A 28-page working paper entitled What Should We Do About Administrative Law Judge Disability Decisionmaking? was recently published by Richard J. Pierce, Jr., who is currently a GWU law school professor.
Pretty much all you need to know about the author’s perspective on the issue of ALJ disability decisionmaking is contained in the first sentence and last sentence of the paper.
First sentence: The 1400 Administrative Law Judges (ALJs) who work for the Social Security Administration (SSA) are making a significant contribution to the economic problems the US is now experiencing.
Last sentence: My preferred solution would be to abolish the ALJ-administered part of the disability decisionmaking process and to use at least part of the resulting savings to implement a system of reviewing past decisions to grant disability benefits to determine whether each beneficiary actually suffers from a permanent disability so serious that he can not perform the functions needed to hold any job in the US economy.
That’s nice. So, not only should we abolish those pesky ALJs who are granting disability claims, but let’s use those savings to review the decisions of those disability claimants who have already been granted benefits.
A working paper is not a law review article. It is an essay, a work in progress. So maybe we should not judge it too harshly. But this essay is just so slanted, it is surprising that is being described as “legal studies.” It reads like a policy paper from the Heritage Foundation.
The paper discusses four areas that demonstrate the problems with ALJ decisions. Let’s take a look at each.
Many claims are based upon nonexertional limitations. The professor asserts that nonexertional limititations (such as anxiety, depression or pain symptoms) cannot be measured by objective criteria. But the SSA measures the severity of nonexertional impairments all the time. The professor does not say how this “problem” relates to ALJ decisionmaking, as opposed to the determinations made by the DDS bureaucracy.
Variation of ALJ decision patterns
The professor is troubled by the variations among ALJ award rates. So am I. But his paper focuses on those ALJs who are granting 90% or more of disability claims. He does not discuss those nasty ALJs who are granting just 30%, 20% or 10% of disability claims (and the burden that those ALJs create for the Appeals Council and the U.S. District Courts). These low-granting ALJs are further from the norm than the 90-percenters. Nevertheless, the professor dwells on those judges granting too many claims, not too few.
Disability awards have increased over time
The professor states that the proportion of the population on Social Security disability has doubled since 1970. He says it is “beyond implausible” that the incidence of disability has actually doubled, and states that such a situation would reflect a national health crisis. The professor’s argument is basically that, since the proportion of the population on disability has doubled since 1970, it must be as a result of permissive ALJ decisionmaking. But he does not consider everything else that has changed since 1970.
The professor focuses on the medical aspects of disability. But half of a disability determination is a vocational assessment. Do you think the workplace has changed in the 40 years that have passed since 1970? I do. Do you think it is a more challenging work environment today? I do. And what about older workers? Back in 1970 how many would have received a pension at age 55 or 60 and retired? Today, those pensions are largely gone from the private sector, and those older workers now must apply for disability when they can no longer do their jobs. The professor considers none of this.
Furthermore, Social Security’s medical-vocational guidelines (which were found to be constitutional in Heckler v. Campbell) direct a finding of “disabled” for many claimants with exertional impairments who are age 50 or over. Those guidlines did not even exist in 1970.
Lastly, the Social Security Act has been broadened since 1970. So it is hardly surprising that the disability numbers have increased.
ALJs are granting cases that were already denied twice
The professor argues that since ALJs grant cases that have been twice denied by the Social Security bureaucracy, that the ALJ decision is somehow wrong (this overlooks the ten prototype states, where claims initially denied are appealed directly to the ALJ level… but nevermind).
The essay has a glowing description of the DDS agency process. The professor describes a team of people evaluating a claim, consisting of a disability examiner and a medical advisor. And Social Security has a quality assurance program to evaluate the decisions of those teams to ensure the accuracy of their decisions and provide feedback and training when needed.
This section of the professor’s working paper really exposes a lack of real world experience with DDS decisionmaking. There is a huge disconnect between the professor’s description of how DDS works and the actual work product of the DDS agencies. Anyone actually practicing in this area can tell you that DDS gets it wrong routinely. The real systemic problem with Social Security disability is that DDS denies claims that should be granted, not that ALJs grant claims that should be denied.
The DDS agencies make adverse credibility determinations without ever meeting the claimant. They routinely fail to apply Social Security’s own regulations and rulings, most notably the “treating physician” rule embodied in 20 C.F.R. 404.1527(d)(2) and Social Security Ruling 96-2p. The team at DDS certainly does not include anyone with legal training, which might help when applying the Commissioner’s regulations. Administrative law judges, after all, are lawyers. And contrary to the professor’s assertion, the ALJs do have a medical advisor available at the hearing level when desired.
The rest of it
The professor goes on to assert that the current ALJ system is unconstitutional, which in my view is a tin foil hat legal theory. I guess no one else noticed that the largest adjudicative body in the western world was unconstitutional. And the professor proposes solutions, including his preferred solution: abolishing altogether the ability to appeal an adverse determination to an administrative law judge.
I have other quibbles with the article. The professor repeatedly refers to SSDI as “permanent disability,” which it is not. The disability period must last, or be expected to last, for a year or more. It does not need to be “permanent,” and referring to it that way is misleading. And his characterization of someone who is disabled as being a person who “can not perform the functions needed to hold any job in the US economy” does not accurately reflect the standard for Social Security disability, which must consider an applicant’s age, education and past work experience in addition to his medical condition.
We live in a time where unvetted opinions get repeated over and over and become accepted as true. In my view, the ideas expressed in this paper are wrong and misguided, and they should be vigorously challenged, lest they become part of a new conventional wisdom.
I would be happy to read your comments.