July 28, 2016
Ms. Theresa L. Gruber
Deputy Commissioner
Disability Adjudication and Review
Social Security Administration
1500 Woodlawn Drive
Baltimore, MD 21241
Dear Deputy Commissioner Gruber:
We are pleased to transmit the report entitled A Study of Social Security Litigation in the
Federal Courts prepared for the Administrative Conference of the United States by its
independent consultants, Professors Jonah B. Gellbach of the University of Pennsylvania Law
School and David Marcus of the University of Arizona School of Law. As noted on its cover, the
report does not necessarily reflect the position of the Conference on any matter it addresses.
The Conference’s Assembly, acting in the first instance through one of its committees,
may be asked to consider whether to issue any recommendations concerning the report’s
proposal for the adoption of special procedural rules governing the review of social security
disability cases in federal district courts. Only recommendations adopted by the Assembly will
represent the Conference’s position. We will keep the Social Security Administration, Congress,
the Judicial Conference, and the public apprised of any action by the Assembly.
If you have any questions about the report or the Conference’s processes, please do not
hesitate to contact us.
Sincerely yours,

Matthew Lee Wiener
Executive Director
Reeve T. Bull
Research Chief
Gisselle S. Bourns
Staff Attorney

Enclosure

1120 20th Street, NW Suite 706 South . Washington, DC 20036 . 202.480.2080 (Main) . 202.386.7190 (Fax) . www.acus.gov

Administrative Conference of the United States
A STUDY OF SOCIAL SECURITY LITIGATION IN THE
FEDERAL COURTS

Final Report: July 28, 2016

Jonah Gelbach
University of Pennsylvania

David Marcus
University of Arizona

This report was prepared for the consideration of the Administrative Conference of the United States. The opinions, views and
recommendations expressed are those of the authors and do not necessarily reflect those of the members of the Conference or its
committees, except where formal recommendations of the Conference are cited.

1

Acknowledgments
We owe thanks to a number of people. Gisselle Bourns, Stephanie Tatham, Matt Wiener, Reeve
Bull, and Dan Sheffner at the Administrative Conference of the United States gave us invaluable
guidance and feedback on all stages of this project. Gerald Ray, David Foster, Rainbow Lloyd,
and Ben Gurga of the Social Security Administration answered innumerable questions and
provided access to essential information and data. Nearly 150 people who regularly participate
in various stages of social security disability claims adjudication agreed to be interviewed and
gave generously of their time.

2

Table of Contents
Introduction ................................................................................................................................... 4
Part I. District Court Review and its Discontents..................................................................... 9
A.
B.

The Discomfort of District Court Review .........................................................................................................9
Judicial Review’s Persistence ......................................................................................................................... 11

Part II. The Path of a Disability Claim .................................................................................... 16
A.
1.
2.
3.
4.
B.
C.

The Disability Claims Adjudication Process................................................................................................... 16
The Initial Application ................................................................................................................................. 16
The Hearing Office ...................................................................................................................................... 18
The Appeals Council.................................................................................................................................... 27
Federal Court ............................................................................................................................................... 30
The Numbers ................................................................................................................................................... 35
Quality Assurance ........................................................................................................................................... 36

Part III. The Federal Court Remand Rate and What It Means............................................ 44
A.
B.

The Remand Rate in Perspective .................................................................................................................... 45
The Strictness of District Court Review.......................................................................................................... 50
1. The Quality of Decisions Appealed ............................................................................................................. 51
2. The Substantial Evidence Standard of Review ............................................................................................ 56
3. The Missed Opportunity of Appellate Review ............................................................................................ 67
C. The Quality of Agency Adjudication .............................................................................................................. 71
1. Different Goals and Resources .................................................................................................................... 72
2. Different Legal Commitments ..................................................................................................................... 74
3. Different Perspectives .................................................................................................................................. 77

Part IV. Variations Across Districts ........................................................................................ 81
A.

A Quantitative Analysis of District-Level Variation in Remands ................................................................... 86
The Nature of the Problem of District-Level Variations .............................................................................. 87
Are Outlier Judges Important? ..................................................................................................................... 91
A Circuit-Level Component to District-Level Variation ............................................................................. 95
B. A Quantitative Analysis Using Multiple Regression ...................................................................................... 98
1. Hypotheses and Variables .......................................................................................................................... 100
2. Statistical Model and Results ..................................................................................................................... 102
C. Using ODAR Regions to Capture Intra-Agency Factors .............................................................................. 110
D. Qualitative Evidence of Varying Input Quality ............................................................................................ 117
E. Reflections on District-Level Variations ....................................................................................................... 123
1.
2.
3.

Part V. The Procedural Governance of Social Security Litigation ..................................... 127
A.
B.
C.

Variations in Social Security Procedure........................................................................................................ 128
Problems With Disuniformity ....................................................................................................................... 132
Problems With Particular Procedures............................................................................................................ 136
1. Joint Submissions....................................................................................................................................... 136
2. Simultaneous Briefing ............................................................................................................................... 139
3. Pre-Motion Letters ..................................................................................................................................... 140
4. Oral Argument ........................................................................................................................................... 141
5. Deadlines, Page Limits, and Extensions .................................................................................................... 141

Part VI. Recommendations and Suggestions ........................................................................ 143
A.
1.
2.
3.
4.
5.
B.

Recommendations for ACUS Consideration ................................................................................................ 143
Independent Litigating Authority............................................................................................................... 143
Social Security Rules Enabling Legislation ............................................................................................... 148
Social Security Rules ................................................................................................................................. 152
Education and Communication .................................................................................................................. 159
Addressing Circuit Variation ..................................................................................................................... 163
Suggestions for the Agency........................................................................................................................... 167

3

Introduction
A person who has sought and failed to obtain disability benefits from the Social Security
Administration (“SSA” or “the agency”) can appeal the agency’s decision to a federal district
court. In 2015, nearly 20,000 people did just this. Even though claims pass through multiple
layers of internal agency review, many of them return from the federal courts for even more
adjudication. A claimant’s experience in the federal courts, however, differs considerably from
district to district around the country. If she files suit in Brooklyn, New York, a particular set of
procedural rules will apply, and she will litigate before a district judge in a district where seventy
percent of claimants’ appeals are remanded. If she files suit in Little Rock, Arkansas, she will
encounter a different set of procedures, a magistrate judge will most likely decide her case, and
her case will be heard in a district where claimants win much less often—only about twenty
percent of the time.
The adjudication of disability claims within the agency has received relentless attention
from Congress, government inspectors general, academic commentators, and others. Social
security litigation in the federal courts has not weathered the same scrutiny. Federal judges
adjudicate many fewer social security cases than the more than 500,000 decisions that
administrative law judges (“ALJs”) render annually. Measured by caseloads alone, the federal
judiciary’s importance to the implementation of American disability policy is modest.
Nonetheless, an investigation into the nature of and challenges posed by this litigation is
overdue. Through case law and remands, the federal judiciary exercises an outsized influence on
disability claims adjudication. Social Security cases add a hefty amount to the federal courts’
workload, contributing seven percent of filings nationwide, and claimants file suit in increasing
numbers. Finally, while inconsistency in ALJ decision-making has drawn attention, seemingly
erratic decision making in district courts has only recently prompted investigation.
4

This Report, prepared for the Administrative Conference of the United States, is the first
comprehensive study of social security disability litigation in the federal courts. 1 Our charge
included the investigation of three questions:
•

What factors explain why claimants prevail so often when they appeal to the federal
courts, even after multiple layers of review within the agency?

•

What factors explain variations in remand rates among various federal districts?

•

How does the litigation of disability appeals vary from district to district?

We combined traditional legal research with quantitative analysis to find answers. The agency
supplied us with a substantial amount of data containing information on outcomes of disability
appeals in the federal courts. We also relied on docket report information drawn from PACER,
which one of us has used in other research, 2 as well as publicly available data. To supplement
and guide our quantitative inquiry, and following the lead of past studies of disability claims
adjudication, 3 we interviewed about 150 people involved in the disability claims adjudication
process. Our interview subjects included federal judges and their law clerks, ALJs, agency
officials and staff, claimant representatives, 4 and Department of Justice personnel.
This investigation revealed one obvious fact: federal judges know little about the path
social security claims follow from initial filing to their chambers. Indeed, a number of judges
and clerks we interviewed reported mistaken impressions of what happens inside the agency, to
1

A prior study documented and analyzed inconsistencies in district court outcomes for social security litigation. See
Harold J. Krent & Scott Morris, Inconsistency and Angst in District Court Resolution of Social Security Disability
Appeals, 67 HASTINGS L.J. 367 (2016). This study investigates causes of inconsistencies in district court remand
rates, a subject we address in Part IV. Our Report addresses a number of other topics as well. Moreover, while
some of our empirical findings comport with theirs, our quantitative investigation into district-level disparities adds
new statistical inquiries. Our data set also differs. See infra note 470.
2
For a general description of these data, see Jonah B. Gelbach, Material Facts in the Debate Over Twombly and
Iqbal, 68 STAN. L. REV. __ (forthcoming 2016) (Mar. 18, 2015, draft), at 17. For a discussion of the specific docket
information we used in this Report, see Data Appendix.
3
JERRY L. MASHAW ET AL., SOCIAL SECURITY HEARINGS AND APPEALS 7 (1978).
4
“Claimant representative” is a term used to refer to those who represent social security claimants. A claimant
representative does not have to be an attorney to represent someone in agency proceedings. See 20 C.F.R. §§
404.1705 and 416.1505. All of the claimant representatives we interviewed, however, litigate in the federal courts
and are attorneys.

5

such an extent that judicial misapprehensions may actually affect outcomes in some instances. 5
After introducing the challenges of judicial review in Part I, we seek to fill judges’ knowledge
gap with an extensive summary of disability claims adjudication in Part II. Its contents should
provide federal judges with a badly needed introduction to the mysterious process that generates
so many of the cases they decide.
In Part III, we analyze the question of why claimants win so many of their federal court
appeals. While ALJs could always improve their performance, and while the federal courts may
have unrealistic expectations for decisional quality, we ultimately conclude that many claimant
wins result from a largely unavoidable clash between these two institutions. The agency and the
federal courts have conflicting goals, resources, priorities, and legal commitments. Even if both
institutions are performing adequately, we argue, federal courts will continue to rule against the
agency in a large number of cases.
We turn to the problem of inconsistencies in district court decision-making in Part IV.
The institutional conflicts we describe in Part III are identical nationwide, and yet the rate at
which claimants secure remands varies considerably from district to district. Our quantitative
inquiry into this puzzle produced three primary findings:
•

District and magistrate judges tend to march in lockstep within districts. Districts with
one judge who remands a lot of cases to the agency tend to have other judges who do so
as well. Very few individual judges have decision patterns that depart significantly from
what their district colleagues produce.

•

Circuit boundaries are associated with a good deal of district-level variation. For
example, the fact that the Eastern District of New York remands more cases than the
Southern District of Florida seems to be significantly related to the fact that, over all,

5

We interviewed 24 federal judges. In many instances their law clerks participated extensively in the discussions.
We also interviewed 24 ALJs, 14 decision writers, 12 claimant representatives, 12 agency personnel who work for
the SSA’s Office of Disability Adjudication and Review, 31 lawyers who work for the SSA’s Office of General
Counsel, and 3 Department of Justice officials. In addition, we participated in a meeting of representatives from
various U.S. Attorney’s Offices.

6

districts in the Second Circuit remand a greater share of cases than do districts in the
Eleventh Circuit.
•

A number of factors – judicial ideology, the degree of a district’s urbanization, the
assignment of cases to district versus magistrate judges, ALJ case loads, and others –
have little association with case outcomes.

These results are consistent with a separate hypothesis. Decisions coming out of different
hearing offices may vary by quality, in ways that could affect district court decision-making. We
could not confirm that this was so with the data available to us. We nonetheless report the
results of an intensive qualitative investigation of three federal districts and the hearing offices
within them, to explain this hypothesis and to urge the agency to inquire into it further.
We address the procedural governance of social security litigation in Part V. Parties
litigate social security appeals pursuant to a dizzying array of local rules, district-wide orders,
and individual judge preferences. Whether the agency has to answer a complaint, what sort of
merits briefs the parties have to file, and a host of other procedural questions have answers that
differ considerably from district to district and sometimes from judge to judge. These procedural
differences have few benefits, create inefficiencies, and impose other costs. We describe
problems caused by many of the procedural variations.
Part VI contains suggested reforms. We take as an assumption that Congress will not
significantly adjust the current system of social security adjudication or litigation. Also, our
recommendations are informed by our sense of the limited mandate that ACUS has for
suggesting changes to internal agency processes. These recommendations, then, are modest.
They aim to improve the efficiency of social security litigation and enable litigants to explain
their positions better to federal courts. We do not believe that these recommendations would
necessarily cause a significant drop in the national remand rate if they were implemented. As we
argue, this rate is determined by a complex assortment of factors, including the two institutions’

7

goals, resources, priorities, and commitments. 6 But these recommendations could reduce
needless expense and perhaps produce more uniformity in case law. Part VI closes with
suggestions for the agency to consider as it continues its efforts to improve the quality of social
security disability claims adjudication.

6

Further, there are good reasons to believe that claimant behavior would adjust to changes in the appeals process.
This means the quality composition of cases appealed to the district courts can be expected to change when the
process itself changes. It is possible that the overall remand rate would not change much—or perhaps even would
rise—if such compositional changes were great enough.

8

Part I. District Court Review and its Discontents
A. The Discomfort of District Court Review
In 1939, Congress gave the federal district courts jurisdiction to review SSA decisions
on claims for old-age and survivors benefits. 7 The agency set up what remains for all intents and
purposes the current structure for benefits adjudication the following year, one that culminates
with federal court review. 8 When Congress created the modern disability benefits system in
1956, 9 claimants availed themselves of the pre-existing structure to appeal denied claims. 10
At least formally, district court review of denied claims is unremarkable. Unless a statute
specifies otherwise, appeals of agency actions, including decisions by administrative law judges,
go to district courts by default. 11 Health care providers seeking Medicare reimbursement from
the U.S. Department of Health and Human Services 12 and farmers seeking federal benefits from
the U.S. Department of Agriculture can appeal to district courts when dissatisfied with agencies’
decisions. 13
In practical terms, however, district court review of disability benefits appeals is singular.
First, no other type of appeal from an administrative agency generates anywhere near the volume
of litigation for district courts that disability claims do. During the twelve-month period ending
June 30, 2014, for example, plaintiffs filed 515 discrimination lawsuits against the United States
as a defendant, some portion of which presumably came on appeal from the Merit Systems
7

42 U.S.C. § 405(g); Social Security Act Amendments of 1939, Sen. Rpt. No. 734, 76th Cong., First Sess., July 7,
1939, at 52.
8
Irving Ladimer, Hearing and Review of Claims and Wage-Record Cases Under Old-Age and Survivors Insurance,
3 SOC. SEC. BULL. 21, 22-24 (1940).
9
E.g., MARTHA DERTHICK, POLICYMAKING FOR SOCIAL SECURITY 304-306 (1979); Charles I. Schottland, Social
Security Amendments of 1956: A Summary and Legislative History, SOC. SEC. BULL., Vol. 19, No. 9, Sept. 1956, at
3.
10
E.g., George C. Longshore, The Social Security Disability Insurance Program – An Example of the Necessity for
Judicial Review of Administrative Decisions, 25 ALA. LAW. 282, 284-286 (1964).
11
Watts v. Securities & Exchange Comm’n, 482 F.3d 501, 505 (D.C. Cir. 2007); 3 RICHARD J. PIERCE, JR.,
ADMINISTRATIVE LAW TREATISE § 18.2, at 1680 (5th ed. 2010).
12
42 U.S.C. § 1395ff(b)(1)(A); 42 U.S.C. § 1395w-22(g)(5).
13
7 U.S.C. § 6999.

9

Protection Board. 14 Medicare reimbursement appeals do not merit a line item in the Statistical
Tables for the Federal Judiciary and presumably account for some of the 987 “other statutory
actions” involving the United States as a defendant. 15 During this same time period, disability
claimants filed 18,676 cases. 16 Immigrants challenging adverse agency decisions do flood the
federal courts with cases, but they file their roughly 6,000 appeals in the circuit courts. 17 District
courts would review agency actions infrequently but for their social security docket.
Second, the district courts rarely sit in an appellate capacity, a point helpfully stressed to
us by one of the federal judges we interviewed. 18 They decide a steady diet of habeas corpus
petitions, but habeas review involves a highly specialized area of law that differs in crucial
respects from other appellate or appellate-type litigation. 19 District judges do entertain a
substantial number of appeals from bankruptcy judges, but disability appeals dwarf these cases
by a factor of about nine to one. 20
The position district courts occupy in the disability determination process is not only
singular. Our impressionistic sense from the interviews we conducted with federal judges is that
many do not relish their social security docket. 21 Frustration with the agency sometimes surfaces

14

Statistical Tables for the Federal Judiciary – June 2014, Table C-2, at 2, at http://www.uscourts.gov/statisticsreports/statistical-tables-federal-judiciary-june-2014 (last visited Nov. 11, 2015).
15
Id.
16
Id. at 4. This total only includes “Disability Insurance” and “Supplemental Security Income” cases.
17
6,927 appeals from agency decisions were taken to the circuits in FY 2014, 86% of which were appeals from the
Board of Immigration Appeals. See www.uscourts.gov/statistics-reports/us-courts-appeals-judicial-business-2014
(last visited Nov. 11, 2015).
18
Federal Judge 24 at 2. All interview subjects were promised anonymity and are referred to in this report by
generic identifiers that describe them by their positions. Page numbers refer to the authors’ interview notes, all of
which are on file with the authors.
19
RICHARD H. FALLON ET AL., HART AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1345 (4th
ed. 1996).
20
Statistical Tables for the Federal Judiciary – June 2014, Table C-2, at 2, at http://www.uscourts.gov/statisticsreports/statistical-tables-federal-judiciary-june-2014 (last visited Nov. 11, 2015).
21
Federal Judge 3 at 1 (“No one likes to do social security cases.”); Federal Judge 4 at 2 (describing social security
cases as “the bane of our existence”); Federal Judge 5 at 3 (“Most Article III judges dread these cases.”); Federal
Judge 6 at 4 (ranking disability claims appeals with prison litigation and habeas work as “the three most undesirable
parts of my docket”); Federal Judge 7 at 3 (describing disability claims appeals as a “horribly ill fit for the skill set
of Article III judges and clerks”); Federal Judge 2 at 4 (reporting that, while he likes disability claims appeals, his

10

in opinions. 22 Conversely, federal judges have earned persistent criticism for their role in the
disability claims process, going back to the very start of the current system for claims
adjudication. 23 Calls for the replacement of district court review surface regularly. 24 For many
of the agency personnel we interviewed, district courts remain the round hole for the square peg
of disability claims adjudication. 25 Federal judges seem to have little understanding of what
happens in hearing offices, some ALJs complained to us. 26 Others have criticized federal judges
for their lack of sympathy for or understanding of the SSA’s obligation to administer a national
program consistently. 27
B. Judicial Review’s Persistence
Is judicial review worth it? In 1978, Jerry Mashaw and a distinguished group of
colleagues published a path-breaking study of the disability claims adjudication process that
surveyed and critiqued all of its aspects. 28 Their study, while nearly forty years old, remains the

colleagues disagree with him by a factor of 2:1). A couple of federal judges we interviewed felt otherwise. See
Federal Judge 1 at 4 (“Judges who single out social security irritate me. It’s their job.”); Federal Judge 2 at 4 (“This
area of law is a passion.”).
22
E.g., Hughes v. Astrue, 705 F.3d 276, 279 (7th Cir. 2013); Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir.
2004); Freismuth v. Astrue, 920 F. Supp. 2d 943, 954 (E.D. Wis. 2013); Batista v. Colvin, Civ. No. 13-4185, 2014
U.S. Dist. LEXIS 80576, at *6 (E.D.N.Y. June 11, 2014); Taylor v. Astrue, Civ. No. 07-3469, 2008 WL 2437770, at
*5 (E.D.N.Y. June 17, 2008).
23
Landon H. Rowland, Judicial Review of Disability Determinations, 52 GEO. L.J. 42, 86 (1962) (insisting that
social security appeals “provided the federal courts with a severe test of their ability to deal effectively with an
administrative process”); Robert G. Dixon, Jr., The Welfare State and Mass Justice: A Warning from the Social
Security Disability Program, 1972 DUKE L.J. 681, 702 (criticizing district courts for their “marked tendency … to
convert the program into a humanitarian unemployment program for any worker whose unemployment had some
demonstrable basis in physical or mental trauma”); Richard E. Levy, Social Security Disability Determinations:
Recommendations for Reform, 1990 BYU L. REV. 461, 511-12; R. Shep Melnick, Administrative Law and
Bureaucratic Reality, 44 ADMIN. L. REV. 245, 256 (1992); Paul R. Verkuil & Jeffrey S. Lubbers, Alternative
Approaches to Judicial Review of Social Security Disability Cases, 55 ADMIN. L. REV. 731, 739-741 (2003).
24
E.g., SOCIAL SECURITY ADVISORY BOARD, IMPROVING THE SOCIAL SECURITY ADMINISTRATION’S HEARING
PROCESS, Sept. 2006, at 17; Verkuil & Lubbers, supra note 23 at 778; Levy, supra note 23 at 512;
25
E.g., ALJ 2 at 2 (describing the district courts as speaking a different language when they address social security
issues).
26
E.g., ALJ 3 at 4 (complaining that federal judges do not understand the pressures ALJs are under); ALJ 4 at 5
(complaining that federal judges do not understand “our process”).
27
E.g., Harold H. Bruff, Coordinating Judicial Review in Administrative Law, 39 U.C.L.A. L. REV. 1193, 1210
(1992).
28
JERRY L. MASHAW ET AL., SOCIAL SECURITY HEARINGS AND APPEALS 145-146 (1978). Mashaw’s co-authors
were Charles J. Goetz (University of Virginia), Frank Goodman (University of Pennsylvania), Warren Schwartz

11

most systematic inquiry into the costs and benefits of judicial review. Its conclusions are a good
place to start to answer this question.
Mashaw and his colleagues doubted the value of judicial review. 29 They compared the
competence of generalist federal judges with specialist ALJs, suggesting that the latters’ superior
expertise called into question the corrective value of judicial review. Even if federal judges
correct errors, they continued, the small number of cases appealed to the federal courts relative to
the number of claims the agency decides undercut judicial review’s ameliorative potential. 30
Also, this small number allows ALJs to remain indifferent to federal court review, 31 and, for the
most part, judicial opinions have little precedential value within the agency. 32 Finally, the small
number of appeals detracts from whatever “legitimizing function” judicial review entailed in the
eyes of claimants. 33 Mashaw reiterated these lessons in his equally important 1983 study of
disability claims adjudication. 34
Events since Mashaw’s investigation may justify revisiting these conclusions. During the
1980s, the implementation of continuing disability review, a process by which existing
beneficiaries are reexamined to determine their continuing entitlement to benefits, drew
significant criticism, including from the federal courts. 35 The agency’s treatment of claimants

(Georgetown University), Paul Verkuil (then University of North Carolina), and Milton Carrow (National Center for
Administrative Justice). We refer only to Prof. Mashaw by name in the text for the sake of brevity and certainly not
to slight the equal contributions of his distinguished co-authors.
29
In his 1983 study of social security disability claims adjudication, Prof. Mashaw summarized these earlier
findings as follows: “[M]y colleagues and I found that the tens of thousands of judicial review proceedings that have
been held since the disability program’s inception have either had no perceptible impact on its functioning or have
made it worse.” JERRY L. MASHAW, BUREAUCRATIC JUSTICE: MANAGING SOCIAL SECURITY DISABILITY CLAIMS 7
(1983).
30
MASHAW ET AL., supra note 28 at 138-139; id. at 147.
31
Id. at 140.
32
Id. at 140-141.
33
Id. at 147.
34
MASHAW, BUREAUCRATIC JUSTICE, supra note 29 at 185-190.
35
MARTHA DERTHICK, AGENCY UNDER STRESS: THE SOCIAL SECURITY ADMINISTRATION IN AMERICAN
GOVERNMENT 36 (1990). Prof. Mashaw touched upon continuing disability review in his 1983 study and anticipated

12

with mental impairments sparked particularly intense resistance. 36 The episode “touched off a
major battle between the agency and the courts,” as one prominent commentator observed, and
the federal courts prevailed. 37 Both in individual cases and in class actions, the federal courts
insisted on changes to disability claims adjudication, ones that have had long-lasting effect. 38
The influence of case law on agency decision-making has also changed. In 1978,
Mashaw and his colleagues observed that the acquiescence process, or the process by which the
agency accepts a particular circuit decision as binding for decision-makers within the circuit, had
“lapsed into desuetude.” 39 Now more than four dozen acquiescence rulings have been issued, 40
and more opinions have influenced agency decision-making in equally important ways. 41 Case
law is responsible for the treating physician rule. It prompted rulemaking by the agency, and it
remains one of the most significant doctrinal determinants of claim outcomes. 42 The agency
continues to discourage ALJs from relying on district court decisions or circuit decisions to
which it has not acquiesced. 43 But, as discussed below, the ALJs we interviewed expressed more
equivocal attitudes toward the instructive value of case law than what Mashaw and his
colleagues documented in the 1970s. 44
We also question whether the argument against the corrective value of judicial review
some of the problems that it ultimately created. MASHAW, BUREAUCRATIC JUSTICE, supra note 29 at 174-175. But
he completed his study before the process ran its course.
36
JENNIFER L. ERKULWATER, DISABILITY RIGHTS AND THE AMERICAN SOCIAL SAFETY NET 110 (2006).
37
DERTHICK, AGENCY UNDER STRESS, supra note 35 at 135 (1990).
38
SOCIAL SECURITY ADMINISTRATION, HEARINGS, APPEALS, AND LITIGATION LAW MANUAL § I-5-4, at
www.ssa.gov/OP_Home/hallex/hallex/html [hereinafter HALLEX] (table of contents identifying more than four
dozen cases as affecting claims adjudication policy).
39
MASHAW ET AL., supra note 28 at 110.
40
https://ssa.gov/OP_Home/rulings/ar-toc.html.
41
The agency has published a large number of opinions as Social Security Rulings. See
www.ssa.gov/OP_Home/rulings/rulfind3.html
42
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, SSA DISABILITY BENEFITS PROGRAMS: ASSESSING THE
EFFICACY OF THE TREATING PHYSICIAN RULE, April 3, 2013, at 7-13.
43
Soc. Sec. Ruling 96-1p; Memorandum to All Administrative Law Judges and All Senior Attorneys from Debra
Bice, Chief Administrative Law Judge, Jan. 11, 2013, at 2 (on file with authors). Compare MASHAW ET AL., supra
note 28 at 110-115 (describing the agency’s attitude toward case law in the 1970s).
44
Mashaw and his colleagues reported that, “[i]n our interviews, ALJs and their legal assistants seemed remarkably
unconcerned with the activities of their local reviewing courts.” MASHAW ET AL., supra note 28 at 140.

13

rooted in comparative institutional competence is as compelling as it might have been in 1978.
Caseloads have fundamentally transformed ALJs’ jobs. Based on their interviews, Mashaw and
his colleagues estimated that an ALJ in 1978 averaged five hours on a case. 45 The ALJs we
interviewed consistently reported a figure closer to two-and-a-half hours. 46 ALJs could afford to
be “sharply divided” on the extent to which they delegated decision writing to staff attorneys in
1978. 47 Decision writing by staff attorneys and others is now an integral part of the process
within most hearing offices. Any assessment of comparative institutional competence has to
weigh the ALJ’s superior expertise against the relative surfeit of time for decision-making that
federal judges enjoy.
Judicial review undoubtedly has significant costs for the administration of our national
disability claims system. The federal courts have a doubtful capacity to help engineer effective
agency processes to be administered on a mass scale. Judicial insistence upon certain
approaches to decision-making may create significant administrative burden with uncertain
benefits. 48 The division of the federal courts into ninety-four districts and an inconstant
commitment to uniformity in the elaboration of federal law by the twelve circuits create serious
coordination difficulties for an agency committed to the consistent administration of a federal
program. 49
But judicial review also has unquestionable benefits. The federal courts can act as a
corrective to effects, whether intended or not, of what Mashaw calls “bureaucratic imperatives” –
45

MASHAW ET AL., supra note 28 at 43.
This figure approximates what we heard from most of the ALJs we interviewed. A report prepared for the
Association of Administrative Law Judges in connection with litigation reported a similar figure. Cheryl Paullin et
al., Administrative Law Judge Work Analysis Study, Nov. 12, 2015, at iii, at
https://drive.google.com/file/d/0B2kAAfgH45ClZjRGejdwSkwyNXc/view?pli=1 (last visited Mar. 31, 2016) (also
on file with authors); id. at 42.
47
MASHAW ET AL., supra note 28 at 90.
48
MASHAW, BUREAUCRATIC JUSTICE, supra note 29 at 186-187; DERTHICK, AGENCY UNDER STRESS, supra note 35
at 131.
49
DERTHICK, AGENCY UNDER STRESS, supra note 35 at 131.
46

14

aggregate priorities arrived at centrally by the agency that can change decision-making in a
particular way. 50 For many claimants dogged enough to get to federal court, judicial review
corrects errors that would otherwise deny benefits to those rightly entitled to them.
Despite calls for replacement dating back at least to Mashaw and his colleagues in 1978,
Congress has left the present system of judicial review in place. Perhaps the inefficiencies and
burdens that judicial review generates for the agency are not just a bug but part of the system’s
intended design. At any rate, we detected little support for a fundamental transformation in the
present system of judicial review in the many interviews we conducted. Social security cases
may often frustrate federal judges, but several stressed to us how highly they value their power to
review ALJ decisions. 51 Claimant representatives 52 understandably place great value on access
to the federal courts; as one told us, a federal court appeal for some claimants “is a matter of life
and death.” 53 Commentators have repeatedly proposed the creation of a specialized Article I
court for the review of social security cases. 54 Almost no one we interviewed – federal judges,
agency lawyers and officials, claimant representatives, or ALJs – favored this recommendation.
We assume for the purposes of this Report that the present system of judicial review will
remain largely in place. 55 How to improve this system is the subject of the discussion that
follows.

50

MASHAW, BUREAUCRATIC JUSTICE, supra note 29 at 173. The best example is the resistance federal courts
offered to continuing disability review in the 1980s. ERKULWATER, supra note 36 at 108 (2006).
51
E.g., Federal Judge 11 (insisting that claimants should get Article III review); Federal Judge 19 (insisting that
social security cases are important and should remain on district courts’ dockets); Federal Judge 18 (doubting that
specialization in appellate review would improve justice); Federal Judge 24 at 7 (insisting that specialization doesn’t
work well).
52
Readers should not confuse this term, which is commonly used in the manner that we do here, with “claims
representatives.” The latter work for the agency, where they help to review initial claims for benefits.
53
Claimant Representative 1 at 6.
54
E.g., Verkuil & Lubbers, supra note 23 at 778.
55
We consider and reject the possibility of replacing district court review with review by an Article I court in Part
VI.

15

Part II. The Path of a Disability Claim
A number of the federal judges we interviewed candidly admitted that they know very
little about how a disability claim works its way to their chambers. 56 The basics, of course, are
familiar. 57 Claimants file an initial application, eventually appear at a hearing before an ALJ,
and then seek Appeals Council review before heading to federal court. But a more detailed
understanding of the path a claim follows is necessary for federal judges to understand fully what
exactly they are reviewing and why it takes the form it does. This Part addresses gaps in judicial
knowledge with an extensive description of this path. Two important determinants, caseload
pressures and quality assurance initiatives, influence the composition of those cases that reach
federal district courts. This Part discusses these factors as well, to deepen federal judicial
knowledge of the influences that affect the quality of agency decisions they review.
Two provisos need mention. First, what follows does not cover every aspect of the
claims adjudication process. We have selected details for inclusion based on what federal judges
expressed particular interest in or confusion about in our conversations with them. Second,
agency personnel in some of our interviews described their jobs in ways that may depart from
agency policy. We have tried to indicate where this is so, and we emphasize that our interview
data offer impressions but not rigorous proof of what happens inside the agency.
A. The Disability Claims Adjudication Process
1. The Initial Application
The quest for disability benefits begins with an application filed in one of SSA’s 1,300

56
E.g., Federal Judge 8 at 3 (“I know nothing”); Federal Judge 9 at 4 (indicating no knowledge of processes within
the agency); Federal Judge 10 at 3 (indicating knowing “next to nothing” about agency processes); Federal Judge 11
at 4 (reporting knowing “zero” about agency processes).
57
For a thorough but concise summary of the process, see SOCIAL SECURITY ADVISORY BOARD, ASPECTS OF
DISABILITY DECISION MAKING: DATA AND MATERIALS, Feb. 2012, at 87-88; see also Krent & Morris, supra note 1
at 373-377.

16

field offices, or online or by telephone. 58 A “claims representative,” the first SSA employee the
applicant encounters, assembles some of the information necessary to determine whether a
claimant is entitled to benefits. 59 The claims representative prepares a “disability report,” which
includes information on the claimant’s work history, the alleged disability onset date, and the
claimant’s medical providers. 60 The claims representative also creates a “certified electronic
folder,” 61 or a digital receptacle into which the claims representative, the claimant, her
representative, and other personnel throughout the adjudication process deposit medical records
and other claim-related information. 62
The claims representative verifies non-medical aspects of the claim. 63 She then forwards
the claim to a “Disability Determination Service” (“DDS”), a state-run agency that operates
under the SSA’s guidance and pursuant to federal law. 64 A “disability examiner” gathers as
many of the claimant’s medical records as possible and then determines whether the claimant is
disabled. In the majority of DDS offices, a medical or psychological consultant who works for
the state agency may assist the disability examiner with this determination. 65 Some DDS offices
have followed a “single decision maker” model that allows the disability examiner to decide
some claims without a medical consultant’s signature. 66 In most states, the claimant can ask for

58

ASPECTS OF DISABILITY DECISION MAKING, supra note 57 at 87.
SOCIAL SECURITY ADMINISTRATION, PROGRAMS OPERATION MANUAL SYSTEM, § DI 10005.001, at
www.ssa.gov/poms.nfs/lnx/0410005001 (last visited Nov. 11, 2015) [hereinafter “POMS”]. This person typically
has a college degree but not medical training. E.g., https://www.socialsecurity.gov/ny/jobs-general.htm;
http://www.dol.gov/oasam/doljobs/college-guide-qualify.htm.
60
POMS, supra note 59 § DI 10005.005.
61
Id.
62
Id. § DI 81001.005.
63
See www.ssa.gov/disability/determination.htm (last visited Nov. 11, 2015); POMS, supra note 59 § DI
10005.001B.
64
ASPECTS OF DISABILITY DECISION MAKING, supra note 57 at 87.
65
E.g., www.disabilitysecrets.com/resources/disability/find-out-what-type-medical-consultant-reviewed.
66
See generally 20 C.F.R. §§ 404.906 and 416.1406; OFFICE OF THE INSPECTOR GENERAL, SOCIAL SECURITY
ADMINISTRATION, AUDIT REPORT, SINGLE DECISIONMAKER MODEL – AUTHORITY TO MAKE CERTAIN DISABILITY
DETERMINATIONS WITHOUT A MEDICAL CONSULTANT’S SIGNATURE, Aug. 2013, at
59

17

reconsideration if the DDS office denies the claim. 67 A different pair of examiners and
consultants decides these requests. 68
2. The Hearing Office
Any discussion of adjudication at the ALJ level must begin with a sobering reality: the
1300 or so ALJs working within more than 160 hearing offices nationwide 69 are each asked to
render 500-700 “legally sufficient” dispositions per year. 70 The agency set this goal in 2007 in
response to concerns about an immense backlog and lengthy delays claimants had to endure, 71
and concomitant political pressure to clear it. 72 At the time, the majority of ALJs issued fewer
than 500 decisions annually. 73 By 2011, two-thirds of ALJs surpassed the 500 case threshold. 74
In FY 2013, the average ALJ disposed of 48 cases per month, 75 although ALJ disposition rates

http://oig.ssa.gov/sites/default/files/audit/full/pdf/A-01-12-11218.pdf. The Bipartisan Budget Act of 2015 will
eliminate the agency’s single decision maker authority effective November 2, 2016. See Pub. L. No. 114-74, § 832.
67
In so-called “prototype” states claimants cannot request reconsideration. POMS, supra note 59 § DI 12015.100.
These include New Hampshire, parts of New York, Pennsylvania, Alabama, Michigan, Louisiana, Missouri,
Colorado, parts of California, and Alaska. Id.; see also HALLEX, supra note 38 § I-2-4-98. The evidence is mixed,
but in general claimants do not fare differently at the ALJ level whether they come from a prototype jurisdiction or
not. HAROLD J. KRENT & SCOTT MORRIS, STATISTICAL APPENDIX ON ACHIEVING GREATER CONSISTENCY IN
SOCIAL SECURITY DISABILITY ADJUDICATION: AN EMPIRICAL STUDY AND SUGGESTED REFORMS, April 2013, at 5051 (April 2013); ASPECTS OF DISABILITY DECISION MAKING, supra note 57 at 10-11.
68
ASPECTS OF DISABILITY DECISION MAKING, supra note 57 at 88.
69
SOCIAL SECURITY ADMINISTRATION, ANNUAL STATISTICAL SUPPLEMENT TO THE SOCIAL SECURITY BULLETIN,
2014, at Table 2.F8; id. Table 2.F1; see also OFFICE OF THE INSPECTOR GENERAL, SOCIAL SECURITY
ADMINISTRATION, AUDIT REPORT, THE SOCIAL SECURITY ADMINISTRATION’S EFFORTS TO ELIMINATE THE HEARING
BACKLOG, A-12-15-15005, Sept. 2015, at 5 (showing fluctuations in ALJ numbers). The Fall 2015 budget deal
provides for a significant growth in the size of the ALJ corps, to over 1900 ALJs, by 2017. E.g., Mark Schleifstein,
Social Security Disability Pressure Eased by Budget Compromise, NEW ORLEANS TIMES-PICAYUNE, Oct. 30, 2015.
70
Letter from Chief Administrative Law Judge Frank A. Cristaudo to Colleages, Oct. 31, 2007, at 2, at
http://www.aalj.org/system/files/documents/exhibits_a-f_usdc.pdf.
71
Id.
72
E.g., Social Security Disability Backlogs, Hearing Before the Subcommittee on Social Security of the Committee
on Ways and Means, U.S. House of Representatives, 110th Cong., 1st Sess., Feb. 14, 2007; David Harrison, Social
Security: Short-Term Progress, Long-Term Perils, CONG. QUART. WEEKLY, Feb. 2, 2013.
73
Association of Administrative Law Judges v. Colvin, 777 F.3d 402, 403 (7th Cir. 2015).
74
KRENT & MORRIS, STATISTICAL APPENDIX, supra note 67 at 7. Between 2007 and 2011 the agency hired
hundreds of new ALJs. See Statement of Michael J. Astrue, Commissioner, Social Security Administration, Before
the House Committee on Ways and Means, Subcommittee on Social Security and the House Committee on the
Judiciary Subcommittee on the Courts, Commercial and Administrative Law, July 11, 2011; see also Leading the
Hearing and Appeals Process Into the Future: A Plan for Compassionate And Responsive Service, Jan. 13, 2016, at
5, at http://www.scribd.com/doc/296323512/Cares-Plan-For-Dealing-With-ODAR-Backlog (last visited Mar. 29,
2016).
75
2014 ANNUAL STATISTICAL SUPPLEMENT, supra note 69 Table 2.F8.

18

varied considerably. 76 This number has come down slightly in recent years, in part due to an
increased agency emphasis on policy compliant decision-making. 77
a. Pre-Hearing Workup and Hearing
Claimants, three-fourths of whom are represented at the hearing stage, 78 must file
requests for hearings within sixty days of the final denial of claims at the DDS level. 79 After an
initial case analysis, cases may be screened by attorney adjudicators or undergo other processing
functions. Hearing office staff members are then assigned cases to review, analyze, and prepare
for a hearing. As they do so, they organize the medical evidence already in the electronic folder,
add newly submitted evidence to the right sections of the electronic folder, and organize earnings
records and other non-medical information. 80 During this process ALJs get assigned to cases on
a rotational basis. Some ALJs have standing orders that instruct hearing office staff to acquire
information that is missing, such as workers’ compensation records, or to schedule vocational
expert or medical expert testimony if a case warrants it. 81 Other ALJs will take a first look at a
case months in advance of a hearing date, to determine what sort of workup it requires, and then
give hearing office staff more tailored instruction for the pre-hearing workup. 82
The inquisitorial, non-adversarial nature of the claims adjudication process obliges an
ALJ to “develop the record.” 83 Federal judges commonly fault ALJs for their failures to
discharge this duty adequately, although expectations about what ALJs can plausibly accomplish
may be unreasonable in some instances. An example involves the enforcement of subpoenas

76

KRENT & MORRIS, STATISTICAL APPENDIX, supra note 67 at 5-6. In one of the years covered by the Krent and
Morris study, one ALJ decided 3,620 claims. Id.
77
OIG, EFFORTS TO ELIMINATE THE HEARING BACKLOG, supra note 69 at 4.
78
KRENT & MORRIS, STATISTICAL APPENDIX, supra note 67 at 48.
79
HALLEX, supra note 38 § I-2-0-50.
80
Agency Official 1 at 1.
81
ALJ 5 at 3; ALJ 3 at 3.
82
ALJ 6 at 1; ALJ 7 at 1.
83
20 C.F.R. §§ 404.1512(d)-(e), 416.912(d)-(e).

19

ALJs issue to medical providers for relevant records. 84 To some federal courts, especially in pro
se cases, the mere issuance of a subpoena does not discharge the ALJ’s obligation to develop the
record when the person or entity being subpoenaed does not respond. 85 An ALJ who seeks a
subpoena’s enforcement, however, must trigger a cumbersome process. 86 It can require the
Office of General Counsel to work with the United States Attorney to seek enforcement of the
subpoena, and ultimately federal court involvement. 87
Most of the twenty-four ALJs we interviewed subscribe to what one labeled a “just in
time” approach to case review. 88 An ALJ using this method first looks at a case anywhere from
one day to a week before the hearing. 89 One ALJ acknowledged to us that an earlier review
would be better; the ALJ, for example, could make sure that she had solicited the right expert
testimony given the alleged impairments and the makeup of the medical records. 90 A variety of
factors, however, can compel the just in time approach, including an issue of significant concern
to ALJs. Claimant representatives often submit voluminous sets of medical records up to and
even after the hearing date. 91 One ALJ told us that late-arriving evidence surfaces in 90% of
cases; 92 others said this happens “every day.” 93 Explanations for the phenomenon vary. 94

84

HALLEX, supra note 38 § I-2-5-78; 20 C.F.R. §§ 404.950(d)(1) and 416.1450(d)(1).
E.g., Sanchez v. Barnhart, 329 F. Supp. 2d 445, 451 (S.D.N.Y. 2004); Suriel v. Comm’r of Social Security, Civ.
No. 05-1218, 2006 WL 2516429, at *6 (E.D.N.Y. Aug. 29, 2006); Brandow v. Comm’r of Social Security, Civ. No.
05-917, 2009 WL 2971543, at *5 n.6 (N.D.N.Y. Sept. 11, 2009). But see Serrano v. Barnhart, Civ. No. 02-6372,
2005 WL 3018256, at *3-4 (S.D.N.Y. Nov. 1, 2005); Friedman v. Astrue, Civ. No. 07-3651, 2008 WL 3861211, at
*4-5 (S.D.N.Y. Aug. 19, 2008).
86
HALLEX, supra note 38 § I-2-5-82.
87
42 U.S.C. § 405(e). Cf. Yancey v. Apfel, 145 F.3d 106, 113 (2d Cir. 1998) (expressing concerns over “the
financial and administrative burdens of processing disability claims” that a rule requiring the SSA to subpoena
treating physicians at the claimant’s behest would entail).
88
ALJ 8 at 3.
89
E.g., ALJ 9 at 1 (one week); ALJ 10 at 1 (one week); ALJ 11 at 1 (2-3 days before); ALJ 12 at 1 (one week); ALJ
7 at 1 (10 days); ALJ 8 (one day before); ALJ 1 at 1 (one day); ALJ 13 at 1 (one week); ALJ 14 at 1 (one day); ALJ
2 at 1 (a couple of days).
90
ALJ 7 at 1.
91
See generally ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, FINAL REPORT, SSA DISABILITY BENEFITS
ADJUDICATION PROCESS: ASSESSING THE IMPACT OF THE REGION I PILOT PROGRAM, Dec. 2013, at 10; id. at 29.
92
ALJ 6 at 2; see also ALJ 14 at 1 (70-90% of cases).
93
ALJ 13 at 1; see also ALJ 12 at 1 (insisting that this practice is the rule, not the exception).
85

20

Whatever the reason for the problem, late-arriving records can turn an earlier case review into a
fools’ errand, several ALJs insisted to us. If four hundred pages of medical records show up a
day before the hearing, their arrival undermines much of the preparation an ALJ may have done
three weeks earlier.
We asked all of the ALJs we interviewed to estimate how much time they spend on
various tasks. Several described spending a day preparing a day’s worth of hearings, usually six
or eight. 95 ALJs are expected to schedule 10-20 hearings per week. 96 A union contract does not
permit ALJs to work overtime, so this schedule has implications for the amount of time ALJs
have for each case. 97 ALJs we interviewed reported spending about an hour or so reviewing
claimants’ records and preparing for a hearing, 98 a figure consistent with a previous study. 99
Medical records routinely total hundreds of pages in length. 100 Some ALJs told us that they try

94

See generally Frank S. Bloch et al., Developing a Full and Fair Evidentiary Record in a Nonadversary Setting:
Two Proposals for Improving Social Security Disability Adjudications, 25 CARDOZO L. REV. 1, 8 (2003) (discussing
possible explanations). Some ALJs blamed this phenomenon on cynical or negligent claimant representatives. ALJ
13 at 2; ALJ 2 at 1. Claimant representatives stressed the difficulty and expense of obtaining records from medical
providers. Claimant Representative 2 at 3; Claimant Representative 3 at 1.
95
E.g., ALJ 15 at 2 (eight hearings per day); ALJ 10 at 2 (six hearings per day, one day to prepare one day’s worth
of hearings); ALJ 16 (five hearings per day for a Hearing Office Chief Administrative Judge (“HOCALJ”), one day
to prepare one day’s worth of hearings).
96
OFFICE OF THE INSPECTOR GENERAL, SOCIAL SECURITY ADMINISTRATION, CONGRESSIONAL RESPONSE REPORT,
ADMINISTRATIVE LAW JUDGE AND HEARING OFFICE PERFORMANCE, A-07-08-28094, Aug. 2008, at 10. ALJs may
not have hearings every week. Some ALJs we interviewed took a week to prepare a week’s worth of hearings.
Others presumably have hearings on some days and use other days to prepare for hearings and prepare decisions. In
2014, the agency issued a memorandum to ALJs providing that “scheduling an average of at least fifty (50) cases for
hearing per month will generally signify a reasonably attainable number . . . .” Memorandum to All Administrative
Law Judges from Debra Bice, Chief Administrative Law Judge, Feb. 18, 2014, at 2 (on file with authors).
97
A full work-year for ALJs includes 2,087 hours. For a detailed description of how many hours ALJs actually
spend on cases, see generally Paullin et al., supra note 46 at iii. This study reports that ALJs spend nearly forty
hours per month on tasks not associated with deciding cases. Id. at 39. ALJs may work credit hours between 6:30
AM and 6:00 PM on non-regular work days.
98
E.g., ALJ 9 at 4 (30-60 minutes); ALJ 15 (two hours); ALJ 17 at 2 (45-60 minutes); ALJ 18 at 3 (one hour); ALJ
19 (15 minutes to three hours, depending on the case’s complexity).
99
OIG, ADMINISTRATIVE LAW JUDGE AND HEARING OFFICE PERFORMANCE, supra note 96 at 9 (observing that
higher producing ALJs spend less than an hour reviewing cases before a hearing).
100
In FY 2014, the average case file included 652 pages, including 367 pages of medical records. Paullin et al.,
supra note 46 at 7.

