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Mr. CARDWELL. Could we answer that question for the record? [The information follows:]

MANPOWER, COST, AND LEADTIME ESTIMATES RELATED TO THE IMPLEMENTATION
OF SECS. (1) THROUGH (6) OF H.R. 8018

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C. Leadtime for implementation.-Enactment of these sections of the bill would require from 6 to 12 mos leadtime.

Source: Office of Management and Administration, Social Security Administration, November 5l 1975.

Mr. JONES. And the other is in your pending backlog. Do you count the cases you have remanded back to the State agencies?

Mr. TRACHTENBERG. Yes; they are counted.

Mr. JONES. What would that be?

Mr. CARDWELL. Very small right now, because we are only in the second month on that procedure.

Mr. BURKE. Can you people provide us with a suggested draft which would carry out your proposal?

Mr. CARDWELL. Yes, sir.

Mr. BURKE. For legislation?

Mr. CARDWELL. Yes, sir.

[The information follows:]

Hon. JAMES A. BURKE,

Chairman, Subcommittee on Social Security,

Committee on Ways and Means,

House of Representatives,

Washington, D.C.

U.S. CIVIL SERVICE COMMISSION,
Washington, D.C., November 4, 1975.

DEAR MR. CHAIRMAN: This has further reference to the hearings on the backlog of cases in the Social Security Administration at the conclusion of which on October 20, 1975, you asked that the Subcommittee be furnished with draft legislation to effectuate the agreement between the Social Security Administration and the Civil Service Commission concerning Section 3 of H.R. 8911.

Among other things, Section 3 of H.R. 8911, seeks to align the rights of judicial review of claimants under Titles II and XVI of the Social Security Act; it changes the status of personnel appointed under Title XVI; it provides for the appointment of an additional class of Hearing Examiners on a temporary basis through December 31, 1978; and it waives the application to these employees of the restrictions against accelerated promotions in the Whitten Amendment.

As indicated in the Commission's bill report of October 20, 1975, on H.R. 8911, the Commission objects to the personnel provisions of Section 3 which change the nature of the appointment of Supplemental Security Income Hearing Examiners (3(b)), which provide for the appointment of additional Hearing Examiners on a temporary basis and which waive the restrictions contained in the Whitten Amendment against accelerated promotions (3(c)).

In order to achieve the purpose of the agreement between the Social Security Administration and the Commission, viz., administrative flexibility in utilizing over 200 trained Title XVI Hearing Examiners to begin the immediate adjudication of a large number of backlogged cases, it is recommended that Section 3 of H.R. 8911 be deleted and that Section 1631(d) (2) of the Act be amended to

authorize the Secretary, until December 31, 1978, to use Hearing Examiners appointed under Title XVI to adjudicate "concurrent" cases. Draft legislation necessary for this purpose is annexed hereto. It is the further opinion of the Commission that the classification of these positions should, on the basis of the level of the work performed, be determined administratively under the provisions of applicable law.

Sincerely yours,

Enclosure.

ROBERT E. HAMPTON, Chairman.

SUPPLEMENTAL SECURITY INCOME HEARING EXAMINERS AND JUDICIAL RIGHTS

SEC. 3. (a) Section 1631(c)(3) of the Social Security Act is amended to read as follows:

"(3) The final determination of the Secretary after a hearing under paragraph (1) shall be subject to judicial review as provided in section 205 (g) to the same extent as the Secretary's final determination under section 205."

(b) Section 1631 (d) of such Act is amended by adding at the end of paragraph (2) thereof the following sentence: The Secretary is authorized until December 31, 1978, to utilize hearing examiners appointed under this section to conduct hearings under subsection (c) which include matters in disagreement involving disability within the meaning of Title II of the Social Security Act. (c) The amendments made by subsection (a) and subsection (b) shall take effect on the date of enactment of this Act.

PROPOSAL SUBMITTED BY THE ADMINISTRATION

AMENDMENT TO H.R. 8911 TO ALLOW TITLE XVI HEARING EXAMINERS TO HEAR CONCURRENT TITLE II ISSUES

On page 2, strike all that follows after line 2, down to and including line 17 on page 4, and insert in lieu thereof the following:

"SUPPLEMENTAL SECURITY INCOME HEARING EXAMINERS

CONCURRENT OASDI CASES

AUTHORIZED ΤΟ HEAR

"SEC. 3. Section 1631(d) (2) of the Social Security Act is amended by adding after the period at the end, "To the extent that the Secretary finds it will promote the objectives of title II, in the case of any claimant under this title who is also claiming benefits under title II, the Secretary may provide for a hearing examiner appointed under this paragraph to conduct a hearing under title II with respect to any matter arising in the course of a hearing held prior to January 1, 1979, under this title that may be subject to a hearing under title II with respect to that claimant."

