduate of Boston College. First term of office: January 1996 toSeptember 1997; current term of office: October 2000 to September 2004.
* Gerald Shea, who rejoined the Advisory Board on October 24, 2000 and therefore did notparticipate in the study or the drafting that preceded the issuance of this report, has decided not tosign it.
Mark A. WeinbergerMark A. Weinberger is currently the Director of the U.S. National Tax Practice for Ernst &
Young LLP. Mr. Weinberger has previously served as Chief of Staff and Counsel to thePresident’s 1994 Bipartisan Commission on Entitlement and Tax Reform (the Kerrey-DanforthCommission). He also is a former Commissioner of the National Commission on RetirementPolicy. Mr. Weinberger served as Chief Tax and Budget Counsel to Senator John Danforth, andalso as a tax advisor to the National Commission on Economic Growth and Tax Reform (theKemp Commission), which studied fundamental tax reform. Mr. Weinberger has written andlectured extensively on tax, budget, political and retirement security issues. He graduated fromEmory University; holds a Masters degree in Business Administration and a law degree fromCase Western Reserve University; and has an L.L.M. from Georgetown University Law Center.Term of office: October 2000 to September 2006.
Members of the Staff
Margaret S. Malone, Staff Director
Michael BrennanBeverly RollinsGeorge SchuetteWayne SulfridgeJean Von AnckenDavid Warner
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