21

to review every page of a file. 101 To others, however, reading every page is an “impossible”
undertaking. 102 One ALJ conceded that he “just hits the high notes” in his pre-hearing review
and thus that he “get[s] surprised” at the hearing. 103 This approach does not comply with agency
policy, but this ALJ was not the only one to confess to it.104
A hearing typically lasts anywhere from fifteen minutes to an hour. 105 Several ALJs told
us that they do their best to hold the hearing, even if a claimant representative produces a stack
of medical records as the hearing begins. 106 One ALJ described this practice as the agency’s
preference, 107 although the formal policy is otherwise. About a quarter of hearings proceed by
video, 108 enabling the agency to shift cases from particularly burdened offices to those in
different locations that might have more capacity. 109 Some of these video hearings proceed
before ALJs in five National Hearing Centers, which opened starting in 2007 expressly to
receive cases transferred from “heavily backlogged” hearing offices nationwide. 110
b. Writing the Decision
101

E.g., ALJ 3 at 1. This ALJ acknowledged a lower than average disposition rate. Id. at 1 (suggesting that most
ALJs write more decisions).
102
ALJ 14 at 1; see also ALJ 18 at 3; ALJ 20 at 5.
103
ALJ 21 at 3.
104
ALJ 19 at 1
105
ALJ 17 at 2. Bloch et al., supra note 94 at 26 (2003); OIG, ADMINISTRATIVE LAW JUDGE AND HEARING OFFICE
PERFORMANCE, supra note 96 at 16.
106
ALJ 13 at 1; ALJ 14 at 2; ALJ 11 at 2.
107
ALJ 16 at 3.
108
Between September 26, 2015, and February 26, 2016, 169 hearing offices reported conducting 59,560 hearings
by video and 226,572 hearings total. See
https://www.ssa.gov/appeals/DataSets/06_Hearings_Held_InPerson_Video_Report.html. This figure represents a
significant increase over the past decade. See OFFICE OF THE INSPECTOR GENERAL, SOCIAL SECURITY
ADMINISTRATION, AUDIT REPORT: USE OF VIDEO HEARINGS TO REDUCE THE HEARING CASE BACKLOG, A-05-0818070, Apr. 2011, at 2 (reporting figures from 2009 and earlier).
109
Id. at 4.
110
OFFICE OF THE INSPECTOR GENERAL, SOCIAL SECURITY ADMINISTRATION, AUDIT REPORT: THE ROLE OF
NATIONAL HEARING CENTERS IN REDUCING THE HEARINGS BACKLOG, A-12-11-11147, Apr. 2012, at 1-2 (reporting
figures from 2009 and earlier). In FY 2011, National Hearing Centers accounted for 4.2% of ALJ dispositions.
Compare id. at 3 (reporting 33,324 NHC dispositions), with
https://www.ssa.gov/policy/docs/statcomps/supplement/2013/2f8-2f11.html#table2.f9 (reporting 793,563 ALJ
dispositions). Between Between September 26, 2015, and February 26, 2016, National Hearing Centers conducted
7,650 hearings, out of a total of 226,572 hearings conducted by 169 offices, or 3.4%. See
https://www.ssa.gov/appeals/DataSets/06_Hearings_Held_InPerson_Video_Report.html.

22

ALJs do not necessarily decide claims right after the hearing. Newly submitted records
might prompt the ALJ to request a consultative exam, which may entitle the claimant to a
supplemental hearing. 111 If testimony elicited at the hearing or late arriving records affect the
ALJ’s understanding of the claimant’s impairments, the ALJ might have to send interrogatories
to a medical expert to assist in determining the claimant’s residual functional capacity
(“RFC”). 112 Claimant representatives might provide yet more records a month later. These posthearing developments are irritants, one ALJ told us, because they might require the ALJ to
prepare the case again. 113 More often, however, ALJs make decisions immediately after
hearings, when memories of testimony and the documentary evidence are sharp. 114 The key task
is to prepare instructions for decision writers, who most often draft the ALJ’s decision.
Decision writers play a central role in the claims adjudication process but are all but
unknown to federal judges. 115 This unawareness is striking, akin to an appellate judge not
knowing that district judges have clerks or what clerks do. A federal judge cannot possibly put
ALJs’ decisions in proper institutional context unless she appreciates the decision writer’s role.
Decision writers are typically either attorneys or “paralegal specialists,” the latter of
whom tend to come up from within SSA’s ranks. 116 They often work alongside ALJs in hearing
offices, although in recent years SSA has operated two “national case assistance centers,” or
centralized offices where decision writers draft decisions for ALJs around the country. 117 The
SSA has set a target of three decision writers for every two ALJs, but most hearing offices fall a
111

HALLEX, supra note 38 § I-2-7-30.
HALLEX, supra note 38 § I-2-5-45.
113
One ALJ insisted he could decide an additional 100 cases a year “easily” if he didn’t have to perform this sort of
post-hearing cleanup. ALJ 19 at 4.
114
E.g., ALJ 13 at 2; ALJ 10 at 1-2.
115
Federal Judge 12 at 1 (expressing uncertainty if ALJs have “clerks”); Federal Judge 6 at 4 (mentioning that only
recently after fourteen years discovered that ALJs have decision writers).
116
One decision writer we interviewed, for example, started her career with SSA as a claims representative in a field
office. Decision Writer 1 at 1.
117
See www.socialsecurity.gov/org/orgdcdar.htm.
112

23

good deal short of this goal. 118 Decision writers are not usually assigned to particular ALJs but
instead work in a pool, 119 a scheme many ALJs and decision writers dislike. 120 Within these
pools, decision writers may be organized differently from hearing office to hearing office. A
decade ago, for example, decision writers in one hearing office were given particular topics, such
drug and alcohol cases, to become expert on, and difficult cases involving these topics would get
assigned accordingly. 121 More commonly, decisions are put in a queue, to be assigned to the
next decision writer available. Decision writers are expected to spend roughly four hours on a
decision granting benefits and eight hours on a decision denying them, although the SSA has
recently crafted more nuanced expectations for decision writer productivity. 122 One decision
writer told us that “two-dayers are pretty rare,” 123 and another described 20-30 decisions per
month as an acceptable pace. 124
Decision writers do not typically attend hearings, although they may listen to the hearing
recording, and they base their drafts on written instructions from ALJs. These instructions vary
significantly. Although some ALJs remain committed to their own forms, typing into them or
filling them out by hand, 125 the SSA has pushed for standardization in recent years. The
“electronic benchbook” (“eBB”), a web-based application that aids in documenting, analyzing,
118

OFFICE OF THE INSPECTOR GENERAL, SOCIAL SECURITY ADMINISTRATION, AUDIT REPORT: HEARING OFFICE
PERFORMANCE AND STAFFING, A-12-08-28088, Feb. 2010, at 7; see also Agency Official 1 at 3 (indicating that the
ratio is typically 1:1). One decision writer we interviewed insisted that the ratio should be 2-3 decision writers per
ALJ. Decision Writer 1 at 1. This is the ratio that prevails in National Hearing Centers. OIG, THE ROLE OF
NATIONAL HEARING CENTERS, supra note 110, at 6.
119
Decision Writer 2 at 1. Decision writers are assigned differently in the National Hearing Centers. Because the
National Hearing Centers render only a small percentage of the total number of ALJ dispositions, however, we
believe the description is generally applicable.
120
Jeffrey S. Wolfe, Civil Justice Reform in Social Security Adjudications, 33 J. NAT’L ASS’N ADMIN. L. JUDICIARY
137, 176 (2013) (reporting results of a survey of ALJs); Decision Writer 2 at 1 (indicating from a decision writer’s
point of view that the assignment decision writers to individual ALJs would be better, provided that the ALJ weren’t
difficult to work with).
121
Decision Writer 2 at 2. This practice ended a decade ago.
122
E.g., Decision Writer 3 at 3; Decision Writer 4 at 2; Decision Writer 5 at 2.
123
Decision Writer 3 at 3. Another decision writer told us that he “hardly ever” takes more than eight hours to draft
a decision. Decision Writer 6 at 1.
124
Decision Writer 7 at 2.
125
ALJ 9 at 2; ALJ 15 at 2; ALJ 19 at 1.

24

and adjudicating cases, generates instructions for some ALJs. More common are instructions
based on the Findings Integrated Template (“FIT”), a tool ALJs began using in 2006 that
generates templates for various types of disability decisions. 126
The SSA has pushed ALJs to give more than a thumbs up/thumbs down in their
instructions; at a minimum, an adequate set should include information reflecting the ALJ’s
determination for each step of the five-step sequential process for evaluating a claim. 127 Several
of the decision writers we interviewed, however, reported that instructions routinely omit basic
findings, such as whether the claimant has a severe impairment 128 or what the claimant’s residual
functional capacity is. 129 ALJs, some writers told us, often do not address the weight they assign
to treating physician opinions, and often they do not include any information in their instructions
to explain a “symptom evaluation” finding. 130 (The agency now uses the term “symptom
evaluation” in lieu of “credibility.”) 131 One ALJ told us that, if he were to draft instructions in

126

See generally OFFICE OF THE INSPECTOR GENERAL, SOCIAL SECURITY ADMINISTRATION, OFFICE OF DISABILITY
ADJUDICATION AND REVIEW DECISION-WRITING PROCESS, A-2-09-19068, Nov. 2010, at 2.
127
Id. at 2; see also Memorandum to All Administrative Law Judges, Attorney Adjudicators, and Decision Writers,
from Debra Bice, Chief Administrative Law Judge, Feb. 27, 2012 (on file with authors) (describing adequate
instructions); Memorandum to All Administrative Law Judges, from Debra Bice, Chief Administrative Law Judge,
July 10, 2013 (on file with authors) (describing adequate instructions).
128
Decision Writer 8 at 4.
129
Decision Writer 7 at 1; see also Decision Writer 12 at 4 (explaining that “we have to reinvent the wheel” to draft
a complete decision); Decision Writer 4 at 2 (explaining that “in quite a few instances” he has had to mine the record
to understand why an ALJ wanted to rule the way the ALJ did). A claimant’s “residual functional capacity,” or
RFC, represents the most that he or she can do despite his or her impairments. See 20 C.F.R. §§ 404.1545 and
416.945.
130
One decision writer estimated that one out of twelve sets of instructions will include information to support a
credibility finding, and two to three out of twelve will assign weight to treating physician opinions. Decision Writer
9 at 3. Another told us that in a “majority” of instances she has to figure out on her own what weight to give treating
physician opinions. Decision Writer 3 at 2; see also Decision Writer 7 at 1 (explaining that “ideally” instructions
would discuss “symptom evaluation” and weight given to treating physicians’ opinions, but more often than not they
do not); Decision Writer 6 at 1 (explaining that “better” instructions address treating physician opinions); Decision
Writer 4 at 1 (describing instructions that address weight given to physician evidence as at a “far extreme”). But see
Decision Writer 10 at 2 (explaining that instructions “more or less” address symptom evaluation and treating
opinion evidence).
131
Soc. Sec. Ruling 16-3p.

25

accordance with the agency’s guidelines, he would decide three cases per week. 132 Some
decision writers actually prefer this brevity and the responsibility that shifts to their shoulders. 133
The decision writers we interviewed take various approaches to drafting decisions. A
couple reported that they go through all the records, 134 with an understanding that they act as a
“backstop” to the ALJ. 135 Others “brows[e] through” medical records when they are too
voluminous to examine page-by-page. 136 The SSA has encouraged decision writers to discuss
concerns with ALJs when instructions have not addressed important issues. The decision writers
with whom we spoke have mostly constructive relationships with ALJs and reported easy,
collegial interactions. But ALJs can sometimes bristle at decision writers’ questions, one writer
said, 137 and another told us that consulting with ALJs can slow things down. 138 Contrary to
policy, several decision writers described routinely determining issues they felt a decision
needed without guidance from an ALJ’s instructions. 139 Concerns that might change the claim’s
outcome, however, typically get reported to ALJs before a draft’s completion, 140 and ultimate
responsibility for all findings always remains with the ALJ.

132

ALJ 16 at 3. A report commissioned by the Association of Administrative Law Judges concluded that a decision
crafted in a manner consistent with agency policy, including that regarding appropriate instructions, would require
between five-and-a-half and eight-and-a-half hours of ALJ time, depending on case complexity. Paullin et al., supra
note 46 at iii.
133
“Just say ‘deny at Step Four’ and let me figure out why,” as one decision writer declared. Decision Writer 2 at 3;
see also Decision Writer 11 at 1 (detailed instructions are “frustrating,” since a decision writer has to go through the
record anyway).
134
Decision Writer 1 at 3; Decision Writer 9 at 2 (explaining that she goes through the record “very thoroughly”).
135
Decision Writer 1 at 4; Decision Writer 12 at 1.
136
Decision Writer 13 at 1; see also Decision Writer 7 at 3 (explaining that he does not go through every page and
instead skims records).
137
E.g., Decision Writer 2 at 4.
138
Decision Writer 12 at 5.
139
Decision Writer 13 at 4 (decision writers make their own determinations in 99.9% of cases); Decision Writer 8 at
4 (100% of cases); Decision Writer 1 at 3 (responding “oh yes” when asked whether decision writers find issues
ALJs didn’t address in their instructions); Decision Writer 2 at 4 (estimating that she catches issues “20-30% of the
time at least”); Decision Writer 4 at 2 (indicating that this happens “with some regularity”). But cf. Decision Writer
7 at 2 (suggesting that serious issues with ALJ’s decision comes up “very rarely”); Decision Writer 6 at 2 (indicating
that an issue the ALJ didn’t address arises once every 2-3 weeks); Decision Writer 12 at 5.
140
Decision Writer 8 at 4.

26

Decision writers do not write on a blank slate but instead insert particularized text
providing the decision’s rationale into boilerplate that the FIT template generates. Ninety-eight
percent of opinions are written on the FIT template, which is intended to ensure that all decisions
meet a certain threshold of quality and completeness. For this reason, almost every ALJ decision
will contain at least some generic language. 141 The draft then goes back to the ALJ for review.
Estimates of time spent reviewing drafts ranged from fifteen minutes 142 to four hours; 143 thirty
minutes was a common estimate. 144 More often than not ALJs do not revise drafts
extensively. 145
3. The Appeals Council
Although every disability appeal passes through the Appeals Council before arriving at a
district court, administrative records reveal little about what goes on within the SSA’s appellate
body. The Appeals Council decides whether to grant review of a hearing decision, and if review
is denied, then the claimant can proceed to federal court. These denial actions are documented in
a brief order. Appeals Council processes, then, are particularly opaque to federal courts. 146

141

OIG, EFFORTS TO ELIMINATE THE HEARING BACKLOG, supra note 69 at 9.
ALJ 9 at 4.
143
ALJ 11 at 4 (estimating spending four hours reviewing a weak writer’s drafts and twenty minutes reviewing a
strong writer’s drafts).
144
ALJ 15 at 3; ALJ 18 at 4. See also Paullin et al., supra note 46 at 48 (reporting that 77% of draft decisions
require no more than an hour to review).
145
Letter from Frank A. Cristaudo, Chief Administrative Law Judge, to Colleagues, Dec. 19, 2007, at 2 (on file with
authors) (“We . . . ask the attorneys and paralegals to provide draft decisions that require little or no editing. We do
not want the ALJ, or anyone else, to waste precious time re-drafting decisions.”). One ALJ told us that her “greatest
frustration” is having to put her name on a decision that will get “butchered” on appeal because it is “so mediocre or
poor.” But, because she has no more than “minimal time” to spend reviewing decisions, this ALJ has accepted such
frustration as an inevitable by-product of her caseload. ALJ 20 at 3; see also ALJ 16 at 4 (acknowledging that he
reviews drafts quickly). See generally OIG, ADMINISTRATIVE LAW JUDGE AND HEARING OFFICE PERFORMANCE,
supra note 96 at 13 (describing estimates of how intensive of a review ALJs give decision writer drafts); Paullin et
al., supra note 46 at 48 (observing that 23 out of 31 ALJs surveyed reported that 50% of draft decisions require little
or no editing).
146
For a detailed introduction to processes in the Appeals Council, see OFFICE OF THE INSPECTOR GENERAL, SOCIAL
SECURITY ADMINISTRATION, AUDIT REPORT: REQUEST FOR REVIEW WORKLOADS AT THE APPEALS COUNCIL, A-1213-13039, Mar. 2014.
142

27

The roughly 180,000 appeals claimants take annually from ALJ decisions get divvied up
among the five “Program Review Divisions” within the Appeals Council. Typically, each
division handles cases originating in states that fall within a maximum of two judicial circuits. 147
These divisions in turn are divided into branches, with each branch staffed by about 15-18
analysts. 148 The last two digits of a claimant’s social security number – not, say, the hearing
office from which an appeal comes – determines the branch to which an appeal goes. 149
Analysts 150 use a case-processing tool called the “Appeals Case Analysis Tool,” or ACAT, to
deconstruct the ALJ’s decision and determine if it is policy compliant. 151 ACAT asks analysts a
series of questions about each of the sequential steps to determine if the Appeals Council should
grant review of the ALJ’s decision. 152 Some claimants file short briefs, typically no more than
three pages or so, identifying alleged errors in the ALJ’s decision. 153 A brief can be little more
than a pre-printed form letter that rattles off a laundry list of alleged errors. 154
The ACAT tool requires the analyst to address key issues in a case, and it prompts an
analyst to justify a recommendation. Usually, analysts prepare “action documents” that include
recommended actions along with the analysis generated by the ACAT tool. 155 According to one
agency official’s description, these action documents typically range from a half of a page to a
147

Appeals Council Organizational Chart, Sept. 26, 2011 (on file with authors).
Agency Official 2, First Interview at 1.
149
Agency Official 2, Second Interview at 1.
150
The majority of analysts are attorneys. Some are paralegal specialists. Agency Official 3, First Interview at 1.
151
Agency Official 2, First Interview at 1; Agency Official 3, Third Interview at 1; OIG, REQUEST FOR REVIEW
WORKLOADS, supra note 146 at E-1. ACAT is part of the “Appeals Review Processing System,” or ARPS. ARPS
is described as follows:
ARPS can generate detailed and structured management information reports on receipts, adjusted
receipts, dispositions, average processing time, pending, and average age of pending. It can sort
reports by fiscal year, month, and week. The system can also produce listings based on a large
selection of criteria, such as by projected age of the case, by case status, by the assigned analyst,
by branch, type of case, and State. The system also allows the user to drill down to the case
details.
Id. at E-1.
152
Agency Official 2, First Interview at 1.
153
Agency Official 2, Second Interview at 2.
154
Agency Official 2, Second Interview at 2.
155
HALLEX, supra note 38 § I-2-3-10.
148

28

page-and-a-half of individualized text; 156 the ACAT tool produces a “one-page Facts of Finding
memorandum.” 157 If an analyst recommends that the AC deny review, the case will go to either
an Appeals Officer (“AO”) for or an Administrative Appeals Judge (“AAJ”). A recommendation
that the AC grant review and remand will go to two AAJs. These officials will then formally
decide the appeal. 158
Caseload pressures are immense at the Appeals Council. After an initial training
period, 159 analysts are expected on average to prepare action documents for two cases each
day. 160 Depending on complexity, AOs and AAJs decide anywhere from five to twelve cases per
day. 161 An analyst we interviewed told us that some analysts claim to go through every page in a
case file, but that he did not think it feasible to do so. 162 AOs and AAJs face the same time
constraints. 163 Still, an experienced analyst, having reviewed hundreds of cases, can “flip
through” medical records quickly to find a physician’s evaluative opinion, one analyst told us. 164
Extensive experience also enables AOs and AAJs to spot problems in ALJ decisions quickly. 165
At present Appeals Council adjudication mostly involves error correction. Unlike the
Board of Immigration Appeals, another agency appellate body handling a large volume of cases,
the Appeals Council rarely issues opinions or otherwise steers the elaboration of governing law

156

Agency Official 2, First Interview at 1.
OIG, REQUEST FOR REVIEW WORKLOADS, supra note 146 at E-1.
158
OIG, REQUEST FOR REVIEW WORKLOADS, supra note 146 at 1.
159
Agency Official 3, Third Interview at 2.
160
Agency Official 2, First Interview at 2.
161
Agency Official 4 at 2. In FY 2012, the median AAJ decided 1,283 dispositions. The median AO rendered
2,049 dispositions. OIG, REQUEST FOR REVIEW WORKLOADS, supra note 146 at 10, 12.
162
Agency Official 5 at 2.
163
Several claimant representatives relayed an impression to us that Appeals Council review is cursory. Claimant
Representative 4 at 3 (“They have so very little time.); Claimant Representative 5 at 2 (noting that the AC has “an
incredibly limited amount of time”). Compare Agency Official 2, First Interview at 2 (insisting that some AOs and
AAJs review medical records comprehensively).
164
Agency Official 5 at 3.
165
Agency Official 3, Third Interview at 2. An analyst told us that some AAJs and AOs delve deeply into records.
Agency Official 2, Second Interview at 2.
157

29

through precedent. 166 Its personnel do, however, rely on their review of cases to identify issues
for policy making through other vehicles.
4. Federal Court
Even aspects of district court litigation remain opaque to federal judges, if our interviews
are representative. Some judges expressed confusion over who represents the agency. The SSA
lacks independent litigating authority, so the U.S. Attorney is nominally the government’s
lawyer. 167 With some exceptions, however, lawyers from the SSA’s Office of General Counsel
(“OGC”) do the heavy lifting on the substance of the appeal. 168 In fact, OGC lawyers seem to
prefer to litigate as “special assistant U.S. attorneys,” or “SAUSAs,” 169 a designation that
enables OGC lawyers to litigate with very little involvement of the U.S. Attorney. 170
OGC lawyers are organized into ten regions, with each region covering litigation in all
districts within no more than two circuits. 171 In some instances, OGC lawyers within a region
specialize in one or two districts. 172 These lawyers gain a deep understanding of that district’s
rules and standing orders and even of particular judges and their tendencies. One OGC lawyer
we spoke with litigates exclusively in front of three judges, enabling her to speak at length about
each one’s idiosyncrasies. 173 In other regions, OGC lawyers litigate in different districts, for at

166

Cf. JERRY L. MASHAW ET AL., ADMINISTRATIVE LAW: THE AMERICAN PUBLIC LAW SYSTEM 541 (7th ed. 2014).
OGC Lawyer 1 at 1; 28 U.S.C. §§ 516-519. See generally Neal Devins & Michael Herz, The Battle That Never
Was: Congress, the White House, and Agency Litigation Authority, 61 LAW & CONTEMP. PROBS. 205 (1998).
168
OGC Lawyer 1 at 1; OGC Lawyer 2 at 1; OGC Lawyer 3 at 3; DOJ Official 2 at 1; DOJ Official 3 at 1.
169
E.g., OGC Lawyer 4 at 1; OGC Lawyer 5, Second Interview at 3; OGC Lawyer 6 at 2; OGC Lawyer 7 at 1; OGC
Lawyer 1 at 1. One OGC lawyer we spoke suggested that the degree of AUSA involvement depends on its trust of
OGC. OGC Lawyer 8 at 5.
170
OGC Lawyer 9 at 1.
171
Notice Announcing Addresses for Service of Process, 79 Fed. Reg. 4519-04 (Jan. 28, 2014). Before January
2014, OGC’s organization was more haphazard and depended to a greater degree on workload distribution.
Lawyers in the Denver Regional Office, for example, handled cases within three different circuits, including the
Ninth. Because OGC lawyers in the San Francisco and Seattle regions also handled cases within the Ninth Circuit,
three offices had to coordinate when contemplating a Ninth Circuit appeal. OGC Lawyer 2 at 1. Attorneys at
OGC’s headquarters in Woodlawn, Maryland also handle a share of the agency’s program litigation workload.
172
E.g., OGC Lawyer 10 at 1.
173
OGC Lawyer 10 at 4.
167

30

least two reasons. OGC lawyers should get the “joy of a good district and the pain of a bad
district equally,” we were told. 174 Also, workflow difficulties – appeals can spike in one district
and abruptly subside in another – can make specialization by district hard to manage
administratively.
Caseload pressures affect how OGC lawyers handle cases. With eleven briefing
deadlines looming when we spoke, one OGC lawyer aptly described his workload as
“crushing.” 175 Among the OGC lawyers we interviewed, workload estimates ranged from four
briefs to a dozen briefs due per month, 176 added to a slate of other duties these lawyers handle for
the agency. 177 An OGC lawyer described three days as an “enormous” amount of time to spend
writing a single brief. 178
This workload keeps many OGC lawyers from scrutinizing a case in any earnest until
several days before a brief is due. 179 This timing in turn has unfortunate implications for
requests for voluntary remands, or “RVRs.” Several officials we spoke with described the RVR
process as something akin to an Appeals Council backstop. If a case that cannot be defended
survives Appeals Council review, OGC lawyers will catch these errors by requesting voluntary
remand. 180 The agency typically requests voluntary remand in about 15% of appeals annually.
OGC lawyers will rarely seek an RVR in a case based on district court case law, even that
authored by the judge before a current appeal is pending. 181 As several OGC lawyers told us, the
174

OGC Lawyer 1 at 6.
OGC Lawyer 11 at 4.
176
OGC Lawyer 2 at 4 (8-9 briefs per month); OGC Lawyer 3 at 1 (8-10 briefs per month); OGC Lawyer 1 at 2 (4-8
briefs per month); OGC Lawyer 12 at 2 (2-3 briefs per week); OGC Lawyer 13 at 2 (four briefs per month); OGC
Lawyer 10 (4-5 briefs per month); OGC Lawyer 9 (five briefs per month); OGC Lawyer 6 (6-8 briefs per month).
177
These duties include representing the agency in employment litigation, dealing with labor/management issues,
and providing advice on other agency programs. E.g., OGC Lawyer 4 at 1.
178
OGC Lawyer 10 at 1.
179
E.g., OGC Lawyer 10 at 1; OGC Lawyer 11 at 3; OGC Lawyer 2 at 2; OGC Lawyer 9 at 2.
180
Agency Official 5 at 3; OGC Lawyer 5, Second Interview at 3.
181
But see OGC Lawyer 2 at 2 (indicating that, while district court preferences aren’t supposed to affect RVR
thresholds, lawyers do take them into account in extreme circumstances).
175

31

Appeals Council, which has to agree to an RVR, 182 will generally not do so if the basis is a
circuit decision that the lawyer cannot translate into existing agency policy. 183
Several of our interview subjects believe that the last-minute review OGC lawyers give
cases can discourage RVRs, for at least two reasons. First, RVRs may take substantial work.
The OGC lawyer has to write a memorandum for the Appeals Council. While the Appeals
Council acquiesces in nearly 95% of RVR requests, 184 the process is cumbersome. 185 Appeals
Council personnel also find fault with the process, complaining that briefing deadlines impose
difficult time constraints. 186 Rather than jump through these hoops, OGC lawyers may simply
file a merits brief and let the court make the call on the remand. 187 Second, we were told, the
RVR process can all but require a last minute request for an extension. Appeals Council review
can take a week to complete, a significant delay if the OGC lawyer doesn’t identify a fatal flaw
in an ALJ’s order until three days before a brief is due. 188 Rather than frustrate a federal judge
with a last minute request for an extension, an OGC lawyer might file the merits brief. 189
Caseload pressures also exacerbate the inconvenience and inefficiencies caused by the
bewildering array of local rules and standing orders OGC lawyers and claimant representatives
have to navigate. We address the problem of balkanized procedural governance in Part V. For

182

Agency Official 6, First Interview at 2.
OGC Lawyer 18 at 4 (observing that the Appeals Council will not grant an RVR based on Mascio v. Colvin, 780
F.3d 632 (4th Cir. 2015)); OGC Lawyer 12 at 4 (insisting that it is “about impossible” to get an RVR accepted by
the Appeals Council based on Bird v. Commissioner of Social Security, 669 F.3d 337 (4th Cir. 2012)); OGC Lawyer
24 at 3 (observing that the Appeals Council will not grant an RVR request if it is based on a “court position”). The
situation is different, of course, if the agency has issued an acquiescence ruling for the circuit decision.
184
Agency Official 6, First Interview at 2.
185
OGC Lawyer 12 at 2; OGC Lawyer 1 at 6. Cf. OGC Lawyer 13 at 1 (describing the RVR process as
“administratively complicated”).
186
Agency Official 6, First Interview at 3.
187
OGC Lawyer 10 at 2; OGC Lawyer 13 at 1.
188
One OGC lawyer told us that he does a defensibility analysis throughout his work on a case, including right after
the complaint is filed. OGC Lawyer 14 at 1.
189
One OGC lawyer told us of expressions of disapproval he has received from district judges when he has
requested extensions in order to pursue the RVR process. OGC Lawyer 2 at 2.
183

32

present purposes, the following examples illustrate the lack of agreement among the districts on
procedural rules for social security cases:
•

In the Western District of New York, the plaintiff-claimant files the opening brief and the
SSA responds. Until June 2015, the order in the Eastern District of New York was the
reverse. 190 Both sides move for summary judgment in the District of Minnesota. 191
Motions for summary judgment “are not appropriate” in social security cases in the
neighboring Northern District of Iowa. 192

•

In the Eastern District of Missouri, the plaintiff must file his brief in support of the
complaint thirty days after the Commissioner’s answer is filed. The Commissioner must
respond thirty days later, and the reply is due fourteen days after that. Neither of the first
two briefs can exceed fifteen pages. 193 In the Western District of Missouri, the
corresponding briefing deadlines are forty days, forty days, and twenty-one days, and the
briefs cannot exceed fifteen pages in length, exclusive of a “facts” section. 194

•

The Commissioner can file the certified administrative record in lieu of an answer in the
Northern District of Illinois. 195 The Southern District of Illinois does not permit this
efficiency. 196

These variations reflect the singular nature of disability claims, insofar as they require trial courts
to act as appellate tribunals. The square peg of social security appeals has never fit neatly into
the round hole of the Federal Rules of Civil Procedure. 197
Governing procedures do not just differ by district boundary. In the Central District of
California, the highest volume district for disability appeals in the country, 198 twenty or so
discrete case management orders specify procedural requirements that vary by judge. The

190
Compare Standing Order, In the Matter of Actions Seeking Review of the Commissioner of Social Security’s
Final Decisions Denying Social Security Benefits, W.D.N.Y., Sept. 6, 2013, with Administrative Order 2008-5, In
re: Scheduling in Social Security Cases, E.D.N.Y., Mar. 20, 2008. In June 2015, the Eastern District reversed the
order to match what the parties do in the Western District. Administrative Order 2015-05, In re: Scheduling in
Social Security Cases, E.D.N.Y., June 19, 2015.
191
D. Minn. Local R. 7.2(d).
192
N.D. Iowa Local R. 56(i).
193
E.D. Mo. Local R. 56-9.02.
194
W.D. Mo. Local R. 9.1.
195
N.D. Ill. Local R. 8.1(b).
196
S.D. Ill. Local R. 9.1(b).
197
Morton Denlow, Substantial Evidence Review in Social Security Cases as an Issue of Fact, 2 FED. CTS. L. REV.
99, 127-131 (2007) (reporting results of a survey indicating different procedural approaches to social security
appeals).
198
Communication with OGC Lawyer 15, Sept. 4, 2015.

33

differences are many and substantial. Some judges require the parties to file a single “joint
stipulation” in lieu of merits briefs, 199 for example, while others prefer standard briefing. 200
Some judges require the parties to exchange letters discussing settlement before filing a merits
brief or stipulation. 201 Others require an in-person or telephonic meet-and-confer after the
plaintiff drafts her merits argument. 202 Still others dispense with any mandatory settlement
discussions altogether. 203
When a federal judge remands a case, the order goes back to the Appeals Council, where
a specialized division receives it and issues the actual remand order to the ALJ. 204 These orders
are typically boilerplate and incorporate the district court’s decision by reference. 205 The
Appeals Council usually processes these remands fairly expeditiously, 206 although a claimant
representative complained to us that his have languished for half a year. 207 A year can pass
between the district court’s order and a second decision from an ALJ. 208 The norm has been to
have remands return to the same ALJ who rendered the decision in the first instance. 209
Remands typically do not return to the same decision writer. 210

199

Case Management Order, Santibanez v. Astrue, Civ. No. 11-396, C.D. Cal., Mar. 11, 2011, at 4.
Case Management Order, Darling v. Astrue, Civ. No. 11-1247, C.D. Cal., Feb. 15, 2011, at 3.
201
Case Management Order, Santibanez v. Astrue, Civ. No. 11-396, C.D. Cal., Mar. 11, 2011, at 3.
202
Case Management Order, Baylioni v. Astrue, Civ. No. 11-1819, C.D. Cal., Mar. 11, 2011, at 6-7.
203
See generally Case Management Order, Darling v. Astrue, Civ. No. 11-1247, C.D. Cal., Feb. 15, 2011.
204
Agency Official 6, First Interview at 2.
205
Agency Official 6, First Interview at 2.
206
The agency reported to us that the average age for court remands pending at the end of FY 2015 was 52 days.
207
Claimant Representative 2 at 6.
208
U.S. GOV’T ACCOUNTABILITY OFFICE, REPORT TO CONGRESSIONAL REQUESTERS, DISABILITY PROGRAMS: SSA
HAS TAKEN STEPS TO ADDRESS CONFLICTING COURT DECISIONS, BUT NEEDS TO MANAGE DATA BETTER ON THE
INCREASING NUMBER OF COURT REMANDS, Apr. 2007, at 9.
209
But see https://aalj.org/system/files/documents/aaj_legal_analysis_3-15-16.pdf (indicating the possibility that the
agency will not assign court remands to the same ALJs); Leading the Hearing and Appeals Process Into the Future,
supra note 74 at 11. Under the system presently in operation, some court remands might not return to the same
ALJs who rendered decisions the first time. Sometimes ALJs travel to remote hearing sites, where they will hold
hearings for a week or two at a time. If a remand comes to one of these hearing sites, it will go to whatever ALJ is
assigned to the site at the time. ALJ 10 at 4. Also, a district court can order that a remand go to a different ALJ if
the first ALJ manifested bias. E.g., Card v. Astrue, 752 F. Supp. 2d 190, 190-193 (D. Conn. 2010). It is “very hard”
if not “impossible” to get a district court to make this finding, one claimant representative told us. Claimant
200

34

The agency can always appeal the district court’s decision, but it almost never does so. 211
The courts of appeals might receive somewhere in the neighborhood of 650 social security
appeals each year, no more than twenty of which are affirmative appeals by the
Commissioner. 212 In FY 2014, the agency filed exactly one appeal. 213 Several reasons might
explain this low incidence of appeal, but one institutional fact is surely important: the Solicitor
General of the United States must sign off on any appeal the SSA might want to take. 214 A
request for permission to appeal goes from an OGC lawyer to supervisors in her office, then to
OGC headquarters, then to a line attorney working on the appellate staff at the Department of
Justice’s Civil Division, then to the head of the Civil Division, then to a line attorney at the
Solicitor General’s office, then to the Deputy Solicitor General, and finally to the Solicitor
General. 215 Consultation with the U.S. Attorney is also necessary. No district judge we
interviewed could ever recall an appeal from a remand or reversal order, and only one claimant
representative recalled an agency appeal. 216 A couple of OGC lawyers suggested to us that their
colleagues do not bother trying to get permission to appeal at all, out of a sense of futility. 217
B. The Numbers
Several statistics reveal quite a lot about the cases that arrive in federal court. A first

Representative 1 at 6. If an ALJ has already heard a case twice, then it goes to a different ALJ upon a second
remand. HALLEX, supra note 38 § I-2-1-55(d)(5).
210
Decision Writer 2 at 2.
211
OGC Lawyer 16, First Interview at 1. An earlier estimate pegged the number a bit higher. GAO, SSA HAS
TAKEN STEPS, supra note 208 at 10 (observing that “no more than 20 district court cases have been appealed by the
agency to appellate courts each year since 2000”).
212
Statistical Tables for the Federal Judiciary – June 2014, Table B-7, at 2, at www.uscourts.gov/statisticsreports/statistical-tables-federal-judiciary-june-2014.
213
Communication with OGC, Nov. 17, 2015. In FY 2013, the agency filed six appeals, and as of November 17,
2015, the agency had filed three appeals during FY 2015. Id.
214
OGC Lawyer 16, First Interview at 1.
215
DOJ Official 1 at 1; OGC Lawyer 16, First Interview at 1. See generally BERNARD ROSEN, HOLDING
GOVERNMENT BUREAUCRACIES ACCOUNTABLE 127-28 (3d ed. 1998).
216
Claimant Representative 3 at 3.
217
OGC Lawyer 8 at 5; OGC Lawyer 10 at 5.

35

insight comes from caseloads and decision patterns. Assuming that FY 2014 statistics are
reasonably illustrative, they indicate several interesting phenomena. Only about ten percent of
ALJ decisions that could potentially produce federal court appeals actually do so. 218 We discuss
the significance of this number in the next Part.
To a significant extent, caseloads also affect workflows at each level of the process. The
initial and reconsideration processes take about seven months to complete. 219 According to
Michael Asimow and Jeffrey Wolfe, the current caseload of 500-700 cases per year is about
double what the ALJ system was originally designed to handle. 220 On average, ALJs decide
about 46 cases per month, although this number has decreased recently, and they spend about
two-and-a-half hours on each case. 221 The process takes more than four hundred days from the
time of filing until the date of the ALJ’s decision. 222 Appeals Council analysts on average
prepare two action documents per day, and AOs and AAJs generally take about ten “actions” per
day. The average processing time for a claim at the Appeals Council is just under a year. 223
C. Quality Assurance
The sheer number of claims the agency processes each year is breathtaking. Production

218

See infra note 283 & accompanying text.
In FY 2014, the average wait time for a decision on an initial application was 110 days, and the average wait time
for a reconsideration determination was 108 days. SOCIAL SECURITY ADMINISTRATION, ANNUAL PERFORMANCE
REPORT, 2014-2016, at 83-84 (2015).
220
Michael Asimow & Jeffrey S. Wolfe, Thinking Outside the APA Box: A New Social Security Tribunal, ADMIN. &
REG. LAW NEWS, Vol. 38, No. 2, at 3 (2013).
221
KRENT & MORRIS, STATISTICAL APPENDIX, supra note 67 at 6 (decisions per month); Complaint, Association of
Administrative Law Judges v. Colvin, Civ. No. 13-2925, N.D. Ill., Apr. 18, 2013, at 19 (hours per claim). ALJ
productivity has been declining recently. OIG, EFFORTS TO ELIMINATE THE HEARING BACKLOG, supra note 69 at 4.
Our interview subjects reported a figure around two-and-a-half hours. This figure is consistent with what a recent
report commissioned by the Association of American Law Judges calculated. Paullin et al., supra note 46 at iii; id. at
42.
222
ANNUAL PERFORMANCE REPORT, supra note at 219 at 84 (2015). Another source put the average processing time
for a claim at the ALJ level at more than 450 days. OIG, EFFORTS TO ELIMINATE THE HEARING BACKLOG, supra
note 69 at 1.
223
OIG, REQUEST FOR REVIEW WORKLOADS AT THE APPEALS COUNCIL, supra note 146 at 5.
219

36

goals for ALJs have generated criticism that the agency shortchanges decisional quality to boost
output, or number of claims adjudicated. 224 ALJs have come under fire in Congress for
ostensibly granting benefits excessively as a strategy to deal with its high volume of claims.
Both in response to this criticism and proactively, the agency has undertaken a number of
initiatives, designed to ensure a threshold of decisional quality at robust production levels. 225
Two important features of the ALJ corps must be kept in mind when evaluating the
quality assurance initiatives that the agency has undertaken. First, the agency has limited say
over whom it hires as ALJs.226 It selects ALJs from a list compiled by the Office of Personnel
Management, one created for all agencies that employ ALJs and not just for the SSA. 227 Second,
the agency is strictly limited in terms of the performance reviews it can conduct of ALJs, as well
as the disciplinary measures it can take against those that are underperforming. 228 It cannot
sanction an ALJ for her decisions, for example. For a long time low productivity rarely qualified
as good cause to justify an ALJ’s removal. 229 Recently the agency’s power to remove an ALJ
for this reason has grown modestly. 230

224

See generally U.S. House of Representatives, Committee on Oversight and Government Reform, Misplaced
Priorities: How the Social Security Administration Sacrificed Quality for Quantity in the Disability Determination
Process, Staff Report, 113th Cong., Dec. 18, 2014; Mark J. Warshawsky & Ross A. Marchand, Disability Claim
Denied? Find the Right Judge, WALL ST. J., Mar. 8, 2015; Damian Paletta, Disability-Claim Judge Has Trouble
Saying ‘No’, WALL ST. J., May 19, 2011.
225
For summaries of some of these quality assurance initiatives, see generally Gerald K. Ray & Jeffrey S. Lubbers,
A Government Success Story: How Data Analysis by the Social Security Appeals Council (with a Push from the
Administrative Conference of the United States) Is Transforming Social Security Disability Adjudication, 83 GEO.
WASH. L. REV. 1575 (2015); Statement of Debra Bice, Chief Administrative Law Judge, Social Security
Administration, before the Senate Committee on Homeland Security and Government Affairs, Oct. 7, 2013;
Statement of Judge Patricia Jonas, Hearing Before the Committee on Homeland Security and Governmental Affairs,
Permanent Subcommittee on Investigations, Sept. 13, 2012.
226
See generally Kent Barrett, Resolving the ALJ Quandary, 33 J. NAT’L ASS’N ADMIN. L. JUDICIARY 644, 652-654
(2013).
227
Vanessa K. Burrows, Cong. Res. Serv., Administrative Law Judges: An Overview, Apr. 13, 2010, at 2.
228
Id. at 7-9.
229
See generally Jeffrey S. Lubbers, The Federal Administrative Judiciary: Establishing an Appropriate System of
Performance Evaluation for ALJs, 7 ADMIN. L.J. AM. U. 589, 589-593 (1993/1994).
230
Shapiro v. Social Security Administration, 800 F.3d 1332, 1337 (Fed. Cir. 2015).