Mr. BURKE. What answer would you give on the House floor, if there were about 100 Members worked up about this problem, and they ask about this backlog, which is now down to 106,000 cases? What answer would you give on the House floor to those Members who will make this inquiry, what will the backlog be 12 months from now, what will it be 18 months from now?

Mr. CARDWELL. A year from now?

Mr. BURKE. Yes.

Mr. TRACHTENBERG. A year from now, it will be in the area of about 75,000.

Mr. BURKE. A year from now?

Mr. STEIGER. If you do only what you recommended.

Mr. CARDWELL. And all of the other things within our administrative budget.

Mr. BURKE. Any further questions?

Mr. CARDWELL. I think it is a difficult question to answer, as difficult for you as it is for us to answer. It is hard to answer how such an

agency with such large resources cannot solve a problem like this through sheer determination, but we would be glad to give you our best statement for your use on the floor with regard to where we are, where we have been, what it was like a year ago, and what it was like 2 years ago. I think you will find it will be better a year from now. The only other choice we have would be a blanketing-in movement, and that would be a very difficult precedent to turn to.

I am not sure that serves the interest of due process for society or the claimants as a whole.

Mr. BURKE. All right.

That completes the hearing.

Thank you very much for your appearance.

[The following was submitted for the record:]

STATEMENT OF THE HON. MAX BAUCUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MONTANA

The history of enactment and gradual expansion of Social Security and SSI benefits is especially important to Americans presently affected by our current recession. These programs are all or most of what many Americans live on each month.

However, these programs do no good for people who are denied benefits-either because the Social Security Administration has failed to get their checks out or because the appeals process on adverse claims is bogged down. I think it is essential as this Committee looks into the problems of the Social Security Administration that each of you on the Committee remains continually aware of how these administrative problems translate into individual agony on the part of those who are denied their benefits.

Social Security Administration spokesmen blame the tremendous backlog in disability appeals primarily on two factors: (a) the rapid growth in caseload caused by the black lung benefits and the SSI programs, and (b) a general increased public awareness of Social Security benefits. The Administrative Law Judges Association lays the blame on a third factor-bureaucratic inefficiency within the Social Security Administration.

While I cannot presume to understand all of the problems within the Social Security Administration, some facts are clear:

First, as the Ways and Means Committee staff pointed out in its July 1974 report, the current determination appeals process, with its many complex levels of state and federal procedure is both time-consuming and shows a high reversal rate.

Secondly, there is a considerable amount of dissension and turmoil within the Social Security Administration. The fight going on between the administrative law judges and the administration of the agency in itself suggests that the agency is not functioning as well as it should be.

Thirdly, the most optimistic projections show the appeals delay problem getting worse, not better.

Eight years ago, the average processing time for hearing decisions was 93 days. By the end of last year, this had increased to 213 days. The most recent figure I've been able to get from the Social Security Administration is for midAugust of this year. It shows the average processing time for hearing decisions to have jumped to 223 days.

As of August 16, I understand there were approximately 1,230 disability cases pending for hearing in the Denver regional office, which serves my district in Montana as well as five other states in the area.

Further, the present backlog in the administrative process is being passed on to the judiciary as more and more cases are being appealed in court. At the end of last year, 4,409 denied social security claimants had cases pending in the nation's courts. By September 13, 1975, this number had more than doubled to 9,095.

Commissioner Cardwell has told the Labor-HEW Subcommittee of Appropriations, "I don't want to paint too rosy a picture about (the Social Security Administration's) ability to get the hearings problem behind us in a short time. We (at

the SSA) hope to be out of the woods in the black lung program by the end of fiscal year 1976 and in the other programs about a year later, but there is no guarantee."

Frankly, even if achieved, Mr. Cardwell's target is too long for those who, in the interim, are denied benefits.

As Congress looks into these problems, one must not forget that Congress and the General Accounting Office have previously urged the Social Security Administration to improve its procedures, but the Administration has felt free to ignore these suggestions.

The Committee is aware of the 1959 GAO recommendation, ignored by the Social Security Administration, that the Administration study the present "Federal-State" apparatus for its efficiency and report back to the Congress.

Further, the Administration in 1972 changed its policy of 100% review of state allowances to a small sample approach-a step which is only questionably allowable within the legislative directive for the Secretary of Health, Education and Welfare to "review and revise determination of State agencies" for uniformity and program savings. At the same time, as you'll note from the chart below, the Congress has gone along with SSA's requests for increased personnel to handle these problems.

