The huge Social Security scandal

I have written before on the troubled situation with Social Security appeals. Richard G. Kopf, The trouble with Social Security disability appeals, Hercules and the umpire (May 10, 2013). As an introduction to this post, I urge the reader to take another look at that earlier post.

Now, the Washington Post has done the research and has produced a terrific in-depth article detailing that the Social Security Appeal process has a backlog of 990,399 cases. David A. Fahrenthold, The biggest backlog in the federal government, Washington Post (October 18, 2014). The situation is outrageous. It is a scandal of monumental proportions. Something must be done, and now, to relieve the many dedicated Administrative Law Judges, and other similarly dedicated SSA employees, who confront this mountain of work every day under impossible conditions. Claimants who are not entitled to benefits receive them because the ALJs don’t have time to do it right. Claimants who are entitled to benefits wait in the wings despite the fact that many of them are the most vulnerable among us.

To fix the problem will take a lot of money and the will of Congress to get it right. Until then, the Social Security appeal process will continue to operate, if that’s what you call it, like a Bangladeshi bureaucracy instead of an American legal system worthy of respect. The President and Congress should be embarrassed. Said to say, that’s not news.



The trouble with Social Security disability appeals

This is a photo of "petroleum-free" lip balm with a SPF rating of 15. The SSA apparently handed out this handy health care item as a promotion.  The container urges the user to apply the balm while also applying online for Social Security benefits. Obamacare for the lips? Very weird.

This is a photo of “petroleum-free” lip balm with a SPF rating of 15. The SSA apparently handed out this handy health care item as a promotion. The container urges the user to apply the balm while also applying online for Social Security benefits. Obamacare for the lips? Very weird.

Photo credit: Aric Riley’s photostream per a Creative Commons license.

If you apply for social security disability benefits and your application is denied, review can be sought in a federal district court.  These are significant cases.  “If a claimant wins his or her appeal, the average cost of lifetime benefits is approximately $300,000. Should a claimant fail to prevail, the family may be facing financial ruin.”  Association of Administrative Law Judges, Meeting the Challenges Ahead.

As with bankruptcy law, social security law is complex and arcane.  Unlike my very favorable view of certain specialist tribunals like bankruptcy appellate panels (BAPs), I am a strong believer in review of social security disability denials by federal district judges.

These appeals are both hard and frustrating.  I know because every once in a while I will do one myself from scratch (without help from a law clerk).  When I do, I am confronted with a huge record replete with pages and pages and pages of medical records.  Additionally, and more frequently than I would expect, there is sometimes a mismatch between the opinion denying relief and the record.  And all of this brings me to a delicate but critical point.

The social security appeals we deal with require review of a decision “authored” by an Administrative Law Judge (ALJ) who is employed by the Social Security Administration (SSA).  I know several of these judges, and I have a very high regard for their integrity, competence and work ethic.  But, frankly, there are serious problems with a fair number of the opinions “authored” by ALJs.

The SSA confronts a huge docket of disability claims.  In FY 2011, the SSA received around 3.3 million disability claims and there was a large backlog of cases.  Meeting the Challenges Ahead.   In turn, the ALJs are expected to turn out decisions at a dizzying rate.

For example, between September 29, 2012 and March 29, 2013, which included 122 working days, the number of dispositions per day per ALJ ranged between a high of 3.17 per day to a low of 1.50 per day.  Hearing Office Dispositions Per ALJ Per Day Rate Ranking Report FY 2013 (For Reporting Purposes: 09/29/2012 through 03/29/2013) (segregated by hearing office).  In Omaha, where many of our cases originate, the rate per day per ALJ was 2.44.  Id.  While the SSA is to be complimented for being transparent, these numbers are chilling to me.

To make matters tougher for the ALJs, after they make their decision in chambers, an opinion must be written.  But they don’t write their own opinions.  Rather, they send their notes to a paralegal or sometimes a lawyer to write the opinion.  The ALJ is then supposed to review and approve or edit and then approve the opinion.

However, the quality of the decisions varies greatly according to the skills of the opinion writer and the time the ALJ can devote to editing the opinion.  For example, according to one disgruntled judge, “a lot of the writers are under a great deal of pressure to produce numbers of decisions. You can not have quality and quan[t]ity.  Something has to give. As an ALJ you will not have the time to write your own decisions. You will be lucky to find the time to edit them.”  ALJ Discussion Forum (March 22, 2013) (bartleby).

On April 9, 2013, the President of the Association of Administrative Law Judges wrote a scathing letter to the Acting Commissioner of SSA.  In part, the letter said:

I am writing you concerning a matter of extreme importance to  the Social Security Administration (“SSA” or “Agency”), the AALJ and, we believe, the American people. Succinctly, that matter involves the unlawful imposition by the SSA of an illegal production quota upon administrative law judges responsible for appeals from disability claims denied at the state level. As you know, the Administrative Procedure Act, as well as the Social Security Act, guarantees the decisional independence of all federal administrative law judges. Those federal laws as well as the United States Constitution also guarantee the procedural due process rights of disability claimants. SSA, in derogation of these rights, is enforcing an illegal decisional quota upon administrative law judges and is enforcing a series of illegal “Benchmarks” in furtherance of the quota, requiring administrative law judges to adhere to arbitrary deadlines for designated stages in the hearing process. Perhaps most troubling is that the quota is the result of fiscal, political and other extra-judicial considerations, exactly the type of pressures the United States Supreme Court in Butz v. Economou,438 478 (1978), made clear were anathema to decisional independence. Moreover, this conduct is precisely the type of conduct the U.S. Congress intended to eradicate by enacting the Administrative Procedure Act.

The letter ended with this ominous statement:

Should you choose not to address these concerns, the AALJ is prepared to take whatever steps may be necessary, including litigation, to protect the decisional independence of administrative law judges, the procedural due process rights of the claimants and the interests of the American people. Individual administrative law judges have also expressed an interest in asserting their own rights in conjunction with the AALJ in possible litigation.

To be crystal clear, I have no opinion about the dispute between the ALJs and the SSA.   I favor neither side.  I highlight this dispute only to show that there is a strong “real world” justification for Article III review of important Executive Branch decisions like the denial of Social Security disability claims.  While the review of these decisions are burdensome to federal district judges, they are also as important as other types of litigation that garner much greater attention.


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