37

The SSA began to implement new quality assurance initiatives toward the end of the
2000s. 231 They generally involve decisional tools, feedback on decision-making, and the use of
sophisticated analytics to identify and fix recurring decisional errors. The former category
includes the electronic claims analysis tool, or “eCAT.” Used by all state-level DDS offices
since 2012, 232 eCAT is a web-based program that walks a disability examiner through a
disability determination, to make sure all relevant issues get addressed and all agency policies
honored. 233 ACAT, or the tool used by the Appeals Council to deconstruct ALJ decisions since
2008, 234 is the equivalent at the Appeals Council. Very recently the Appeals Council began use
of “clustering analysis,” whereby ALJ decisions raising the same or similar issues get allocated
in batches to the same analysts. Previously an analyst might encounter issues much less
frequently. Now, work can be assigned such that an analyst will encounter an issue repeatedly
and thereby develop expertise in it. 235 Finally, the Appeals Council began to use natural
language processing in 2015. An algorithm can identify certain errors in decisions, such as
findings at Step Three and Four of the sequential process that are inconsistent. 236
These decisional tools also include the eBB, designed to assist ALJ decision-making.
The eBB enables ALJs to organize exhibits, take notes on them, prepare questions for hearings,
assign weight to particular medical opinions, and make preliminary findings for the steps of the

231

Agency Official 3, Fourth Interview at 1.
Agency Official 3, Fourth Interview at 1.
233
OFFICE OF THE INSPECTOR GENERAL, SOCIAL SECURITY ADMINISTRATION, QUICK RESPONSE EVALUATION, THE
EFFECTS OF THE ELECTRONIC CLAIMS ANALYSIS TOOL, A-01-11-21193, July 2011, at 1; see also ANNUAL
PERFORMANCE REPORT, supra note 219 at 76.
234
Agency Official 3, Fourth Interview at 1.
235
Agency Official 3, Fourth Interview at 5-6.
236
Agency Official 3, Fourth Interview at 6. An agency report of January 2016 reported that the Appeals Council is
currently “testing” the use of natural language processing. Leading the Hearing and Appeals Process Into the
Future, supra note 74 at 10.
232

38

sequential evaluation process as they review cases. 237 As noted, the eBB also generates
instructions for decision writers. It represents the SSA’s effort to map out policy complaint
decisions, then to chart a pathway for ALJs to follow to accurate and legally supported
outcomes. 238 By reducing the use of decisional heuristics that have caused ALJ error, the eBB,
at least in theory, can ensure that ALJ’s decisions remain consistent with governing law.
Since the agency only began to urge its use in late 2013, 239 the eBB’s popularity may
well expand, but at present only 15-20% of ALJs use the tool regularly. 240 Opinions on its use
vary. Of the few ALJs among our interview subjects who utilize the eBB consistently, 241 one
believes that it has “absolutely made [her] a better judge.” The tool makes sure she answers all
of the questions she needs to address for a complete decision. 242 Another user described the tool
as “cumbersome,” 243 however, and the third reported diminished productivity due to his eBB
use. 244 Among ALJs who do not use the eBB, some criticized it as too time-consuming 245 or
confusing to use, 246 and others doubt that it contributes more than marginally to decisional
quality. 247 Most decision writers we interviewed gave eBB-generated instructions negative
reviews, 248 although one praised eBB-generated instructions as more complete than others. 249

237

Misc. Agency Officials at 1-2; see also Statement of Debra Bice, Chief Administrative Law Judge, Social
Security Administration, Before the Senate Committee on Homeland Security and Government Affairs, Oct. 7,
2013; ANNUAL PERFORMANCE REPORT, supra note 219 at 76.
238
Agency Official 3, Third Interview at 1.
239
ALJ 22 at 1.
240
Misc. Agency Officials at 1.
241
ALJ 21 at 3; ALJ 13 at 1; ALJ 22 at 1. A couple of ALJs use the eBB either occasionally or for some but not all
of their decision making. ALJ 6 at 2 (occasionally); ALJ 3 at 4 (takes notes on eBB).
242
ALJ 13 at 1.
243
ALJ 22 at 1; see also ALJ 23 at 2 (using the same term).
244
ALJ 21 at 3.
245
ALJ 7 at 8; ALJ 2 at 1;
246
ALJ 7 at 8 (time-consuming); ALJ 2 at 1 (time-consuming); ALJ 16 at 3 (confusing); ALJ 5 at 4 (confusing).
247
ALJ 19 at 2.
248
One decision writer described her problem with eBB instructions colorfully. They are like a “teenager’s
bedroom: you know that everything is in there, but how do you find a scarf?” Decision Writer 2 at 3. See also
Decision Writer 8 at 3; Decision Writer 9 at 2. An ALJ complained that, whereas he prefers to take about two pages
of notes for a hearing, the eBB generates 8-12 pages, unnecessarily in his view. ALJ 23 at 2.
249
Decision Writer 7 at 1.

39

ALJs get feedback from a number of sources. The first are remands themselves, whether
from district courts or the Appeals Council. In 2010, the Appeals Council also began performing
“pre-effectuation reviews,” or “own motion review” of non-appealed ALJ decisions. The
Appeals Council can select a decision to consider reviewing within a short period of time after its
issuance. 250 The Appeals Council cannot select decisions for such review based on a specific
ALJ’s identity or a specific hearing office; it can choose cases based on selective sampling, such
as type of claimed impairment. 251 In these cases, the Appeals Council can choose not to grant
review and thereby effectuate the case without changes, or it can grant review and issue a new
decision or remand the case to an ALJ for further action.
ALJs can also get feedback through focused reviews. Data captured at ODAR can help
the agency identify outlier judges. The SSA can then undertake a “focused review” of closed
cases to determine what might be causing problems, if they exist. In a focused review, a special
unit of specially trained attorneys at the Appeals Council review a sample of at least sixty closed
decisions for error, whether appealed or not. The results of these studies are reported to a Board
of Executives, which then decides what individual guidance to provide to the particular ALJ. 252
The SSA selects all sorts of individuals, including decision writers, vocational experts,
and physicians, for focused reviews. It can also conduct a focused review on a type of
impairment. 253 But of the 20-25 focused reviews it conducts per year, 90% are of ALJs. 254 The
agency does not necessarily select ALJs for focused reviews because of outlier decision patterns,
but of the fifty focused reviews completed by mid-2014, thirty involved ALJs with allowance

250

20 C.F.R. §§ 404.969 and 416.1469.
20 C.F.R. §§ 404.969(b)(1) and 416.1469(b)(1).
252
Agency Official 3, Fourth Interview at 2.
253
Agency Official 3, Fourth Interview at 2.
254
Id.
251

40

rates over 75%. 255 This emphasis comes as little surprise, given Congressional scrutiny of an
ostensibly profligate agency. 256 From 2007 to 2013, the overall ALJ allowance rate dropped,
while the number of ALJs with extremely low rates remained stable. 257 Agency officials insist
that this change reflects more policy-compliant decision-making. Several claimant
representatives told us that they believe that ALJs have become increasingly stingy with
benefits. 258
A final feedback initiative involves a tool called “How MI Doing,” a web-based program
that provides an ALJ with information about numbers of cases she has decided, the rates at
which the Appeals Council remands her decisions (the “agree” rate), and the top several reasons
for her remands. 259 How MI Doing doesn’t disaggregate remands by the Appeals Council and
the district courts, although an ALJ can access a spreadsheet of all of her remands, click on a
docket number, and bring up the remand order. The data enable an ALJ to compare herself to
other ALJs in the same office and region, as well as nationally.
The Office of Disability Adjudication and Review, or ODAR – the arm of the agency that
houses ALJs and the Appeals Council – pursues most of these quality initiatives. Also worth
discussing are a couple of endeavors that OGC has pursued to improve the representation the
255

U.S. House of Representatives, Committee on Oversight and Government Reform, Misplaced Priorities: How
the Social Security Administration Sacrificed Quality for Quantity in the Disability Determination Process, Staff
Report, 113th Cong., Dec. 18, 2014, at 13 n.31.
256
See infra note 224.
257
Krent & Morris, supra note 1 at 380; Statement of Glenn Sklar, Deputy Commissioner, Office of Disability
Adjudication and Review, Social Security Administration, Before the House Committee on Oversight and
Government Reform, Nov. 9, 2013, at http://www.ssa.gov/legislation/testimony_111913.html (indicating in Figure
1 that the number of high allowance rate judges has dropped but the number of low allowance rate judges has
increased from FY 2007 to FY 2013).
258
One claimant representative speculated that public and agency pressure have pushed ALJs in an anti-claimant
direction over the past five years. Claimant Representative 4 at 3. Another claimant representative insisted that the
national ALJ corps has “definitely . . . shifted to more of an anti-claimant point of view” recently, chalking up the
change to training. Claimant Representative 7 at 1. A third claimant representative reported an ALJ telling him “off
the record” that ALJs are instructed not to pay certain types of claims. Claimant Representative 8 at 3. A fourth
insisted that harsh public scrutiny of ALJs has put them in “duck and cover mode,” and that this pressure has
produced more denials. Claimant Representative 9 at 1; id. at 2 (explaining the rise of denials by insisting that ALJs
don’t want to be the targets of congressional inquiries).
259
Misc. Agency Officials at 2.

41

agency receives in federal court. The federal judges we spoke with are generally satisfied with
the quality of OGC briefs, with a couple of exceptions. 260 OGC lawyers in several districts
nonetheless have taken it upon themselves to improve their work product. 261 Among cases filed
in 2008 in the District of Maryland, for example, 262 data that the agency provided us show that
claimants won remand in 70% of appeals. 263 To reduce this rate, an OGC lawyer formed a team
of colleagues to focus on District of Maryland litigation. These lawyers met frequently to
strategize over issues. If an argument about a particular issue proved persuasive to one judge,
the team would then use this argument when the issue next arose. The team leader assembled all
District of Maryland decisions and sent memos on them to his colleagues. They created a
centralized peer review system for briefs. The OGC lawyers also reached out to Maryland ALJs,
to counsel them about recurring issues. 264 Among those appeals filed just two years later, in
2010, the District of Maryland remand rate had fallen to 38%, and for cases filed between 2011
and 2014, it has stayed between 34 and 42%.
***
“[T]he social security hearing system is probably the largest adjudication agency in the
western world,” 265 and its complexities are infinite. Two final facts, however, are essential to
understanding the disability claims adjudication system as it presently exists. First, a huge
number of people file for disability benefits each year, and this population has grown remarkably

260

Most of the federal judges we interviewed expressed this view. One judge, however, criticized the quality of
lawyering as “poor.” This judge complained that agency lawyers rely too much on boilerplate in their briefs and do
not provide enough specific guidance to record evidence. Federal Judge 13 at 1.
261
An OGC lawyer involved with one of these efforts told us that lawyers in his office pursued them on their own,
and that the agency more centrally did not organize or direct them. OGC Lawyer 19 at 2.
262
OGC lawyers who litigate in the Northern District of Georgia pursued a similar strategy, to similar apparent
effect. OGC Lawyer 17.
263
See Data Appendix for a description of these data.
264
OGC Lawyer 17 at 3; OGC Lawyer 18 at 8.
265
Barnhart v. Thomas, 540 U.S. 20, 28-29 (2003) (internal quotations and alterations omitted).

42

over the past fifteen years. 266 The Great Recession witnessed a 20% spike in the number of
claimants and a 48% increase in the number of hearing requests. 267 This rise, an increased
emphasis on decisional quality, and a decrease in the number of ALJs for part of this time, have
meant that one million cases presently await a hearing. 268
Second, the agency must grapple with this ever-increasing workload in a hothouse
political environment, one that subjects the agency to continuous, intense, and sometimes
confounding scrutiny. 269 In recent years, for example, members of Congress have chastised the
agency for what they perceive as excessive generosity with benefits. 270 As the agency responds
to this oversight and other influences, its relative priorities may adjust. In 2011, for example, the
Commissioner insisted that “[e]liminating our hearings backlog and preventing its recurrence
remains our number one priority.” 271 More recently, the agency has paid more heed to
decisional quality. We mention this oversight not to suggest that it is misplaced, but to help
federal judges make further sense of what the agency tries to accomplish and why.

266

In 2000, 1.3 million claimants filed for benefits. By 2014, that number had nearly doubled, to 2.5 million. See
www.ssa.gov/oact/STATS/dibstat.html.
267
Id.; see also Stephen C. Goss, Testimony to the Senate Committee on Finance, The Foreseen Trend in the Cost of
Disability Insurance Benefits, July 24, 2014, at www.ssa.gov/OACT/testimony/SenateFinance_20140724.pdf;
William R. Morton, Cong. Res. Serv., Social Security Disability Insurance (SSDI) Reform: An Overview of
Proposals to Manage the Growth in SSDI Rolls, Jan. 9, 2015, at 15; OIG, EFFORTS TO ELIMINATE THE HEARING
BACKLOG, supra note 69 at 3.
268
OIG, EFFORTS TO ELIMINATE THE HEARING BACKLOG, supra note 69 at 4; id. at 12.
269
E.g., David Fahrenthold, The Biggest Backlog in the Federal Government, WASH. POST, Oct. 18, 2014. In the
mid-2000s, the agency was criticized for a “culture of denial.” E.g., Failing the Disabled, CBS NEWS, Jan. 15,
2008. Several years later, the narrative shifted, to a story of “paying down the backlog.” Stephen Ohlemacher,
Judges Tell Lawmakers They are Urged to Approve Social Security Disability Claims, WASH. POST, June 27, 2013.
The empirical evidence for the “paying down the backlog” claim is thin. E.g., Robert Nakosteen & Michael
Zimmer, Approval of Social Security Disability Appeals: Analysis of Judges’ Decisions, 46 APPLIED ECONOMICS
2783, 2791 (2014) (concluding that “volume of decisions does not appear to directly affect leniency, after
controlling for state variables and judicial experience”).
270
E.g., Letter from Three Members of the U.S. House of Representatives Committee on Oversight and Government
Reform to the Hon. Carolyn Colvin, July 1, 2014; Staff Report, U.S. House of Representatives, Systemic Waste and
Abuse at the Social Security Administration: How Rubber-Stamping Disability Judges Cost Hundreds of Billions of
Taxpayer Dollars, 113th Cong., June 10, 2014.
271
Statement of Michael J. Astrue, Commissioner, Social Security Administration, Before the House Committee on
Ways and Means, Subcommittee on Social Security and the House Committee on the Judiciary Subcommittee on the
Courts, Commercial and Administrative Law, July 11, 2011.

43

Part III. The Federal Court Remand Rate and What It Means
The federal courts ruled for disability claimants in 45% of the 18,193 appeals they
decided in FY 2014, either remanding cases to the agency for further proceedings or remanding
and ordering the payment of benefits. 272 At first blush, this rate might seem quite high. 273
Certainly agency officials believe that it is. Applicable law requires deference to the ALJ’s
findings, they argue. Also, most claims arrive in district courts after four layers of internal
agency review, and quality assurance initiatives have improved agency decision-making.
Claimant representatives disagree. If anything, they insist, the federal courts have given the
agency too much credit in recent years. 274
Who is right? Do claimants prevail too often in the federal courts? Too rarely? These
questions resist any conclusive answer, as we argue in this Part. After putting the remand rate in
proper perspective, we explain why the remand rate, viewed statically, says little meaningful
about the strictness of judicial review or the quality of agency decision-making. Surely claims
adjudication, whether in the agency or in the courts, suffers from problems that need correcting.
The SSA and the federal courts can take important steps that could improve agency decisionmaking and better incentivize federal judges to respect agency goals and priorities. But, to a
significant extent, remands result from conflicts between two institutions, the federal courts and
the agency, whose design, commitments, and priorities do not fit easily together. Only Congress

272

These numbers are reported on page 143 of the agency’s FY 2016 Congressional Justification. See
www.ssa.gov/budget/FY16Files/2016FCJ.pdf (last visited Dec. 14, 2015). This official remand rate includes
voluntary remands. In contested cases, the district courts actually remand a somewhat lower rate. If the RVR rate is
15% and the overall rate is 45%, then the contested rate is only (45-15)/(100-15)=0.35, or 35%.
273
ROBERT J. HUME, HOW COURTS IMPACT FEDERAL ADMINISTRATIVE BEHAVIOR 19 (2009) (reporting success rates
for agencies in the federal courts); David Zaring, Reasonable Agencies, 96 VA. L. REV. 135, 171 (2010) (reporting
that federal courts affirm between 58-76% of agency decisions they review); Bert I. Huang, Lightened Scrutiny, 124
HARV. L. REV. 1109, 1134-35 (2011) (reporting an overall appellant win rate of about 10-15% in the various federal
circuits).
274
E.g., Claimant Representative 6 at 2; Claimant Representative 9 at 2.

44

can ultimately resolve this fundamental and otherwise indelible institutional tension that, if left
alone, seems likely to ensure that claimants win remands in droves.
A. The Remand Rate in Perspective
The FY 2014 remand rate of 45% needs to be put into perspective. History
offers one useful metric for comparison. Within six years of the disability benefits program’s
start, remand rates had climbed to 35%. 275 From 1970-1975, federal courts remanded or
reversed 45% of appeals, 276 although the rate fell steeply by the end of the 1970s. 277 The
agency’s aggressive implementation of continuing disability review, the process by which
beneficiaries are reviewed to determine if they remain disabled, met strong headwinds in the
federal courts, 278 and the remand rate soared to 60.5% by 1984. 279 After a decline in the late
1980s, the rate again rose sharply, and by 2001, federal judges reversed or remanded 68% of

275

Rowland, supra note 23 at 42 (documenting a reversal rate of 35.3%).
MASHAW ET AL., supra note 28 at 125.
277
DERTHICK, AGENCY UNDER STRESS, supra note 35 at 145.
278
Id. at 145-146; Leonard S. Rubenstein et al., Protecting the Entitlements of the Mentally Disabled: The SSDI/SSI
Battles of the 1980s, 11 INT’L J. LAW & PSYCH. 269 (1988). E.g., Lopez v. Heckler, 713 F.2d 1432, 1441 (9th Cir.
1983) (Pregerson, J., concurring) (denouncing the agency as refusing to honor “the rule of law, the doctrine of
separation of powers imbedded in the constitution, and the tenet of judicial supremacy”); Hillhouse v. Harris, 547 F.
Supp. 88, 91 (W.D. Ark. 1982); Gerald W. Heaney, Why the High Rate of Reversals in Social Security Cases?, 7
HAMLINE L. REV. 1, 11-16 (1984); Jack B. Weinstein, Equality and the Law: Social Security Disability Cases in the
Federal Courts, 35 SYRACUSE L. REV. 897, 917 (1984).
279
DERTHICK, AGENCY UNDER STRESS, supra note 35 at 145.
276

45

cases appealed to them. This figure fell to 54% by 2005 and continued to drop: 280

Federal Court Remand Rate, 1999-2013
70
60
50
40
30
20
10

0

The current remand rate, then, hardly stands out as exceptional. Indeed, the agency now
fares better in the federal courts than it has since the late 1990s. But the last twenty years have
lacked the sorts of steep declines in the remand rate that the agency enjoyed at the end of the
1970s and the 1980s. Struggles over continuing disability review in the 1980s cost the agency
significant credibility with the federal courts. 281 Perhaps a culture of distrust took root then, one
that has proven difficult to eradicate. 282 If this distrust flows more from historical memory than
present concerns about decisional quality, it may be pushing the remand rate to an unwarranted
level.
Viewed from a different vantage point, the remand rate seems modest. Comparing
reversal and remand rates at various stages in the claims adjudication process is challenging, as
delays make unclear which decisions are under review by which decision makers at any

280

These numbers come from the agency’s Office of General Counsel and are on file with the authors.
DERTHICK, AGENCY UNDER STRESS, supra note 35 at 145.
282
One federal judge with whom we spoke suggested that this is the case, as did an OGC lawyer. Federal Judge 14
at 1; OGC Lawyer 20 at 3.
281

46

particular time. Using FY 2014 numbers as illustrative, ALJs can expect claimants to file federal
court appeals in under 10% of the decisions adverse to claimants that they issue, and ALJs
endure federal court remands for only about 3% of these decisions. 283 About a half-a-dozen
court remands each year return to an ALJ on average, in other words. 284
The fact that federal judges vacate only 3% of potentially reversible ALJ decisions hardly
suggests an excessive remand rate. In fact, this small per capita figure might indicate the
problem of too few remands. The lengthy path a claim has to follow from a hearing office to a
district court, a journey that can take more than two years, might discourage all but the most
dogged of claimants. 285 Perhaps claimants worn down by the multiple layers of review simply
give up on meritorious claims. 286
Another perspective on the overall remand rate involves their cost. If a claimant seeking
disability insurance benefits ultimately prevails, she can expect to receive about $1,150 in cash
benefits per month. 287 This amount barely surpasses the federal poverty line. On average,

283

Congressional Justification, supra note 272 at 143. The agency provided us with the 10% figure. The 3% figure
is a rough estimate, derived from FY 2014 numbers. ALJs deny and dismiss claims in about 290,000 cases each
year. Of these, the Appeals Council reverses in 18,500 and leaves 32,000 undecided annually. There is a pool of
about 239,500 ALJ decisions that federal courts could potentially reverse. Of these, federal courts rule for claimants
in 8,200 of cases. Another calculation indicates the small overall impact court remands have on ALJ workloads. In
FY 2014, the 1270 ALJs available for decision-making decided 530,574 cases. See OIG, EFFORTS TO ELIMINATE
THE HEARING BACKLOG, supra note 69 at 5 (number of available ALJs in FY 2014); Congressional Justification,
supra note 272 at 143 (number of cases). 8,200 court remands is 1.5% of this overall workload.
284
If the federal courts rule for claimants in 8,200 cases, and if the agency’s ALJ corps includes about 1300 judges,
then a little more than six decisions per ALJ are remanded or reversed.
285
Several federal judges expressed this concern, and claimant representatives insisted to us that some of their
clients stop short of federal court for reasons unrelated to the merits of their claims. A claimant representative
explained that he might advise his client simply to file a new claim rather than appeal to federal court if he believes
that the ALJ to whom the case would return is inalterably opposed to his client. Claimant Representative 11 at 2.
Another noted that Social Security Ruling 11-1p requires a claimant to choose between filing a new claim for
benefits and pursuing an existing claim on appeal while the claim is pending within the agency. Claimant
Representative 12 at 2; see also Soc. Sec. Ruling 11-1p, 76 Fed. Reg. 45309 (July 28, 2011).
286
As we discuss further in Part IV, such deliberate selection by claimants raises substantial hurdles for any analysis
seeking to uncover the causal determinants of the remand rate.
287
This figure refers to a claimant seeking SSDI benefits, not SSI benefits. Testimony of Carolyn W. Colvin,
Acting Commissioner, Social Security Administration, Regarding Oversight of Federal Disability Programs, Before
the Oversight and Government Reform Committee, U.S. House of Representatives, June 11, 2014. This figure does
not include the value of Medicare coverage that a beneficiary would also receive.

47

however, each grant of benefits costs the federal treasury roughly $270,000 over the lifetime of a
claimant, 288 and disability payments in the aggregate at present exceed the amount the federal
government pays to service the national debt. 289 In 2007, the Government Accountability Office
determined that ALJs eventually grant benefits to 66% of those claimants whose claims were
remanded from district courts. 290 District court remands therefore add a good deal to the national
disability benefits tab. But this fact alone hardly indicts federal court review, absent some reason
to believe that district court remands produce more erroneous grants of benefits (false positives)
than they correct erroneous denials of benefits (false negatives).
Costs also include ALJ resources. Remands take more time for ALJs to adjudicate than
claims in the first instance. Assuming they require double the effort, federal court remands add
the equivalent of a week or so of work to the average ALJ’s docket. 291 This number strikes us as
modest, although we recognize that the enormous and growing docket of claims awaiting ALJ
adjudication makes any extra work significant. 292 Again, though, unless these cases generate an
imbalance of false positives, the added delay that they impose must be weighed against the
benefit to thousands of claimants and to the United States of the more accurate implementation
of federal disability policy. A week of delay hardly seems a steep price to pay for thousands of
corrected benefits decisions.

288
David H. Autor, The Unsustainable Rise of the Disability Rolls in the United States: Causes, Consequences, and
Policy Options, Nov. 23, 2011, at 4, at http://economics.mit.edu/files/6880. Two commentators estimated that the
wrongful allowance of benefits from 2005-2014 will cost the federal treasury $72 billion. Mark J. Warshawsky &
Ross A. Marchand, Reforming the System of Review by Administrative Law Judges in Disability Insurance,
Mercatus Working Paper, Sept. 2015, at 3.
289
Autor, supra note 288 at 3.
290
GAO, SSA HAS TAKEN STEPS, supra note 208 at 16.
291
This is our estimate, based on our calculation that the average ALJ will have six cases remanded by courts per
year. (Of course, remands are likely not evenly distributed.) Assuming that the complexity of these cases means
that each requires twice the time of a case heard in the first instance, court remands add the equivalent of a dozen
cases to each ALJ’s docket. The average ALJ decides about 45-48 cases per month. KRENT & MORRIS,
STATISTICAL APPENDIX, supra note 67 at 7.
292
As of March 2015, the agency had one million claims awaiting ALJ decisions. OIG, EFFORTS TO ELIMINATE THE
HEARING BACKLOG, supra note 69 at 1.

48

From a final perspective, however, the 45% remand rate is unusual, if not necessarily
troubling. Social security appeals to district courts are sui generis, so there isn’t a good
comparative benchmark, but administrative agency appeals in the federal circuits are a useful if
imperfect one. 293 In general, the circuits affirm more than 80% of the administrative agency
decisions appealed to them, so that over all plaintiffs win about one in five of their administrative
appeals to the circuits. 294 Social security plaintiffs therefore prevail at more than double this
rate. 295 Moreover, while the numbers of appeals might seem insignificant relative to the
agency’s overall caseload, they are quite large from that of the federal courts, and they are
growing: 296

Number of Filings, 2001-2014
25,000
20,000
15,000
10,000
5,000

0

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

293
These are imperfect because the range of issues the circuits can review and the applicable standard of review may
differ.
294
Statistical Tables for the Federal Judiciary – June 2014, Table B-5, at 1, at www.uscourts.gov/statisticsreports/statistical-tables-federal-judiciary-june-2014. In general, appellants win 10-15% of the time in the circuits.
Huang, supra note 273 at 1134-1135.
295
We emphasize again that the problem of selection in case composition is substantial. Accordingly, we do not
think it appropriate to regard the comparison in the text just above as in any way providing evidence as to the causal
determinants of the difference in plaintiffs’ win rates in administrative appeals. However, these statistics do suggest
that either case composition or adjudication, or both, differ substantially in the arenas compared above.
296
See, e.g., U.S. District Courts – Civil Cases Commenced, by Nature of Suit and District, During the 12-Month
Period Ending March 31, 2014, Table C-3, at www.uscourts.gov/statistics/table/c-3/federal-judicial-caseloadstatistics/2014/03/31. The numbers in the chart reflect cases filed during the twelve month period ending March 31
of each year. All data are available at www.uscourts.gov/statistics-reports/analysis-reports/federal-judicialcaseload-statistics.

49

Perhaps the increase in filings suggests a magnet effect, whereby plaintiff-friendly federal courts
attract too many cases. On the other hand, social security cases as a percentage of district courts’
civil dockets, while rising as of late, has not spiked:

Social Security Cases as Percentage of District Court
Civil Docket, 2001-2014
0.08
0.07
0.06
0.05
0.04
0.03
0.02
0.01

0

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

On the surface, at least, the federal courts seem to be no more of a magnet for appeals than they
have been over the past fifteen years.
B. The Strictness of District Court Review
If district courts review agency decisions too strictly, then it seems likely that the benefits
of review do not outweigh the costs related to delay and caseload pressures that these appeals
create. Agency officials insisted to us that this is so. Even if a 45% remand rate does not stand
out once placed in historical or institutional context, they maintained, it is inconsistent with a
standard of review that requires deference to agency findings of fact. 297 Moreover, the numbers
do not seem to reflect judicial awareness for the fact that a claim passes through multiple levels
of review within the agency, ones that have benefited recently from various quality assurance
297

For a version of this argument, see Paul R. Verkuil, An Outcomes Analysis of Scope of Review Standards, 44
WM. & MARY L. REV. 679, 689 (2002); id. at 705-09.

50

initiatives. At this moment, neither argument persuades us, although as time passes quality
assurance initiatives should improve the average quality of potential cases for district court
review.
1. The Quality of Decisions Appealed
In a 2007 memorandum, the agency’s Chief Administrative Law Judge blamed “most” of
the agency’s losses in the federal courts on ALJ decisions that “did not comply with our own
policy.” 298 Since then, the agency has hired hundreds of new ALJs, and it has pursued a number
of quality assurance initiatives to improve decision-making. Agency officials believe that these
efforts have improved claims adjudication, and that the federal courts have failed to appreciate
this change. 299
Initiatives like the eCAT, the eBB, more targeted training, and focused reviews have
succeeded, agency officials believe, citing several indicators. 300 Appeals Council remands have
dropped from 21.77% in FY 2010 to 14.34% in FY 2014, 301 even as ALJ allowance rates have
also fallen from near 70% in FY 2010 to about 45% now. 302 The variance among ALJ grant
rates has decreased, compressing differences in decision-making among ALJs. 303 If decisional

298
Letter from Frank A. Cristaudo, Chief Administrative Law Judge, to Colleagues, Dec. 19, 2007, at 3 (on file with
authors) (“Most of our decisions that are remanded or reversed by the federal judges are remanded or reversed
simply because our decision did not comply with our own policy. I would like the federal judges to defer to our
decisions because we are the experts in Social Security Law; however, they cannot do so if our decisions do not
comply with Agency policy.”).
299
Agency Official 3, Third Interview at 4. The remand rate had trended steadily downward from FY 2010 to FY
2013, but then it rose in FY 2014. See
www.socialsecurity.gov/appeals/DataSets/AC05_Court_Remands_NCC_Filed.html.
300
E.g., Ray & Lubbers, supra note 225 at 1604-1607.
301
See www.socialsecurity.gov/appeals/DataSets/AC03_AC_Remands_All_Dispositions.html.
302
OFFICE OF THE INSPECTOR GENERAL, SOCIAL SECURITY ADMINISTRATION, AUDIT REPORT, SUBSEQUENT
APPELLATE ACTIONS ON DENIALS ISSUED BY LOW-ALLOWANCE ADMINISTRATIVE LAW JUDGES, A-12-13-13084,
July 2014, at 3; see also www.disabilityjudges.com/state.
303
Statement of Debra Bice, Chief Administrative Law Judge, Social Security Administration, before the Senate
Committee on Homeland Security and Government Affairs, Oct. 7, 2013.

51

quality is improving while the remand rate remains stagnant, so the logic goes, then the standard
of review in federal court must be increasingly strict. 304
This reasoning, at least at the current time, is unconvincing. First, the composition of
disability claims likely changed since the Great Recession’s onset in 2008. The number of initial
applications spiked in 2009, perhaps driven upward by unemployed workers pursuing benefits in
lieu of wages. 305 This increase continued through 2012. 306 Claims motivated by unemployment
and not incapacitating impairment are necessarily weaker, if not spurious. 307 One would expect
lower ALJ allowance rates as the quality of applications declines. If ALJ decisions do not fully
correct for this compositional effect, or if some of these rejected claimants with weaker claims
appeal, then Appeals Council remand rates also would likely fall. 308

304

A number of claimant representatives have noticed changes in ALJ decisions, but very few believe that agency
decision-making has improved. One claimant representative acknowledged that ALJ decisions have gotten “more
tight” over the past 6-7 years, but that ALJs are now denying claims that shouldn’t be denied. Claimant
Representative 10 at 3; see also Claimant Representative 8 at 3 (acknowledging that ALJ decisions have improved
with the FIT, but doubting that agency decision-making has improved overall). Several claimant representatives
insisted that agency decision-making has declined in quality. Claimant Representative 7 at 2; Claimant
Representative 6 at 2; Claimant Representative 2 at 2. A couple of the federal judges with whom we spoke have
noticed modest improvements for the better. A law clerk working for one federal judge claimed that she has noticed
the agency’s effort “to set forth a more cogent, reviewable document.” Law Clerk 1 at 3. Another clerk made a
similar observation. Law Clerk 2 at 1. One federal judge told us that he sees good decisions more often now, but
that they tend to come from the same ALJ over and over again. Federal Judge 10 at 3. Another federal judge told us
that the agency has done a better job “cover[ing] up its tracks,” but that “substantively the work is not there.”
Federal Judge 15 at 2. A number of federal judges have not noticed any changes. E.g., Federal Judge 13 at 1;
Federal Judge 12 at 1; Federal Judge 3 at 4; Federal Judge 6 at 1; Federal Judge 16 at 2; Federal Judge 18 at 1;
Federal Judge 17 at 1.
305
See www.ssa.gov/oact/STATS/dibStat.html.
306
ANNUAL PERFORMANCE REPORT, supra note 219 at 81.
307
E.g., Kalman Rupp, Factors Affecting Initial Disability Allowance Rates for the Disability Insurance and
Supplemental Security Income Programs: The Role of Demographic and Diagnostic Composition of Applicants and
Local Labor Market Conditions, SOC. SEC. BULLETIN, Vol. 72, No. 4, at 11 (2012).
308
To understand this point, suppose that there are N benefit claims filed among claimants within the jurisdiction of
a given hearing office in a given year. Of these, NH are high quality claims that should be allowed, while N0 are
meritless claims that would be denied if DDS and/or ALJ adjudication were perfectly accurate. Assume that the
fractions DH and D0 of these types of claims are actually denied by ALJs. Let the appeal rate following ALJ denial
be aH and a0. Then the number of high-quality cases appealed to the Appeals Council level will be AH=aHDHNH,
while the number of meritless cases appealed will be A0=a0D0N0. Suppose that the business cycle in a given year
affects neither the number of high quality claims filed that year, NH; the denial rates DH and D0 (these rates capture
the behavior of ALJs, rather than applicants); nor the appeal rates aH and a0. Now consider a year in which an
economic downturn leads to an increase in N0, the number of meritless claims. If we were to follow the cohort of
claims filed that year through the agency’s claims adjudication process, we would find a typical number of high
quality appealed cases, AH, since (by assumption) none of the variables that determine AH are affected by the

52

Second, the decrease in the Appeals Council remand rate does not necessarily indicate
across-the-board improvements in ALJ decision-making, a claimant representative insisted to us.
He cited a 2014 report by the agency’s Office of the Inspector General that indicates that the
Appeals Council did not reverse or remand low-allowance ALJs significantly more than ALJs
generally. 309 This report relied on FY 2010 data; more recent data might reveal a different
pattern. But this concern about a time lag goes to a third issue. The agency’s quality assurance
initiatives have taken time to implement. The current pool of ALJ decisions before the district
courts probably does not include those that reflect the impact of some of these initiatives. The
Appeals Council takes about a year to process a claimant’s request for review. 310 A claimant’s
case typically sits for more than a year at a district court before it gets decided. 311 An ALJ’s
decision rendered sometime in early 2013, in other words, might not cross a magistrate judge’s
desk until mid-2015. The ALJ almost certainly would not have used the eBB to help render the
decision under review. The agency had completed fifty focused reviews by mid-2014; 312 an ALJ
counseled in 2014 would not have a decision before a federal judge until 2016. The Appeals

business cycle. However, since N0 would have been larger in such a year (and since a0 and D0 are unaffected by the
economy) the number of appealed cases that are meritless, A0, would be greater than usual. As a result, the set of
cases appealed to the Appeals Council would have a greater-than-usual share that are meritless. Now let the Appeals
Council remand rate be r0 for meritless appeals and rH for high quality appeals. In that case, the Appeals Council’s
remand rate is [rHAH+r0A0]/(AH+A0), which is lower when A0 is greater. Assuming that the Appeals Council’s
remand decision for a claim is based only on claim quality, and not on the state of the business cycle when the claim
was filed, the parameters rH and r0 can be treated as fixed with respect to the economy. It can then be shown that an
increase in the number of meritless cases appealed to the Appeals Council, A0, will lead to a reduction in the
Council’s remand rate so long as rH exceeds r0, which is to say, so long as the Council is more likely to remand a
high quality case than a meritless one. The end result of this analysis is that, under the assumptions entertained
above, the Appeals Council’s remand rate will tend to be lower for a cohort of cases that has a greater share of
meritless initial claims due to economic conditions, all else equal.
309
OIG, LOW-ALLOWANCE ADMINISTRATIVE LAW JUDGES, supra note 302 at 7.
310
OIG, REQUEST FOR REVIEW WORKLOADS, supra note 146 at 5.
311
OFFICE OF THE INSPECTOR GENERAL, SOCIAL SECURITY ADMINISTRATION, AUDIT REPORT, OVERALL PROCESSING
TIMES FOR 2010 CHILDHOOD SUPPLEMENTAL SECURITY INCOME CLAIMS, A-04-12-11230, Feb. 2013, at 11; OFFICE
OF THE INSPECTOR GENERAL, SOCIAL SECURITY ADMINISTRATION, AUDIT REPORT, OVERALL D ISABILITY CLAIMS
TIMES FOR 2009, A-01-10-10168, May 2011, at 9.
312
U.S. House of Representatives, Committee on Oversight and Government Reform, Misplaced Priorities: How
the Social Security Administration Sacrificed Quality for Quantity in the Disability Determination Process, Staff
Report, 113th Cong., Dec. 18, 2014, at 12.

53

Council’s use of clustering analysis and natural language processing did not commence until
2015.
A stagnant remand rate could possibly mask a more robust record of agency success in
the federal courts. As noted, ALJ allowance rates have declined significantly, while Appeals
Council agree rates have increased. 313 The agency maintains that this change has resulted from
an improvement in ALJ performance. Assuming that this explanation is accurate, it still leaves a
larger set of potential appeals from which claimant representatives can pick their cases. The ALJ
allowance rate has dropped from 70% to 45%. Even if ALJs now correctly deny four out of
every five claims that would have been allowed previously, the 20% error rate could increase the
number of flawed ALJ decisions to challenge by thousands. 314 If the Appeals Council does not
catch all of these errors, and if the private social security bar cannot expand to keep pace with the
increased number of potential appeals, 315 then the strength of each appeal to the federal courts,
on average, could increase. If federal judges are applying the same standard of review as they
were applying, say, five years earlier, and assuming that the entire pool of claims has not
changed significantly in its composition, then the remand rate should be higher than 45%. A
stagnant or even modestly dropping rate, in other words, might be consistent with a more
deferential federal judiciary.

313

See infra notes 301 & 302 & accompanying text.
The point here is not that any given claim’s strength is affected by the agency’s quality assurance initiatives.
Rather, it is that there will be a larger number of incorrectly denied high quality claims in the pool from which
claimant representatives—lawyers—can pick and choose in deciding whom to represent. If lawyers are able to do
so with at least some efficacy, then the average quality of cases appealed to the district courts will be greater
following agency quality initiatives than before.
315
The number of potentially appealable agency decisions has increased faster than the rate of filings in the federal
courts. The Appeals Council denied review in 76,605 cases in FY 2010 and 136,113 in FY 2014, for an increase of
44%. Claimants filed 12,256 cases in federal court in FY 2010 and 18,503 in FY 2014, for an increase of 34%. See
www.ssa.gov/appeals/DataSets/AC02_AC_GrantReview_All_Dispositions; www.ssa.gov/appeals/DataSets/AC5_Court_Remands_NCC_Filed.
314

54

Lawyers’ incentives, a related phenomenon, give further reason to think that this enlarged
pool is generating stronger appeals on average. 316 Claimant representatives typically work on a
contingency fee basis while the case is pending before the agency, pegged to the amount of back
benefits a successful claimant wins. 317 However, when a case goes to federal court and the court
remands a case for further proceedings, a claimant representative may get paid fees through the
Equal Access to Justice Act (“EAJA”) for the representation she afforded in federal court. 318 If
the claimant then prevails on remand and receives back benefits, then the claimant representative
may also receive payment from the contingency fee. 319 To obtain all possible fees, therefore, a
claimant representative must have a client prevail not only before the district court, but also
before the ALJ on remand. 320 The opportunity cost of federal court litigation adds to this risk of
nonpayment and may further refine the metrics lawyers use to select appeals. 321 Given this fee
structure, one claimant representative told us, she and her colleagues “are not going to file a
bunch of garbage in federal court.” 322

316

Several agency officials made this observation in conversations with us. OGC Lawyer 4 at 4 (claiming that, as an
OGC lawyer defending ALJ decisions in federal court, he sees the “worst” “5-10%” of ALJ decisions); Agency
Official 3, First Interview at 5 (observing that district courts see only a “tiny percentage” of ALJ decisions, and that
“most are the worst cases” due to attorney incentives).
317
Attorney compensation in social security appeals involves a complicated intersection of legal regimes, but the
basic point about contingency is simple. See generally Gisbrecht v. Barnhart, 535 U.S. 789 (2002) (discussing fee
arrangements in social security representation).
318
Cf. Shalala v. Schaefer, 509 U.S. 292, 302 (1993) (holding that a party obtaining a remand for further
proceedings in certain instances counts as a “prevailing party” for EAJA purposes).
319
For an example of these two stages, see Ibrahim v. Colvin, Civ. No. 13-65, 2015 WL 4507523 (E.D. Cal. July 24,
2015).
320
Cf. Claimant Representative 4 at 3 (indicating that she accounts for the likelihood of prevailing before both the
district court and the agency on remand when deciding which cases to appeal to the district court); Claimant
Representative 12 at 2 (same). Some attorneys write briefs for other claimant representatives. They may get paid by
the hour by the claimant representative who hires them. Claimant Representative 10 at 1. Regardless, attorneys’
incentives are similar to what we describe above. EAJA fees require that the claimant succeed on appeal.
Presumably a claimant representative’s resources for hiring brief writers come from fees earned when claimants
prevail.
321
Claimant Representative 9 at 3. During the 40-50 hours one claimant representative allots to a federal court
appeal, he told us, he could represent three or four other people at the ALJ level. Claimant Representative 1 at 1.
322
Claimant Representative 10 at 1; see also Claimant Representative 9 at 3 (insisting that claimant representatives
are generally selective about their case selection, but acknowledging that some lawyers are “terrible” and will bring
cases even though “they are losing 90%”).

55

At least superficially the numbers support this story. Claimants take only about 15% of
appealable Appeals Council decisions to the federal courts. 323 This case selectivity comes after
another layer of selection. Claimants take only slightly more than half of ALJ decisions denying
benefits to the Appeals Council. A pool composed at least in some significant measure of the
weakest of ALJ decisions is the likely result. Coupled with the growing pool of potentially
appealable decisions, attorney incentives should ensure a strong set of appeals to the federal
courts, a situation that explains a robust remand rate.
2. The Substantial Evidence Standard of Review
SSA officials gave us another reason to regard the 45% remand rate as excessive. Perhaps
federal courts often disregard the substantial evidence standard of review that Congress set for
the review of ALJ decisions. 324 If so, courts assume more decision-making prerogative than
applicable law allows. Several prominent commentators have expressed this sentiment, 325 and
agency officials have voiced it for decades. 326
Various formulations pepper federal courts’ discussion of the substantial evidence
standard, but a recent Fifth Circuit articulation gets at the classic version: “Substantial evidence
is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” 327 A court looks at the record as a

323
Compare www.ssa.gov/appeals/DataSets/AC02_AC_GrantReview_All_Dispositions, with
www.ssa.gov/appeals/DataSets/AC-5_Court_Remands_NCC_Filed.
324
42 U.S.C. § 405(g).
325
E.g., Verkuil, Outcomes Analysis, supra note 297 at 707-709; Verkuil & Lubbers, supra note 23 at 741; ACUS,
TREATING PHYSICIAN RULE, supra note 42 at 23. Cf. CAROLYN A. KUBITSHEK & JON C. DUBIN, SOCIAL SECURITY
DISABILITY: LAW AND PROCEDURE IN FEDERAL COURT § 8:2, at 991 (2014) (acknowledging that “[c]ircuits which
tend to be sympathetic to claimants have found ways to stretch the narrow substantial evidence standard in order to
provide what is in fact a broader scope of review”).
326
SUSAN GLUCK MEZEY, NO LONGER DISABLED: THE FEDERAL COURTS AND THE POLITICS OF SOCIAL SECURITY 55
(1988).
327
Sun v. Colvin, --- F.3d ---, 2015 WL 4393795, at *5 (5th Cir. July 17, 2015) (internal quotation omitted).
Compare Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (describing “substantial evidence” as “more
than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”).

