When a Social Security disability claim is denied by an administrative law judge (ALJ), that unfavorable decision can be appealed to the Social Security Appeals Council and then to U.S. District Court, if necessary.

Based upon recent statistics from the Social Security Administration, we know that about 25% of Appeals Council appeals are remanded back to the hearing level, and approximately 50% of the federal court appeals are remanded back to the hearing level. A remand means that the previous ALJ decision is vacated, and typically a new hearing is held.

The Problem

Here is the problem. When a Social Security disability claim is denied by an ALJ, and then the claim is remanded for a new hearing after an appeal to the Appeals Council or District Court, the claim is assigned back to the same ALJ who held the first hearing and denied the claim. That's right, the same ALJ. See HALLEX I-2-1-55 section D.11.

I suppose the thinking on this issue is that, since the ALJ made an error in his or her original decision, the same ALJ should have the opportunity to correct the error(s). And sometimes, that is in fact the case; the judge takes a fresh look at the claim and reconsiders the issue of disability.

But as a practical matter, in an overwhelming majority of cases, the opposite is true: whatever reason the ALJ had to deny the claim in the first place has not changed, and after a second hearing the claim is denied again.

Almost every unfavorable Social Security disability decision involves a credibility determination by the judge. To deny the claim, the claimant's testimony must be found to not reflect his or her actual functional limitations. The judge must essentially disbelieve key aspects of the applicant's testimony. This credibility determination is part of every case, and is not likley to be changed at a second hearing by the same judge. So the claim is often denied again. It is quite a demoralizing experience for the disability applicant.

Make no mistake, having to go through the appeals process a second time causes real hardship for disability applicants, who by definition are not working. Most waited almost two years for the first hearing, and have been out of work for even longer. Commissioner Astrue has said that those disability claims that should be granted should be granted speedily. This is the thinking behind the SSA's compassionate allowances program. However, a second hearing by the same judge who denied the claim in the first place works contrary to this policy.

Claims denied after those second hearings are frequently appealed, which significantly increases the workload of the Appeals Council and the U.S. District Courts.

After a second round of appeals, if the claim is remanded again, it is assigned to a new administrative law judge. And at this point, after a third hearing, the claim is often granted. Usually there is additional medical evidence. But more importantly, a new judge brings a new perspective to the claim.

A Modest Proposal

A remanded claim should never be sent back to the same judge. This should be SSA policy. The same judge, in my view, does not look at the case with a receptive mind, for the reasons discussed above. A new ALJ would offer a fresh perspective, and could provide a more objective hearing for the disability applicant.

Assigning a new ALJ the second time around would reduce the number of appeals, in my view, because more of those remanded claims would receive fully favorable decisions.

The remanded claim should always be assigned to a different judge. That is my "modest proposal," and I urge the SSA's Office of Disability Adjudication and Review to adopt it as policy. It would be for the best.

Comments?