By Ghermann Magaña, Attorney
As a disability attorney in Joplin, MO, I have closely watched the recent media reports that have painted a fairly one-sided picture about the Social Security Administration’s (SSA) disability adjudication process. These reports purport to point out widespread practices of claimants getting favorable decisions that should have been unfavorable. Certain politicians have joined the chorus, publishing reports that revealed isolated misdeeds. For example, a recent Senate report highlighted on the program 60 Minutes revealed facts that, if verified, substantiate claims of one attorney acting unethically, one Social Security ALJ violating agency policy, and one supervising Social Security ALJ engaging in suspect behavior.
A common theme running through the media and Senate reports is that there is something wrong with the way Social Security makes favorable decisions. The media reports address a valid issue in that there is a public interest in ensuring that ALJ favorable decisions are legally sufficient. However, the reports sensationalize the issue, fail to deliver a nuanced analysis, and fail to consider the other side of the coin: ALJ decisions denying claims that rest on legally insufficient grounds.
A. Internal Quality Review of Favorable Decisions by SSA
A nuanced approach would do more than use isolated examples to extrapolate generalized propositions with no verifiable methodology for the extrapolation. For example, SSA has systems in place to review the quality of ALJ favorable decisions. According to SSA, the Appeals Council (AC) performs pre-effectuation reviews of fully and partially favorable ALJ decisions. The AC selects unappealed hearing-level decisions from a computer generated random sample, reviewing about 1-2% of allowances a year. The AC reviews these decisions to determine whether to invoke own motion review. Own motion review can be initiated because the decision is not supported by substantial evidence, it contains an error of law, or there appears to be an abuse of discretion by the ALJ.
B. Federal Court Review of Appealed Unfavorable Decisions
With regard to unfavorable decisions, it appears that recent news reports have chosen to ignore facts that may interrupt their preconceived narratives. SSA publishes information on remand rates of ALJ denials that end up in federal court. As a preliminary matter, it should be noted that the standard of review of a Social Security disability claim in federal court is quite deferential to SSA. SSA’s lawyers, to their credit, are never shy and always consistent about pointing this out in their federal court filings.
The most current information covers October 2012 through the end of June 2013. During that period, Social Security received 5,295 court remands. Court remands are claims for benefits returned to SSA by the courts after court review for further administrative action by SSA. In short, in those 5,295 claims, a federal judge found that the ALJ’s decision denying benefits was not based on legally sufficient grounds. Social Security also had 1,191 federal court remands pending at the end of June 2013. “Pending” is the number of court remands awaiting final action at the end of each month. For fiscal year 2012, covering October 2011 to the end of September 2012, SSA received 6,626 remands from federal courts. Again, this means that in 6,626 cases, a federal judge found that the ALJ’s decision denying benefits was not based on legally sufficient grounds.
Over a nearly two year period, federal courts remanded over 12,000 unfavorable decisions for legal deficiencies. Often, such disability claims are granted on remand. However, by this time a claimant has been waiting years for a decision, often in conditions of extreme financial hardship. To the extent that recent media reports have painted a one-sided picture of ALJs and attorneys running amok in issuing and obtaining legally suspect favorable decisions, they have ignored the other side of the coin.