56

whole, including evidence supporting and opposing the agency’s decision, to determine if this
standard is met. 328
In theory, this “very deferential” standard imposes an “extremely limited” role on federal
courts when they review ALJ factual findings. 329 In reality, many OGC lawyers and other
agency personnel told us, federal courts ignore the standard of review and often adjudicate
factual questions de novo. 330 If federal courts do so, then they usurp decision-making power that
Congress has allocated to the SSA, and claimants win too many cases. 331 In contrast, most of the
federal judges we interviewed pleaded “not guilty” to the agency’s charge. 332
Whether and how federal judges stray from the deference the substantial evidence
standard ostensibly compels are difficult questions. Courts clearly overstep their bounds when
they simply reweigh the evidence or draw inferences from the evidence that differ from those
reasonably drawn by ALJs. Beyond these straightforward errors, the substantial evidence issue
gets ensnarled in complicated legal issues, such as whether courts may permissibly create
presumptions for recurring evidentiary situations, or whether alleged errors are better
characterized as ones of fact or law. Without the definitive resolution of such issues, we cannot
conclude that courts routinely exceed their authority under the substantial evidence standard.
328

Universal Camera, 340 U.S. at 477.
Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008); see also Dyrda v. Colvin, 47 F. Supp. 3d 318, 323 (M.D.N.C.
2014); KUBITSHEK & DUBIN, supra note 325 at 989 (describing the substantial evidence standard of review as
“highly deferential”). But cf. 3 CHARLES H. KOCH, JR. & RICHARD MURPHY, ADMINISTRATIVE LAW & PRACTICE §
9:24 (3d ed. 2010) (insisting that the substantial evidence standard “demands that the probabilities that the agency is
correct be relatively high”); RICHARD A. POSNER, DIVERGENT PATHS: THE ACADEMY AND THE JUDICIARY 152-153
(2016) (defending a refusal to afford significant deference to ALJ determinations).
330
One OGC lawyer explained that judicial disregard of the substantial evidence standard is one of the two biggest
problems the agency faces when litigating in federal court. OGC Lawyer 22 at 1; see also OGC Lawyer 21 at 1;
OGC Lawyer 16, First Interview at 2; OGC Lawyer 10 at 4; OGC Lawyer 5, Second Interview at 1; OGC Lawyer
11 at 1; OGC Lawyer 3 at 5; OGC Lawyer 12 at 4; OGC Lawyer 2 at 3; OC Lawyer 13 at 4.
331
See Verkuil & Lubbers, supra note 23 at 741 (interpreting the remand rate in this manner).
332
Federal Judge 15 at 3; see also Federal Judge 13 at 2; Federal Judge 3 at 2; Federal Judge 7 at 1; Federal Judge 8
at 2; Federal Judge 20 at 4; Federal Judge 1 at 4; Federal Judge 11 at 3; Federal Judge 16 at 3; Federal Judge 19 at 6;
Federal Judge 10 at 2; Federal Judge 17 at 1. Claimant representatives likewise dismissed the agency’s complaint as
unfounded. E.g., Claimant Representative 2 at 3-4; Claimant Representative 9 at 7. In contrast, one judge insisted
that his colleagues routinely trespassed the limits that the standard of review imposes. Federal Judge 5 at 2.
329

57

a. Straightforward Errors
The substantial evidence standard has the most clear-cut significance for federal court
review when the claimant challenges an ALJ’s factual finding, and the record evidence related to
this finding is mixed. If courts do not defer under these circumstances, as they usually should, 333
then the standard loses its force. Thus, a magistrate judge clearly erred when he disagreed with
an ALJ’s determination that a claimant’s carpal tunnel syndrome was not a severe impairment.
He cited evidence in the record inconsistent with the ALJ’s determination. But he did not fault
or even mention the evidence the ALJ had relied upon and instead simply reweighed the
evidence himself. 334
The standard also clearly requires deference for factual inferences drawn from findings
that are supported by substantial evidence. 335 For this reason, a district judge erred when the
judge faulted the ALJ for a residual functional capacity finding based on what the judge insisted
was a faulty interpretation of a treating physician’s report. 336 Conceding that the report was “not
clear,” the judge drew what she thought was a more plausible inference from the report than
what the ALJ had inferred. 337
Finally, a court clearly errs if it faults an ALJ for failing to address inconsistencies in
medical source opinions and records, if a reasonable person could conclude that the evidence is
not inconsistent. Thus, a magistrate judge exceeded her authority when she faulted the ALJ for
failing to give reasons to privilege one physician’s opinion over another, when the opinions,
fairly read, did not necessarily conflict with each other. 338

333

Howard v. Massanari, 255 F.3d 577, 584 (8th Cir. 2001).
Parent v. Colvin, Civ. No. 14-3056, 2015 WL 1564886, at *4 (W.D. Ark. Apr. 8, 2015).
335
E.g., Schaudeck v. Comm’r of Social Security, 181 F.3d 429, 431 (3d Cir. 1999); Young v. Apfel, 221 F.3d
1065, 1068 (8th Cir. 2001).
336
Hiller v. Astrue, Civ. No. 11-4131, 2012 WL 4511374, at *2 (E.D.N.Y. Sept. 28, 2012).
337
Id. at *2.
338
Nicholson v. Astrue, Civ. No. 10-2010, 2012 U.S. Dist. LEXIS 146069, at *23-24 (D.D.C. Mar. 14, 2012).
334

58

b. Reason Giving and the Substantial Evidence Standard
Based on our interviews, we have identified at least three issues significantly more
complicated than these straightforward errors that confound any easy conclusion that district
courts routinely trespass limits that the substantial evidence standard sets. The first involves the
relationship between the standard and reason-giving requirements prescribed in statutory text or
a regulation. The treating source regulation provides an illustration. It requires the ALJ to give
“controlling weight” to a treating source’s opinion on the nature and severity of an impairment if
it “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence” in the record. If the ALJ does not afford the
opinion such weight, the ALJ must “give good reasons” for the decision. 339 The Ninth Circuit
reads this language as a license to scrutinize the ALJ’s decision carefully:
Where the treating doctor’s opinion is not contradicted by another doctor, it may
be rejected only for clear and convincing reasons supported by substantial
evidence in the record . . . . Even if the treating doctor’s opinion is contradicted by
another doctor, the ALJ may not reject this opinion without providing specific and
legitimate reasons supported by substantial evidence in the record . . . . This can
be done by setting out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation thereof, and making
findings . . . The ALJ must do more than offer his conclusions. He must set forth
his own interpretations and explain why they, rather than the doctors’, are
correct. 340
Other circuits have provided similar elaborations. 341
On one hand, such formulations seem to depart dramatically from the deference the
substantial evidence standard commands. How can a court require “clear and convincing”
reasons for the ALJ’s decision, while still reviewing the decision deferentially? 342 Indeed, courts

339

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (internal quotations and citations omitted).
341
E.g., Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008); 2 SARAH H. BOHR ET AL., BOHR’S SOCIAL SECURITY
ISSUES ANNOTATED § 202.8 (2012).
342
ACUS, ASSESSING THE EFFICACY, supra note 42 at 23 (suggesting that the treating physician rule “has distorted
substantial evidence in the record review”).
340

59

reverse and remand the agency when the medical evidence is conflicting, ordinarily a situation
for deference, 343 when reasons for disagreeing with the treating physician are not sufficiently
compelling. 344 On the other hand, if courts must afford the same deference to the ALJ’s treating
source findings as to other findings of fact, then courts lose their power to ensure that ALJs
comply with the “good reasons” requirement the regulation provides.
To our knowledge, the federal courts have not explicitly analyzed the significance a
heightened reason-giving requirement has for the deference otherwise owed under the substantial
evidence standard, at least in these terms. The proper way to understand this relationship is thus
unresolved and begs for clarification, whether through appellate engagement, rulemaking, or
even legislation. Indeed, this sort of relationship is contested more generally. In immigration
cases, the circuits have split over how burdens of proof affect substantial evidence review, an
analogous problem. The Second Circuit insists that “the substantial evidence test becomes more
demanding as the government’s underlying burden of proof increases,” 345 while the Eleventh
Circuit denies that the agency’s increased burden affects the stringency of its review. 346
We recommend one way to approach the relationship between the substantial evidence
standard and a heightened reason-giving obligation. Their blurry relationship can come into
somewhat better focus if one appreciates that the standard not only governs review of the
evidentiary basis for the ALJ’s decision, but also review of the reasons the ALJ gives connecting
the evidence to the conclusions drawn. 347 Assume that a treating source opines that two
claimants have severe, debilitating ankle pain. The ALJ #1 rejects this opinion, based in part on
a finding that Claimant #1 runs five miles per day. The evidence of this exercise is mixed,
343

E.g., Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003).
E.g., Komiyama v. Astrue, Civ. No. 09-159, 2009 WL 4730586, at *2-*3 (C.D. Cal. Dec. 4, 2009).
345
Francis v. Gonzales, 442 F.3d 131, 138 (2d Cir. 2006).
346
Adefemi v. Ashcroft, 386 F.3d 1022, 1028 (11th Cir. 2004).
347
3 PIERCE, supra note 11 § 11.2, at 988; Carpenter & Millwrights, Local Union 2471 v. N.L.R.B., 481 F.3d 804,
809 (D.C. Cir. 2007).
344

60

Claimant #1 disputes it, and a reasonable person could both agree and disagree with ALJ #1’s
finding. ALJ #2 rejects this opinion, based in part on a finding that Claimant #2 performs
household chores and takes care of her child. The evidence of these activities is likewise mixed.
The two cases are identical in terms of the equivocal evidence supporting the ALJs’
reasons. But in the first case, the ALJ’s reason itself is clearly a good one. The court should not
take the reason-giving obligation as an invitation to engage in a de novo review of the ALJ’s
evidentiary finding with regard to the exercise. 348 In the second case, it is not the equivocal
evidence but rather the insufficiently good reason that justifies a decision in the claimant’s
favor. 349 The substantial evidence standard commands deference by requiring the reviewing
court to allow the ALJ’s evidentiary finding with regard to the activities to stand, but the reasongiving obligation allows the court to demand a more plausible reason, based on the evidence, to
support the conclusion drawn. 350
In many instances, the reason the ALJ gives does not cleave so neatly from the
underlying evidence in the record. An ALJ might, for example, reject a treating source’s opinion
as to an impairment’s severity on grounds that it is inconsistent with other medical evidence in
the record. Under such circumstances, courts may insist that the ALJ provide specific reasons
for his determination, but the court, again, should resist the temptation to take the reason-giving
obligation as an invitation for de novo review. The court’s job is to ensure that the ALJ
considered the evidence thoughtfully, not that he made the right evidentiary determination.

348

The Sixth Circuit describes the “good reasons” requirement in the treating source rule as a “procedural
requirement” that “denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified
based upon the record.” Rogers v. Comm’r of Social Security, 486 F.3d 234, 243 (6th Cir. 2007). Although
confusing, this statement suggests that the failure to discharge a “procedural requirement” means that the ALJ’s
decision does not benefit from deference. The form of review is equivalent to that for legal error, that is, de novo.
See also Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007).
349
Cf. Hughes v. Astrue, 705 F.3d 276, 278 (7th Cir. 2013) (Posner, J.) (criticizing ALJs for relying on evidence of
household activities to support findings of no disability).
350
E.g., Whitney v. SEC, 604 F.2d 676, 681 (D.C. Cir. 1979).

61

c. Judicial Elaborations
A second confounding issue involves adjustments that courts have fashioned to the
substantial evidence standard, without being prompted to do so by a reason-giving requirement
or something like it set forth in positive law. The Ninth Circuit, for example, insists that an ALJ
must give “clear and convincing reasons” to reject the claimant’s description of his symptoms
“where the record includes objective medical evidence establishing that the claimant suffers from
an impairment that could reasonably produce the symptoms of which he complains . . . .” 351 This
threshold has no obvious basis in either the Act or applicable regulations and seems to have
originated in case law. 352
This “clear and convincing” threshold, the Ninth Circuit insists, “is not an easy
requirement to meet.” 353 For this reason the agency believes that it conflicts with the deferential
substantial evidence standard. 354 A couple of other courts have used language similar to the
Ninth Circuit’s, 355 but the “clear and convincing” threshold has hardly won a universal
embrace. 356 Moreover, the threshold has produced garbled recitations of the substantial evidence
standard, suggesting that it has sewn confusion over the appropriate degree of deference courts
owe. 357

351
Carmickle v. Comm’r of Social Security, 533 F.3d 1155, 1160 (9th Cir. 2008); see also Santiago v. Astrue, Civ
No. 06-302, 2010 WL 466052, at *13 (D. Ariz. Feb. 10, 2010).
352
E.g., Larson v. Colvin, Civ. No. 12-1844, 2013 WL 3216172, at *6 n.1 (D. Ariz. June 25, 2013). We traced the
“clear and convincing” standard back to Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975), which in turn
imported it from White Glove Building Maintenance, Inc. v. Brennan, 518 F.2d 1271 (9th Cir. 1971), a case
involving an appeal from a Department of Labor decision.
353
Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014).
354
The agency argues that this is so. E.g., Webber v. Colvin, Civ. No. 13-2088, 2015 WL 1810205, at *8 (D. Ore.
Apr. 17, 2015).
355
Schaudeck v. Comm’r of Social Security, 181 F.3d 429, 433 (3d Cir. 1999) (insisting that the ALJ must give
symptom complaints “great weight” when consistent with objective medical evidence); Hersch v. Barnhart, 470 F.
Supp. 2d 1281, 1284 (D. Utah 2006) (same).
356
Smith v. Astrue, 457 Fed. Appx. 326, 329 (4th Cir. 2011) (rejecting a “great weight rule”).
357
The Ninth Circuit, for instance, once asked “whether the ALJ’s adverse credibility finding . . . is supported by
substantial evidence under the clear-and-convincing standard.” Carmickle, 533 F.3d at 1161.

62

However problematic, the Ninth Circuit’s elaboration and ones like it are not necessarily
illegitimate. 358 The “clear and convincing” threshold could be viewed as a power grab at odds
with a statutory insistence on deference. Viewed differently, however, the threshold may be an
attempt to inject some objectivity into the “seedless grape” of substantial evidence review. 359 As
two commentators aptly noted, “it is difficult to ‘consider’ the evidence contrary to the agency’s
finding, which is required, without reweighing the evidence, which the reviewing court is
forbidden from doing.” 360 Without stated rules for its application in recurring circumstances, the
substantial evidence standard invites inconsistent decision-making. The Ninth Circuit’s
threshold might be seen as an attempt to give more direction to lower courts’ review, one with a
certain logic behind it. The substantial evidence standard is the same – what could a reasonable
person conclude? But a reasonable person would be less likely to conclude that the claimant is
exaggerating or lying about her symptoms, so the logic goes, if they are consistent with objective
medical evidence. Hence, the reasonable person would require clear, specific reasons before
disbelieving the claimant.
Interpreted thusly, the “clear and convincing” threshold is not a judicial trump but a
presumption guiding the proper application of the substantial evidence standard in a recurring
circumstance. If so, the concern is not one of illegitimate usurpation but of proper policy. Is the
presence of objective medical evidence sufficiently correlated with claimant veracity to support
the Ninth Circuit’s presumption? If so, what determination ought an ALJ make to find a
claimant’s symptoms not supported or not consistent with the record, notwithstanding this
evidence? The agency is better positioned than the courts to answer these questions, and courts
358

But see 3 PIERCE, supra note 11 § 11.3, at 1015 (questioning the legitimacy of such elaborations).
Ernest Gellhorn & Glen O. Robinson, Perspectives on Administrative Law, 75 COLUM. L. REV. 771, 780 (1975);
see also CHRISTOPHER EDLEY, JR., ADMINISTRATIVE LAW: RETHINKING JUDICIAL CONTROL OF BUREAUCRACY 97
(1990) (suggesting that existing standards of review are in effect “lawless[]”).
360
Richard E. Levy & Robert L. Glicksman, Agency-Specific Precedents, 89 TEX. L. REV. 499, 544 (2011).
359

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should take care to defer to its guidance if offered. If, however, the agency has not fashioned
guidance, interest in consistent decision-making may justify the judicial elaboration. 361 More
generally, judicial elaborations on the substantial evidence standard should invite the agency to
clarify how best to resolve the evidentiary concerns that are motivating courts to fashion these
presumptions.
d. Characterization Problems
A third complication is the most difficult one and prevents any simple answer to the
question of whether the federal courts are unfaithful to the substantial evidence standard.
Difficulties of characterization – is an alleged error one of fact or law? – abound. 362 The
difference matters, because a federal judge owes no deference to the ALJ when the appeal
involves an alleged legal error. 363 To many of our interview subjects, characterization is the
whole ballgame. The agency insists that the alleged error is really a dispute of fact, while the
claimant representative couches it as a legal error. 364
Several examples illustrate unresolved characterization problems that produce less
deferential review than what the substantial evidence standard would otherwise predict:
•

The SSA’s interpretation of a regulation governing medical source evidence requires
ALJs to evaluate all of the medical evidence in the record. 365 To some courts, the failure

361

A newly issued Social Security Ruling offers detailed guidance on some of the issues implicated by the Ninth
Circuit’s elaboration. Soc. Sec. Ruling 16-3p.
362
Cf. Zaring, supra note 273 at 152 (“Distinguishing between questions of law and questions of fact has never been
easy either, at least at the margin.”).
363
E.g., McClanahan v. Comm’r of Social Security, 474 F.3d 830, 833 (6th Cir. 2006); Poulos v. Comm’r of Social
Security, 474 F.3d 88, 91 (3d Cir. 2007); McClean v. Astrue, 650 F. Supp. 2d 223, 226-27 (E.D.N.Y. 2009); Seavey
v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001).
364
OGC Lawyer 4 at 4; OGC Lawyer 5, Second Interview at 2. A number of claimant representatives insisted to us
that they rarely seek review of ALJ findings of fact and instead challenge decisions for legal error. Claimant
Representative 8 at 4; Claimant Representative 2 at 3; Claimant Representative 10 at 4; Claimant Representative 7 at
4; Claimant Representative 1 at 5; Claimant Representative 9 at 7; Claimant Representative 6 at 3; Claimant
Representative 7 at 4 (“Deference doesn’t have anything to do with it.”); see also Federal Judge 3 at 2 (explaining
that remands happen because ALJs don’t follow “regulations and the law”).
365
20 C.F.R. §§ 404.1527(c), 416.1527(c); see also Soc. Sec. Ruling 96-5p (“[O]pinions from any medical source
on issues reserved to the Commissioner must never be ignored. The adjudicator is required to evaluate all evidence
in the case record that may have a bearing on the determination or decision of disability, including opinions from
medical sources about issues reserved to the Commissioner.”).

64

to discuss a medical opinion in the record is “clear legal error” and requires a remand
unless the error is harmless. 366 This harmless error analysis then flips the substantial
evidence standard on its head: the district court must remand unless no reasonable ALJ
could conclude that the overlooked medical opinion could change the disability
determination. 367 For other courts, an ALJ conceivably could omit mention of a
particular opinion and still have his decision supported by substantial evidence. 368
•

To obtain benefits, a claimant seeking SSDI benefits must establish the onset of a
disability before his “date last insured.” 369 To some courts, an ALJ must use a medical
advisor to help determine the onset date if the available evidence is ambiguous. The
failure to do so is reversible legal error. 370 To others, the ALJ has no such obligation, and
thus whether the ALJ rightly determined the onset date is reviewed for substantial
evidence. 371

•

The circuits are split on the issue of whether an ALJ must make specific findings to
support a determination that a claimant has transferable skills and thus is not disabled,
even if she cannot continue in past employment. The Sixth Circuit has disclaimed any
specific findings requirement when the ALJ relies on a vocational expert, and when the
expert testifies to the claimant’s transferable skills. 372 The determination of transferable
skills is reviewed for substantial evidence. In the Ninth Circuit, the ALJ must make the
findings, and failure to do so is legal error. 373

•

To some courts, an ALJ who makes an RFC determination based on “raw medical
evidence” and without a medical source opinion as to the claimant’s capacity commits a
legal error. To others, the ALJ’s RFC determination simply needs to be supported by
substantial evidence, whether it is based on a medical source opinion or not. 374
An important unresolved legal problem involves the Chenery Doctrine’s relevance. The

agency has argued that substantial evidence review is supposed to be based on anything in the
record that arguably supports the ALJ’s decision, and not just on the evidence the ALJ actually

366

Sandoval v. Colvin, Civ. No. 14-1852, 2015 WL 4245824, at *2 (D. Colo. July 14, 2015).
Fischer-Ross v. Barnhart, 431 F.3d 729, 733-34 (10th Cir. 2005); see also Spiva v. Astrue, 628 F.3d 346, 353 (7th
Cir. 2010); Neal ex rel. Walker v. Barnhart, 405 F.3d 685, 689 (8th Cir. 2005); Fitzgerald v. Astrue, Civ. No. 08170, 2009 WL 4571762, at *9 (D. Vt. Nov. 30, 2009); Davis v. Astrue, Civ. No. 07-231, 2008 WL 540899, at *3
(D.S.C. Feb. 22, 2008).
368
E.g., Thompson v. Colvin, Civ. No. 12-585, 2013 WL 1718768, at *14 (N.D. Ill. Apr. 18, 2013).
369
Soc. Sec. Ruling 83-20.
370
Wilson v. Colvin, 17 F. Supp. 3d 128, 139 (D.N.H. 2014).
371
Eichstadt v. Astrue, 534 F.3d 663, 667 (7th Cir. 2008).
372
Wilson v. Comm’r of Social Security, 378 F.3d 541, 549-50 (6th Cir. 2004).
373
Bray v. Comm’r of Social Security, 554 F.3d 1219, 1225 (9th Cir. 2009); Coyne v. Astrue, Civ. No. 11-868,
2012 WL 1698318, at *4 (C.D. Cal. May 14, 2012).
374
See generally Poitra v. Colvin, Civ. No. 14-094, 2015 WL 9700337, at *24-29 (D.N.D. Sept. 30, 2015).
367

65

marshaled in her opinion. 375 But the Chenery Doctrine provides that “agency action can be
upheld, if at all, only on the rationale the agency itself articulated when taking action.” 376
Representing the majority view, 377 the Seventh Circuit has rejected the SSA’s argument and
insists that Chenery precludes the SSA from offering post-hoc rationalizations for an ALJ’s
decision. 378 The substantial evidence calculus cannot include any evidence not discussed by the
ALJ, however compelling. In contrast, some courts suggest, either implicitly 379 or explicitly, 380
that Chenery does not apply in social security cases. They agree that the question on review is
“whether the ALJ’s decision is supported by substantial evidence based upon the record taken as
a whole,” regardless of what the ALJ actually discusses. 381 Other courts have staked out a third
position: an ALJ does not need to discuss evidence for a district court to consider it in the
substantial evidence balance, so long as “the [ALJ’s] decision . . . demonstrate[s] that the ALJ
considered all of the evidence . . . .” 382

375

OGC Lawyer 14 at 4; see also Federal Judge 10 at 2 (observing that he as a federal judge often finds himself
saying, “if I were reviewing the Commissioner’s brief, there’s substantial evidence”); Claimant Representative 1 at
5; Claimant Representative 9 at 6 (insisting as a claimant representative that the typical OGC brief has “5-15” posthoc rationalizations); Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010) (commenting on a recurrent theme in
government briefs); Slade v. Colvin, Civ. No. 12-1253, 2014 WL 580895, at *3 (E.D. Cal. Feb. 13, 2014);
Nimmerrichter v. Colvin, 4 F. Supp. 3d 958, 971 (N.D. Ill. 2013); Gibson v. Astrue, Civ. No. 09-677, 2010 WL
3655857, at *10 (N.D. Ga. Sept. 13, 2010).
376
Elizabeth Magill & Adrian Vermeule, Allocating Power Within Agencies, 120 YALE L.J. 1032, 1042 (2011)
(citing SEC v. Chenery Corp., 318 U.S. 80, 94 (1943)).
377
Bryan C. Bond, Note, Taking it on the Chenery: Should the Principles of Chenery I Apply in Social Security
Disability Cases?, 86 NOTRE DAME L. REV. 2157, 2159 & n.11 (2011).
378
E.g., Hanson v. Colvin, 760 F.3d 759, 761 (7th Cir. 2014) (suggesting that Chenery violations are a “recurrent
feature” of SSA arguments, and that they amount to “professional misconduct” that might warrant sanctions); Spiva
v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010) (criticizing the SSA’s litigation position as “determined to dissolve the
Chenery doctrine in an acid of harmless error”); Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010).
379
E.g., Rector v. Colvin, Civ. No. 14-5017, 2015 WL 1925368, at *3-*4 (W.D. Ark. Apr. 28, 2015) (undertaking
an independent survey of the record evidence to find substantial evidence in support of the ALJ’s decision).
380
District courts find sufficient ambiguity in the Sixth Circuit’s treatment of the Chenery issue to conclude that they
are not obliged to apply the Chenery doctrine in social security cases. Calvin v. Astrue, Civ. No. 05-0109, 2010 WL
55452, at *14 (M.D. Tenn. Jan. 7, 2010); Brasseur v. Commissioner of Social Security, Civ. No. 10-1260, 2012 WL
991621, at *6 (W.D. Mich. Feb. 3, 2012). The Tenth Circuit has been ambiguous as well. See Bond, supra note 377
at 2159 n.12. For dicta denouncing the Seventh Circuit’s application of Chenery to the social security context, see
Senn v. Astrue, Civ. No. 12-326, 2013 WL 639257, at *6-9 (W.D. Wis. Feb. 21, 2013).
381
Brasseur v. Commissioner of Social Security, Civ. No. 10-1260, 2012 WL 991621, at *6 (W.D. Mich. Feb. 3,
2012).
382
Buchan v. Astrue, Civ. No. 10-4081, 2011 WL 3714472, at *5 (D. Kan. Aug. 24, 2011).

66

The 45% remand rate indicates widespread disregard of the substantial evidence standard
of review only if the claimant-friendly characterizations of these issues are pre-textual (i.e., made
to cloak a review of factual findings) or manifestly wrong. Some probably are. 383 But other
issues, such as the Chenery Doctrine’s application, are complicated and contestable. 384 If a
federal judge can defensibly characterize certain shortcomings as legal errors, then the
appropriate scope of application of the substantial evidence standard is debatable.
As before, the agency could take asserted legal errors as an invitation for rulemaking or
the issuance of a ruling. The obligation that some courts have put on ALJs to obtain medical
source statements on the claimant’s capacity, for example, seems to have originated in case law.
A regulation or ruling indicating when or under what circumstances an ALJ may eschew a
medical source statement could lay this doctrine to rest and reinvigorate the substantial evidence
standard’s deference for such issues.
3. The Missed Opportunity of Appellate Review
While we do not wade into the merits of any particular characterization dispute, two
phenomena do deserve criticism. Sometimes federal judges persist with articulation or record
development requirements when either circuit case law or the applicable regulation plainly does

383
A recently superseded ruling identified seven factors that the agency “will consider” when evaluating the
credibility of a claimant who alleges symptoms that lack support in objective medical evidence. Soc. Sec. Ruling
96-7p, superseded by Soc. Sec. Ruling 16-3p. By one interpretation of this regulation, an ALJ could consider only
some of the factors and still make a credibility determination supported by substantial evidence. E.g., Routh v.
Astrue, 698 F. Supp. 2d 1072, 1078 (E.D. Ark. 2010) (declaring that an ALJ does not have to discuss each of the
credibility factors explicitly); id. at 1081 (finding the ALJ’s credibility determination supported by substantial
evidence); see also Michael v. Astrue, Civ. No. 09-321, 2010 WL 2868177, at *5 (N.D. Ohio June 28, 2010). To
other courts, an ALJ’s failure to discuss each of the seven factors was legal error that warranted a remand, even if
the reasons the ALJ did provide might otherwise provide substantial evidence in support of a credibility
determination. E.g., Henningsen v. Comm’r of Social Security, --- F. Supp. 3d ---, Civ. No. 13-4392, 2015 WL
3604912, at *16 (E.D.N.Y. June 8, 2015); Taylor v. Comm’r of Social Security, Civ. No. 13-5995, 2014 WL
2465057, at *13 (S.D.N.Y. May 21, 2014). The latter position was probably incorrect. E.g., Chichoki v. Astrue,
534 Fed. Appx. 71, 76 (2d Cir. 2013) (declaring that an ALJ does not need to discuss all seven credibility factors).
384
See generally Bond, supra note 377.

67

not impose such obligations on ALJs. 385 Here the agency can rightly complain of ever-shifting
legal standards that its ALJ corps can never quite meet. 386 Also, given numerous circuit splits,
one wonders if the federal courts of appeals have fully appreciated the agency’s interest in the
administration of a national program consistently.
What to do about these problems of non-conforming judges and inter-circuit
disuniformity? This question can be merged with a second: to the extent that the agency believes
the federal courts have characterized issues improperly or have imposed undue requirements on
ALJs, what can be done? Obviously, the agency can clarify its views through notice-andcomment rulemaking. The issuance of new interpretive rules is a less powerful but
administratively easier tactic. The next obvious option for the agency is to appeal cases to the
circuits in order to discipline outlier district or magistrate judges, or to obtain appellate
clarification of a particular articulation or record development requirement.
Here lies a major problem for the agency. As described above, the agency must jump
through an extraordinary set of hoops, culminating in Solicitor General approval, to appeal an
adverse district court decision. This cumbersome process has all but shut down appeals by the
agency to the circuits. In the twelve months ending December 31, 2014, 667 social security
appeals were lodged with the twelve circuits. 387 Claimants filed all but one of these. 388 There

385

For instance, one federal judge faulted an ALJ’s credibility finding because the ALJ did not account for the
claimant’s prior work history, even though “the ALJ undertook an extensive analysis of plaintiff’s credibility in light
of the . . . factors” actually enumerated in the applicable regulation. Gonzalez v. Astrue, Civ. No. 10-2941, 2012
WL 3930412, at *8 (E.D.N.Y. Sept. 10, 2012).
386
Some federal court standards, an ALJ complained, would require eighty hours per week of work to write a
defensible decision. ALJ 2 at 2; see also ALJ 14 at 2 (insisting that, if this ALJ decided cases sufficient to meet a
federal judge’s threshold for substantial evidence, the ALJ could only hold one hearing per day).
387
Statistical Tables for the Federal Judiciary – December 2014, Table B-7, at 2, at
www.uscourts.gov/statistics/table/b-7/statistical-tables-federal-judiciary/2014/12/31.
388
Communication with Agency Official, Nov. 18, 2015.

68

are good reasons to keep one’s appellate powder dry, but the Department of Justice’s veto has
effectively given claimants complete control over the circuits’ social security dockets. 389
This dramatic asymmetry in appellate access has a number of likely effects. First, the
occluded path to appellate review prevents the agency from addressing characterization
concerns, correcting obvious errors, and thereby empowering the substantial evidence standard
of review, if indeed the agency rightly perceives it as anemic. 390 Presumably a claimant will not
ask a court of appeals to characterize an error as one of fact, not law. To the extent that district
courts treat particular issues as legal error, circuits will leave them largely alone when a claimant
appeals. Second, the agency may have difficulty correcting errors or district court recalcitrance.
Sometimes a district or magistrate judge might persist with a line of reasoning and argument
even after the circuit has gone the other way. 391 The mistake might be honest, given the surfeit
of social security case law in several circuits. It might also be a deliberate refusal to follow
governing precedent. Either way, the agency’s inability to appeal cuts off the appropriate avenue
to respond.
Third, claimants’ asymmetric access to appellate review probably produces a proclaimant drift in circuit precedent due to claimant control over the composition of appellate
dockets. 392 In almost every case, claimants ask appellate courts to construe governing law in a

389
Cf. OGC Lawyer 23 at 1 (acknowledging that the DOJ has acted as a brake); OGC Lawyer 16, First Interview at
2 (wishing that the SSA could appeal more).
390
We doubt that circuit or Supreme Court review could give more precise content to the substantial evidence
standard itself. For one thing, as a classic critique puts it, “rules governing judicial review have no more substance
at the core than a seedless grape . . . .” Ernest Gellhorn & Glen O. Robinson, Perspectives on Administrative Law,
75 COLUM. L. REV. 771, 780 (1975); see also CHRISTOPHER EDLEY, JR., ADMINISTRATIVE LAW: RETHINKING
JUDICIAL CONTROL OF BUREAUCRACY 97 (1990) (suggesting that existing standards of review are in effect
“lawless[]”). For another, a circuit or the Supreme Court might balk at trying to articulate a more specific test for
substantial evidence in a social security case, since any such decision would apply to all cases involving the review
of agency fact-finding. The trans-substantive reality of the substantial evidence standard probably requires its
articulation in ambiguous language.
391
See infra note 383 (discussing credibility factors).
392
See generally Jonathan Masur, Patent Inflation, 121 YALE L.J. 470 (2011); Melissa F. Wasserman, Deference
Asymmetries: Distortions in the Evolution of Regulatory Law, 93 TEX. L. REV. 625, 666-667 (2015); Kate Stith, The

69

more claimant-friendly way than the district court and ALJ did, against a factual backdrop of a
claimant’s choosing. The numbers – about 670 claimant appeals out of nearly 10,000 claimant
losses in 2014 – suggest that claimants select appeals with some care. 393
This asymmetric access may also encourage pro-claimant tendencies in district and
magistrate judges, even if no applicable circuit case law exists. One can safely assume that
lower court judges do not like to be reversed, 394 and findings suggest that district judges
sometimes anticipate and respond to preferences of their appellate colleagues. 395 If claimants
can credibly threaten to appeal while the agency cannot, district and magistrate judges may err in
favor of claimants in close cases and know that their decisions will go unreviewed. 396
As discussed in Part IV, circuit membership explains a good deal of the inconsistencies in
district court remand rates. The DOJ gauntlet the agency must run means that it lacks access to a
process, appellate review, that the agency could use to try to get more uniform case law. Even
more problematic is intra-circuit inconsistency, or the proliferation of conflicting standards in a
Risk of Legal Error in Criminal Cases: Some Consequences of the Asymmetry in the Right to Appeal, 57 U. CHI. L.
REV. 1 (1990). One OGC lawyer told us that the Second Circuit has drifted in a pro-agency direction since the late
1990s. OGC Lawyer 5, Second Interview at 2. A claimant representative shared this impression. Claimant
Representative 6 at 3. Another claimant representative thought that the Eighth Circuit has also moved in a proagency direction. Claimant Representative 9 at 1. A third claimant representative observed that the Seventh Circuit
has moved in a pro-claimant direction over the past five years. Claimant Representative 3 at 3.
393
A couple of claimant representatives whom we interviewed complained that some of their colleagues select cases
poorly for appeals. Claimant Representative 9 at 6; Claimant Representative 8 at 4. Each of those with whom we
spoke insisted that they select cases to appeal very carefully. Claimant Representative 10 at 4; Claimant
Representative 7 at 5; Claimant Representative 5 at 3-4; Claimant Representative 3 at 3; Claimant Representative 12
at 1. An OGC lawyer with extensive appellate experience insisted that claimants select cases very carefully. OGC
Lawyer 16, First Interview at 2. But see OGC Lawyer 5, Second Interview at 6 (insisting that plaintiffs lawyers in
the Second Circuit are not selective). The statistic in the text includes pro se appeals. We do not have sufficient
data to know how many of these appellants have representation.
394
E.g., RICHARD A. POSNER, HOW JUDGES THINK 141 (2008); Evan H. Caminker, Precedent and Prediction: The
Forward-Looking Aspects of Inferior Court Decision Making, 73 TEX. L. REV. 1, 77 (1994); Jack Knight & Mitu
Gulati, Talking Judges, at
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2839&context=faculty_scholarship.
395
Kirk A. Randazzo, Strategic Anticipation and the Hierarchy of Justice in the U.S. District Courts, 36 AM.
POLITICS RES. 669 (2008). See generally Christina L. Boyd & James F. Spriggs II, An Examination of Strategic
Anticipation of Appellate Court Preferences by Federal District Court Judges, 29 J. LAW & POL’Y 39, 52-53 (2009)
(summarizing existing literature).
396
Several OGC lawyers harbor this impression. OGC Lawyer 23 at 2 (claiming that district judges are aware that
the agency won’t appeal); OGC Lawyer 8 at 5; OGC Lawyer 11 at 3; OGC Lawyer 2 at 5; OGC Lawyer 3 at 5.

70

single circuit’s case law. We can find a Ninth Circuit case holding whatever we need for a
decision, a magistrate judge told us; 397 by the court’s own admission, this claim is not
hyperbolic. 398 The agency has many fewer opportunities to seek clarification if it effectively
cannot appeal. Appellate asymmetry may also encourage renegade judges who stray from circuit
guidance or the proliferation of standards that the agency believes to be unsound. 399 Finally,
asymmetry has probably engendered the proliferation of articulation and record development
requirements and concomitantly blunted the force of the substantial evidence standard.
C. The Quality of Agency Adjudication
If the 45% remand rate does not necessarily reflect exaggerated scrutiny of ALJ decisions
in the federal courts, then does it highlight systemic dysfunction within the agency? We do not

397

Federal Judge 9 at 2.
Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir. 2008) (discussing an intra-circuit inconsistency). Compare
Weiner v. Colvin, Civ. No. 12-598, 2013 WL 3440021, at *5 n.1 (D. Ariz. July 9, 2013), with Dominguez v. Colvin,
Civ. No. 12-691, 2014 WL 4904735, at *8 n.6 (D. Ariz. Sept. 23, 2014) (offering contrasting interpretations of
Ninth Circuit decisions on credibility. But see LoPresto v. Colvin, Civ. No. 12-739, 2013 WL 1628727, at *7 (D.
Ariz. Apr. 16, 2013) (reconciling the Ninth Circuit decisions on the issue).
399
A good example of the force of appellate review involves the Ninth Circuit’s credit-as-true rule. When an ALJ
fails to offer sufficient reasons to discount either medical opinion evidence or a claimant’s credibility, the court can
credit the evidence as true and remand for the calculation of benefits. Garrison v. Colvin, 759 F.3d 995, 1020 (9th
Cir. 2014). Given a second chance to discredit opinion evidence or a claimant’s testimony, an ALJ could do so
adequately in some cases. In these instances, a federal court would review the ALJ’s determination deferentially,
for substantial evidence. Denying the agency this second bite at the apple, the credit-as-true rule likely generates
benefits that would not otherwise be granted. ACUS, TREATING PHYSICIAN RULE, supra note 42 at 20; Smith v.
Astrue, Civ. No. 11-2524, 2012 WL 5269395, at *11 n.7 (D. Ariz. Oct. 24, 2012). The rule arguably conflicts with
other Ninth Circuit case law, and it has drawn criticism, including from district judges forced to apply it. E.g.,
Sproule v. Colvin, Civ. No. 13-1427, 2014 WL 690988, at *4 n.2 (D. Ariz. Feb. 24, 2014); Smith v. Astrue, Civ. No.
11-2524, 2012 WL 5269395, at *11 n.7 (D. Ariz. Oct. 24, 2012) (Campbell, J.); Agnew-Currie v. Astrue, 875 F.
Supp. 2d 967, 972 (D. Ariz. 2012); Vasquez v. Astrue, 572 F.3d 586, 601 (9th Cir. 2009) (O’Scannlain, J.,
dissenting); ACUS, TREATING PHYSICIAN RULE, supra note 42 at 20.
In a 2012 decision, a Massachusetts district judge relied on the Ninth Circuit’s credit-as-true rule to justify
an award of benefits instead of a remand for further adjudication. Sarmento v. Astrue, Civ. No. 10-11724, 2012 WL
3307086, at *1 (D. Mass. Aug. 13, 2012). After the agency filed a notice of appeal with the First Circuit, the district
judge granted a motion for reconsideration and vacated the part of her order incorporating the credit-as-true rule.
Sarmento v. Astrue, Civ. No. 10-11724, 2013 WL 427379, at *1 (D. Mass. Jan. 4, 2013); Sarmento v. Astrue, Civ.
No. 10-11724, 2013 WL 434184, at *1 (D. Mass. Jan. 18, 2013).
The agency has appealed to the Ninth Circuit on credit-as-true grounds, most recently in 2013. Trnavsky v.
Colvin, --- Fed Appx. ---, 2016 WL 146007 (9th Cir. Jan. 6, 2016) (applying the credit-as-true rule). In 2009, when
the Ninth Circuit muddied the credit-as-true waters, the agency attempted to get permission for a certiorari petition.
But the Solicitor General said no. OGC Lawyer 23 at 1; OGC Lawyer 11 at 3. For other circuits’ approaches to the
issue the Ninth Circuit treats with credit-as-true, see KUBITSHEK & DUBIN, supra note 325 § 9:51 n.6. See also
Pollock v. Astrue, Civ. No. 07-1114, 2010 WL 813522, at *1 (M.D. Fla. Mar. 3, 2010).
398

71

think so. The SSA and the federal courts differ along several institutional axes. As long as these
institutions have conflicting goals and resources, honor different legal commitments, and employ
decision makers with different perspectives, claimants will always win a significant number of
cases in the federal courts.
1. Different Goals and Resources
On one level, the SSA and the district courts share the same goal: the accurate and
efficient implementation of social security disability policy. On another, however, their goals
diverge. The SSA tries to meet a quality threshold, one equaled when decisions are “factually
accurate, procedurally adequate, policy compliant, and supported by the record.” 400 But the
agency has to serve an equally important quantity goal, the timely adjudication of huge numbers
of claims.
Quality conflicts with quantity, for obvious reasons. 401 ALJs surely could generate better
decisions with half as many claims to adjudicate, but claimants would then wait twice as long for
a hearing. The agency is legitimately concerned with the injustice of a claim unreasonably
delayed, 402 and it faces constant and enduring scrutiny for its claims backlog. 403 Overall, the

400

Agency Official 3, Third Interview at 1.
Association of Administrative Law Judges v. Colvin, 777 F.3d 402, 404-05 (7th Cir. 2015); GAO, SSA HAS
TAKEN STEPS, supra note 208 at 4; id. at 17. But see Richard J. Pierce, Political Control Versus Impermissible Bias
in Agency Decisionmaking: Lessons from Chevron and Mistretta, 57 U. CHI. L. REV. 481, 507 (1990) (discussing
earlier agency efforts at increasing output and insisting that they did not compromise the quality of decisions). In an
April 2007 report, the U.S. Government Accountability Office suggested a direct correlation between caseload
pressures and quality of ALJ decision-making. Several agency officials challenged a causal link between high case
loads and poor decisions, telling us that SSA had come up with several tools like the eBB to enable ALJs to dispose
of a high volume of claims accurately. Agency Official 3, Third Interview at 1; OGC Lawyer 23 at 4. ALJs we
spoke with doubted this confidence in technology. E.g., ALJ 2 at 4; ALJ 21 at 7. No ALJ, for instance, agreed with
the confidence SSA has placed in the eBB as a tool to increase quality decision making without a sacrifice in
quantity. Management literature on goal setting posits an irreducible tension between quality and quantity when
tasks involve complex decision-making. E.g., Stephen W. Gilliland & Ronald S. Landis, Quality and Quantity
Goals in a Complex Decision Task: Strategies and Outcomes, 77 J. APPLIED PSYCH. 672, 680 (1992). The agency’s
Inspector General recently reported a dropoff in ALJ productivity and explained this decline as produced in part on
renewed efforts at quality control. OIG, EFFORTS TO ELIMINATE THE HEARING BACKLOG, supra note 69 at 3-4.
402
Cf. Nash v. Bowen, 869 F.2d 675, 680 (2d Cir. 1989).
403
E.g., David A. Fahrenthold, At Social Security Office With a Million Person Backlog, There’s a New Chief,
WASH. POST, July 23, 2015.
401

72

agency has the complex task of managing a complex balance between quantity and quality as
successfully as possible.
The federal courts do not shoulder anywhere near the same obligation to generate
decisions quickly, 404 although some districts have quite sizeable dockets. Moreover, the federal
courts do not endure the same legislative and public scrutiny for their pace of decision-making.
Federal judges can render particularized justice tailored to the circumstances of an individual
case, without significant regard for production quotas.
To a certain extent different resources allotted to each institution determine these
contrasting goals. While federal courts cannot spend limitless time deciding any particular
motion, many judges and their clerks take longer on a social security claim than what all
personnel at the ALJ and Appeals Council levels can spend in total. One federal judge we asked
estimated that she spends two to eight hours on a social security appeal. 405 But all others
reported that they spent longer, ranging from 15-25 hours to 60-80 hours of judge and clerk
time. 406 In contrast, the huge numbers of claims permit ALJs and decision writers to combine to
average about ten or eleven hours on a claim, if our interviews are any guide; a claim may get
five hours of adjudicator attention at the Appeals Council. 407 “We have to rob Peter to pay
Paul,” another ALJ told us, while district judges “speak from a place of unlimited

404
Cf. POSNER, supra note 394 at 140-141 (commenting on district judges’ sensitivity to delays in deciding motions
but noting that there is no sanction for delays). When we described ALJ caseloads to one district judge, her
response was “that’s preposterous.” Federal Judge 4 at 5.
405
Federal Judge 1 at 3. The complaint filed in 2013 in a case challenging the ALJ productivity goal described
federal judges as spending 4.6 hours to adjudicate an agency appeal. Complaint, Association of Administrative Law
Judges v. Colvin, Civ. No. 13-2925, N.D. Ill., Apr. 18, 2013, at 19 (hours per claim). This figure is inconsistent
with what all but one federal judge reported to us.
406
Federal Judge 19 at 4 (15-25 hours); Federal Judge 4 at 4 (60-80 hours); Federal Judge 10 at 3 (30-40 hours);
Federal Judge 15 at 4 (15-20 hours); Federal Judge 11 at 4 (two days for law clerk, ten days for judge); Federal
Judge 21 at 3 (2-3 hours to review law clerk’s draft, several days for clerk to draft opinion); Federal Judge 20 (1-2
weeks); Federal Judge 6 at 1 (at least 30 hours); Federal Judge 7 (one week of judge and clerk time).
407
As discussed in Part II, ALJs reported to us that they spent about two-and-a-half hours on a claim. Decision
writers spend about eight hours on a decision denying benefits. An analyst at the Appeals Council is supposed to
prepare two cases per day, and an AO and AAJ to work through 5-12 cases per day.