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1 Fiscal year 1975 budget (with supplemental) and fiscal year 1976 budget includes term positions for employees who will be on board for more than 1 yr but are not expected to become permanent additions to the Federal work force. 2 Pending in Congress.

With this by way of introduction, I would like to identify three areas where I think improvements in the existing claims process can be made:

I. REDEFINITION OF DISABILITY

First, I think it important, in the long run, that Congress reconsider the definition of "disability":

Partial Disability

Under existing law, a person is considered legally disabled only when he or she is totally unable to produce work in any kind of employment. This fosters a great degree of subjectivity in judging whether a claimant is eligible for benefits. It is also irrational in that it creates two "all or nothing" situations.

First, it assumes that a person is either totally disabled or that he is not disabled at all. Workman's compensation law and Veterans' Administration disability have recognized that this need not be true. I suggest that in the long run, Congress might be wise to allow partial disability determinations for SSA programs.

Occupational Disability

The present definition assumes that a person is not legally disabled if he is not disabled to the extent that he cannot work in all possible occupations. This, again, is irrational. A person who has worked and trained all of his life in one occupation, and is disabled so as to not be able to continue in that occupation, should be classified as legally "disabled."

The whole idea of vocational rehabilitation rests on the assumption that disabled people can be retrained into productive employment. Instead of the current definition of "disability," I recommend that Congress adopt a new one that would judge people disabled if they no longer can work in their own or a related vocational field.

Let me cite a hypothetical example of a person who has applied for disability benefits. This example, by the way, is taken from a composite of several "case" inquiries I have had in my office.

The claimant suffers from recurring and severe back pains. He also has chronic breathing problems. Both of these problems stem from industrial jobs he has held. Now he is able to and does work two days a week as a cook in a cafeteria. If he works any more than this, he becomes exceedingly tired to the point of occasionally requiring hospitalization.

Is this person totally disabled? Can it be truthfully said that he is unable to work in any occupation? If these kinds of claimants were granted occupational disabilities or even partial disabilities, I believe there would be a dramatic reduction in appeals.

II. PROCEDURAL PROBLEMS

The second problem with disability determination stems from the complex procedures used to determine eligibility benefits.

In discussing these procedures, I hesitate to start with the battle being waged over the workability of the Administrative Procedure Act when it relates to Social Security appeals. Frankly, I consider the administrative law judge controversy to be a side issue, important only to the extent that a clear Congressional decision of A.P.A. applicability in Social Security decision making is instrumental in getting rid of the current administrative mess.

Briefly, I consider the A.P.A. to be important in safeguarding the rights of all Social Security claimants-and I'd hate to see the Congress allow the merits of expediency to overrule the equally important merits of due process. Rather than getting rid of A.P.A. procedures and independent judges from disability determinations and allowing less independent hearing examiners from within the Social Security Administration to expand their present jurisdiction into the disability area, I would require SSI and all other appellate determinations to be made by independent judges under the A.P.A.

But too much of the present controversy has been wound up in prolonged discussions of the applicability of A.P.A. procedures. I think the Committee would be wrong to let the A.P.A. "tree" obscure the view of the disability "forest."

Commissioner Cardwell and others have pointed out a long list of other important procedural problems within the disability program. I think the most important of these are as follows:

(1) "Buck-passing" between appellate lawyers: The current multi-leveled appellate procedures essentially shifts the responsibility to make determinations from one official to another. Computerized initial determinations, paper reconsiderations, and the field/regional/national office arrangement are three factors which dehumanizes and shifts responsibility with the system. This causes a high number of appeals and a high number of reversals. I am convinced that by thoroughly investigating each individual claim-before the hearings level, and with clear accountability-the backlog problem will diminish appreciably. (2) No reasons for denials: Claimants are allowed neither a clear statement of the reasons for claims denials nor are they given an immediate opportunity to discuss a denial. When claimants receive denials of their claims (which are little more than a computer-produced postcard), they are faced with two choices-forget about their claim or ask for reconsideration. If they ask for reconsideration, they do so as a Social Security number as it were, pleading their cause with a computer.

Two corrective steps should be taken: The original denials should explain why claims are denied. Then, if claimants request reconsideration, they should be entitled a face-to-face meeting with a claims investigator.

Criticisms of Some Recommeneded Changes

I am at the same time leary of several procedural changes which have been suggested for speeding up the system.

I do not think it necessary to exclude the states from their present role in the determination process as some have suggested. Shifting any determination from existing state apparatus to the federal government may have some benefits but I believe the problems associated with such a change would outweight any advantages.

I appreciate the Social Security Administration's experimentation with the concept of "informal remand." However, I think it unwise to decrease hearing

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