73

possibilities.” 408 Also, federal judges make extensive use of law clerk resources in social
security cases, with many judges assigning these appeals to permanent clerks. These staff handle
a large number of cases and thereby develop deep familiarity with the applicable law and
medical records, narrowing the expertise gap between the federal judiciary and ALJs. In
contrast, the decision writer-to-ALJ ratio is often 1:1, and ALJs for the most part do not have the
same individualized relationships with decision writers that federal judges enjoy with their
clerks. 409
An ALJ adjudicating 40-50 cases per month and a district judge and her clerk “picking
apart a case for a week” have fundamentally different jobs, as an ALJ aptly put it. 410 ALJs spend
much more time with medical records and the law of social security benefits than federal judges
do, and for this reason are surely more expert in the handling of medical evidence and the legal
regime’s application. Given the governing law’s endless details, the lengthy sets of medical
records claimants often submit, and ALJs’ duty to develop the record, however, a federal judge
spending three times the time an ALJ has for a decision can almost invariably find deficiencies.
The amount of time different types of decision makers have to deliberate is an institutional
variable that has nothing to do with the quality of decision maker. 411
2. Different Legal Commitments
The roles that ALJs and federal judges play contrast in another important respect. This
difference also produces some portion of remands without either institution malfunctioning. The
SSA has to administer a national program, one for which consistency is an obviously desirable
408

ALJ 1 at 5; see also ALJ 18 at 4 (district judges are “in a different world”); ALJ 20 at 3 (suggesting that ALJs are
“a little bitter” about the difference in time between district courts and hearing offices); ALJ 3 at 4 (commenting that
district judges have good knowledge of applicable law but no understanding of the “problems” ALJs face when
handling a case).
409
Staff-to-ALJ ratios bear importantly on ALJ productivity. OIG, ADMINISTRATIVE LAW JUDGE AND HEARING
OFFICE PERFORMANCE, supra note 96 at 5.
410
ALJ 4 at 2.
411
Henry J. Friendly, Indiscretion About Discretion, 31 EMORY L.J. 747, 757 (1982).

74

goal. 412 To say nothing of legitimacy concerns, the agency would weather well-deserved
political blowback if it treated claimants in Arizona more favorably than claimants in New
Mexico because of differences between the Ninth and Tenth Circuits. Moreover, careful
attention to the nuances of circuit or district court case law within the agency might create
significant administrative headaches. National case assistance centers, National Hearing
Centers, and remote adjudication by video are possible in part because the SSA counsels ALJs
and decision writers against citing case law in decisions.
District and magistrate judges, in contrast, must follow their circuit’s precedent. The task
of harmonization belongs to the circuits and the Supreme Court. Inconsistency in the application
of federal law is routine in the ninety-four federal districts. Courts of appeals have more of an
obligation to inter-circuit harmony when they develop a federal legal regime in their decisions. 413
But the degree to which this obligation trumps others is a contested jurisprudential question with
no clear answer. 414 Even if no applicable precedent exists, a district court is unlikely to treat
case law from within the same district cavalierly and rather will accord it persuasive force. 415
These different legal commitments manifest themselves in a number of ways that
necessarily generate remands. For instance, when OGC lawyers ask the Appeals Council to
agree to a voluntary remand, they must explain their reasons in terms of the statute, regulations,
and Social Security rulings, not case law. 416 For the most part, neither OGC lawyers nor
Appeals Council personnel we interviewed told us that they consider either the district where the

412

E.g., HUME, supra note 273 at 99.
E.g., Renteria-Gonzalez v. INS, 322 F.3d 804, 814 (5th Cir. 2002).
414
See generally Martha Dragich, Uniformity, Inferiority, and the Law of the Circuit Doctrine, 56 LOY. L. REV. 535
(2010).
415
E.g., Warneka v. Colvin, Civ. No. 14-22, 2015 WL 1470955, at *2 n.4 (D.N.H. Mar. 31, 2015) (rejecting SSA’s
invitation to disregard a district court opinion as inconsistent with the agency’s interpretation of an SSR); Rossiter v.
Astrue, Civ. No. 10-349, 2011 WL 2783997, at *2 (D.N.H. July 15, 2011).
416
Agency Official 6, First Interview at 2.
413

75

case proceeds or the judge to whom it is assigned when they make RVR determinations. 417 An
approach to RVRs more finely tailored to the idiosyncrasies of a particular court may reduce
remands. Some circuits hammered the agency over boilerplate that ALJs routinely included
when evaluating the credibility of a claimant’s alleged symptoms. 418 The Eighth Circuit was
more forgiving. 419 Were case law the proper determinant, an OGC lawyer in the Northern
District of Illinois could have had a different RVR threshold than an OGC lawyer in the Eastern
District of Arkansas. But these different thresholds would have undermined the agency’s
commitment to national uniformity.
The agency has instructed ALJs and decision writers “not to consider any district court
decisions” as sources of legal guidance when making their decisions. 420 This admonition is
consistent with the agency’s longstanding policy not to treat appellate decisions as binding
unless the SSA issues an acquiescence ruling. 421 The reasons for this policy are several and
include both the agency’s commitment to a national program and the administrative complexity
of accounting for district court nuances when drafting and revising decisions. 422 However
justified, the policy surely generates remands. A district or magistrate judge will likely afford

417

Agency Official 6, First Interview at 2; OGC Lawyer 12 at 2; OGC Lawyer 8 at 4; OGC Lawyer 24 at 3. One
agency official explained that, in order to grant an RVR request, the agency needs to be able to translate critiques
expressed in terms of case law into deficiencies rooted in the statute and regulations. Agency Official 6, Second
Interview at 4.
418
The boilerplate was the following:
After careful consideration of the evidence, the undersigned finds that the claimant’s medically
determinable impairments could reasonably be expected to cause the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the above residual functional
capacity assessment.
For this language, and for an example of an opinion criticizing it, see, e.g., Bjornson v. Astrue, 671 F.3d
640, 644-646 (7th Cir. 2012). The agency changed this text in 2012 due to this sort of criticism.
419
Kamann v. Colvin, 721 F.3d 945, 951-52 (8th Cir. 2013).
420
Memorandum to All Administrative Law Judges and All Senior Attorneys from Debra Bice, Chief
Administrative Law Judge, Jan. 11, 2013, at 2 (on file with authors).
421
Soc. Sec. Ruling 96-1p.
422
Bice Memorandum, supra note 420 at 2; Decision Writer 3 at 4; ALJ 17 at 3.

76

decisions rendered by colleagues persuasive force. 423 Just by mentioning certain well-known
cases, some ALJs believe, they could insulate their decisions from a court-initiated remand. 424
3. Different Perspectives
A final contrast that generates claimant wins has to do with perspectives that differ along
two institutional axes. The first has to do with baselines. ALJs handle a much larger sample of
cases each year than federal judges, and ALJs get their cases earlier in the adjudication process.
Presumably the ALJ sees a wider array of types of impairments, and the ALJ gets many more
slam-dunk cases. The easy ones should get weeded out well before they reach district court. An
ALJ may therefore have a different “cutpoint” 425 – roughly, the line the ALJ would draw along a
given dimension between disability and no disability – than a federal judge for what she believes
qualifies as a disability. 426 These different cutpoints, produced by different baselines, will give
ALJs and federal judges institutionally determined understandings of disability that differ. One
ALJ who had previously served as an OGC lawyer described this phenomenon aptly to us. What
seemed like a “slam dunk” claimant win at OGC changed when she became an ALJ. “If federal
judges saw more of what ALJs grant,” this ALJ told us, “they would appreciate why a case
seems more borderline to an ALJ.” 427
Another baseline difficulty involves the evaluation of expert and lay evidence. With their
immense case loads, ALJs and decision writers told us that they routinely see letters from the

423

E.g., Warneka v. Colvin, Civ. No. 14-22, 2015 WL 1470955, at *2 n.4 (D.N.H. Mar. 31, 2015) (rejecting SSA’s
invitation to disregard a district court opinion as inconsistent with the agency’s interpretation of an SSR); Rossiter v.
Astrue, Civ. No. 10-349, 2011 WL 2783997, at *2 (D.N.H. July 15, 2011).
424
E.g., ALJ 10 at 2. An OGC lawyer insisted to us that the agency is “going to get cases sent back” because of its
exclusionary rule for district court case law. OGC Lawyer 10 at 3.
425
Masur, supra note 392 at 483.
426
We appreciate that most ALJs and federal judges make their decisions based on a good faith effort to apply the
law to their best understandings of the facts. Within the legal regime for disability determinations, however, there is
room for judgment calls. Also, we expect that judges’ impressions of claimants and their needs influence decisionmaking, however consciously. One federal judge we interviewed candidly admitted that this was so. Federal Judge
24 at 1. For these reasons, where an adjudicator’s cutpoint lies is important.
427
ALJ 20 at 1. For a discussion of this issue, see MASHAW ET AL., supra note 28 at 138-139.

77

same physicians that use the same phrases to describe patients with strikingly similar
problems. 428 “We know which doctors are trustworthy and which ones aren’t,” one ALJ told us,
“but we can’t put this in a decision.” 429 But presumably ALJs will discount these physicians’
opinions in a policy-compliant manner. 430 Likewise, one ALJ told us, claimants can testify in an
obviously coached manner, taught to say just the right thing to buttress a claim for benefits. 431
Federal judges have nowhere near the sample of cases to draw upon and thus may have less
capacity to identify suspect medical evidence or embellished claimant testimony. The ALJ’s
baseline might breed undue skepticism, a concern raised by a number of ALJ comments we
heard. 432 The federal judge’s baseline, in contrast, might foster unwarranted credulity.
Institutional perspectives clash along a second axis. ALJs are supposed to conduct
hearings in an inquisitorial manner. 433 As federal judges understand this duty, it finds expression
in an obligation to develop the record, 434 or otherwise to explore the evidence to the claimant’s
benefit. 435 To ALJs, however, the inquisitorial duty has a different salience. Generally
speaking, no attorney represents the government in benefits hearings, while more than threefourths of claimants have representation. ALJs must aid claimants with their presentations, to be
sure. But without a government representative, an ALJ must also probe for inconsistencies and
otherwise test the adequacy of a claim for benefits. One ALJ described the task as to “protect the

428

ALJ 1 at 5; ALJ 21 at 4.
ALJ 7 at 4; Decision Writer 14 at 6; ALJ 6 at 4. Cf. Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995) (holding
that an ALJ may not assume that a physician is lying to help his or her patient).
430
Another ALJ described claimant firms sending claimants to the same doctors and getting the same statements
from treating sources. ALJ 16 at 3.
431
ALJ 1 at 5 (reporting that claimants repeatedly testify that they can only lift “about a gallon of milk”); ALJ 6 at 4
(describing how claimants know to say that they can only lift “a gallon of milk”).
432
The ALJ who discussed this issue at length with us insisted that “people are trying to scam all the time.” ALJ 1
at 6.
433
See generally Sims v. Apfel, 530 U.S. 103, 110-111 (2000).
434
E.g., Butts v. Barnhart, 388 F.3d 377, 386 (2d Cir. 2004); Blea v. Barnhart, 466 F.3d 903, 911 (10th Cir. 2006).
435
E.g., Overman v. Astrue, 546 F.3d 456, 465 (7th Cir. 2008); Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir.
2002).
429

78

fund.” 436 A federal judge, presiding over an adversarial process, can rely on the OGC lawyer to
make the case that a claimant is malingering or otherwise not entitled to benefits. ALJs shoulder
this duty themselves, one merged uncomfortably with their duty to aid the claimant with their
case and serve as an objective fact-finder. 437 Several ALJs described to us an ingrained
skepticism to claimants, 438 an attitude inconsistent with agency policy but one understandable in
light of the several hats ALJs must wear. With no obligation to ferret out defects in a plaintiff’s
case, a federal judge has no institutional reason to approach cases with such a bent.
***
It is possible that the factors that contribute to the remand rate have more to do with
conflicts between two different institutions than anything else. Unless one could say with
confidence that one institution’s commitments, goals, and perspectives are normatively inferior
to the other’s, judgments about the remand rate, viewed statically, are hard to draw.
Only Congress can narrow significantly the institutional gaps between the agency and the
courts. Funding permitting a dramatic increase in the ALJ corps, for example, would lessen the
tension between quality and quantity by giving ALJs the sort of time that federal judges enjoy to
decide claims. It would be misguided to read into the overall remand rate something normatively
significant about how the agency adjudicates claims, or about the standard by which federal
courts measure ALJ decisions, without appreciating the demands Congress makes of those who
administer the social security disability program.
436

ALJ 15 at 1. We do not understand this ALJ as expressing some felt obligation to deny claims in order to
maintain fiscal rectitude. Rather, his statement reflects an awareness that the agency as a whole, and he as its
representative, have an obligation to be a responsible steward of social security funds. Cf. Lael R. Keiser,
Understanding Street-Level Bureaucrats’ Decision Making: Determining Eligibility in the Social Security Disability
Program, PUB. ADMIN. REV., Mar./April 2010, at 247, 250 (“DDS offices have two contradictory missions. The
first is to grant access to a needy population, and the second is to protect the solvency of the Social Security Trust
Fund.”).
437
ALJ 19 at 2. To one ALJ we interviewed, it is “totally unfair” that he has both to cross-examine the claimant and
to maintain a non-adversarial atmosphere. ALJ 19 at 2. See also Bloch et al., supra note 94 at 7.
438
ALJ 8 at 3; ALJ 14 at 1; ALJ 19 at 2.

79

80

Part IV. Variations Across Districts
A snapshot of the national remand rate means little. Perhaps changes in the remand rate
over time might reveal more about how well or poorly the agency or the federal courts are
functioning, at least if the composition of claims remained unchanged. But the large swings in
the labor market that began with the Great Recession make us doubt this story of consistency
over time. Thus, we believe trends in the remand rate are of limited use in understanding deeper
facts about the disability appeals process.
With this proviso, we note that while the remand rate dropped steadily from above 60%
in 2001 to 45% in 2014, it has done so steadily and relatively slowly, rather than abruptly. That
fact suggests that the trend in the national remand rate is unlikely to be the result of cataclysmic
economic forces, most notably including a weakening of claims due to the Great Recession’s
onset. It is likely true that as the labor market worsens, more people choosing between
employment and disability benefits might pursue the latter instead of the former. But there are at
least two problems with the supposition that the national trend in the remand rate is simply the
result of national macroeconomic forces. First, one would expect a major drop in the remand rate
in 2011 or 2012, when claims initially filed in 2007-2008 hit the district courts; no such major
drop actually occurred. 439 Second, one would also expect to see the remand rate ticking up
thereafter, corresponding to the period roughly four years after the labor market improved
following the worst months of the recession; no such change has so far shown up in the data.
A more intriguing story couples changes in claim composition with structural changes
within the agency that have improved the overall quality of claims that federal courts review.
ODAR began to implement quality assurance initiatives in earnest around 2011, roughly around
the time we would expect the average quality of cases appealed to the district courts to begin to
439

See discussion in note 280 at 45, supra.

81

rebound. Such a change in case quality might have counteracted any effects of the agency’s
quality assurance initiatives. The result would be a stronger set of claims facing a betterperforming agency review process, such that recent improvements in the agency’s multi-layered
review would dampen whatever case selection effects are caused by labor market and
demographic swings.
A third story is related but different. Perhaps the multi-layered review within the agency
ensures that the composition of claims that finds their way into the district courts would be
relatively unaffected by broader economic and social forces. Put metaphorically, the mesh in the
Appeals Council’s net is fine enough to catch most erroneous ALJ decisions, regardless of initial
claim quality. On this story, the modest decline in the federal courts over the past decade does
not reflect the influence of exogenous variables related to case quality, but rather factors
endogenous to the federal judiciary, such as changes in judicial personnel, changes in some key
circuit doctrine, and so forth.
Our data allow us to comment on the first account, but they are insufficient to enable us
to investigate the second or third story in detail. To do so, we would need, at a minimum,
detailed data concerning initial claims and appeals at every level of the agency review process,
over a period of years. We lack such data. This fact necessarily limits the conclusions we do
reach, as discussed below.
In this Part we focus on the more modest objective of characterizing and trying to
understand the correlates of district-level variation in remand rates. The institutional factors we
discussed in Part III that might be expected to produce an irreducible core of claimant wins –
different legal commitments, different goals, and different perspectives – do not vary from one

82

district to the next. Yet outcomes in social security appeals differ strikingly across the 94
judicial districts.
The following table reports the district-specific remand rate among all cases in our OGC
data for the years 2010-2013. 440 The table shows substantial variation across districts—from a
low of 20.8% in the Eastern District of Arkansas to a high of 76.0% in the Southern District of
New York. The median value was 41.4%, which occurred in the Middle District of Florida.
Formal statistical tests easily reject the null hypothesis that the district-level remand rate is the
same across districts, meaning that there is convincing statistical evidence that district-level
variation is not simply the product of random variation. 441

440

As we discuss in the Data Appendix, the data we refer to as our “OGC data” were provided by the agency for
purposes of this report and originate from the NDMIS system maintained by OGC. The calculations discussed in the
report were made on a substantial subset of these data, whose construction we describe in the Data Appendix; see
page A-3 of that appendix for discussion of why we did not generally use alternative data from ODAR that the
agency provided. While we are aware of no reason to believe this subset is unrepresentative of the overall set of
data, we emphasize that official agency statistics and those we created using our OGC data should not be expected
to overlap perfectly.
441
A simple way to measure the importance of district-level variation is to estimate a least-squares model in which
the outcome variable is a dummy variable indicating whether a case was remanded, and the dependent variables are
a set of dummy variables for the district courts, with each dummy variable indicating whether a case was filed in the
corresponding district. The estimated constant will equal the remand rate for the excluded district, with the
coefficients on the dummy variables equaling the deviation from the excluded district’s mean for the district
corresponding to each dummy variable. A test of whether the remand rate varies systematically across districts is
then equivalent to testing the null hypothesis that all the district dummy variables’ coefficients equal zero, which can
be implemented via a standard asymptotic chi-square test. We found that that easily rejects the null hypothesis,
which means that there is statistically significant evidence that the underlying remand rate varies across districts.

83

Table 1: District-Level Remand Rates for Cases Decided 2010-2013 442
State District
AR
WV
MS
KY
TX
MT
FL
AL
VA
KY
AL
NV
VA
TX
ND
GA
IA
WV
MN
TN
HI
FL
PA
OH
CA
GA
NE
MO

E
S
S
E
W
N
N
E
W
M
W
S
M
S
N
W
S
W
N
S
S
E

Remand
Percentage
20.8
21.2
23.0
23.9
24.0
24.5
24.6
26.7
27.2
27.4
27.5
27.6
27.8
27.8
30.4
30.7
31.0
31.4
32.7
32.9
33.3
33.4
33.6
33.9
33.9
35.4
35.6
36.2

Remand
Percentage
36.5
37.0
37.1
37.2
37.5
37.6
38.5
38.6
38.6
38.9
39.1
39.9
39.9
39.9
41.4
42.2
42.4
42.6
42.9
42.9
44.2
44.5
45.5
46.6
47.7
48.5
48.8
49.1

State District
NC
TN
MD
TN
MI
CA
MO
TX
MI
PA
DC
CA
TX
ME
FL
WY
IL
WA
MS
LA
PR
MA
IN
OH
NC
ID
AZ
OK

W
E
M
E
E
W
E
W
M
N
N
M
C
E
N
W

S
S
M

N

State District
RI
AR
CA
OK
NY
KS
NJ
SC
SD
IN
IA
OR
GA
CO
NY
DE
NC
PA
NH
IL
CT
VT
AK
IL
NM
WA
NY
OK
NY

W
C
W
N

N
N
N
W
E
E
S

N
W
E
E
S

Remand
Percentage
49.2
49.4
50.6
52.8
53.1
54.0
54.1
54.2
54.5
54.9
55.1
55.4
55.4
56.4
56.9
57.1
58.4
59.2
61.1
63.1
63.9
65.4
65.5
67.4
69.2
69.2
71.9
75.9
76.0

Outcome consistency, or the notion that like cases ought to be treated alike, is an
important value that any system of adjudication ought to serve. 443 ALJs have earned criticism

442
The data we used for this table permit us to report remand rates for only eighty-five of the ninety-four districts,
for reasons we explain in the Data Appendix.
443
Yoav Dotan, Making Consistency Consistent, 57 ADMIN. L. REV. 995, 1000-1001 (2005) (explaining the value of
consistency in administrative decision-making); Stephen H. Legomsky, Learning to Live With Unequal Justice:
Asylum and the Limits to Consistency, 60 STAN. L. REV. 413, 423-428 (2007).

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for past failures to honor this value. 444 Do federal judges deserve similar criticism? Unlike
ALJs, federal judges do not owe fidelity to a single body of nationally uniform law. But, while
circuit boundaries explain a lot of district-level variation, they leave some differences
unexplained. Why do claimants in Albany (53.1% remand rate) win much less often than
claimants in Brooklyn (71.9% remand rate)? Should Pasadena claimants (50.6% remand rate)
prevail more often than their counterparts in Fresno (37.6% remand rate)? These questions
helped motivate our attempts to understand the variation in district-level remand rates. 445
Section A provides quantitative evidence concerning the nature of district-level variation,
with a focus on attempting to determine what factors are associated with this variation. We first
determine that district-level variation in remand rates is not driven by a small number of outlier
districts. 446 We then consider two hypotheses we developed based on our qualitative
investigation. First, our interview subjects routinely chalked up differences in outcomes to
individual judicial preferences. Does the behavior of “single outlier judges”—those who are
very influential in certain districts—explain why some districts have especially high or low
remand rates by comparison to the national average? Our evidence indicates that judges tend to
march in lockstep with other judges in the same district, not to the beat of different drummers:
while considerable variation across judges does exist, the single outlier judge hypothesis does
little to explain districts’ remand rates overall.
444

HAROLD J. KRENT & SCOTT MORRIS, ACHIEVING GREATER CONSISTENCY IN SOCIAL SECURITY DISABILITY
ADJUDICATION: AN EMPIRICAL STUDY AND SUGGESTED REFORMS, April 2013, at 1. So have immigration judges.
Jaya Ramji-Nogales et al., Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295, 296 (2007).
445
The agency has noted to us that DDS-level allowance rates differ across areas, and also that available medical
treatment might vary. However, if the agency’s multi-layered review process operates in a uniform way, then one
would expect such variation to have been appropriately accounted for in that process: claims that a state’s DDS
process incorrectly denies should be allowed by the agency itself on review. In any case, the agency did not provide
us data from the DDS level forward, so this is not an issue we can address quantitatively in this report.
446
Limitations in the OGC data prevent us from identifying cases in nine districts, including the Eastern District of
Wisconsin, whose remand rate is high compared to the national average. However, our data represent an
overwhelming majority of district court cases, so including these districts, if we could, would not likely affect our
basic conclusion on this point.

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The second hypothesis is that district-level variation is explained by circuit membership.
Harold Krent and Scott Morris reached this conclusion in their study of district court remand
variations, concluding that “the doctrine or ‘culture’ within a particular judicial circuit makes a
substantial difference . . . .” 447 Our results comport with theirs and reveal substantial evidence of
a circuit-level component to district-level variation in remand rates. But we also find that
considerable variation in district-level remand rates exists even within circuits.
District-level factors that are both broader than individual judges and narrower than
circuit membership must play an important role in explaining the variation in remand rates across
districts. This fact is the key puzzle that needs explaining. Based on an intensive qualitative
study of all aspects of the social security claims adjudication process, with a particular focus on
three districts, we identified a set of candidates that might answer this puzzle: caseloads, judicial
ideology, and labor market variations. Very few of these are significant, as we report in Section
B. We did, however, discover a couple of interesting phenomena that our other factors do not
explain. To the extent we can measure with the data used here, decision-making within the
agency seems to differ geographically. We combine these findings with ones from our
qualitative investigation of three districts in Sections C and D to hypothesize, albeit tentatively,
that district culture, determined at least in part by the quality of ALJ decisions federal judges
review, likely explains a component of district-level variation. Section E summarizes our
findings as to variation across districts in the remand rate.
A. A Quantitative Analysis of District-Level Variation in Remands
In this section we attempt to disentangle judge-, district-, and circuit-level explanations
for the variation in district-level remand rates. We note at the outset that the lines among these
types of explanations may blur. An example much on the mind of OGC lawyers we interviewed
447

Krent & Morris, supra note 1 at 367.

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offers a useful illustration. Compared to the national average, the Eastern District of Wisconsin
has a high remand rate. One judge in particular has criticized ALJ decisions. 448 To a certain
extent, his frustration reflects inconsistencies between ALJ decisions and case law from the
Seventh Circuit, 449 a comparatively claimant-friendly court. But, an OGC lawyer explained to
us, ALJ decisions of questionable quality – a fact of life for all judges in this district, if the OGC
lawyer is right – have also fueled this judge’s reactions. 450 According to that OGC lawyer, then,
this district’s remand rate is a function of an individual judge’s preferences, prevailing law and
tendencies within the circuit, and the quality of inputs for district court decision-making. 451
1. The Nature of the Problem of District-Level Variations
An obvious and potentially important difference across districts involves differences in
the nature of claimants’ alleged disabilities. For example, the Southern District of New York is
unlikely to have many coal miners claiming benefits, just as districts located in Appalachia are
unlikely to have many cab drivers. More rural districts will have fewer manufacturing workers
claiming, while heavily urbanized districts will have fewer farmers filing for disability benefits.
It is possible that these or other area-related sources of heterogeneity in claimant characteristics
could lead to differences in the accuracy of the agency’s adjudication of claims. If so, then
district-level variation in claim quality might be a source of district-level variation in the remand
rate. We are unable to control for such claimant-level sources of heterogeneity. We assume for
purposes of this report that this inability does not render the rest of our quantitative analysis

448

E.g., Jane Pribek, Federal Judges Fired Up Over Social Security Cases, WIS. L.J., Mar. 11, 2013.
In a scheduling hearing held on March 13, 2013, the district judge complained of “far too many administrative
law judges who are not conversant in Seventh Circuit law.” Transcript, Mar. 13, 2013, at 14, at
www.ssaconnect.com/260-sanctions.
450
OGC Lawyer 1 at 5 (complaining of “ill-trained, slapdash ALJs” generating decisions for this judge to review).
451
We note again that the Eastern District of Wisconsin could not be identified in the OGC data we use for much of
this Part. We use it anecdotally in the text above to illustrate a general point.
449

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unuseful. Still, we urge readers of the quantitative sections of this report to keep that limitation
in mind.
With that caveat noted, variation in district-level remand rates would have much less
systemic importance if it were largely the product of a few outlier districts, with most districts
having reasonably similar rates. One way to test this proposition is to determine what happens
when one eliminates outlier districts, or those with remand rates that deviate greatly from the
average in either direction. Also, variations are less systemically concerning if small districts
with very few cases are the outliers, because smaller districts will tend to have more variable
remand rates, other things equal. To assess whether variation in district-level remand rates is
primarily driven by the fact that some districts have fewer cases than others, we plotted each
district’s remand rate over the 2010-2013 period against the number of cases from which this
rate was calculated.
The resulting graph appears in the left panel of Figure 1 below. The district-level mean of
43.7% is shown as the solid line toward the middle of the graph. The two dashed lines above and
below this line indicate the values of the remand rate that are one standard deviation above and
below the mean. These are useful because a unit of standard deviation is a common measure of a
sizable, but not extreme, movement in a variable’s value. 452 The standard deviation for all
districts was 13.8%, so the one-standard deviation band consists of districts with remand rates
between 29.9% and 57.5%. The distribution of districts outside the one-standard deviation band
is not precisely symmetric, as remand rates among high-remand districts are farther from the
mean than for those in districts with low remand rates.

452

The standard deviation of a statistic is the square-root of its variance.

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Figure 1

The panel on the right side of Figure 1 includes the same plot, with two adjustments.
First, hollow squares represent the remand rates of those districts whose remand rates are among
either the five highest or five lowest. 453 Second, the middle horizontal line and the associated
one-standard deviation band in the panel on the right side of Figure 1 are calculated excluding
the top-5 or bottom-5 remand rate districts. 454 The mean across districts in this panel was 43.2%,
virtually identical to the mean of 43.7% for the left panel. The distance of the remand rates
453
The districts with the five lowest remand rates are the Eastern District of Arkansas, with a remand rate of 20.8%
(1252 cases); the Southern District of West Virginia, 21.2% (283 cases); the Southern District of Mississippi, 23.0%
(122 cases); the Eastern District of Kentucky, 23.9% (703 cases); and the Western District of Texas, 24.0% (242
cases). The districts with the five highest remand rates are the Southern District of New York, with a remand rate of
76.0% (835 cases); the Eastern District of Oklahoma, 75.9% (531 cases); the Eastern District of New York, 71.9%
(707 cases); the Western District of Washington, 69.2% (1891 cases); and the District of New Mexico, 69.2% (308
cases).
454
The one-standard deviation band for district-level remand rates runs between 31.8% and 54.5% for the right
panel. Given the virtually identical means in the two panels, this result is an arithmetic necessity, because
eliminating outlying points necessarily eliminates those points that contribute the greatest values to the summand in
computing the standard deviation. Thus the simple fact of a tightening itself carries no important information; to be
meaningful, the drop in the standard deviation following elimination of the most extreme outlier points would have
to be very substantial. The actual standard deviation in the right panel is 11.5%, which we do not think is
substantially different from the left pane’s 13.9%.

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among the top-5 and bottom-5 districts from the overall mean thus is not so great as to
meaningfully affect the overall mean. 455 Variance in districts’ remand rates, in short, does not
chiefly result from a few outliers.
Figure 1 yields a final insight. Eight of the districts with the ten largest numbers of cases
in our data are within the left panel’s one-standard deviation band. 456 These districts accounted
for more than a quarter of the cases represented in our data for the 2010-2013 period. Huge
caseloads do not seem to push districts to either extreme.
An inquiry into what causes district-level variations would yield considerably different
conclusions if districts’ remand rates changed dramatically from year to year. To address this
possibility, we estimated a regression model in which the dependent variable was each district’s
remand rate for a given year. The lone regressor was the value of the district’s remand rate in the
preceding year, or what is known in statistical parlance as the “first lag” of the dependent
variable. 457 If the remand rate is persistently high in some districts and persistently low in others,
then we would expect a coefficient estimate for the preceding year’s remand rate to be
substantially above zero. In the extreme situation in which each district always has the same
remand rate in every year, the coefficient for the preceding year’s remand rate would always be
exactly 1.

455

For top-5 districts, the remand rate was 72.4%, roughly 29 percentage points above the overall mean of 43.7%.
For the bottom-5 districts, the remand rate was 22.6%, about 21 percentage points below the overall mean.
456
The top ten districts in terms of number of decided cases were the Eastern District of Arkansas (1252 cases); the
Southern District of Ohio (1259 cases); the Eastern District of Michigan (1362 cases); the Western District of
Arkansas (1404 cases); the District of Oregon (1426 cases); the Northern District of Ohio (1448 cases); the Western
District of Washington (1891 cases); the Western District of Missouri (2025 cases); the Middle District of Florida
(2438 cases); and the Central District of California (3215 cases). Of these, only the Western District of Washington
and the Eastern District of Arkansas had remand rates—69.2% and 20.8%, respectively—that were outside the onestandard deviation band.
457
This regression model has 255 observations—85 districts for which we had useable data, times 3 annual
observations per district (since we are using only data from 2010-2013, data for 2010 enter only as first lags).

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This model generated a coefficient on the preceding year’s remand rate of 0.77. 458 On
average, districts with a remand rate that is greater by one percentage point in a given year have
a remand rate that is greater by roughly three-quarters of a percentage point in the following
year. We emphasize that this is not a causal claim: we are not suggesting that any factor that
increases a district’s remand rate by one point in one year will necessarily increase the following
year’s remand rate by 0.77 points. Rather, the described relationship is merely associational.
Nevertheless, it does tell us that district-level remand rates are persistent over time.
In sum, the results of this section have shown that there is a substantial degree of year-toyear persistence over time in district-level remand rates. Further, while district-level remand
rates vary systematically, the overall remand rate is not driven by a small number of outlier
districts.
2. Are Outlier Judges Important?
Differences in district-level remand rates have a different institutional significance if they
result from individual judge idiosyncrasy. The policy implications of a situation where outlier
judges push their districts’ remand rates away from national- or circuit-average levels differ
considerably from a situation where rates are less sensitive to individual judicial preference.
Idiosyncrasies in the remand decisions of individual judges might be expected to produce
dramatic variations in remand rates when districts are small or when they decide few social
security cases. The impact of a single outlier judge on a small district’s remand rate might be
enough to push the district’s remand rate far away from the average remand rate for the circuit in
which the district is located.

458

This estimate is precisely enough estimated that we can rule out the possibility that the coefficient is either zero
or one; thus there is substantial persistence, but a bit less than would be expected if nothing changed from year to
year at the district level.

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A district that came up repeatedly in our interviews (“District A”) offers an example. 459
District A had a remand rate about 20 percentage points higher than the average remand rate of
all districts within its circuit. One of the judges within District A remanded cases a rate 10
percentage points higher than District A’s average. This judge accounted for more than a third
of all decisions rendered by District A in our data. If this outlier judge’s decisions are removed
from consideration, however, District A’s remand rate falls by only 6.7 percentage points.
District A’s rate without the outlier judge included, in other words, is considerably closer to
District A’s rate with the outlier judge included than it is to the circuit’s rate without District A
included. Thus even a judge with a substantial share of the district’s cases, and with a reputation
as an outlier, might account for relatively little of the value of his district’s remand rate.
District A is not unique in this respect. To determine the impact of individual judges on
district remand rates, we identified the judge assigned to cases using the “judge” field provided
in dockets. 460 Unless specifically indicated, for purposes of this analysis we refer to magistrates
and Article III judges collectively as “judges.” 461 Using this definition, we found a total of 1,369
judges in our data. 462 Across all of these judges, the average remand rate was 45.8% (the median
was similar, at 44.4%). The remand rate varied widely. For example, 101 matched judges had a
remand rate of zero and 88 had a remand rate of 100%. Not surprisingly, these extremes were
associated with judges who decided relatively few cases—an average of 2.3 and 1.9 cases in
each of these two categories, respectively. Even among those with remand rates between zero

459

We have kept the district anonymous at the agency’s request.
See the Data Appendix for more detail on the construction of our matched OGC-dockets data.
461
In some cases there is a name in the “case referred to” field as well; typically this name appears to be that of a
magistrate judge.
462
As discussed in the Data Appendix, we were able to match a judge to over 95% of cases in the OGC data that we
sought to match.
460

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and 100%, however, the variation in the judge remand rate was substantial: the 25th percentile
was 32% and the 75th percentile was 60%. 463
Even as the judge-specific remand rate varies considerably, individual judges do not play
an important part in explaining the variation in district-level remand rates. To show this, we
repeat the exercise we carried out for the judge in District A. We first calculate the remand rate
for each particular judge’s district, and we then calculate the remand rate among all cases
decided in that same district by judges other than the particular judge. Finally, we arrive at the
particular judge’s “district remand differential,” as we call this measure, by subtracting the
remand rate for other judges in the same district from the overall district remand rate. This
measure tells us how much different the district remand rate would be if the judge in question
had remanded the same fraction of cases as her district colleagues did, rather than deciding her
cases as she actually did.
The following results demonstrate why we believe that individual judicial idiosyncrasy is
likely to account for little of the variation in district-level remand rates. The district remand
differential indicates that fewer than 2% of judges moved their district-level remand rate more
than 5 percentage points in either direction: only 8 judges out of the more than 1,300 in our data
include reduced their districts’ remand rates by more than 5 percentage points, and only 13
judges increased their districts’ remand rates by more than 5 percentage points. 464 The District A
judge discussed above was one of these. Only seven judges had a district remand differential in
either direction of greater than 8 percentage points; three of these were in districts in which we
were able to match only five cases, and the fourth accounted for all but one case we were able to
match in the district in question. Ninety-five percent of all judges had a district remand
463

The 10th percentile was 21%, and the 90th was 71%.
We note that 4 of the 21 judges just described were in districts in which we were able to match judges to cases in
only 5 cases.
464

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differential of less than 2.7 percentage points in either direction, while 1,110 judges – or 81% –
had a district remand differential of less than 1 percentage point in either direction.
Figure 2 helps makes sense of these results. It plots each judge’s own remand rate on the
vertical axis and the remand rate among other judges in the same district on the horizontal axis.
As with the District A example above, this figure shows that judges’ remand rates tend to be
greater when the other judges in the same district have greater remand rates. The upwardly
sloped line in the figure is the simple linear regression line. 465 This line’s slope of 0.863 indicates
that in a district where the remand rate among a judge’s peers is greater by 1 percentage point, a
judge’s own remand rate tends to be 0.863 percentage points greater. 466 Thus when we write that
judges march in lockstep rather than to their own drummer, what we mean is that judges in
districts with greater remand rates tend to have similarly greater remand rates, and judges in
districts with lower rates tend to have similarly low rates. 467 These findings belie any suggestion
that a substantial part of the variation in remand rates results from individual outlier judges.

465

In computing this line, we weighted each point by the number of cases decided by the judge in question, since
judges with smaller numbers of cases contribute less information to this analysis.
466
This slope is estimated very precisely; its estimated standard error is only 0.005. Even so, visual inspection of
Figure 2 makes clear that there is quite a lot of residual variation in the relationship in question. In numerical terms,
the R-squared of the underlying regression estimate is 0.41, indicating that 41% of the variance in judge-specific
remand rates is “explained” by variance in the remand rate for other judges in the same district. Such an R-squared
value is on the high end of what one often sees in cross-sectional estimates.
467
We emphasize that we are not drawing any causal inference here. We are not, for example, claiming that judges’
remand rates in a district are so highly associated because particular judges in the district influence other judges.
That is a possible explanation for the high correlation between judges’ own remand rates and the remand rate among
all other judges in the same district. But other explanations would also be consistent with this high correlation; for
example, district-level similarities in claimant characteristics or hearing office performance might explain the
correlation in question.

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Figure 2

3. A Circuit-Level Component to District-Level Variation
Case assignment within a district court is essentially random, so disability appeals heard
by each judge within a given district should have similar characteristics. Our findings suggest
that factors beyond the preferences or idiosyncrasies of individual judges determine remand
rates. A district’s placement within a particular circuit is one of these. Some district-level
differences result from differences in understandings of applicable law that prevail in the circuits,
as well as the tone that circuits set for social security cases. 468 The Seventh Circuit has earned a

468

Krent & Morris, supra note 1 at 396 (doubting that case law alone determines circuit-level variations, and
suggesting that circuit “culture” is important as well).

95

reputation for its pro-claimant tilt in recent years. 469 Most of the districts within it have aboveaverage remand rates, a pattern that surely reflects the influence of Seventh Circuit decisions.
To provide a simple visual sense of circuit influence over district remand rates, Figure 3
plots the district-level remand rate on the vertical axis against the circuit to which each district
belongs on the horizontal axis. Districts with more cases decided over our 2010-2013 period
have circles with wider radii, indicating that they have more weight in the determination of the
circuit-level remand rate. A horizontal line in the middle of the graph once again represents the
district-level mean remand rate of 43.7%.
Figure 3

469

E.g., www.empirejustice.org/issue-areas/disability-benefits/litigation-legal-updates/court-decisions/seventhcircuit-decisions-too.html.

96

Notably, Figure 3 indicates that, for several circuits, all or nearly all districts cluster on
one side of the mean. Virtually all districts in the Second, Seventh and Tenth circuits have
remand rates above the mean, and most of the districts in the First Circuit also have above-mean
remand rates. Nearly all the districts in the Fifth, Sixth and Eleventh Circuits have remand rates
below the mean. Several circuits encompass districts with remand rates that are spread across
the mean. This is so for the Third, Fourth, Eighth and Ninth Circuits. Thus, three types of
circuits appear to exist: “high-remand” circuits (First, Second, Seventh and Tenth), “lowremand” circuits (Fifth, Sixth and Eleventh), and “broad-spread” circuits (Third, Fourth, Eighth
and Ninth). 470 The remand rates over all cases in each of these circuit groups were 36.9% for
low-remand circuits, 45.0% for broad-spread circuits, and 58.2% for high-remand circuits.
An equally striking observation concerns the location of the districts with top-5 and
bottom-5 remand rates. Figure 3 indicates these districts with labels to the right of the points in
the figure that represent their remand rates. Four of the five top-5 districts – the Southern and
Eastern Districts of New York, the District of New Mexico, and the Eastern District of
Oklahoma – are located in high-remand circuits. The other one is the Western District of
Washington, which is located in the Ninth Circuit. Three of the five bottom-5 districts – the
Southern District of Mississippi, the Eastern District of Kentucky, and the Western District of
Texas – are located in low-remand circuits. The other two – the Southern District of West
Virginia and the Eastern District of Arkansas – are located in broad-spread circuits.

470

This taxonomy differs somewhat from what one might have concluded based on results Professors Krent and
Morris reported. For example, they indicate that cases in the First Circuit had the lowest remand rate of any circuit.
Krent & Morris, supra note 1 at 395. We find that the First Circuit is a high-remand circuit. We suspect this
difference is the result of the fact that Krent & Morris gathered their data from Lexis searches, which, they note,
might not have included all cases. Id. at 387. This is a commonly discussed challenge in using searches of Lexis or
similar databases. See generally JOE S. CECIL ET AL., FED. JUDICIAL CTR., MOTIONS TO DISMISS FOR FAILURE TO
STATE A CLAIM AFTER IQBAL: REPORT TO THE JUDICIAL CONFERENCE 37 n.47 (2011), at
www.uscourts.gov/file/17889/download.

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To measure the importance of circuit-level variation more systematically, we conducted a
standard analysis of variance, focusing on circuits. This technique quantifies the share of
variance in the remand rate across districts that is attributable to (i) variation across circuits and
(ii) variation within circuits. The results show that cross-circuit variance accounts for 45% of the
variance in district-level remand rates. 471 Thus, nearly half the variance in district-level remand
rates is attributable to factors associated with a district’s circuit. This finding comports with our
sense that circuit-specific differences in the law applied to district court appeals is likely to be
important. We also have no reason to doubt the conclusion that Professors Krent and Morris
make in their study, that circuits can influence district court decision-making through informal
mechanisms such as the tone they set. 472
The importance of circuit influence on remand rates has implications for evaluating the
significance of district-level inconsistencies and identifying who is responsible for them. To the
extent that Second Circuit precedent compels a district judge in Connecticut to rule in a
particular way, 473 she cannot be blamed for an outcome that might come out differently had she
been sitting in Florida and thus within the Eleventh Circuit. Courts of appeals, however, may
deserve scrutiny for the degree to which they pursue (or fail to pursue) a goal of national
uniformity in the elaboration of a federal legal regime. We return to this point in Part VI.
B. A Quantitative Analysis Using Multiple Regression
The results reported thus far leave a puzzle in place. Judges within a district tend to
march in lockstep, and thus factors other than individual preferences explain district-level
variations in the remand rate. Circuit boundaries account for a good amount of the variation, but
471
The variation across circuits is statistically significant, meaning that we can reject the null hypothesis that
knowing the circuit in which a district is located is irrelevant.
472
Krent & Morris, supra note 1 at 397.
473
For an example of a district court compelled by circuit precedent to rule a certain way against its better judgment,
see, e.g., Smith v. Astrue, Civ. No. 11-2524, 2012 WL 5269395, at *11 n.7 (D. Ariz. Oct. 24, 2012) (Campbell, J.).

98

a lot remains unexplained. Based on our qualitative investigation, we identified a number of
possible factors. We tested these hypotheses and report our results here.
Two important caveats bear emphasis at the outset of this discussion. First, we had to
make certain judgment calls in deciding which data to use for this analysis, and while we were
able to use data from most district courts, we were not able to use data from all of them. The
Data Appendix provides a detailed discussion of the data we use. Second, any attempt to use
data on remand rates to learn about what causes one side to win or lose in litigation is fraught
with problems related to litigant selection. Rational plaintiffs—or their representatives—do not
embark on extended litigation journeys unless they think they are sufficiently likely to win or
expect to gain something very valuable when they do win (or both). Similarly, defendants do not
generally contest cases they are sure they will lose. 474 Thus, the set of cases that are actually
litigated is the result of deliberate choices by litigants. To the extent that claimants and/or the
agency make litigation choices by reference to case characteristics or the perceived legal
standards that will apply, confusing correlation with causation is hazardous. 475

474
Indeed, in some cases SSA makes a request for a voluntary remand (“RVR”). The OGC data we used throughout
this section do not indicate whether a remanded case involved an RVR. While the agency did provide district-level
counts of RVRs by year the RVR occurred, unfortunately the OGC data do not provide federal court disposition
dates. Thus the best we could do to match up district-level RVR counts with the case-level OGC data was to
categorize remands for those data by the year in which the federal action was filed. When we matched the number of
RVRs (based on year of disposition) to the OGC data (based on year of case filing), we found that there were a
number of districts in which the RVR rate would exceed the overall remand rate, which is impossible since every
RVR is a remand but not every remand is an RVR. Thus we reluctantly excluded the RVR rate from our analysis in
this section. We note that the results are qualitatively similar when we do include the misaligned RVR rate described
just above.
475
The classic citation on the role that selection plays in muddying the win-rate waters is George L. Priest &
Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD. 1 (1984). For a more recent discussion
tuned to the challenges of learning about changes in pleading standards from data on Rule 12(b)(6) motions, see
Jonah B. Gelbach, Locking the Doors to Discovery? Assessing the Effects of Twombly and Iqbal on Access to
Discovery, 121 YALE L. J. 2270 (2012); Jonah B. Gelbach, The Reduced Form of Litigation Selection Models and
the Plaintiff’s Win Rate (draft on file with authors). This scholarship shows that win rate data are generally unlikely
to be informative without placing some structure on the selection of cases into litigation. In the present context, there
is a bit of reason for optimism, since (i) the agency generally does not consider settling cases before they are filed,
and (ii) even after litigation is filed, the agency does not really “settle” in the same way that private litigants do; it
either voluntarily chooses to award all benefits that would be appropriate on award or have a case remanded for
further adjudication, or it seeks to have benefit denials affirmed in court. The functional impossibility of split-the-

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With these caveats in mind, we now discuss the design and results of our regression
analysis.
1. Hypotheses and Variables
We assessed whether district-level remand rates were associated with several types of
variables:
•

District-level organization of disability appeal adjudication. In the majority of
districts, magistrate judges decide most or all social security cases. We wondered
whether districts’ organization and deployment of judicial resources were associated with
case outcomes. If a magistrate judge decides a steady diet of social security cases to the
exclusion of a more varied caseload, perhaps her decision-making tendencies more
closely resemble an ALJ’s. We addressed these issues by creating variables indicating
whether districts assign cases mostly or exclusively to magistrates, as well as to a mix of
both types of judges.

•

District-level caseload pressures. We measured the importance of caseload pressures
with two variables. The first is the share of all civil cases in the district that are disability
appeals. This variable measures the relative importance of the disability part of the
docket. Perhaps as the percentage of a district’s civil docket devoted to social security
cases grows, its remand rate falls. This would happen if judges get impatient with
disability litigation and just want to clear cases off their desks. 476 The second was the
number of pending cases—whether civil or criminal—per congressionally approved
Article III judgeship. This variable measures the overall degree of docket pressure in the
district. Since the substantial evidence standard of review makes affirmances relatively
easy decisions to reach, we wondered whether rising docket pressures are associated with
lower remand rates.

•

Judicial skepticism of the federal government. Professors Krent and Morris used the
party affiliation of the President who nominated judges as a proxy for judges’ political
leanings. They determined that ideology, so measured, does not explain variation in
remand outcomes. 477 One district judge suggested to us, however, that judicial
skepticism of the federal government, whether ideologically inflected or not, might affect
decision patterns. Following her suggestion, we obtained data on the share of criminal
sentences in a district in which judges sentenced criminal defendants to more lenient
terms than given by federal sentencing guidelines. We included both a variable
measuring a district’s downward departure frequency when the U.S. Attorney sponsored
the downward departure, as well as a variable measuring the frequency with which

difference deals means that what Gelbach (2012) calls “settlement selection” is not a concern here, which might
make causal interpretations more plausible.
476
For empirical evidence concerning such an effect in a very different litigation context, see Eric Helland &
Jonathan Klick, The Effect of Judicial Expedience on Attorney Fees in Class Actions, 36 J. LEG. STUD. 171 (2007).
477
Krent & Morris, supra note 1 at 385.

100

downward departures occurred in the absence of government support. We included both
these variables on the theory that the government might support downward departures
more often in districts where judges are more skeptical of the government as a way of
channeling and thus reducing judicial rejection of the government’s position.
•

District-level variables constructed in an effort to measure the performance of
hearing offices within the district. We used data from ODAR that identifies the hearing
office in which newly filed court cases were initially adjudicated to create composite
variables measuring the ALJ award rate from hearing offices where claims are initially
adjudicated for that district, as well as the number of dispositions per day per ALJ in each
hearing office. 478
o We compiled information on ALJ awards and denials from data that are publicly
available on the agency’s website. From this information, we estimated the
hearing office-level award rate for claims filed in the hearing offices that feed into
each district court. 479 We speculated that higher initial award rates might be
associated with lower remand rates at the district court level.
o We also compiled information concerning the number of dispositions per day per
ALJ in each hearing office. 480 Because the award rate is held constant via
inclusion in the regression model of the hearing office-level award rate discussed
just above, dispositions per ALJ per day can be understood as a measure of labor
productivity. 481 Including this measure allows us to determine whether more
productive ALJs are associated with either higher or lower remand rates.

•

Labor market conditions in the years preceding a disability appeal. To the extent that
some workers treat disability insurance as a substitute for unemployment or a job search,

478
Ideally, we would use lagged values of our award rate and ALJ productivity variables in our analysis in order to
properly match the timing of hearing office performance with subsequent district court appeals. However, data on
these variables were available on the agency’s website only for 2010 and later years. See
www.ssa.gov/appeals/DataSets/archive/archive_data_reports.html#&ht=6. Because this means we do not have the
relevant information to properly measure these variables, we used the 2010 value of each variable as a proxy for the
variable’s long run value in each district court.
479
See section 4(c) of the Data Appendix for the approach we took to creating judicial district-level information
concerning the variables that are measured at the hearing office level.
480
Unfortunately, data we used for ALJ dispositions per day per ALJ in hearing offices, posted by the agency at
https://www.ssa.gov/appeals/DataSets/archive/04_FY2010/04_September_Disposition_Per_Day_Per_ALJ_Ranking
_FYTD2010.xml, do not include information for national hearing centers. Consequently, our calculation of variables
determined at the hearing office level does not account for any differences across the national hearing centers and
local hearing offices. However, the ODAR data we were provided indicates that national hearing centers accounted
for less than 5% of cases in the filing years 2010 through 2013, so we do not believe this issue is likely to be very
important.
481
To be sure, this understanding may be appropriate only if ALJs have the same ratio of what are known as Type I
and Type II error rates. A Type I error is a denial of a claim that in which benefits should be awarded, whereas a
Type II error is an award in response to a claim that should be denied. Consider two ALJs who must adjudicate
cases with the same average characteristics. If they have the same award rate and ratio of Type I and Type II errors,
then on average the two ALJs are equally accurate. If one of them adjudicates more cases than the other in a typical
day, then the quicker one adjudicates more cases in a given period of time, with the same average accuracy. Thus it
is reasonable to describe the quicker ALJ as more productive under those conditions.

101

variables measuring labor market tightness might play a role in explaining initial
claiming and subsequent appeal behavior. We thus included the value of the state
employment to population ratio—the ratio of estimated state employment to estimated
state population—in the state where each district was located. We included the
employment to population ratio for the year before the year in which the case was filed in
the district court, as well as for two, three, and four years before. Our thinking here was
that the condition of the labor market in the several years before a disability appeal was
filed in the district court should correspond roughly to its condition when claimants first
decide whether to claim, then decide whether to pursue appeals within the administrative
review system, and finally decide whether to appeal to federal court.
•

Salaries of lawyers. Perhaps employment as an ALJ is particularly attractive in districts
where lawyers generally earn lower salaries. If so, ALJs in low-salary areas might be
particularly able lawyers. These ALJs would generate better decisions that would
eventually result in lower remand rates. 482

•

Urbanization. Finally, we included measures of the degree of urbanization of the
counties that make up each district. One interview subject suggested that federal judges
in more rural districts probably remand fewer cases. 483
The data we used for the regression analysis below ultimately included information on

eighty-three districts. Collecting data on all the variables described above was not always simple,
and in some instances we had to make do with rough proxies. The Data Appendix includes more
details. 484
2. Statistical Model and Results
To assess the importance of the variables described above, we used the OGC data to
calculate annual district-level remand rates for the years 2010, 2011, 2012, and 2013. We then
employed a two-step statistical approach to examine the factors associated with the annual
district-level remand rate. 485 In Step 1, we used ordinary least squares (“OLS”) to estimate a
linear regression relating the annual district-level remand rate to district-level values of (i) a

482

The only nationwide data on lawyers’ salaries we could find were for 2014. See Data Appendix.
Federal Judge 24 at 8.
484
We note that our results were not qualitatively different when we included our best effort at measuring RVR rates
(see note 474, supra); nor were they different when we included a variable measuring the share of disability appeal
cases in which the docket indicated pro se litigation (we used our court dockets data to construct this variable).
485
We used the Stata module “fese” to conduct this analysis. See Austin Nichols, fese: Stata module calculating
standard errors for fixed effects (2008), at http://ideas.repec.org/c/boc/bocode/s456914.html.
483

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number of time-varying variables and (ii) dummy variables indicating the district court with
which each observation was associated. 486 The time-varying variables are:
•

the share of decisions that awarded benefits in hearing offices associated with a district in
the year in question;

•

the number of overall cases—civil or criminal—pending per judgeship in the district in
the year in question;

•

the ratio of disability appeals filed to all civil cases filed in the district in the year in
question;

•

for each district and year, the share of criminal sentences in which a downward departure
from sentencing guidelines occurred where (i) the government supported the departure, as
well as (ii) the share of sentences in which the judge made a downward departure or other
below-range sentence without government support;

•

three dummy variables indicating whether the case was filed in the district court in 2011,
2012, or 2013 (2010 is the reference year).
Step 2 of our statistical procedure is built around the estimated coefficients on the

district-level dummies. These coefficients may be thought of as the district-level remand rate that
would have been expected in 2010 if, within each district, the time-varying variables assumed
their district-level average values for the period. 487,488 We refer to each of these values as the
“adjusted district-level remand rate” for the period 2010-2013. We then estimated a linear
regression relating the adjusted district-level remand rate to those of our explanatory variables
that vary across district (or state) but do not vary over time. These are variables whose values
are (i) different in, say, the Eastern District of New York and the District of Connecticut, but

486

An estimator that includes such dummy variables is sometimes referred to as the “fixed effects” estimator, in this
instance allowing for district-level fixed effects.
487
This is a well-known fact about fixed effects estimates, i.e., the estimated coefficients on dummies indicating
category membership.
488
To get each district’s corresponding value for the years 2011, 2012, or 2013, one would just add the estimated
coefficient on the corresponding year’s dummy variable to each estimated district coefficient. Adding the same
number to each of these district coefficients would not change the coefficients estimated in our second step (except
for the reference category, which does not play a substantive role in our analysis).

103

which are (ii) the same every year within the Eastern District of New York and within the
District of Connecticut. 489 These time-constant variables are:
•

the average number of daily dispositions per ALJ in hearing offices associated with a
district in 2010;

•

the share of decisions that awarded benefits in hearing offices associated with a district in
2010;

•

dummy variables indicating whether a district’s disability appeals are primarily handled
by magistrates, by Article III judges, or by a mix;

•

state-level median lawyer salaries for 2014; and

•

variables measuring the degree of urbanization of the counties that make up each district.

489

For example, one such variable is the degree of urbanization of counties within the district. This variable
obviously varies across districts. But since it is measured using data from a single decennial census, it does not vary
over time within a given district.

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a. Regression results for the first step
The following table presents results from the first step, for the time-varying variables:
Table 2: First-Step Remand Regression Results
Dependent variable: Share of Cases Remanded

Coefficient

Standard
Error

t-ratio

Employment-to-population ratio:
One year before year case filed
Two years before year case filed
Three years before year case filed
Four years before year case filed

21.6
-12.0
22.0
-24.5

14.8
12.2
15.2
10.9

1.46
-0.98
1.44
-2.25

District caseload variables
Number of cases pending per judgeship
Disability appeals’ share of civil cases

0.5
-0.9

0.2
1.2

3.03
-0.76

Downward departures
Government sponsored
Other

-3.6
-2.2

2.2
3.1

-1.65
-0.72

Year effects and constant
2011 difference, relative to 2010
2012 difference, relative to 2011
2013 difference, relative to 2012

-0.3
2.7
-5.7

4.2
6.1
5.1

-0.07
0.44
-1.13

Notes: All non-dummy variable explanatory variables were scaled so that a one unit
change is expressed in interquartile range units, i.e., corresponds to a move from the 25th
to the 75th percentile of the variable in question. Standard errors were computed using
cluster-robust variance estimation, clustering on state. The intercept, which corresponds
to the average value of the estimated district-level dummy coefficients with all other
variables held at their means, was 44.8.

Only two of the first-step explanatory variables were statistically significantly different
from zero (significant differences are denoted with bold-font display for the rows corresponding
to each variable). The employment-to-population ratio in the year four years before a claimant
files the disability appeal in federal court is negative and statistically significant. One possible
explanation for this result begins with the observation that a high employment-to-population
ratio generally indicates a strong labor market, one that presents workers with good job options.

105

With a stronger labor market, people on the margin between work and claiming disability
benefits will keep working. We can imagine implications for the district’s remand rate. If such
people would be less likely to qualify for benefits, then their self-selection out of the pool of
claimants should improve the general strength of claims that do get filed. Assuming that strong
claims are easier for the agency to decide correctly, the four layers of agency review would get
the results right more often and leave fewer weak agency decisions for federal courts to vacate.
The magnitude of the coefficient on the four-year lag of the employment-to-population
ratio is substantial. The explanatory variable itself is scaled so that a one-unit change
corresponds to a move from the 25th percentile of this variable to the 75th percentile—here, a
move from a four-year lag of the employment-to-population ratio of 42.5% to one of 46.7%. The
coefficient of -24.5 on the four-year lag of the employment to population ratio means that an
increase of 4 percentage points in the employment-to-population ratio is associated with a
decline in the remand rate of about 25 percentage points – obviously a very large effect. We
discuss the significance of this finding in Section C.
We note that the third lag of the employment-to-population ratio, while statistically
insignificant, is nearly as large in magnitude as the coefficient we have just discussed, but with
the opposite sign. The same is true of the first lag. Ignoring the statistical insignificance of these
estimates for the sake of argument, we could imagine explanations for these effects. 490 However,
given their statistical insignificance, we will not dwell on them.

490

For instance, perhaps ALJs and those conducting appellate review within the agency are more likely to believe
that a claimant could find appropriate work when the economy is strong. If so, then claims that should be allowed
would be more likely to be denied at times when the economy is strong. Subsequently elevated rates of remand
would then occur at the district court level. The agency has told us that its policy is not to take into account the
strength of the economy in adjudicating appeals and that adjudicators do not in fact do so. Of course, a policy’s
presence does not guarantee blanket compliance with that policy (as illustrated, for example, by the agency’s own
laudable efforts to improve the policy compliance of its internal decision making).

106

The other time-varying factor that is statistically significantly associated with the remand
rate is the district’s overall caseload, as measured by the ratio of pending cases, whether civil or
criminal, to the number of judgeships approved for the district. However, the estimated
coefficient for this variable is quite small. A move from 350 cases pending per judgeship to
roughly 550 –corresponding to a move from roughly the 25th to the 75th percentile – is
associated with an increase in the remand rate of only 0.5 percentage points. Even assuming that
higher caseloads in fact push remands up, it would take a change in the district’s caseload of
roughly a thousand cases to move the remand rate by just 2 percentage points. Thus, we
conclude that caseloads are a statistically significant correlate of remand rates, but not one that
seems particularly important in substantive terms.
b. Regression results for the second step
Our second-step estimates capture the association between the time-constant variables, on
the one hand, and the district-level fixed effects from the first step estimation, on the other.
Recall that a district’s estimated fixed effect may be interpreted as the remand rate across that
which would have been expected to prevail in 2010 had all time-varying factors been held at
their district-level averages over this period. Results from the second step appear in Table 3.

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Table 3: Second-Step Estimates — Association Between First-Step Estimated District Fixed
Effects and Time-Constant Variables
Dependent variable: district-level estimated fixed effect from
first step

Coefficient

Standard
Error

t-ratio

Hearing Office variables:
Number of dispositions per ALJ per day
Award rate

0.4
-3.8

2.5
2.5

0.17
-1.53

Assignment of cases within district (reference category is
“Mostly to Article III judges”):
Mostly to magistrates
To a mix
Information not available to us

2.0
-4.4
-13.1

4.2
6.2
7.8

0.48
-0.72
-1.68

Urbanicity of counties in district:
Fraction of residents living in counties with 1 million or more
residents
Fraction of residents living in counties with 20,000 or fewer
residents

-6.2

4.7

-1.33

-6.7

2.6

-2.61

Lawyers’ outside options:
Median salary of lawyers in state, 2014

-3.4

2.6

-1.29

Circuit effects (reference category is Eleventh Circuit):
First
Second
Third
Fourth
Fifth
Sixth
Seventh
Eighth
Ninth
Tenth

13.8
27.3
24.5
8.2
-8.9
0.4
12.9
-6.3
18.6
16.8

7.9
7.4
12.1
6.2
6.1
6.1
5.1
6.6
6.9
7.3

1.74
3.7
2.02
1.32
-1.46
0.06
2.54
-0.95
2.7
2.3

Reference category

37.6

6.8

N/A

Notes: All non-dummy variable explanatory variables were scaled so that a one unit
change is expressed in interquartile range units, i.e., corresponds to a move from the 25th
to the 75th percentile of the variable in question. Standard errors were computed using
cluster-robust variance estimation, clustering on state.

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Reference category coefficient should be interpreted as the 2010 remand rate expected in
a district in the Eleventh Circuit in which most cases are assigned to Article III judges,
with all non-dummy time-varying and time-constant variables taking on mean values.

Our findings from this second step are easy to summarize:
•

Only one variable other than the circuit dummies had a coefficient that was statistically
significantly different from zero. This variable, the fraction of residents in counties
encompassed by the district who live in counties with fewer than 20,000 residents, is
associated with a relatively substantially lower remand rate. 491

•

There is no statistically significant relationship between district remand rates and our
measures of ALJ productivity for 2010. At least as can be measured with these variables,
then, the strength of federal court appeals is not meaningfully associated with the number
of cases ALJs decide.

•

Neither the assignment of cases across magistrates/Article III judges nor outside options
for lawyers (as best as we can measure them using state-level salary information for
2014) are associated with district-level remand rates.
To understand the results for the circuit dummies, it is important to understand that the

reference category in Table 3 is the Eleventh Circuit. 492 The coefficients on the First through
Tenth Circuit dummies are expressed in terms of deviations from the Eleventh Circuit. Other
things equal, then, we would expect a remand rate 24.5 percentage points greater in the Third
Circuit than in the Eleventh. For the Second, Third, Seventh, Ninth and Tenth Circuits, we
would expect remand rates between 13.2 and 27.3 points above the Eleventh Circuit’s. For the

491

Moving from a value of this variable of 3% to 24%, which corresponds to a move from the 25th percentile to the
75 percentile, is associated with a drop of about 7 percentage points in the remand rate.
492
The reference category coefficient of 37.6 tells us that, if all non-circuit dummy variables were held at their
means, then the average remand rate for districts in the Eleventh Circuit in 2010 would be expected to be 37.6%
(assuming that cases were handled by mostly Article III judges, which is the reference category for the “Assignment
of cases within district” variables in Table 3).
ODAR has pointed out to us that under SSA’s Acquiescence Ruling 99-4(11), Appeals Council dismissals
of requests for review from ALJ decisions are handled differently when the claimant resides in Alabama, Florida or
Georgia, than when the claimant resides outside the Eleventh Circuit. Within the Eleventh Circuit states, such
dismissals are reviewable by district courts, pursuant to AR 99-4(11) following Bloodsworth v. Heckler, 703 F.2d
1233 (11th Cir. 1983); outside these states, such dismissals are non-reviewable, pursuant to 20 CFR §§ 404.972,
416.1472. It is of course possible that the reviewability of dismissals in the Eleventh Circuit, and no other, creates
differences in the case mix between the Eleventh Circuit and other circuits. However, we are unaware of any
empirical evidence that such differences exist. Nothing of substance would change if we used a different circuit as
the reference category, in any case, since doing so would just move all the circuit dummy coefficients up or down by
the amount of the coefficient on the new reference circuit.
th

109

other circuits, the estimated circuit coefficients are statistically insignificant and also smaller in
magnitude.
We note that the circuit results correspond quite well to the classification of circuits we
offered above. The Eleventh Circuit is among the low-remand circuits according to this
classification, while the high-remand circuits were the First, Second, Seventh, and Tenth
Circuits. Table 3 displays a significant circuit coefficient for all of these but the First Circuit.
The Third and Ninth Circuits, which have significantly positive circuit coefficients in Table 3
were among our broad-spread circuits according to the classification above.
Taken together, the results from our regression analysis above suggest several basic
conclusions. First, with the exception of a single variable related to rural population share, the
factors we were able to quantify concerning conditions in the district courts themselves do not
appear to explain the variation in district-level remand rates. Second, the same is true for
quantifiable factors related to ALJ productivity and ALJ allowance rates, as best as we can
measure them. Third, labor market conditions that can be expected to affect the quality of initial
claims are strongly associated with remand rates in the district courts several years down the
road. Fourth, there is inarguable evidence of substantial circuit-level differences in remand rates.
C. Using ODAR Regions to Capture Intra-Agency Factors
We can confidently conclude that circuit boundaries are a significant factor in producing
differences among district remand rates. But none of our variables, save one, did much to
explain the residual variation that circuit influence does not produce. The one variable that does
matter, the strength of the state labor market several years before appeals are filed in the district
court, points to a potential determinant more interesting, but also harder to detect, than circuit
boundaries. In theory, regional differences in labor market conditions should not alter the
makeup of district courts’ social security dockets. Claims pass through four layers of review
110

within the agency. At each step, the agency’s policy is to measure claims against a single
national standard, with some variation here and there prompted by acquiescence rulings. If this
review were sorting among claimants with equal success nationwide, then regional differences in
claim quality generated by labor market variation should be eliminated by the time claims make
their way to the end of the agency’s review process. In theory, then, labor market variation
should have no impact on the quality composition of cases left for claimants to file with the
federal courts at the end of the administrative review process.
Our intuition, however, is that internal agency review of claims is unlikely to be uniform
across the country. Some hearing offices likely generate better decisions than others. Analysts
in one ODAR division might review appeals slightly differently than others. If we are right,
there could still be regional differences in the quality of inputs for district court decision-making,
differences that might color judicial impressions of ALJ decisions district-wide. For example,
Division II of the Appeals Council reviews appeals taken from the Pasadena and San Jose
Hearing Offices. If Pasadena ALJs happen to generate weaker decisions on average than their
colleagues in San Jose, but if the Appeals Council remands decisions from the two hearing
offices at about the same rate, then a potential appeal to the Central District of California from a
Pasadena ALJ will be stronger on average than an appeal to the Northern District of California
from a San Jose ALJ.
If judges see enough such differences, they might develop expectations related to the
quality of agency review that vary across hearing offices. The same process could generate
variation across judicial districts in judges’ attitudes toward agency review in general. This story
of agency-judiciary interaction thus would be able to explain why variation in remand rates does
not seem to be much driven by individual judges, but does vary considerably at the district level.

111

To test such hypotheses systematically would require substantial quantitative data on the
agency’s internal review process, and we do not have such data. However, we did identify an
approach that allowed us to scratch the surface of this issue. Appeals from denials of claims by
state DDS offices are channeled into ten ODAR regions. 493 ODAR’s website provides a list of
the hearing offices in each region. 494 These regions mostly overlap the circuit boundaries, but
with some differences. ODAR Region 8, for example, includes Utah (a Tenth Circuit state),
Montana (a Ninth Circuit state), and North Dakota (an Eighth Circuit state). We are thus able to
augment the second-step of our estimation method above by adding dummies that indicate which
ODAR region a case would have been handled by. This approach allows us to investigate
whether district-level remand rates vary systematically across ODAR regions, even while
controlling for differences in the circuits via the continued inclusion of circuit dummies. 495
To understand the logic of this approach, consider cases filed in North Carolina and
South Carolina. These states are both assigned to the Court of Appeals for the Fourth Circuit,
and they are also both assigned to ODAR’s Region 4. Other states in ODAR Region 4 are
assigned to other circuit courts, so comparing remand rates for the Carolinas to those for the

493

There are also five national hearing centers that hear cases from hearing offices around the country. However,
these account for relatively few cases. For example, data posted on the agency’s website show that between
September 26, 2015, and March 26, 2016, there were 311,785 dispositions across all hearing offices. Of these, the
National Hearing Centers in Albuquerque, Baltimore, Chicago, Falls Church, and St. Louis accounted for 11,812—
or less than 4 percent. Appeals can also be from partially favorable decisions, and they can also be from favorable
decisions if the claimant contests the onset date.
494
See, e.g., https://ssa.gov/appeals/odar_ho_sites.html (listing hearing offices by region); see also
https://www.ssa.gov/appeals/ODAR_Hearing_Sites_Map.html#&sb=0 (providing a map of hearing offices and
regions). We note that the agency has stressed to us that not every appeal is necessarily handled by personnel in the
ODAR region corresponding to the state where the underlying claim originated. For example, a small percentage of
cases are heard in national hearing centers. See, e.g., supra note 493. And the agency has told us that “some hearing
offices have servicing areas that overlap into different states.” It provided the example of the Cincinnati hearing
office, which “handled cases in Ohio, Indiana, and Kentucky – three different states, two different federal circuits,
and two different regional offices.” We do not, however, understand that there are many cases affected by such
deviations from the otherwise straightforward correspondence between hearing offices, states, and ODAR regions
provided in the ODAR webpages cited above.
495
The agency stressed to us that cases get moved around within ODAR and that ODAR has national hearing
centers outside the regional structure. Still, we believe the approach described here may capture systematic
differences within the regional structure.

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other ODAR Region 4 states helps identify the remand rate component associated with
assignment to the Fourth Circuit. 496 Other states in the Fourth Circuit are assigned to different
ODAR regions, so comparing remand rates for the Carolinas to this second set of other states
helps identify the remand rate component associated with assignment to ODAR Region 4. 497 By
including both circuit and ODAR region dummies in our second step, we are able to separate out
these two components of variation in district-level remand rates.
Table 4 reports the coefficients on the circuit dummies and ODAR region dummies from
a revised second-step estimation that added the ODAR region dummies to the set of explanatory
variables. 498 As before, the Eleventh Circuit is the reference category. The circuit coefficients
are again positive and significant for the Second, Third, Seventh, and Tenth Circuits. For the
Seventh and Tenth Circuits the coefficients’ magnitudes are roughly equivalent to their
corresponding values from the original results displayed in Table 3. However, the magnitudes
for the Second and Third Circuit coefficients are much greater – 49.6 percentage points and 37.9
percentage points, respectively – with the ODAR region dummies included. Further, circuit
coefficients are positive, statistically significant, and substantial in magnitude – 40.1 percentage
points and 15.0 percentage points, respectively – for the First and Fourth Circuits. Taken
together, these modified circuit results are notable. They show that when the ODAR region is
accounted for, district-level remand rates have large circuit-specific components not only in all
circuits we previously classified as high-remand on the basis of raw district-level remand rates
(First, Second, Seventh, and Tenth) but also in two of the broad-spread circuits (the Third and
Fourth Circuits).
496
The other Region 4 states are Alabama, Florida, and Georgia (all in the Eleventh Circuit); Kentucky and
Tennessee (both in the Sixth Circuit); and Mississippi (in the Fifth Circuit).
497
The other Fourth Circuit states—Maryland, Virginia and West Virginia—are all in ODAR Region 3.
498
Because we generally found qualitatively similar results for the coefficients on the other variables included in the
second-step when we included the ODAR region dummies, we do not display these coefficients in Table 4.

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Table 4: Second-Step Estimates — Association Between First-Step Estimated District Fixed
Effects and Time-Constant Variables
Dependent variable: district-level estimated fixed effect from
first step

Coefficient

Standard
Error

t-ratio

Circuit effects (reference category is Eleventh Circuit):
First
Second
Third
Fourth
Fifth
Sixth
Seventh
Eighth
Ninth
Tenth

40.1
49.6
37.9
15.0
-9.5
4.7
17.7
-1.3
11.8
22.2

13.5
14.8
10.7
6.6
6.0
8.2
8.0
8.1
16.1
8.9

2.96
3.36
3.54
2.27
-1.58
0.58
2.22
-0.16
0.73
2.49

ODAR region effects (reference category is region 4):
1
2
3
5
6
7
8
9
10

-27.3
-16.4
-25.4
-5.3
-0.3
-6.1
-4.5
1.8
24.6

12.1
11.6
5.5
6.0
4.5
8.6
10.2
16.9
16.3

-2.26
-1.41
-4.6
-0.88
-0.07
-0.71
-0.44
0.11
1.51

Reference category value

36.7

7.5

4.92

Notes: All non-dummy variable explanatory variables were scaled so that a one unit
change is expressed in interquartile range units, i.e., corresponds to a move from the 25th
to the 75th percentile of the variable in question. Standard errors computed using clusterrobust variance estimation, clustering on state, to account for unmodeled spatial
correlation within states.

The estimated coefficients on the ODAR region dummies themselves are equally
intriguing. The ODAR region reference category is Region 4, so we have estimated coefficients

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for regions 1-3 and 5-10. 499 Districts in Regions 5-9 have coefficient estimates that are both
small in magnitude and statistically insignificant; Region 10 has a healthy coefficient of 24.6
percentage points, but this estimate is very imprecise and is statistically insignificant. The main
story in Table 4 is the set of coefficient estimates for Regions 1 and 3. 500 These estimates tell us
that for districts in Regions 1 and 3, remand rates are statistically significantly below remand
rates in Region 4. Moreover, the differences are sizable—roughly 25 percentage points.
To understand these results, consider a comparison of the District of Connecticut with
reference-category districts, those in Region 4 and the Eleventh Circuit. As the last row in Table
4 shows, our augmented second-step model has a reference category remand rate of 36.7%.
Because Connecticut is in in the Second Circuit, we would expect its remand rate to be 49.6
percentage points greater than the remand rate in districts in the Eleventh Circuit. Since
Connecticut is also in Region 1, whose second-step regression coefficient is -27.3, Connecticut’s
district-level remand rate is also expected to be 27.3 percentage points below the level for
districts in Region 4. The overall difference between the District of Connecticut and referencecategory districts, then, is found by combining the Second Circuit coefficient, which adds 49.6
percentage points, with the Region 1 coefficient, which subtracts 27.3 percentage points. The net
difference is thus 22.3 (= 49.6 – 27.3) percentage points.
In other words, this model’s results tell us we should expect Connecticut to have a
remand rate that is roughly 22.3 percentage points greater than reference category districts (all
else equal). This net impact is almost identical to the result we would get from comparing
Second Circuit districts—including the District of Connecticut—to districts in the Eleventh
Circuit using our earlier results in Table 3 (the Second Circuit’s coefficient there is 27.3
499

Thus the reference category consists of districts that are in ODAR Region 4 and in the Eleventh Circuit. These
are districts in Alabama, Florida, and Georgia.
500
Region 2 also has a sizable negative coefficient, -16.4 percentage points, but it is statistically insignificant.

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percentage points, just a few points above the 22.3-point figure for Table 4). But our Table 4
results show that the path to this conclusion matters a lot. When we allow remand rates to differ
across ODAR regions within circuits, we find that Connecticut’s membership in the Second
Circuit is associated with an enormous increase in the expected remand rate, while its
membership in Region 1 is associated with a smaller but still very sizable reduction in the
expected remand rate. 501
This constellation of results suggests that something important is happening not just
within districts in the same circuit, but also within districts for which appeals are handled in
Regions 1 and 3. 502 The statistical approach we have taken here cannot reveal what those
important things are. They could include systematic differences at the state level, including, for
example, variation in the performance of state DDS determinations that are not eliminated by the
agency’s own processes. Whatever the reasons, it seems very possible to us that features of the
agency’s review processes, and possibly also its initial claims determination processes, play a
real role in causing variation in district-level remand rates.
If the quality of inputs for district court decision-making were identical across the
country, and if federal judicial attitudes toward social security cases were also uniform, then
circuit boundaries should generate most, if not all, of the differences in district remand rates. But
we have already seen that this is not so, and Table 4 helps us generate some thoughts about why.
One explanation regards inputs—case quality and decisional quality—as uniform and
attributes residual variations to differences in federal judicial attitudes motivated by factors
unrelated to anything the agency is doing. Neither we nor Professors Krent and Morris were able
501
The agency has noted to us that ODAR Region 1 follows different regulations from those other regions follow.
Just as differences in circuit law provide a possible explanation for cross-circuit variation in remand rates, such
differences in regulations provide a possible explanation for differences across ODAR regions.
502
We note that the coefficients for Regions 2 and 10 are large in magnitude, though neither was statistically
significant.

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to find any such factors. We also find it unlikely that judicial attitudes would coincidentally
correspond to ODAR region boundaries.
Another explanation chalks up some of the residual variation to geographic variations in
case quality. Hypothetically, cases appealed to the District of Colorado might be stronger on
average than those appealed to the Western District of Missouri even if decision-making within
the agency is not uneven and even if the pools of potential appeals in the two districts are equally
strong. Claimant representatives in Denver might simply be better at picking cases than their
colleagues in Kansas City. We lack data to test this possibility, but we doubt that it is right. As
before, the correspondence of lawyer quality to ODAR region boundaries that would be required
for such an explanation strikes us as implausibly coincidental. We continue to believe that
decision-making within the agency is uneven in places. Our in-depth qualitative investigation
into three districts and the hearing offices within them support this intuition.
D. Qualitative Evidence of Varying Input Quality
Before selecting variables for quantitative testing, we examined three districts closely in
order to determine what factors might produce their district-level disparities. In one district the
agency prevails in most cases (the “low remand district”), and in another claimants prevail in
most cases (the “high remand district”). The third district had an average remand rate (the
“average remand district”). The three districts contrasted in other interesting ways. 503 We
interviewed district and magistrate judges in these districts, spoke with their law clerks, and
talked to government and private lawyers who litigate in them. In addition, we interviewed ALJs

503

For example, one district was almost entirely urban and densely populated. Another was mostly rural. The third
included both rural and metropolitan areas.

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and decision writers who work in some of the hearing offices that generate decisions that, if
appealed, would likely go to these districts. 504
Interviews revealed striking, obvious differences among the districts. The average
remand district came off as just that – average in almost every respect. For this reason, we do
not describe in any detail the results of our interviews of personnel who work within it. In
contrast, a deep strain of discontent was palpable in our interviews with high remand district
personnel. The agency personnel and federal judges in the low remand district, in contrast,
expressed a much more positive view of disability claims adjudication and litigation. We
summarize these findings in this section.
We do not identify the exemplar districts by name, as we appreciate that the agency
might have legitimate concerns with the use of any of them as a model of institutional health or
dysfunction. 505 We expect that each federal district and the agency offices within them differ in
particular ways, and our interview data are not robust enough to offer more than an
impressionistic sense of what goes on in hearing offices and chambers. These differences,
though, are the point. We describe some of the ways in which the high and low remand districts
compare and contrast to explain the basis for our hypothesis that varying input quality explains
some of the inconsistencies in district court remand rates. Our claim is a simple one: within an
agency administering a national program, different offices contrast in ways that might have
implications for judicial confidence in agency decisions.
1. Contrasts in the Hearing Offices

504

A claimant files for review in the district in which she lives or has her principal place of business. See
www.socialsecurity.gov/appeals/court_process.html. “To the extent possible,” hearings are conducted within
seventy-five miles of a claimant’s home. HALLEX, supra note 38 § I-2-3-10. Sometimes claimants appeal from
decisions rendered in National Hearing Centers. See infra note 110 & accompanying text. Although these centers
do not take cases from different hearing offices at equal rates, the overall percentage is small enough such that we
are comfortable with our description.
505
The agency is aware of these districts’ identities.

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The hearing office that we studied in the low remand district came off as a model of
institutional health. “I can’t begin to think of a better place to work,” one decision writer told
us. 506 The office has stable management, with a long-serving Hearing Office Chief
Administrative Law Judge (“HOCALJ”), 507 and ALJs tend to stay once they are assigned
there. 508 ALJs consistently expressed their high regard for the quality of in-house decision
writers. “We have fabulous writers here,” one ALJ told us, expressing a common sentiment. 509
Each ALJ we interviewed preferred keeping decision-writing local, as opposed to sending
decisions to the national case assistance centers for writing. 510 Familiarity with the region, the
circuit, and individual ALJs and their idiosyncrasies made local writing “so much better,” one
ALJ told us. 511 Personnel also described collegial, easy communication between ALJs and
decision writers. 512
Another striking theme from our interviews with hearing office personnel in the low
remand district was their regard for district court feedback. Several ALJs and decision writers
complained of nit-picky remands 513 and of judicial ignorance of the agency decision-making
process. 514 A number conceded, however, that district court remands are justified and provide
useful instruction. 515 The hearing office has formalized this instruction in semi-annual

506

Decision Writer 3 at 1.
ALJ 10 at 1.
508
ALJ 9 at 3; ALJ 10 at 4.
509
ALJ 18 at 4; see also ALJ 23 at 2 (insisting that seven or eight of the decision writers are as good as any in the
country); ALJ 9 at 2-3 (“Writing in this office is exceptional . . . . I love the writers here – they are on a whole other
level.”); ALJ 15 at 3 (insisting that writers are “really, really good”); ALJ 10 at 2 (“We’ve got some good writers.”);
ALJ 17 at 3 (“We’ve got some of the best decision writers in the country.”); ALJ 19 at 2 (“They are great.”).
510
E.g., ALJ 23 at 2; ALJ 17 at 3; ALJ 19 at 2.
511
ALJ 18 at 3.
512
ALJ 23 at 2; ALJ 9 at 3; ALJ 15 at 3; ALJ 19 at 2; Decision Writer 6 at 2; Decision Writer 3 at 2; Decision
Writer 9 at 2.
513
ALJ 15 at 3; ALJ 18 at 4; ALJ 23 at 2; Decision Writer 9 at 4; Decision Writer 3 at 3.
514
ALJ 18 at 4.
515
ALJ 9 at 3; ALJ 15 at 3; ALJ 17 at 2 (some remands are “absurd” but “most” are “really good”); ALJ 23 at 2
(most remands are well-reasoned); see also Decision Writer 9 at 4; Decision Writer 6 at 3 (explaining that decision
writers and ALJs “care about [district court] holdings”).
507

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memoranda, circulated to all ALJs and decision writers, that summarize social security decisions
the district court issues. 516 This practice seems popular, at least with the ALJs we
interviewed. 517 Several reported that it has improved their decision-making. 518
Most of the hearing office personnel from the high remand district described a very
different and more problematic work environment. 519 Several ALJs complained of poor quality
decision writing, 520 and several expressed a preference for decisions written off-site in national
case assistance centers. 521 An ALJ described unstable, volatile management at a hearing office
for much of the past decade, 522 and ALJs and a claimant representative complained of the
office’s capacity to perform basic administrative tasks. 523 Some personnel described
communication difficulties between ALJs and decision writers. 524
Attitudes regarding judicial review in the high remand district were mostly negative.
Like their low-remand counterparts, ALJs here described remands as “nit-picky” 525 and
complained that district judges have little understanding of or regard for agency processes. 526
516

ALJ 10 at 3; Decision Writer 9 at 4.
ALJ 9 at 3; see also ALJ 15 at 3 (responding “very much so” when asked if memoranda on case law are helpful).
518
ALJ 10 at 3; ALJ 9 at 4; ALJ 23 at 3.
519
ALJ 20 at 6; ALJ 3 at 2; ALJ 4 at 2, 4; ALJ 5 at 2.
520
ALJ 20 at 2 (suggesting that decision writers in other hearing offices are “miles ahead” of what some decision
writers in this ALJ’s hearing office produce); ALJ 16 at 1 (describing some decision writers as “greatly lacking”);
ALJ 16 at 3 (estimating that “30-40%” of decision writers have “performance issues”); id. at 2 (expressing concerns
over some decision writers’ productivity); ALJ 5 at 4 (ALJ describing decision writing as “hit or miss”); id. at 4
(commenting that the hearing office has “no shortage” of writers who are “less than strong”); ALJ 20 at 2 (ALJ
describing the “best” writing as “mediocre”).
521
ALJ 20 at 2; ALJ 16 at 2; ALJ 3 at 2. But cf. ALJ 4 at 4 (complaining of communication difficulties with off-site
writers); ALJ 6 at 3 (expressing indifference).
522
ALJ 3 at 2; ALJ 4 at 2.
523
One ALJ expressed “absolutely no faith in any of the management initiatives” being tried in the hearing office.
ALJ 4 at 3. Another ALJ complained that employees routinely fail to show up for work. ALJ 16 at 2. A third ALJ
suggested that support staff were overmatched by the work they were supposed to perform. ALJ 3 at 2. A claimant
representative who practices in the hearing office described difficulties sending in faxes or getting phone calls
answered at what this lawyer labeled a “disorganized” office. Claimant Representative 4 at 2.
524
ALJ 3 at 2; ALJ 4 at 4; ALJ 20 at 5; ALJ 3 at 4; Decision Writer 11 at 2. But see Decision Writer 4 at 2 (claim
by a decision writer that he can discuss issues with ALJs directly).
525
ALJ 20 at 3; ALJ 4 at 5.
526
An ALJ complained that federal judges have unreasonable record development expectations. ALJ 4 at 1, 5.
Another ALJ complained that district judges don’t understand that she lacks time to put citations in her instructions
and to edit decision drafts. ALJ 20 at 3. One ALJ told us that “sometimes” a district court catches her mistake, but
517

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But none expressed countervailing appreciation for district court feedback. 527 An ALJ
complained that the district court is an “anti-ALJ bench.” 528 The hearing offices lack any sort of
structured process for learning from district court opinions. One ALJ tracks district court
decisions and forwards them to colleagues, but this ALJ told us that management has
discouraged such initiatives. 529 OGC provides training on leading causes of remands, 530
although OGC-Hearing Office interaction is irregular. 531 ALJs and decision writers do get emails notifying them when the court of appeals issues relevant decisions. 532
A similarity between the two hearing offices was ALJ dissatisfaction with the quality of
claimant representation. ALJs in the high remand district 533 and the low remand district 534 gave
these representatives mostly negative reviews.
2. Contrasts in the District Courts
The low and high remand districts contrast with each other in a number of interesting
ways. Some have to do with how the two courts process their social security dockets. In the low
remand district, magistrate judges handle almost all of the cases, and the caseload is immense –
about sixty cases per year per magistrate judge. 535 The result is a decision making structure that
bears some similarities to agency adjudication. Several judges described the premium they place

most of the time she knows what she is supposed to do but just cannot do it, given time constraints. District judges
do not understand these pressures. ALJ 20 at 3.
527
Only one ALJ we interviewed did not express frustration with district courts, and he had recently been appointed
to his current position and lacked sufficient exposure to the district court to comment. ALJ 16 at 4.
528
ALJ 4 at 5; see also ALJ 5 at 5 (complaining that district judges have little respect for the agency process); ALJ 3
at 4 (describing the district as “extremely liberal”).
529
ALJ 3 at 4-5.
530
ALJ 5 at 5; ALJ 4 at 5; OGC Lawyer 5, Second Interview at 6.
531
One OGC lawyer described OGC visits to hearing offices as “very infrequent” and “very few.” OGC Lawyer 5,
Second Interview at 6.
532
ALJ 16 at 4; ALJ 6 at 5; Decision Writer 2 at 4.
533
For negative reviews, see ALJ 5 at 3; ALJ 20 at 5; ALJ 3 at 2. For an equivocal review, see ALJ 6 at 2.
534
ALJ 11 at 2; ALJ 9 at 2.
535
One magistrate judge told us that the district “often” has the highest social security caseload in the United States.
Federal Judge 19 at 1. The district ranks in the top ten for cases decided between 2010 and 2013, according to our
data.

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on expeditious case processing, just as ALJs do. 536 The magistrate judges rely on permanent
clerks, a professionalized staff with technical expertise quite different from inexperienced term
clerks with their generalist legal education as a background. 537 Magistrate judges also work
through appeals themselves, without clerk involvement. 538
The district court in the high remand district takes a different approach. It does not treat
social security cases any differently than other civil actions, eschewing the sort of institutional
response to this docket that the low remand district has taken to cope with high case loads. As a
matter of longstanding custom, 539 district judges decide these cases with no magistrate judge
involvement at all. The docket works out to about twelve appeals per judge annually. 540 No
district judge with whom we spoke assigns a permanent clerk to social security cases, and most
rejected the idea that the complexities of social security cases require clerks to have particular
expertise. 541 Another salient difference is that the share of claimants represented is considerably
lower in the high remand district —roughly 66%, by comparison to nearly all in the low remand
district.

536

One magistrate judge described his two clerks as “rolling balls of butcher knives” for their ability to work
through almost one-and-a-half cases each per week. Federal Judge 19 at 4. Another, a self-described “machine” for
social security appeals, insisted that his job is to “move cases along as fast as possible.” Federal Judge 2 at 2, 4. A
third told us that she spends 2-8 hours on a social security case, deciding from the bench after oral argument on
every case. Federal Judge 1 at 3. This figure was by far the lowest that any federal judge reported. Another
magistrate judge in the district reported spending 15-25 hours on a case. Federal Judge 19 at 4.
537
Federal Judge 19 at 4; Federal Judge 1 at 3. The district also has two full-time “social security clerks,” or staff
attorneys who work on nothing but social security appeals. Federal Judge 19 at 4.
538
Federal Judge 19 at 4 (reporting that he has written “many, many opinions myself” without law clerk
involvement); Federal Judge 1 at 3 (reporting that she splits appeals with her clerks); Federal Judge 2 at 2 (reporting
that he handles all social security cases himself).
539
Federal Judge 4 at 4.
540
We calculated this rate with the assumption that senior judges do not take these cases.
541
One district judge scoffed at the notion and described a clerkship devoted to social security appeals as a
“gruesome job.” Federal Judge 15 at 3. Another district judge described a job that included a significant amount of
social security work as “torturous.” Federal Judge 4 at 3; see also Federal Judge 18 at 2 (insisting that term clerks
are capable of mastering social security law to the extent necessary); Federal Judge 17 at 1 (denying that permanent
clerks are necessary and rejecting the idea that social security cases are complicated). One judge handles social
security cases himself, however, and insisted to us that a recent law graduate has “no prayer” of handling appeals
correctly. Federal Judge 10 at 3.

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Federal judges in the low remand district for the most part gave the agency mixed
reviews. One magistrate judge strongly criticized the quality of ALJ decisions, 542 but others
insisted that “ALJs do a pretty good job.” 543 Interestingly, neither the caseload nor middling
impressions of decisional quality have sapped judicial tolerance for this litigation. 544 “This area
of law” is a “passion,” one magistrate judge said. 545
Our interviews with judges in the high remand district revealed a different attitude. Two
judges expressed no general impression, favorable or not, of the agency’s work. 546 Others
described what one judge called a culture of “significant distrust.” 547 The district’s “operating
principle” is that most cases will be remanded, one judge told us. 548 “We’re generally suspicious
of the agency,” another one said. 549 A third complained that “the situation is a mess,” 550 and a
fourth insisted that ALJs have “very little credibility.” 551 One judge described a case coming out
of one hearing office as an “automatic remand.” 552 Another insisted that “ALJs’ decisions
almost always depart[] from governing legal standards in one way or another.” 553
E. Reflections on District-Level Variations
Our study of district-level variations prompts several reflections. First and most
obviously, the low and high remand districts lie in different circuits. This fact alone accounts for
a good deal of their contrasting remand rates. Circuit boundaries, we discovered, have
significant importance for remand rates.

542

Federal Judge 19 at 3.
Federal Judge 2 at 1; Federal Judge 1 at 1.
544
Federal Judge 7 at 3.
545
Federal Judge 2 at 4. Other judges expressed similar views. Federal Judge 19 at 4; Federal Judge 1 at 4.
546
Federal Judge 17 at 1; Federal Judge 18 at 1.
547
Federal Judge 15 at 1.
548
Federal Judge 4 at 1.
549
Federal Judge 14 at 1.
550
Federal Judge 15 at 1.
551
Federal Judge 10 at 1.
552
Federal Judge 15 at 1.
553
Federal Judge 23 at 1.
543

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Second, the two districts differ in their organization and deployment of judicial resources
available for social security cases. The assembly line-like process of decision-making in the low
remand district, staffed exclusively by magistrate judges and their permanent clerks, contrasts
sharply with what happens in the high remand district, where district judges and their term clerks
handle social security appeals no differently than the rest of the civil docket. Does the volume of
social security cases in the low remand district inure magistrate judges and their long-time clerks
to claimant suffering? Does the relative paucity of cases handled in the first instance by
inexperienced clerks create unwarranted sympathy for claimants in the high remand district?
Does volume give judges in the low remand district a more accurate sense of the makeup of the
national disability claimant population, and thus a metric for evaluating claims that better
approximates what an ALJ uses? Are judges in the high remand district misled by an
unrepresentative selection of cases? Our quantitative results do not suggest that the answer to
these questions is yes.
Third, our data strongly suggest that district-wide cultures or attitudes influence remand
rates. Our quantitative findings as to the single outlier judge hypothesis indicate that judges tend
to march in lockstep with others in the same district when it comes to deciding social security
appeals. To put it differently, judges with particularly high remand rates tend to have district
colleagues with similarly high remand rates. A simple explanation for district-level variations
that stresses individual judicial idiosyncrasy is incorrect.
Other than circuit boundaries, what factors produce these district-wide cultures? Our
intensive qualitative study of three districts, and the clear contrasts between the high and low
remand districts, lead us to hypothesize that hearing offices generate decisions of varying quality
for district courts to review. Common sense dictates that the health of a working environment

124

can have an important impact on the quality of work performed. 554 If this is so, and if we did not
by coincidence stumble upon the only hearing offices that contrast sharply, 555 then the average
strength of an appeal might differ from one hearing office to the next. 556
Other work suggests that an agency’s reputation is important to its success or lack thereof
in the federal courts. 557 Moreover, once a culture forms, it may be difficult to change, and it may
exaggerate or amplify actual differences in the strength of appeals. Federal judges used to
uneven ALJ decisions might well search all the more for errors that confirm their background
impressions. 558 As Richard Posner insisted in an opinion involving another high volume
adjudication context, “[d]eference is earned; it is not a birthright.” 559 This sentiment lacks any
formal basis in law, of course. The statutory section prescribing the substantial evidence
standard of review does not peg the deference a court owes the agency to its evaluation of
agency competence. 560 But we expect that some of Judge Posner’s colleagues harbor the same
view, whether they acknowledge it consciously or not. 561 Conversely, a judge used to highquality decisions may give a weaker one the benefit of the doubt. The weakness of decisions
from a hearing office, in other words, could have an outsized influence on outcomes at a district
court.
554

See, e.g., Malcolm Patterson, Organizational Climate and Company Productivity: The Role of Employee Affect
and Employee Level, 77 J. OCCUPATIONAL & ORG. PSYCHOLOGY 193 (2004).
555
Our ODAR Region and labor market findings give us further reason to doubt such a coincidence.
556
Cases can get appealed to a district court from a variety of hearing offices, not just those located within the
district’s boundaries. Such remote decisions include those rendered by National Hearing Centers and those rendered
by ALJs conducting hearings by video. We do not believe, however, that this fact poses a significant complication
for our hypothesis. Even if, say, a third of appeals come from out-of-district hearing offices, no single hearing office
will produce more appeals to a district court than those within its boundaries. The hearing offices generating the
largest and most regular stream of appeals to a district court, we suggest, will most significantly influence the
culture within that district.
557
HUME, supra note 273 at 117 (“Once an agency’s reputation has deteriorated, it can be an uphill battle to restore
its good name.”).
558
On confirmation biases, see, e.g., DANIEL KAHNEMAN, THINKING, FAST AND SLOW 80-81 (2011).
559
Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007).
560
42 U.S.C. § 405(g).
561
For an example of a district judge who does share this attitude with respect to social security appeals, see Hart v.
Astrue, Civ. No. 08-07, 2008 WL 3456864, at *10 (W.D. Wis. Aug. 11, 2008).

125

We recommend that the agency explore our hypothesis further. The agency could begin
by determining, for example, whether patterns in Appeals Council decision making differ by
hearing office, why they differ, and how they have changed over time. 562 Analysts at the
Appeals Council are not instructed to review decisions from particular hearing offices or
particular ALJs with more careful scrutiny. 563 A number of claimant representatives and ALJs
expressed the view to us that Appeals Council review is unpredictable and often seemingly
arbitrary. 564 If the Appeals Council catches errors from hearing offices at similar rates, this
surface equivalence might mask inconsistent review that allows weak decisions from struggling
hearing offices to enter the federal courts more often. The agency could also survey federal
judges more extensively, to ask them for their perceptions of the quality of the ALJ decisions
they review. If judicial satisfaction or dissatisfaction matches up with personnel or management
issues in particular hearing offices, the correlation could indicate the uneven quality of pools of
appeals.
Unless a federal judge is convinced that the social security docket he manages does not
differ qualitatively from the docket his colleague in a different district handles, the federal judge
is unlikely to find district-level inconsistencies troubling. If the inputs differ, the outputs should
differ as well. Confirming or disproving our hypothesis is an important starting point to improve
the consistency of district-court decision-making.

562

The data available to us were insufficient for us to make this determination.
Agency Official 3, Third Interview at 2.
564
E.g., Claimant Representative 11 at 2 (describing Appeals Council review as a “crapshoot”); Claimant
Representative 2 at 3 (describing the value of Appeals Council review as “zip” and “random”); ALJ 2 at 2
(estimating that only 5-10% of Appeals Council remands express a valid concern with ALJ orders); ALJ 10 at 5
(insisting that Appeals Council review is not meaningful).
563

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Part V. The Procedural Governance of Social Security Litigation
Even a cursory examination of social security litigation in the federal courts reveals a
startling fact: the procedural governance of these cases is chaotic. District courts function as
courts of appeals for social security claimants. The Federal Rules of Civil Procedure therefore
do not work well for these cases, as they are designed for civil actions litigated in the first
instance. As a result, districts and even individual judges have forged their own workarounds. A
kaleidoscopic proliferation of procedures is the result.
Social security litigation involves claims governed by a national body of law and emerges
from an administrative process that, at least formally, is the same everywhere. The lawyers who
litigate these cases often have regional or even national practices, and they routinely appear in
multiple districts. No good reason exists for procedural localism, and yet localism is the status
quo. What results are inefficiencies, as lawyers constantly have to change how they litigate
otherwise identical claims based on a district’s or even an individual judge’s particular
procedural preferences. The procedural differences are often picayune – one district allows
twenty page briefs, another eighteen – and thus involve little conceivable benefit. A social
security practice is a high volume one. For lawyers on this assembly line, the costs of procedural
differences, in terms of redundant effort and unintended errors, can mount quickly.
We provide illustrative examples of how the procedural governance of social security
litigation varies in this Part. We discuss the costs of procedural localism and question whether
any countervailing benefits justify them. A number of specific problems with particular
practices came up in our interviews with OGC lawyers and claimant representatives. We report
what we heard here. Ultimately this discussion supports our recommendation, provided in Part
VI, that Congress legislate a set of procedural rules to provide these cases with the uniform
national governance that they deserve.
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None of our interview subjects suggested that procedural variation affects outcomes, with
one now mostly obsolete exception. 565 We therefore doubt that procedural variation explains
intra-circuit differences among districts’ remand rates. In addition, given the wide variety in
orders even within districts, quantitative study of this topic would be difficult if not impossible.
For these reasons, we have eschewed a quantitative analysis of the effects of different procedural
rules. Statistics are unnecessary for our main point. The modern system of federal civil
procedure is based in significant part on the premise that litigation proceeds most efficiently and
successfully when procedural governance is uniform to the extent possible.566 Balkanized
procedural governance of social security litigation conflicts with this fundamental premise.
A. Variations in Social Security Procedure
The Federal Rules of Civil Procedure provide a national and uniform set of procedural
rules for general civil litigation in the federal courts. For certain types of specialized litigation,
such as habeas corpus and bankruptcy, the Federal Rules provide only a baseline of procedural
governance. Congress and other rule makers have crafted particularized, nationally applicable
rules that address these cases’ substance-specific issues. 567 Other types of litigation also present
specialized procedural needs, but rule makers have not seen fit to prescribe tailored procedural
regimes for them. 568
Social security litigation falls into the second category. These cases have a unique
procedural posture. As appeals, they do not fit the Federal Rules’ one-size-fits-all mold, crafted
with an ordinary civil action as the model. No consensus exists, for instance, on exactly what
565

E.g., Claimant Representative 5 at 3 (denying that an erstwhile rule in the WDNY requiring simultaneous
briefing had an impact on outcomes); OGC Lawyer 12 at 3 (denying that differences in rules affect outcomes); OGC
Lawyer 14 at 3 (same).
566
E.g., Stephen B. Burbank, Pleading and the Dilemmas of “General Rules”, 2009 WIS. L. REV. 535, 536.
567
FED. R. CIV P. 81(a)(2) (noting that the Federal Rules apply in bankruptcy proceedings to the extent permitted by
the bankruptcy rules); id. 81(a)(4) (same for habeas).
568
See generally Megan M. La Belle, The Local Rules of Patent Procedure, 47 ARIZ. ST. L.J. 63 (2015) (discussing
the procedural needs that patent cases pose and arguing for the promulgation of a specialized set of rules for them).

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sort of motion litigants should file to get a social security case adjudicated on the merits. 569 In
the Eastern District of Washington, the claimant files a motion for summary judgment, 570 while a
summary judgment motion is “not appropriate” in the Southern District of Iowa. 571
When specialized litigation with unique procedural needs lacks a tailored set of national
rules for its governance, districts and even individual judges tend to step into the breach. 572 This
is precisely what has happened with social security litigation. The Federal Rules exempt social
security cases from the initial disclosures requirement of Rule 26, 573 and they limit electronic
access of nonparties to filings in these cases, 574 but otherwise they treat disability cases with
silence. A dizzying array of local rules, district-wide scheduling orders, and individual case
management orders fills this procedural vacuum. 575
These rules and orders address a multitude of issues at every stage in a case, as the
following examples illustrate:
•

The Northern District of California and the Eastern District of Wisconsin
provide form complaints for plaintiffs to use in social security cases. 576

•

In the Western District of New York, the agency files the certified transcript of
the administrative proceedings (“CAR”) in lieu of an answer within ninety days
of the complaint’s service. 577 In the Northern District of New York, the agency
must file an answer along with the CAR within one hundred days of the
complaint’s service. 578

569

E.g., Denlow, supra note 197 at 106-107 (providing examples of divergences among districts).
E.g., Order Setting Schedule, Donvan-Terris v. Colvin, Civ. No. 14-5125, E.D. Wash., April 8, 2015. All casespecific orders referred to in this Report are on file with the authors.
571
S.D. Iowa Local R. 56(i).
572
E.g., La Belle, supra note 568 at 86-92 (discussing the proliferation of local and individual rules for patent
litigation).
573
FED. R. CIV. P. 26(a)(1)(B)(i).
574
FED. R. CIV. P. 5.2(c).
575
E.g., Denlow, supra note 197 at 106-107.
576
Complaint for Judicial Review of Decision of Commissioner of Social Security, N.D. Cal.; Complaint for
Review of a Final Decision by the Commissioner of the Social Security Administration, E.D. Wis.
577
Standing Order, In the Matter of Actions Seeking Review of the Commissioner of Social Security’s Final
Decisions Denying Social Security Benefits, W.D.N.Y., Sept. 6, 2013, at 1.
578
General Order No. 18, In the Matter of: Northern District Order Directing Filing of Answer, Administrative
Record, Briefs, and Providing for Oral Hearing on Appeal From Social Security Benefits Decision, N.D.N.Y., Sept.
12, 2003, at 1.
570

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•

Some judges in the Central District of California give the agency an automatic
30-day extension to file its response to the complaint. 579 The Western District
of New York gives the agency an automatic 30-day extension. 580

•

Most judges in the Central District of California require the plaintiff to send a
“written and detailed proposal of settlement” to the agency after service of the
administrative record. The parties have to meet and confer over this proposal
before the agency files its answer. 581 Judges in the Eastern District of
California have a similar requirement, although pursuant to a different
timeline. 582 In the Southern District of California, social security cases are
exempt from a local rule requiring early settlement conferences shortly after an
answer is filed. 583 Hence the parties proceed to merits briefing without a
required attempt to settle. 584

•

In the Northern District of Iowa, the parties must file a joint stipulation of facts,
“setting forth those facts found in the administrative record which are relevant
to the issues presented” by the appeal, before filing their merits briefs. The
claimant writes the first draft of this statement. 585 The parties must file a “joint
statement of facts” in the District of New Hampshire. The agency writes the
first draft and circulates it after the claimant files her opening merits brief. 586

•

In the Eastern District of Missouri, the plaintiff files a “brief in support of the
complaint” within thirty days of the answer’s service. The agency files its
“brief in support of the answer” thirty days after service of the plaintiff’s brief.
The plaintiff then has fourteen days to file a reply. 587 In the Western District of
Missouri, the equivalent periods are forty days, forty days, and twenty-one
days. 588

•

Principal merits briefs in the Western District of Washington are limited to
eighteen pages. 589 Parties have thirty pages in the Eastern District of
Wisconsin.590

579

E.g., Case Management Order, _____ v. Astrue, Civ. No. 11-1819, C.D. Cal., Mar. 11, 2011, at 2.
Standing Order, In the Matter of Actions Seeking Review of the Commissioner of Social Security’s Final
Decisions Denying Social Security Benefits, W.D.N.Y., Sept. 6, 2013, at 1.
581
E.g., Case Management Order, ____ v. Astrue, Civ. No. 11-396, C.D. Cal., Mar. 11, 2011, at 3.
582
E.g., Scheduling Order, Copeland v. Colvin, Civ. No. 15-96, E.D. Cal., Jan. 22, 2015, at 2 (requiring that the
plaintiff file an “opening brief” if an exchange of “letter briefs” does not produce a settlement).
583
S.D. Cal. Local R. 16.1(e)(3).
584
E.g., Order Setting Briefing Schedule, Worsham v. Colvin, Civ. No. 15-55, S.D. Cal., Apr. 9, 2015.
585
Briefing Schedule, N.D. Iowa, Oct. 15, 2015.
586
D.N.H. Local R. 9.1(c).
587
E.D. Mo. Local R. 56-9.02.
588
W.D. Mo. Local R. 9.1(e).
589
E.g., Scheduling Order, Dodson v. Colvin, Civ. No. 15-5263, W.D. Wash. Oct. 16, 2015.
590
Procedures in Social Security Disability Appeals, United States District Court, Eastern District of Washington,
Aug. 1, 2014, at 2.
580

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•

Some magistrate judges in the Central District of California require a “joint
stipulation” in lieu of merits briefs. Scheduling orders for these judges
prescribe in detail the content of these joint stipulations, 591 designed to ensure
that the parties respond directly to each other’s contentions. 592 Other magistrate
judges in the Central District of California require motions for summary
judgment, not joint stipulations. 593 Parties use summary judgment in other
districts to litigate the merits of the claimant’s appeal. 594 In still others, a
motion for summary judgment is “not appropriate.” 595 In a number of
jurisdictions, parties litigate the merits of the claimant’s appeal with filings that
more closely resemble what one would find in a court of appeals than anything
provided for in the Federal Rules of Civil Procedure. 596 In the District of New
Hampshire, the merits brief is styled a “motion for order reversing decision of
the Commissioner or for other relief.” 597

•

Some judges in the Southern District of Texas require the parties to submit
cross motions for summary judgment simultaneously. 598 Others require the
claimant to move first and the agency to respond. 599

•

Until June 2015, the Eastern District of New York required the agency to file a
motion for judgment on the pleadings before any merits filing by the claimant,
requiring the agency effectively to guess at the problems that the claimant
believed warranted the appeal. This rule remains in effect when claimants
proceed pro se. 600 A judge in the Western District of Virginia has the agency
brief the case first and only requires a brief from the claimant if he or she
waives oral argument. 601

•

Some judges hold oral argument in every or almost every case. 602 In some
districts, “generally oral argument will not be heard.” 603

591

E.g., Case Management Order, __________ v. Astrue, Civ. No. 11-396, C.D. Cal. Mar. 3, 2011, at 4-7.
Claimant Representative 8 at 5.
593
E.g., Order, _______ v. Astrue, Civ. No. 11-1776, C.D. Cal., Mar. 9, 2011, at 2-3.
594
E.g., Order Setting Schedule, Donvan-Terris v. Colvin, Civ. No. 14-5125, E.D. Wash., April 8, 2015.
595
S.D. Iowa Local R. 56(i); see also E.D. Mo. Local R. 56-9.02.
596
E.g., Scheduling Order, Walker v. Colvin, Civ. No. 15-5252, W.D. Wash., Sept. 9, 2015, at 2-3; General Order
No. 18, In the Matter of: Northern District Order Directing Filing of Answer, Administrative Record, Briefs, and
Providing for Oral Hearing on Appeal From Social Security Benefits Decision, N.D.N.Y., Sept. 12, 2003, at 1-2;
E.D. Mo. Local R. 56-9.02; D.N.H. Local R. 9.1
597
D.N.H. Local R. 9.1
598
E.g., Order, McCord v. Colvin, Civ. No. 14-208, S.D. Tex., June 9, 2014.
599
E.g., Briefing Schedule, Barnes v. Colvin, Civ. No. 14-482, S.D. Tex., Sept. 3, 2014, at 1-2.
600
Administrative Order 2015-05, In re: Scheduling in Social Security Cases, E.D.N.Y., June 19, 2015.
601
Standing Order Governing Development of Social Security Cases Assigned to Judge Conrad, W.D. Va., Jan. 1,
2005.
602
Federal Judge 1 at 3.
603
General Order No. 18, In the Matter of: Northern District Order Directing Filing of Answer, Administrative
Record, Briefs, and Providing for Oral Hearing on Appeal From Social Security Benefits Decision, N.D.N.Y., Sept.
12, 2003, at 3; see also W.D. Mo. Local R. 9.1(e) (noting that the court will decide a case “without oral argument,
unless otherwise directed”); Order, _______ v. Astrue, Civ. No. 11-1776, C.D. Cal., Mar. 9, 2011, at 3 (“The Court
will take the motions under submission without oral argument, unless the Court otherwise orders.”).
592

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B. Problems With Disuniformity
The most prominent of commentators in civil procedure have long criticized procedural
governance by local rules, general orders, standing orders of individual judges, scheduling orders
for particular cases, and so forth. 604 A complete rehearsal of their many objections is
unnecessary here, but several find particular purchase for social security litigation. Local rules
and the like create “legal clutter,” or “background noise” of procedural variation that consumes
time and distracts lawyers from focusing on the merits. 605 A lawyer practicing in different
districts or before different judges within the same district may constantly have to toggle back
and forth among various requirements for the same task. As one OGC lawyer told us, this
inefficient juggling detracts from the quality of representation. 606 “Difficult local rules,” she
insisted, are a “huge waste of time.” 607 Until recent changes improved the situation, the two
dozen magistrate judges in the Central District of California used something like seventeen

604

E.g., Comment, The Local Rules of Civil Procedure in the Federal District Courts – A Survey, 1966 DUKE L.J.
1011, 1012 & n.6 (quoting a letter from Charles Alan Wright referring to local rules as the “‘soft underbelly’ of
federal procedure”); Charles Alan Wright, Foreword, The Malaise of Federal Rulemaking, 14 REV. LITIG. 1, 11
(1994) (referring to the proliferation of local rules among the districts and lamenting that that “procedural anarchy is
now the order of the day”); Geoffrey Hazard, Undemocratic Legislation, 87 Yale L.J. 1284, 1285 (1978) (chiding
local rules as little more than “measurements of the chancellor’s feet”); John P. Frank, Local Rules, 137 U. PA. L.
REV. 2059, 2060 (1989) (denouncing variations among local rules as an “outright abomination” and blasting the
“sheer arrogance and irresponsibility” of judges for fashioning them).
605
Paul D. Carrington, A New Confederacy? Disunionism in the Federal Courts, 45 DUKE L.J. 929, 947 (1996).
606
OGC Lawyer 12 at 3. Cf. OGC Lawyer 8 at 4 (insisting that consistency within a district is “very helpful”). The
great litigator John Frank described “a litigation law office” with “an entire wall plastered with the separate local
rules for each of the district courts in [its] community.” Frank, Local Rules, supra note 604 at 2060. OGC lawyers
described a version of this phenomenon to aid their efforts at litigating in the Central District of California. See also
Claimant Representative 8 at 2 (complaining that it can be “tedious” to try to follow the many case management
orders in the Central District of California).
607
OGC Lawyer 12 at 5.

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different case management orders. 608 Under such conditions, OGC “can’t zealously represent its
client,” a lawyer lamented. 609
This procedural clutter is more than a mere annoyance, as an example illustrates. Cases
routinely raise the same issues, so rather than reinvent the wheel, lawyers often borrow text from
one brief for another. By testing arguments in a number of cases and redeploying them, lawyers
can raise the quality of their representation. Moreover, these practices lower the cost of social
security litigation, both for claimants and the government. OGC lawyers rarely spend more than
three days writing a merits brief, and claimant representatives must work on a tight budget.
These shortcuts save invaluable time. But procedural variation makes economizing difficult,
forcing lawyers to refashion even a successful argument to fit a judge’s procedural parameters.
Not only does such redundant drafting take time, it also may compromise the quality of
advocacy. And all to a questionable end, so that a brief will not exceed eighteen pages instead of
twenty, or so that an argument fits in a joint submission instead of an ordinary merits brief.
Lawyers cannot adapt to these variations by reducing the number of courts in which they
litigate. To suggest that they do so ignores the institutional organization of the social security
bar. Some claimant representatives litigate exclusively in one or two districts, particularly those
in big cities that attract a large volume of litigation. 610 But others, particularly practitioners who
specialize in federal court litigation, 611 need to litigate in multiple districts to earn a living. By
making their practices economically viable, multi-jurisdictional litigation also probably creates
access to qualified counsel for claimants in smaller locales. Each of OGC’s regions handles a

608

OGC Lawyer 15 & OGC Lawyer 25 at 2. See also Claimant Representative 8 at 2 (complaining that it can be
“tedious” to try to follow the many case management orders in the Central District of California).
609
OGC Lawyer 21 at 2; OGC Lawyer 26 at 1 (complaining that different scheduling orders “trip” people up); see
also Carl Tobias, Charles Alan Wright and the Fragmentation of Federal Practice and Procedure, 19 YALE L. &
POL’Y REV. 463, 465 (2001).
610
E.g., Claimant Representative 3 at 1; Claimant Representative 4 at 1.
611
E.g., Claimant Representative 9 at 1; Claimant Representative 10 at 1.

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number of districts. OGC lawyers rarely practice exclusively in only one district. Their
workloads are a function not of what might be desirable, but of variables beyond their control,
such as the number of cases appealed and resources available to the agency.
Another problem with localism is inconsistency, or the possibility that like cases will not
be treated alike. 612 In only one instance did one of our interview subjects suggest that an
idiosyncratic practice, the EDNY’s erstwhile rule requiring the agency to brief a case first,
impacted outcomes. 613 But inconsistencies beyond outcome variation should concern the courts.
Differences among rules and practices create arbitrary delay for certain claimants. Some judges
grant extensions readily, for example, while others are sticklers for deadlines. 614 An OGC
lawyer might have briefs due on the same day, one for a stickler judge and another for a
permissive judge. This lawyer naturally will prioritize the brief for the stickler judge, knowing
that he can always get an extension from the permissive judge. 615 The second case’s claimant
has to wait longer than the first for her claim’s resolution, having already pursued her claim for
two years in the agency. The requirement some districts have that the plaintiff request a
voluntary remand by letter before writing the merits brief prompts a similar worry. If these “premotion letters” force OGC lawyers to dig into a case earlier than they might otherwise, 616 the
letters might prompt earlier RVRs. A claimant litigating before a judge in the Eastern District of

612
Robert E. Keeton, The Function of Local Rules and the Tension with Uniformity, 50 U. PITT. L. REV. 853, 874
(1989).
613
OGC Lawyer 5, Second Interview at 1.
614
E.g., Briefing Schedule, Davis v. Colvin, Civ. No. 15-1023, N.D. Iowa, Oct. 8, 2015 (“No extensions will be
granted without exceptional cause.”); OGC Lawyer 10 at 4 (observing that a magistrate judge who handles a large
volume of social security cases is reluctant to grant extensions); OGC Lawyer 11 at 4 (observing that some judges
are “sticklers” for extensions and that others grant them freely); OGC Lawyer 27 at 5 (describing some judges who
never give extensions and others who do so freely).
615
OGC Lawyer 27 at 6.
616
OGC lawyers disagreed on whether these letters accomplish this goal. Compare OGC Lawyer 2 at 4 (insisting
that these letters are a waste of time), with OGC Lawyer 15 & OGC Lawyer 25 at 6 (conceding that sometimes the
early review these letters require prompt an earlier settlement). See also Claimant Representative 9 at 5 (suggesting
that these letters have no effect).

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California who requires these letters may get a voluntary remand sooner than an identical
claimant in the Eastern District of Washington, which does not.
Finally, procedural localism is problematic because courts and judges might generate
requirements without sufficient deliberation or opportunities for public input. 617 A proposed
amendment to the Federal Rules of Civil Procedure must proceed through several steps until its
promulgation. It requires the support of multiple constituencies, and the process affords the
public several opportunities to comment. Local rules need to pass muster “in the eyes of only
one set of beholders,” the local rules committee for the district. 618 Even worse are “general
orders” for a district, an umbrella term that describes district-wide orders issued by some process
less formal than local rulemaking. Local rules at least require some public comment period
before promulgation. 619 A district can issue a general order without any process at all. The
Northern District of Iowa, for example, issued a generic “Briefing Schedule” on October 15,
2015, that requires the parties to file a joint stipulation of facts. 620 The district issued it without
an opportunity for public input. Had it invited reactions from social security litigators, the
district surely would have discovered universal antipathy for such a procedure. 621
Worst of all is the delegation of procedural governance to case management or
scheduling orders issued by individual judges. A judge can change her guidelines overnight,
without any warning, and without even the acquiescence of or input from her judicial
617

The opacity of procedural governance for social security litigation is reflected in a mundane but telling
phenomenon. We had significant difficulty even locating many of the procedural requirements districts or
individual judges have set for social security litigants. General orders containing these requirements are often
available on district websites, but we found them only with significant, time-intensive searching. Some districts
have agreed on a generic scheduling order, but we could only find it by downloading it from individual docket
sheets on PACER. In one instance, a district advertised on its website that it had just promulgated a new set of
requirements for social security cases. This notice did not include a link to the order itself, which we could only
obtain by calling the clerk’s office and asking for a copy by e-mail.
618
Hazard, supra note 604 at 1286.
619
FED. R. CIV. P. 83; Hollingsworth v. Perry, 558 U.S. 183, 190 (2010).
620
Briefing Schedule, ______ v. Colvin, N.D. Iowa, Oct. 15, 2015 (on file with authors).
621
See infra at text accompanying notes 624-640

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colleagues. 622 One magistrate judge in the Central District of California changed scheduling
orders four times within a single year, we were told, each time without notice or warning to
lawyers. 623 Judges often do not even bother posting these orders on their webpages. This
problem of notice is endemic. Good luck to the lawyer who wants to assemble a comprehensive
set of procedural rules for the judges in her district or circuit. This is tough sledding.
C. Problems With Particular Procedures
We would hesitate to recommend reforms were lawyers generally content with the
procedural governance of social security litigation, however balkanized it is. But interview
subjects consistently expressed frustration. Concerns about the following issues surfaced
repeatedly.
1. Joint Submissions
Joint submissions include both joint statements of facts 624 and joint stipulations. 625
Parties typically submit the former in addition to merits briefs, to memorialize the factual
background to an appeal in a single document authored by both sides. 626 The latter replace
dueling merits briefs. The parties write and file a single document containing both of their
arguments.
Several rationales ostensibly explain these departures from ordinary adversarial
procedure. Judges in the Central District of California tired of the two sides failing to engage
directly with each other’s arguments. 627 To remedy this problem, about half of the magistrate
judges in the district require the parties to go back-and-forth in the same document. These

622

OGC Lawyer 15 & OGC Lawyer 25 at 2.
OGC Lawyer 15 & OGC Lawyer 25 at 2.
624
E.g., Briefing Schedule, ________ v. Colvin, N.D. Iowa, Oct. 15, 2015; Briefing Schedule and Format Order,
Dillon v. Colvin, Civ. No. 15-5034, D.S.D., July 10, 2015.
625
E.g., Case Management Order, _______ v. Astrue, Civ. No. 11-424, C.D. Cal., Mar. 15, 2011, at 4.
626
E.g., D.N.H. Local R. 9.1(b)-(e).
627
OGC Lawyer 28 at 6; Claimant Representative 8 at 5.
623

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judges’ orders go so far as to dictate a format that generates a sort of point-counterpoint
engagement. 628 Presumably districts and judges require joint statements of facts for the same
reason. Also, as one claimant representative told us, the requirement that the parties confer on a
joint statement of facts before merits briefing, or at least before the agency files its brief, is
thought to produce earlier RVRs. 629
Perhaps no practice attracted as much criticism in our interviews as these joint
submissions.630 Even the sole claimant representative who expressed support for the
requirement admitted that colleagues in the plaintiff’s bar either dislike it, or they saddle the
agency with inconvenience and burden by failing to follow rules for these documents. 631 These
submissions, which an OGC lawyer described as neither “neither joint nor stipulated,” 632 are
problematic for several reasons. First, they require a “remarkably cumbersome process.” 633 The
parties must coordinate on a number of issues, including how many pages each side gets, 634 who
files what exhibits, and even which merits arguments are raised. 635 In a high volume litigation
context, this mandated cooperation adds a layer of inefficiency that busy attorneys can ill afford.

628

A typical order requires the following format:
I.

Issue No. 1
A. Plaintiff’s Contentions Regarding Issue No. 1
B. The Commissioner’s Contentions Regarding Issue No. 1
C. Plaintiff’s Reply Regarding Issue No. 1.

See, e.g., Case Management Order, _______ v. Astrue, Civ. No. 11-424, C.D. Cal., Mar. 15, 2011, at 7.
Claimant Representative 10 at 2.
630
E.g., OGC Lawyer 14 at 3; OGC Lawyer 9 at 4; OGC Lawyer 7 at 3; Claimant Representative 10 at 2; OGC
Lawyer 12 at 3.
631
Claimant Representative 8 at 5.
632
OGC Lawyer 29 at 5.
633
OGC Lawyer 15 & OGC Lawyer 25 at 1.
634
An OGC lawyer complained to us of claimants writing 30-page drafts in jurisdictions where the documents
cannot exceed 40 pages, thus leaving OGC only 10 pages. OGC Lawyer 14 at 3. Another lawyer described bloated,
80-page drafts arriving in their inboxes, effectively requiring them to join a document that will all but surely anger
the judge. OGC Lawyer 15 & OGC Lawyer 25 at 7.
635
An OGC lawyer complained that the joint submission model makes it difficult affirmatively to raise dispositive
issues that plaintiffs understandably do not mention themselves. OGC Lawyer 15 & OGC Lawyer 25 at 3. Cf.
Claimant Representative 8 at 5 (conceding that the agency faces this problem).
629

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A claimant representative described joint submissions as “royal waste of time,” and she “can’t
stand working on them.” 636
Second, the joint submission process effectively outsources the unpleasant job of
enforcing deadlines to the lawyers. 637 A scheduling order might specify the dates on which each
version of the draft might be exchanged, but also provide that nothing should be filed until the
final submission is ready. A lawyer who misses a deadline is supposed to request an extension,
to allow the entire briefing schedule to reset. But he sometimes fails to do so, a lapse surely
encouraged at least in part by the fact that the judge remains in the dark until the submission
finally gets filed. The other side has to hound her adversary to request the extension, lest her
time to respond get shortened. 638 One can readily imagine the reluctance of a lawyer to bring the
deadline issue to the court’s attention, worried that doing so will irritate a judge impatient with
such tedious housekeeping matters.
The joint submission process may indeed force the parties to engage more directly with
each other’s argument. There is no evidence, however, that they prompt more or earlier
RVRs. 639 Moreover, other vehicles, namely pre-motion letters, can accomplish this objective
more efficiently.
District courts require joint submissions of various sorts in other litigation settings. But
rarely do the parties actually litigate the merits of their case through a joint submission. A
number of districts require the parties to submit statements of fact at summary judgment, to
identify those that are disputed and undisputed. These rules have a certain logic; summary
judgment requires the identification of undisputed facts from a morass of discovery materials.

636

Claimant Representative 10 at 2.
OGC Lawyer 28 at 6.
638
OGC Lawyer 15 & OGC Lawyer 25 at 3.
639
OGC Lawyer 29 at 5; Claimant Representative 10 at 2.
637

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But social security litigation involves a closed, already created record. It is revealing that no
court of appeals finds something like a joint statement of facts necessary to navigate a record. 640
2. Simultaneous Briefing
Simultaneous briefing is another practice that drew criticism from OGC lawyers and
claimant representatives alike. 641 Some judges in the Southern District of Texas, for example,
require both sides to submit cross motions for summary judgment. They then respond to each
other’s briefs in simultaneously filed responses. 642 This practice effectively doubles the number
of briefs the lawyers must file. OGC lawyers find themselves in a particularly strange position
when they draft their summary judgment motions, because they have to anticipate the issues the
claimant believes merit an appeal. The result, a “bland” brief, as one OGC lawyer described
it, 643 surely adds little value on top of what the brief filed in response to the claimant’s motion
creates. When a defendant in an ordinary civil action moves for summary judgment, it knows
from the complaint what claims the plaintiff asserts. In social security cases, complaints are
almost invariably form documents with little specificity. OGC lawyers have to guess what
problems the claimant will identify.
Until recently, the Eastern District of New York had an even more curious practice,
requiring that the agency file the opening brief and claimants respond. A judge in Virginia
continues to employ this “affirmative briefing” process. 644 OGC lawyers hate affirmative

640

The Federal Civil Rules Advisory Committee abandoned a proposal to require such statements in Rule 56, based
in part on concerns about burden and cost. Edward H. Cooper, Revising Rule 56: Judge Mark R. Kravitz and the
Rules Enabling Act, 18 LEWIS & CLARK L. REV. 591, 603-604 (2014).
641
OGC Lawyer 13 at 3; OGC Lawyer 9 at 4; OGC Lawyer 1 at 3.
642
E.g., Order, McCord v. Colvin, Civ. No. 14-208, S.D. Tex., June 9, 2014.
643
OGC Lawyer 13 at 3.
644
Standing Order Governing Development of Social Security Cases Assigned to Judge Conrad, W.D. Va., Jan. 1,
2005.

139

briefing, and they believe it actually affects outcomes. 645 The requirement makes little sense.
An OGC lawyer has to write a comprehensive opening brief, lest he irritate the court, while not
spoon-feeding issues the plaintiff’s lawyer might otherwise overlook. 646 An OGC lawyer told us
that he dealt with this situation by trying to say as little as possible in his opening brief. 647 This
result is obviously undesirable.
3. Pre-Motion Letters
A number of jurisdictions require the parties to exchange pre-motion letters, or letters
written before full-dress merits briefing, to present each side’s case in a concise manner. 648
These letters require the parties to delve into the case, albeit in an abbreviated way, earlier than
they might otherwise. Faster RVRs might result, or so the logic goes.
Pre-motion letter requirements have drawn mixed reviews. Some lawyers think they are
a waste of time and do not prompt settlement, 649 while others agree that they sometimes yield
quicker RVRs. 650 An OGC lawyer complained that a pre-motion letter requirement forces her to
digest a lengthy CAR twice, once to answer the claimant’s letter and again to write the merits
brief. She works on so many cases between the two reviews that the earlier one does not really
streamline the latter. 651 A claimant representative, in contrast, insisted that the time he spends on

645
OGC Lawyer 5, Second Interview at 1. Cf. OGC Lawyer 6 at 1 (describing the EDNY as a claimant-friendly
jurisdiction because of the affirmative briefing requirement). Affirmative briefing has earned judicial criticism as
well. Hamilton v. Secretary of Health & Human Servs., 961 F.2d 1495, 1501 (10th Cir. 1992); Federal Judge 10 at
1 (explaining that an affirmative briefing rule “never made sense”). A claimant representative we interviewed does
not see the reason for it. Claimant Representative 4 at 4.
646
OGC Lawyer 4 at 2.
647
OGC Lawyer 4 at 2.
648
Eg., Scheduling Order, Copeland v. Colvin, Civ. No. 15-96, E.D. Cal., Jan. 22, 2015, at 2; see also Claimant
Representative 10 at 2; OGC Lawyer 2 at 4.
649
OGC Lawyer 2 at 4; Claimant Representative 9 at 5.
650
Claimant Representative 10 at 2.
651
OGC Lawyer 28 at 7. Other OGC lawyer conceded that sometimes the first review can streamline the second
one. OGC Lawyer 15 & OGC Lawyer 25 at 6.

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the letters is not wasted, even if an RVR doesn’t result, because it reduces the time he then
spends on the merits brief. 652
4. Oral Argument
Most judges do not require or hold oral argument in social security cases, but the practice
may be gaining in popularity. 653 A magistrate judge from the Northern District of Mississippi
has advocated for oral argument, coupled with decisions from the bench, as a way to work
through a large docket quickly. 654 Claimant representatives did not express any particular dislike
of the practice to us. 655 OGC lawyers, in contrast, almost uniformly dislike oral argument. 656
Again, the problem involves duplication of effort. Having worked up a case months earlier when
drafting the merits brief, the lawyer must retrace her steps to bone up before oral argument. 657
Judges often conduct oral argument by phone, but sometimes attorneys must appear in person.
In such instances, travel can create an additional inconvenience, especially given that OGC
lawyers cover multiple districts from a single regional office. 658
5. Deadlines, Page Limits, and Extensions
Briefing schedules and rules about page limits and extensions diverge considerably. A
judge in the Southern District of Texas issued an order giving the claimant four months from the
date of the CAR’s filing to file his opening brief; the government then had twenty-eight days to
respond. 659 The standard scheduling order in the Western District of Washington gives both

652

Claimant Representative 1 at 4.
Federal Judge 1 at 2-3 (noting that she has begun holding oral arguments and deciding from the bench over the
past year.
654
This judge has created videos to train colleagues in this technique. A copy of the video is on file with the
authors.
655
Claimant Representative 5 at 3; Claimant Representative 6 at 3; Claimant Representative 9 at 5.
656
E.g., OGC Lawyer 13 at 3; OGC Lawyer 1 at 2; OGC Lawyer 7 at 3; OGC Lawyer 8 at 3.
657
OGC Lawyer 13 at 3; OGC Lawyer 7 at 3; OGC Lawyer 8 at 3.
658
OGC Lawyer 13 at 3.
659
Briefing Schedule, Barnes v. Colvin, Civ. No. 14-482, S.D. Tex., Sept. 3, 2014.
653

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parties thirty days, 660 as does an order used in the Central District of California. 661 In the Eastern
District of Wisconsin and the Western District of Missouri, the claimant has forty days after the
CAR’s filing to file her brief, and the agency then has forty days within which to respond. 662
The EDNY and WDNY give both sides sixty days, 663 while the NDNY gives them forty-five
days. 664 As for page limits, they range all over the map. A merits brief cannot exceed eighteen
pages in the Western District of Washington, for example, while the EDNY allows for unlimited
pages. 665
We have alluded to the problem with variations in extension practices above. As for
deadlines, they “cr[y] out for standardization,” an OGC lawyer told us. 666 Given the high
caseloads that social security lawyers handle, the proliferation of idiosyncratic briefing schedules
“adds a layer of administrative complexity,” or the sort of procedural clutter that localism
engenders. 667 The same is true of page limits. A lawyer who litigates in multiple districts
constantly must recalibrate how extensively she can argue a particular issue. An argument
developed for a district with more permissive limits, for example, will have to be retooled for a
district with stricter ones.

660

E.g., Scheduling Order, Dodson v. Colvin, Civ. No. 15-5263, W.D. Wash., Oct. 16, 2015, at 1.
Order, ________ v. Astrue, Civ. No. 11-1776, C.D. Cal., Mar. 9, 2011, at 3.
662
Procedures in Social Security Disability Appeals, ED. Wis., Aug. 1, 2014; W.D. Mo. Local R. 9.1(e).
663
Administrative Order 2015-05, In re: Scheduling in Social Security Cases, E.D.N.Y., June 19, 2015; Standing
Order, In the Matter of Actions Seeking Review of the Commissioner of Social Security’s Final Decisions Denying
Social Security Benefits, W.D.N.Y, Sept. 5, 2013.
664
General Order No. 18, In the Matter of: Northern District Order Directing Filing of Answer, Administrative
Record, Briefs, and Providing for Oral Hearing on Appeal From Social Security Benefits Decision, N.D.N.Y., Sept.
12, 2003, at 1-2.
665
Compare Scheduling Order, Dodson v. Colvin, Civ. No. 15-5263, W.D. Wash., Oct. 16, 2015, at 1, with Federal
Judge 4 at 5.
666
OGC Lawyer 5, First Interview at 5.
667
OGC Lawyer 1 at 5.
661

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Part VI. Recommendations and Suggestions
This Report’s charge directed us to study social security litigation in the federal courts.
Our recommendations and suggestions reflect this focus. They address aspects of social security
litigation that could be rendered more efficient, and they target the agency’s relationship with the
federal courts. Surely these proposed reforms will strike some as weak medicine for what ails
the social security disability system. Only a very small number of claimants who initially apply
for benefits ultimately seek judicial review. To most, a uniform set of procedural rules for social
security cases will have little significance. Likewise, the agency struggles with vast numbers of
claims and a mandate to implement a national policy consistently. Improved communication
with the federal courts will not relieve these challenges. Still, nearly 20,000 social security
appeals proceed each year in the federal courts. This litigation can change for the better.
Our suggested reforms divide into two categories. By our understanding, ACUS’s
recommendations typically involve suggested legislation or rules, not changes to internal agency
governance. We thus limit our recommendations, offered for ACUS’s consideration, to
improvements to the procedural rules governing social security litigation, to changes to how the
federal courts and the agency communicate, and to adjustments to OGC’s role. Our research
nonetheless lead us to believe that the agency could improve its standing in the federal courts, to
claimants’ betterment, with adjustments to its internal processes. We offer these changes as
informal suggestions that the SSA should consider as it continues with its efforts to improve the
disability claims adjudication process.
A. Recommendations for ACUS Consideration
1. Independent Litigating Authority
Recommendation 1. Congress should give the Social Security Administration
independent litigating authority.

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The SSA should be given independent litigating authority, which it presently lacks. 668 It
cannot represent itself in the federal courts and must work through the Department of Justice. 669
This limitation has two significant consequences. The SSA cannot decide on its own when to
appeal an adverse district court decision, and the SSA must enter an appearance through a U.S.
Attorney’s office.
To the extent that the agency is dissatisfied with the overall tenor of social security case
law, its negligible access to appellate review must shoulder some of the blame. This lack of
access may have significantly blunted the force that the substantial evidence standard of review
might otherwise seem to have, at least by its terms. A district court’s characterization of
something as legal error is unlikely to be appealed. Also, the asymmetric threat claimants can
make to appeal may steer district and magistrate judges to favor claimants in close cases.
The influence circuits have over district court remand rates places the agency’s lack of
appellate access in particularly stark relief. Claimants set the entirety of each circuit’s social
security agenda. If one, such as the Seventh Circuit, tilts in a pro-claimant direction, a docket
constructed by claimant representatives will only encourage it to tilt even further so. The results
are ever-rising remand rates for the districts within the circuit.
We take no position on any particular treatment of social security law in existing
precedent. More agency appeals could have several ameliorative effects, even if one were
indifferent to the overall tenor of social security case law. 670 First, disuniformity in case law
complicates the agency’s capacity to maintain and implement a consistent national policy. It
also means differential treatment of otherwise identical claimants that depends upon accident of
668

For a list from 2012 of agencies with independent litigating authority, see DAVID E. LEWIS & JENNIFER L. SELIN,
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES: SOURCEBOOK OF UNITED STATES EXECUTIVE AGENCIES 116
n.296 (DEC. 2012)
669
Id. at A-26.
670
If the agency is right to believe that a particular body of case law tilts in a pro-claimant direction, more appeals
are an imperative.

144

geography. More regular appellate review, whether secured by claimants or the agency, should
help. “[T]he importance of maintaining harmony among the Circuits on issues of law” is an
important consideration when a circuit addresses an issue for the first time. 671 As a corollary,
arguments about the need for national uniformity likely will gain more traction at the circuit
level than at the district level, where judges’ first and often only obligation is to their circuit’s
precedent.
Second, appellate review might force the agency to clarify or reconsider its own
interpretation of the Act or regulations, or to respond to adverse decisions with rulemaking.
District court decisions rarely, if ever, prompt such reconsideration. 672 A circuit decision does
so. The decision may trigger the agency’s acquiescence process, for one thing; its effects will be
felt within the agency more informally as well. Although ALJs and decision writers are not
supposed to follow case law unless the agency says so, those we interviewed were familiar with
circuit decisions. Any single district court decision is too insignificant, except in a rare instance,
to prompt such a reaction.
The traditional justifications for DOJ control over agency appeals are less convincing in
the social security context. 673 The federal government may have a legitimate concern that it
speak with one voice when it litigates issues that cut across subject areas, such as those involving
Congress’s Commerce Clause power or the appropriate pleading standard under Rule 8 of the

671

Wong v. PartyGaming Ltd., 589 F.3d 821, 827-28 (6th Cir. 2009); see also Wheeler v. Pilgrim’s Pride Corp., 591
F.3d 355, 363 (5th Cir. 2009) (observing in an en banc decision reversing an earlier panel’s explicit decision to
create a circuit split that the court should “look to the opinions of other circuits for persuasive guidance, always
chary to create a circuit split”); United States v. Auginash, 266 F.3d 781, 784 (8th Cir. 2001); Andrews v. Chevy
Chase Bank, 545 F.3d 570, 576 (7th Cir. 2008); American Vantage Companies, Inc. v. Table Mountain Rancheria,
292 F.3d 1091, 1098 (9th Cir. 2002).
672
Cf. Soc. Sec. Ruling 96-1p (indicating that the agency will essentially ignore district court decisions inconsistent
with its policy unless the court directs otherwise in a class action).
673
For a general discussion of the traditional justifications, see Neal Devins & Michael Herz, The Uneasy Case for
Department of Justice Control of Federal Litigation, 5 U. PA. J. CONSTIT. L. 558, 570-94 (2003); id. at 594
(observing that these justifications “seem overblown”).

145

Federal Rules of Civil Procedure. But social security appeals rarely involve such issues and
almost invariably focus instead on detailed and technical questions of social security law and
policy. 674 Also, a fear that an agency unbound might squander the federal government’s
appellate capital by crying wolf too often is simplistic. An entity as sophisticated as a court of
appeals can differentiate among types of federal government litigants.
From time to time a social security appeal might involve an issue whose resolution could
affect the federal government’s legal standing in other contexts. The agency might argue, for
example, that an interpretation of the Act issued in a particular kind of document deserves
deference. The resolution could affect how courts within the circuit address such “Chevron Step
Zero” issues for other agencies’ interpretations. To ensure that the agency appreciates the
broader governmental perspective, the SSA could be required to give the DOJ notice of an
appeal sufficient to enable the DOJ to intervene when necessary.
The other concern with the SSA’s lack of independent litigating authority involves OGC
lawyers’ obligation to work through U.S. Attorney’s Offices. In our view, this partnership
creates inefficiencies and produces uncertain benefits. The involvement of skilled AUSAs may
improve briefs in some instances, but many OGC lawyers whom we interviewed, while
appreciative of the help, conceded that AUSAs rarely contribute much in the way of substance.
The U.S. Attorney may advocate for the agency on other issues, such as local rule changes, and
AUSAs’ familiarity and relationships with individual judges surely benefits lawyers, like those
in OGC, who have to cover a wider territory. These benefits, however, are insufficient to
warrant the arrangement that currently persists, especially in light of our other

674

Id. at 604 (arguing that, in such circumstances, the argument in favor of independent litigating authority in the
agencies is strongest).

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recommendations. 675 Among other problems, we detected confusion among federal judges in
our interviews over who exactly does what on behalf of the government in social security cases.
Congress should allow the SSA to enter its own appearances and relieve U.S. Attorneys of the
unnecessary, redundant, and sometimes confusing role they currently shoulder.
An individual U.S. Attorney’s office can mostly remove itself from disability litigation
without Congressional action by designating OGC lawyers as SAUSAs. This work-around is
imperfect, if better than the status quo in districts that do not use SAUSAs. The U.S. Attorney’s
name still appears on a brief when an OGC lawyer appears as a SAUSA. An office’s reluctance
to surrender all control over what gets filed is understandable. The office may fear that its
reputation could suffer if OGC lawyers file poor-quality briefs. The best alternative is to remove
U.S. Attorney involvement altogether. Courts would have no reason to attribute shortcomings in
OGC work product to the DOJ or the U.S. Attorney’s Office. Independent litigating authority
would clarify that OGC, not the U.S. Attorney, bears responsibility for litigation decisions and
for the quality of government briefing, and thus is the proper target for any judicial irritation.
If Congress will not vest the SSA with independent litigating authority, then an imperfect
but helpful substitute is the universal designation of OGC lawyers as SAUSAs in all districts. A
U.S. Attorney’s Office could profitably shift lawyer resources toward other, less redundant ends.
For the most part, 676 the federal judges we interviewed expressed satisfaction with the quality of
agency lawyering. Briefs so deficient as to threaten the U.S. Attorney’s reputation are probably
infrequent, if our interviews with federal judges are any indication. If OGC lawyering does raise
concerns with federal judges, the U.S. Attorney could always withdraw the SAUSA designation.
675
If the Administrative Office of the U.S. Courts and the agency collaborate on the creation of district standing
committees, for example, these committees would lessen the need for the U.S. Attorney’s assistance in local district
matters, such as drafting local rules for social security cases.
676
One federal judge described OGC lawyering as “poor,” complaining that OGC lawyers rely too much on
boilerplate in their briefs and do not address medical facts at a sufficient level of specificity. Federal Judge 13 at 12.

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2. Social Security Rules Enabling Legislation
Recommendation 2. Congress should enact enabling legislation to clarify the U.S.
Supreme Court’s authority to promulgate procedural rules for social security litigation.
The Judicial Conference should authorize the appointment of a social security rules
advisory committee, and the U.S. Supreme Court should approve a set of social security
rules drafted by this committee.
The proliferation of inconsistent procedural rules for social security litigation results from
a dearth of national procedural governance. Disability appeals are just that – appeals. The
Federal Rules of Civil Procedure are designed for civil actions of first impression, and the
processes they contemplate work poorly for cases better suited to appellate rules.
The case for a single, national set of rules for social security litigation is strong. The
substance of these cases differs very little from one part of the country to the next. They emerge
from a single, national administrative process, one that produces the same sort of record for
review everywhere. Procedural needs rarely vary from one social security case to the next.
There are a lot of these cases. During the twelve months that ended on September 30, 2014,
petitioners filed 19,185 “general” habeas corpus petitions in the federal courts. 677 This large
chunk of the district court docket poses special procedural needs, and therefore a particular set of
rules sensibly governs it. 678 During the same time period, social security claimants filed 19,146
appeals in district courts. 679 In addition, the lawyers who litigate these cases often have a
regional or even national practice. This institutional fact is certainly true of OGC, and it is often
true of claimant representatives as well.
Finally, any marginal return from local experimentation with procedural governance for
social security cases has long since disappeared. Districts have tinkered for long enough. At this
677
Table C-2A, U.S. District Courts – Civil Cases Commenced, by Nature of the Suit, During the 12-Month Periods
Ending September 30, 2009 Through 2014.
678
E.g., Rules Governing Section 2254 Cases in the United States District Courts, at www.uscourts.gov.
679
Table C-2A, U.S. District Courts – Civil Cases Commenced, by Nature of the Suit, During the 12-Month Periods
Ending September 30, 2009 Through 2014.

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point, the only conceivable beneficiaries of procedural localism are judges with idiosyncratic
preferences, and they might be mistaken about the benefits their requirements ostensibly create.
Localism creates inefficiency and detracts from the lawyer resources available for merits
briefing, and these judges may actually be making their own jobs harder.
As discussed below, we recommend that a uniform set of procedural rules replace the
chaos of local rules, standing orders, and individual practices that presently govern social
security litigation in the federal courts. More important than any particular rule, however, is the
existence of an ongoing rulemaking process that can create and revise social security rules as
procedural needs arise and change. The Rules Enabling Act delegates power to craft rules of
practice and procedure to the Supreme Court. This power is then exercised through procedures
crafted by the Judicial Conference of the United States. 680 Congress should amend the Rules
Enabling Act to clarify that this delegation of rulemaking power includes the power to craft
social security rules. A committee authorized by the Judicial Conference would then shoulder an
ongoing responsibility for these rules.
Five options exist for the promulgation of a uniform set of procedural rules for
social security litigation. First, the agency and/or a national claimant representative organization
could market an agreed-upon set of best practices to individual judges, for adoption in case
management orders or the like. This option is least promising. A judge-by-judge effort will
almost certainly leave balkanized procedures in place, and the problem of procedural localism
will persist.
A second option is a district-by-district approach. A district could adopt these
recommendations in a general order or as amendments to its local rules. Local rulemaking is
680

28 U.S.C. §§ 2072(a), 2073(a). The discussion that follows simplifies the rulemaking process to a certain extent.
For its details, see, e.g., http://www.uscourts.gov/rules-policies/about-rulemaking-process/how-rulemaking-processworks.

149

preferable because it requires districts to solicit public input and cannot proceed entirely behind
closed doors. 681 Also, amendments to local rules require more process than general orders, and
for this reason may prove more resistant to judicial whim. Finally, an individual judge will have
less leeway to vary a practice when it is prescribed in a local rule instead of a standing order or
the like. In the absence of either of amendments to the Federal Rules of Civil Procedure or
legislation, the broad adoption of a set of model local rules is the best option.
A district-by-district effort at local rules amendment would prove laborious, and surely
some districts might resist. A third option is for Congress simply to legislate the procedural rules
applicable in social security cases. There is some precedent for this sort of lawmaking. 682 It is
an imperfect choice, however, because legislation without an ongoing committee responsible for
amendments as the need arises would freeze the rules in time. If a rule proved problematic, or if
a new rule were needed, Congress would have to pass another statute.
A fourth option is to amend the Federal Rules of Civil Procedure to include specialized
provisions for social security cases where appropriate. The Rules Enabling Act prohibits a rule
that would “abridge, enlarge, or modify any substantive right.” 683 This limitation has disabled
rule makers from crafting a heightened pleading standard for certain categories of claims, for
example. 684 The committees responsible for rules of procedure and practice, however, have
appropriately recognized that certain areas of litigation simply have different procedural needs
that do not implicate the contours of substantive rights. They have responded with appropriately
tailored rules that account for these differences without privileging plaintiffs or defendants in any

681

FED. R. CIV. P. 83(a)(1).
Congress legislated a set of habeas corpus rules in 1976, although their origin and its relationship with the
ordinary rulemaking process is complicated. See generally Robert N. Clinton, Rule 9 of the Federal Habeas Corpus
Rules: A Case Study on the Need for Reform of the Rules Enabling Acts, 63 IOWA L. REV. 15 (1977).
683
28 U.S.C. § 2042(b).
684
David Marcus, The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure, 59 DEPAUL L.
REV. 371, 414 (2010).
682

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systematic fashion. 685 Indeed, local rules are subject to Enabling Act limitations. 686 The many
districts with social security-specific local rules have either gravely erred in their judgments that
such rules are permissible, or the Enabling Act’s limits permit what we recommend here.
Nonetheless, we recommend a fifth option for a mundane but not unimportant reason.
There is no obvious place to locate particularized social security rules in the Federal Rules of
Civil Procedure, in part because they do not include provisions designed for the equivalent of
appellate practice. Many existing rules would have to be amended, in ways that would change
their character fundamentally. Rule 3, for example, presently reads, “a civil action is
commenced by filing a complaint with the court.” 687 It has been amended only once since 1938,
to adjust its style. 688 To account for the recommendations proposed in this Report, Rule 3 would
have to be revised to say something like, “Except in actions brought under 42 U.S.C. § 405(g), a
civil action is commenced by filing a complaint with the court.” Adjustments to Rules 8, 12, 56,
and others would be necessary as well. Rather than fill the Federal Rules with such clutter, the
Supreme Court could approve an amendment to Rule 81(a) adding social security appeals to a
list of actions to which the Federal Rules apply only to the extent consistent with a specialized
procedural regime.
A social security rules advisory committee supervised by the Judicial Conference, with
members appointed by the Chief Justice, should craft this specialized procedural regime. The
benefits of such rulemaking are legion. They include the capacity to draw on empirical research
to inform rule amendments; a process that invites robust participation from stakeholders; and a
commitment to reasoned, expert deliberation. The Supreme Court might already have the
685

See, e.g., FED. R. CIV. PROC. 23.1; FED. R. APP. PROC. 13; id. 15.1.
28 U.S.C. § 2071(a)-(b); 12 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 3153 (updated
2016).
687
FED. R. CIV. PROC. 3.
688
FED. R. CIV. PROC. 3, Adv. Comm. Note.
686

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requisite rulemaking power under the Rules Enabling Act, and likewise the Judicial Conference
might already have sufficient authority to create such a committee. 689 To ensure that the
Enabling Act’s “substantive right” limitation does not deter the Supreme Court or the Judicial
Conference, however, Congress should amend the act to clarify that its delegation of rulemaking
power includes the power to craft social security rules. Legislation enacted in 1964 to give the
Court the power to craft bankruptcy rules offers a model. 690 The Judicial Conference could then
authorize the appointment of a social security rules advisory committee, and the Supreme Court
could eventually approve a uniform set of rules for this litigation.
3. Social Security Rules
Recommendation 3. A uniform set of procedural rules for social security litigation
should contain (a) a rule requiring the claimant to file a notice of appeal instead of a
complaint; (b) a rule requiring the agency to file the certified administrative record
instead of an answer; (c) a rule requiring the parties to exchange merits briefs instead of
motions; (d) a rule setting appropriate deadlines and page limits; and (e) a rule creating
a presumption against oral argument.
Once Congress has acted and a social security rules advisory committee is in place, this
committee and the other institutions involved in rulemaking should consider the following
proposed rules for the uniform procedural governance of social security litigation.
a. Complaints and Answers
Claimants should not have to file complaints in social security cases, and the agency
should not have to file answers. For the most part these documents are needless formalities. 691

689

The Supreme Court has suggested that the exercise of rulemaking power to craft a specialized set of rules for a
particular area of litigation may be appropriate under the Rules Enabling Act. Harris v. Nelson, 394 U.S. 286, 300
n.7 (1969) (inviting the Federal Civil Rules Advisory Committee to draft a set of procedural rules for habeas corpus
litigation).
690
28 U.S.C. § 2075 (“The Supreme Court shall have the power to prescribe by general rules, the forms of process,
writs, pleadings, and motions, and the practice and procedure in cases under title 11.”); see also Alan N. Resnick,
The Bankruptcy Rulemaking Process, 70 AM. BANKR. L.J. 245 (1996); Lawrence P. King, The History and
Development of the Bankruptcy Rules, 70 AM. BANKR. L.J. 217 (1996).
691
E.g., Claimant Representative 6 at 3 (observing that the answer never serves a function). One claimant
representative noted that, if the agency has an affirmative defense like res judicata, he needs to know of its existence
before spending twenty-five hours writing a merits brief. Claimant Representative 1 at 5. This issue could be

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Both sides file boilerplate documents that serve no purpose other than to satisfy the Federal
Rules’ requirements. 692 The exercise of preparing an answer would make sense if it forced OGC
lawyers to conduct an early defensibility analysis and thereby prompted earlier RVRs in
appropriate cases. But none of our interview subjects believes that this outcome materializes. 693
The pleadings are “useless,” to quote a federal judge, 694 and no claimant representative reported
to us that he or she used information in answers to prepare his or her briefs.
Claimants should commence social security cases the same way an appeal begins in the
circuits, with the filing of a single-page notice of appeal. 695 The agency gleans no useful
information from a boilerplate complaint, so this convenience would prove costless. In lieu of an
answer, the agency should simply file the certified administrative record (“CAR”), 696 a practice
that a number of districts already allow, 697 and one that resembles what the Federal Rules of
Appellate Procedure contemplate for other agency appeals. 698 This alternative to the ordinary
process for a case’s commencement would save the lawyers unnecessary work. 699
b. Merits Briefs
Districts require very different procedural vehicles for litigating the merits of the
claimant’s appeal. The most-used vehicle, summary judgment, 700 suits social security litigation

resolved with an appropriate rule requiring the agency to identify any affirmative defenses when it produces the
CAR.
692
OGC Lawyer 1 at 5 (boilerplate); OGC Lawyer 12 at 2 (observing that judges never rely on anything but the
merits briefs); OGC Lawyer 4 at 2 (insisting that the process is meaningless); Claimant Representative 1 at 5
(acknowledging that answers are “pretty formulaic”).
693
OGC Lawyer 9 at 2 (exchanging complaints and answers does “not help[] us figure out the truth and reach
justice”).
694
Federal Judge 9 at 4.
695
FED. R. APP. PROC. 3(a); id. Form 1 (providing an illustrative notice of appeal from a district court decision); id.
Form 3 (providing an illustrative petition for review from an agency decision).
696
Cf. OGC Lawyer 9 at 2 (insisting that it “would be fantastic” to be able to file the CAR in lieu of an answer);
697
E.g., General Order 05-15 Re: Social Security Cases, Actions Seeking Review of the Commissioner of Social
Security’s Final Decision Denying An Application for Benefits, W.D. Wash., June 1, 2015.
698
FED. R. APP. PROC. 17.
699
OGC Lawyer 4 at 2; OGC Lawyer 6 at 2; OGC Lawyer 9 at 2.
700
Denlow, supra note 197 at 106.

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poorly. A magistrate judge aptly summarized Rule 56’s poor fit. Summary judgment asks
whether undisputed facts require the entry of judgment as a matter of law, whereas social
security appeals require judges to review contested factual findings, however deferentially.
Evidence unearthed in discovery gets appended to summary judgment motions; a social security
case requires a judge to review a closed record. A judge can deny a summary judgment motion
and let a case proceed to trial, whereas a social security appeal requires a decision on the
merits. 701
Appellate procedure provides an obvious alternative. 702 The parties should simply
exchange and file merits briefs, a simple process for a simple procedural task. The district court
functions as an appellate tribunal. The parties base their arguments on a closed record, and the
district court employs appellate standards of review for questions of law and fact. Parties do not
engage in discovery. A case that requires a more elaborate procedure, such as what Rule 56
provides, is rare to the point of vanishing.
A vehicle for merits litigation modeled on appellate advocacy may trouble those judges
who prefer either cross motions for summary judgment or joint submissions. The rationale for a
cross motions requirement, which simply doubles the amount of briefing the parties must do,
eludes us. Courts may have fashioned joint submission requirements for worthy reasons. There
are no data to suggest, however, that joint submissions have facilitated earlier requests for
voluntary remand. We appreciate that a joint submission forces the agency to address the
claimant’s arguments point-by-point. An appellate briefing approach would not accomplish the
same end as mechanically. But judges can always hold lawyers responsible for disorganized
briefing. If an agency brief fails to address a claimant’s argument, or vice versa, the judge can

701
702

Id. at 106.
Id. at 126.

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treat the failure as a concession. A few such penalties would likely incentivize lawyers to take
more care with their briefs. Moreover, courts of appeals surely wade through disorganized and
nonresponsive opposition briefs all the time, and they cannot respond by requiring a joint
submission instead of ordinary merits briefs. 703 Judges who single out social security litigation
for this particularly inefficient and burdensome procedure visit costs on these lawyers that others
do not have to bear.
c. Deadlines and Page Limits
The Federal Rules of Appellate Procedure require the appellant to file its opening brief
within forty days of the record’s filing. The appellee then has thirty days to file its response. 704
While circuit briefs will often involve more complicated issues than a typical social security
case, this schedule offers helpful guidance. The typical appellate lawyer probably has lower
caseloads than claimant representatives or OGC lawyers. Also, there is something unfair in
allowing claimant representatives more time to brief than OGC lawyers enjoy. We thus believe
that a modest expansion from the 40-day baseline is appropriate. Claimants should have sixty
days after service of the CAR to file their opening briefs, and OGC lawyers should have sixty
days to respond.
The Federal Rules of Appellate Procedure limit principal briefs to 14,000 words. 705 This
length is excessive for social security appeals, which tend to involve the same legal issues
repeatedly. Judges do not require an elaborate introduction to the law; 706 especially if the agency

703

Rule 32(e) of the Federal Rules of Appellate Procedure requires courts of appeals to accept briefs that comply
with the form requirements of the rule. A circuit rule requiring joint submissions in lieu of briefs would be
inconsistent with Rule 32(e).
704
FED. R. APP. PROC. 31(a)(1).
705
FED. R. APP. PROC. 32(a)(7).
706
Federal Judge 12 at 4 (explaining that experienced clerks do not need five pages of boilerplate to be educated
about social security law); Federal Judge 20 at 6 (insisting that lawyers spend too much time providing information
that judges do not need); Federal Judge 11 at 2 (explaining that page limits helped cut down on briefs with material
that judges do not need); id. at 2 (explaining that judges do not need boilerplate about the five steps); Federal Judge

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and claimant representatives draft a guide to social security law as we suggest below, boilerplate
discussions of background law and the standard of review are unnecessary. With some
exceptions, OGC lawyers and claimant representatives alike expressed comfort with a limit of
20-25 pages, or about 5,000-6,250 words. 707 Every judge we interviewed, save one, 708 indicated
that 25 pages is reasonable but long enough. 709 Indeed, several judges suggested that they view
briefs any longer than this limit as evidence of subpar social security lawyering. 710 We thus
recommend a page limit of 6,250 words, or about 25 pages of double-spaced text in Times New
Roman 12-point font.
d. Oral Argument

16 at 3 (insisting that lawyers include too much in their briefs); Federal Judge 6 at 4 (insisting that “everyone
knows” the basic law). Lawyers should take note of these and other comments that federal judges made to us. One
claimant representative insisted that he had to include basic information in order to orient an inexperienced clerk to
the nuts-and-bolts of social security law. Claimant Representative 7 at 4. If our interviews are any guide, this
intuition is probably mistaken, and the extra text may simply create resentment, not goodwill.
707
Claimant Representative 4 at 4-5 (indicating satisfaction with 25 pages); Claimant Representative 2 at 4
(indicating satisfaction with fifteen pages); Claimant Representative 10 at 2 (indicating satisfaction with 25 pages);
OGC Lawyer 11 at 4 (indicating satisfaction with 25 pages but suggesting that the limit could be lower); OGC
Lawyer 26 at 1 (suggesting that a 20-page limit is fine but that 25 pages are too many); OGC Lawyer 10 at 4
(expressing satisfaction with 20 pages); OGC Lawyer 2 at 3 (suggesting that 20 pages is fine but 25 pages is too
long). But see Claimant Representative 7 at 3 (describing a 25-page limit as “nuts”). Cf. Claimant Representative 1
at 4 (expressing an understanding for why briefs should be limited to 25 pages but worrying that in occasional cases
with a large number of alleged errors the limit will create difficulties).
708
One judge expressed frustration with his district’s rule limiting briefs to 25 pages. To his mind, the rule
addressed a nonexistent problem and doesn’t reflect anything but “animus” toward these cases. Federal Judge 3 at
3.
709
Federal Judge 13 at 3 (25 pages reasonable); Federal Judge 12 at 4 (25 pages reasonable); Federal Judge 20 at 6
(25 pages reasonable); Federal Judge 6 at 3 (25 pages reasonable); Federal Judge 7 at 4 (25 pages reasonable);
Federal Judge 16 at 3 (20 pages reasonable); Federal Judge 19 at 5 (25 page limit not unreasonable, but most
lawyers can do the job in many fewer pages); Federal Judge 4 at 5 (25 pages); Federal Judge 17 at 1 (20 pages).
710
Federal Judge 12 at 4 (suggesting that only “lousy lawyers” submit a 40-page brief); Federal Judge 20 at 6
(suggesting that an author impugns her own writing ability if she cannot write a brief of less than 25 pages); Federal
Judge 19 at 5 (“It’s better to operate with a rifle than a shotgun.”); Federal Judge 17 at 1 (insisting that if a lawyer
can’t make an argument in twenty pages, the lawyer is “in trouble”).

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Oral argument is a tricky issue. OGC lawyers do not like it. The claimant
representatives we interviewed are comfortable with it. Whether to hold oral argument is mostly,
if not always, 711 a matter of individual judicial prerogative.
Oral argument imposes three types of costs. First, judges who hold in-person oral
arguments saddle costs, in terms of travel and time, on lawyers who often litigate in multiple
jurisdictions. 712 Second, an oral argument might proceed months after the parties file their
merits briefs. The lawyers have to relearn their cases, a task that is not insubstantial given the
significant volume of business social security lawyers handle. Third and most important are the
substantial costs that judges who decide cases on the bench after oral argument create. We
appreciate that this method may enable a judge to work through her social security docket more
quickly, as it obviates the need for a written order. But ALJs have more difficulty understanding
bench decisions than written ones. OGC and the Appeals Council have to spend more effort to
translate bench decisions into instructions to ALJs on remand, potentially creating even more
delay for the claimant. Also, the agency must order a transcript, adding to the delay and
expense. We therefore recommend a rule providing that the court will decide an appeal without
oral argument unless specific and compelling reasons exist for why oral argument in a particular
case would provide assistance to the court.
e. Additional Procedural Issues
Our interview subjects mentioned several other procedural issues of concern. One
involves variations in extension practices. A claimant may have to wait longer for a decision
than someone with similar alleged impairments, just because his case happens to be assigned to a
711
E.g., D.N.H. Local Rule 7.1(d) (“Except as otherwise provided, the court shall decide motions without oral
argument. The court may allow oral argument after consideration of a written statement by a party outlining the
reasons why oral argument may provide assistance to the court.”).
712
These costs are less when arguments proceed by telephone or videoconference. If a rule discouraging oral
argument is not adopted, one requiring courts to permit appearances by telephone would be helpful. We understand
that videoconferencing can sometimes prove technically cumbersome for the agency.

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judge who freely grants extensions. Lawyers with heavy caseloads naturally turn to these cases
last. Also, OGC lawyers may be less willing to request voluntary remands when cases proceed
before judges who either refuse to grant extensions or who require substantial advance notice
before issuing them. If a judge requires seven days’ notice, and if an OGC lawyer doesn’t delve
into a case in detail until a few days before a briefing deadline, the OGC lawyer may feel obliged
to brief the case even if she might otherwise seek an RVR. 713 OGC lawyers are reluctant to
justify a last-minute extension request on grounds that the ALJ’s decision seems indefensible,
and that they would prefer a voluntary remand. If the Appeals Council denies the RVR, the
claimant and the court will know that the OGC lawyer may not fully believe in her own
arguments. 714
We appreciate the need for flexibility with regard to extension requests and thus do not
propose a rule regulating them. Nonetheless, we suggest that judges permit at least one
extension as of right, without requiring parties to request extensions more than a day in advance.
Expectations that lawyers ask four or five days before briefing deadlines mesh with the RVR
process poorly and may actually depress the number of voluntary remands. Moreover, lawyers
are understandably anxious about asking for an extension at the last minute. 715 Beyond this first
request, a rule requiring more advance notice for additional extensions strikes us as sensible. A
judge who freely allows three or even four extensions saddles claimants who have already waited
for a decision for years with even more delay. 716

713

OGC Lawyer 11 at 4. One OGC lawyer who litigates before a judge who requires 10 days’ notice for extensions
says she simply doesn’t seek them. She defends even cases that otherwise might be voluntarily remanded “the best I
can.” OGC Lawyer 10 at 1.
714
OGC Lawyer 10 at 4.
715
Cf. Claimant Representative 4 at 5 (observing that it is a “bad practice” to request last-minute extensions).
716
Cf. Claimant Representative 1 at 4 (insisting that he dislikes requesting extensions because his clients are
“suffering”).

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A second issue involves pre-motion letters. A number of factors drive a district’s RVR
rate, including the propensity of OGC lawyers in that region to request voluntary remands. It
stands to reason, however, that a mechanism that prompts lawyers to engage with the merits of a
claim earlier will produce earlier, and thus more efficiently procured, settlements. In districts
that lack these requirements, OGC lawyers often begin their review of a case only days before a
briefing deadline. 717 If an OGC lawyer decides to RVR the case at this point, she does so
months into litigation and after the claimant representative has spent time on and billed hours to
a merits brief. 718
A couple of OGC lawyers conceded that a pre-motion letter can produce expedited RVRs
“if taken seriously.” A two-page letter from the claimant, with issues presented in bullet point
format, can work. The problem, they continued, is that plaintiffs often either send boilerplate
letters, bereft of citations to the record and any arguments tailored to particular cases, or write
lengthy, thirty page letters that differ in no material respect from the merits briefs themselves. 719
We also appreciate that the majority of OGC lawyers dislike pre-motion letter requirements.
At this point more study is needed to determine if pre-motion letters are worth the
additional time and effort that they require. A social security rules advisory committee could
examine this issue by comparing RVR practices and surveying lawyers in districts that do and do
not require them.
4. Education and Communication
Recommendation 4. The Administrative Office of the United States Courts, the Federal
Judicial Center, the Administrative Conference of the United States, and the Social
Security Administration should cooperate on several initiatives to improve
717
E.g., OGC Lawyer 2 at 2 (reporting that he does a defensibility analysis “usually a few days ahead” of a brief’s
due date); OGC Lawyer 26 at 1-2 (reporting that, because of her workload, she has been “a week ahead” in her work
only once during her multiple years working for OGC); OGC Lawyer 10 at 1 (observing that she begins her work on
cases “just a few days out” and suggests her colleagues do as well).
718
Cf. Claimant Representative 12 at 6 (suggesting an early settlement conference idea for these reasons).
719
OGC Lawyer 15 & OGC Lawyer 25 at 5; see also OGC Lawyer 28 at 6.

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communication among the agency, claimant representatives, and the judiciary, and to
educate the judiciary in important aspects of the claims adjudication process. These
initiatives should include the creation of social security standing committees for each
district and the drafting of an introductory manual on social security law and processes.
Judicial ignorance of agency policymaking and adjudicative processes within the agency
might contribute to cultures of distrust that exaggerate the remand rate. Not long ago, a judge in
the Eastern District of Wisconsin complained of “far too many administrative law judges who
are not conversant in Seventh Circuit law” when he chided the U.S. Attorney for attempting to
defend certain ALJ decisions. This judge indicated little understanding of the agency’s policy
toward circuit decisions that it believes to conflict with the Act and regulations. 720 ALJs get
reversed all the time but ignore us, another federal judge bemoaned to us, suggesting a similar
lack of understanding. 721 A number of judges deprecated boilerplate in ALJ decisions, 722
without an apparent acknowledgement of the agency’s attempt to use the FIT template to
improve decision-making and make it more consistent nationally. 723
Better communication could have several helpful effects. First, the agency might respond
more favorably to an adverse court decision if agency officials and lawyers believed that the
courts are knowledgeable and respectful of their processes and the demands they shoulder. 724
Federal courts sometimes temper their application of trans-substantive administrative law
doctrines, such as Chevron or the substantial evidence standard of review, based on detailed
knowledge of how a particular agency’s processes work. 725 The same might be so here. In some
instances, more knowledge might improve the agency’s standing in one judge’s eyes; in
720

Transcript, Mar. 13, 2013, at 14, at www.ssaconnect.com/260-sanctions.
Federal Judge 20 at 6.
722
E.g., Federal Judge 10 at 1; Federal Judge 24 at 3; Federal Judge 8 at 2; Federal Judge 12 at 1.
723
OGC Lawyer 30 at 8 (complaining about judicial complaints that lack appreciation for what the FIT template is).
724
HUME, supra note 273 at 46 (reporting results of interviews with agency officials and observing “that when
judges appear interested in their work and are knowledgeable about their procedures, administrators are more likely
to accept decisions”).
725
See Richard H. Pildes, Institutional Formalism and Realism in Constitutional and Public Law, 2013 SUP. CT.
REV. 1, 21-29.
721

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another’s, it might diminish. 726 Either way, to the extent that judges calibrate their review based
on knowledge of agency processes or a lack thereof, more education and communication can
only help.
Each district should create a standing committee, whose membership could include at
least one district or magistrate judge, an OGC lawyer who litigates regularly in the district, a
respected claimant representative, and personnel from each hearing office within the district.
This committee would ensure a regular and useful flow of information. Federal judges could
explain their concerns about recurring issues, such as the use of problematic boilerplate. 727
Agency lawyers could explain why the boilerplate remains or what steps have been taken to
improve it. 728 If a federal judge has questions about record development, she could ask them of
the agency personnel and the claimant representatives. Claimant representatives and OGC
lawyers could get feedback on briefing and procedural concerns. OGC lawyers could explain the
RVR process to judges and thereby make sense of last minute extension requests that may
otherwise prove confounding to judges. 729 All could discuss what local rules and standing orders
work and which ones cause problems.

726

Federal Judge 8 at 3 (expressing disappointed surprise when we described how decision writing works in hearing
offices).
727
For decisions issued over five years criticizing the same boilerplate that apparently hinges a plaintiff’s symptom
evaluation in part on the ALJ’s RFC finding, see, e.g., Treichler v. Comm’r of Social Security, 775 F.3d 1090, 110203 (9th Cir. 2014); Parker v. Astrue, 597 F.3d 920, 924 (7th Cir. 2010); Hertz v. Colvin, Civ. No. 13-6449, 2015 WL
5773722, at *3-4 (W.D.N.Y. Sept. 30, 2015); Bales v. Colvin, Civ. No. 14-297, 2015 WL 5690763, at *6 (E.D.
Okla. Sept. 28, 2015); Kaighn v. Colvin, 13 F. Supp. 3d 1161, 1173-74 (D. Colo. 2014); Suess v. Colvin, 945 F.
Supp. 2d 920, 928 (N.D. Ill. 2013); Little v. Colvin, Civ. No. 12-300, 2013 WL 2489173, at *5-6 (E.D. Va. June 7,
2013).
728
An OGC lawyer told us that the circular credibility analysis that so many courts have criticized has been
addressed, and that decisions are now “not supposed to be written that way.” OGC Lawyer 18 at 9. The committee
would be a good place for OGC to communicate this and explain when judges could expect to see this language
disappear in the decisions they review.
729
An OGC lawyer told us of an episode involving a magistrate judge who tired of last minute extension requests.
The judge adopted a rule that required extension requests to be filed five days in advance of a briefing deadline. A
“management team” had to meet with the magistrate judge, to explain the realities of agency processes. OGC
Lawyer 2 at 2.

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The only existing channels for communication among various players in the disability
appeals process are either opinions or informal episodes, such as conversations at conferences or
bench-bar meetings. Neither is effective. The latter are too irregular, and they do not necessarily
include all relevant stakeholders. The former are problematic too. ALJs who dismiss the value
of judicial feedback might be particularly inclined to ignore opinions they find harsh,
disrespectful, or otherwise unduly critical. An opinion is also a one-way street and affords ALJs
no opportunity to respond. Nor does it allow claimant representatives to voice concerns about
problems in hearing offices for which district court remands are weak medicine. Also, the
federal courts generate thousands of decisions each year, and the agency may have difficulty
identifying from all of these the more urgent problems judges have identified. Rather than wait
until the decisions accumulate – a period of years, perhaps, during which judicial frustration may
deepen and harden – judges can urge reforms sooner. Lastly, without a different channel for
information flow, efforts in the agency to improve in response to judicial criticism will remain
opaque to judges for a couple of years, due to the lag time between an ALJ’s decision and federal
court review. Without a realistic sense of how long changes take to get reflected in agency
output, a federal judge might become further frustrated.
Finally, the Federal Judicial Center and ACUS should jointly supervise the publication of
a manual describing the disability claims adjudication process in some detail and summarizing
important but basic legal doctrine. 730 This manual could orient new law clerks to issues that
might otherwise prove initially confusing, such as the use of boilerplate in ALJ decisions and the
applicable standard of review. If widely read, this manual would allow attorneys to file
streamlined briefs that omitted repetitive background that only an inexperienced clerk might

730

A model from a very different context is the Manual for Complex Litigation, an immensely helpful text that the
Federal Judicial Center supervises.

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need. Although this manual would need some updating, its focus should remain on how the
disability claims adjudication process works and on fundamentals of social security law. As
such, it should not need constant revision or fine-tuning for particular circuits.
5. Addressing Circuit Variation
Recommendation 5. Congress should not replace the existing system of judicial review
with a specialized court for social security appeals. The Appeals Council should issue
opinions in a set of appeals each year that will benefit from Chevron deference and
thereby reduce circuit-level variation.
Circuit boundaries account for a great deal of the inconsistency among districts.
Differences among the circuits create three chief problems. First is the challenge that
inconsistency poses to the agency’s administration of a single national program. The agency has
responded to this challenge with its acquiescence process, whereby it instructs decision-makers
to honor circuit decisions that conflict with agency policy. Otherwise, the agency attempts to
interpret circuit decisions in a manner consistent with existing agency policy, and thus the
decisions are not treated as offering binding legal instruction. Nine acquiescence rulings are
presently in effect in the Ninth Circuit. No other circuit has more than six. 731 By ignoring all
other circuit decisions, the agency risks the occasional ire of a federal judge who wonders why
ALJ decisions before him repeatedly buck settled case law. But, given the modest number of
circuit decisions in which the agency acquiesces, and in light of the small number of claimant
wins in the courts relative to the overall number of claims the agency adjudicates, circuit
precedent does not seem to be an undue threat to the agency’s capacity to administer a national
program consistently.
The neglect of circuit precedent that does not trigger the agency’s acquiescence process,
however, raises a second concern. Inconsistency among the circuits probably blunts the power

731

See ssa.gov/OP_Home/rulings/ar-toc.html.

163

of case law to influence social security law and policy. Agency noncompliance with case law
grows increasingly untenable if the courts of appeals are united. 732 From the agency’s
perspective, circuit disuniformity may have some value. If judges have questionable competence
to devise articulation or record development requirements, the agency can better ignore judicial
demands if they are confined to a single circuit. From the judiciary’s perspective, however,
inconsistency may weaken efforts to encourage the agency to make what judges believe to be
needed changes.
Finally, inconsistency is a problem if similarly situated claimants are treated differently
based solely on accident of geography. Assuming that not all variation in remand rates is due
merely to variation in the quality of claims, a claimant before a federal judge in Santa Fe has a
much better shot at winning a remand than her exact equivalent in El Paso, in significant
measure because of circuit boundaries. This problem strikes us as the most serious one, and the
one that most deserves a response. 733 But it is also a hard one to address. Individual outlier
judges may have incorrect views of applicable law, and appeals to outlier districts might result
from problems within hearing offices. Differences among the circuits, in contrast, do not reflect
anything dysfunctional but are a normal manifestation of a regional system for deciding appeals.
We do not favor two possible responses to the problem of circuit variation. The first
involves the wholesale replacement of Article III review, presumably with some sort of Article I
court. 734 The arguments for and against specialized courts are many and cannot be summarized

732
Cf. DERTHICK, AGENCY UNDER STRESS, supra note 35 at 143 (observing that the agency’s uniformity-based
justification for disregarding case law “came to be much weakened” by “the high degree of agreement among circuit
courts”).
733
But see MASHAW ET AL., supra note 28 at 111-112 (questioning whether this sort of inconsistency is normatively
problematic).
734
E.g., Verkuil & Lubbers, supra note 23 at 778; MASHAW ET AL., supra note 28 at 147-150.

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concisely here, 735 but one argument against is particularly apt. The Appeals Council, a
specialized appellate body, already reviews ALJ decisions. At minimum, an additional layer of
specialized appellate review would have to have a much smaller caseload to add anything
distinctive. Otherwise, the specialized court might exhibit the same limitations as any other
high-volume adjudicative body with a specialized docket. 736 Claimants presently take nearly
20,000 appeals to the federal courts. Congress would have to create an enormous specialized
court to ensure that appeals from the agency receive anywhere near the time and attention the
district courts presently give them. 737
A less dramatic reform would retain district court review but give the Federal Circuit
exclusive appellate jurisdiction. By removing the other courts of appeals from the system, this
change would ensure that only a single set of precedential decisions would govern social security
litigation. We doubt, however, that the agency would find this reform an improvement. First,
we are skeptical that Federal Circuit review would in fact engineer uniformity in social security
case law. The Federal Circuit issues very few precedential decisions in veterans’ benefits
cases. 738 This phenomenon results partly from the size of this part of its docket 739 and partly
from the limited scope of review that the Federal Circuit has for these cases. 740 But it also might
also reflect the Federal Circuit’s felt identity as the national patent court, an identity that might

735
For a very useful discussion in the context of veterans’ claims, see, e.g., Michael Wishnie, Emerging Issues in
Veterans Law, at 12-23 (unpublished draft, on file with authors).
736
E.g., James D. Ridgeway et al., “Not Reasonably Debatable”: The Problems With Single-Judge Decisions by the
Court of Appeals for Veterans Claims, 27 STAN. L. & POL’Y REV. ___ (2015).
737
In FY 2014, the Court of Appeals for Veterans Claims received more than 260 appeals per judge. See Annual
Report, U.S. Court of Appeals for Veterans Claims, Oct. 1, 2013, to September 30, 2014 (Fiscal Year 2014). All
things held equal, a social security court with this per capita caseload, which is already quite high, would require
seventy-five judges.
738
Paul R. Gugliuzza, Veterans Benefits in 2010: A New Dialogue Between the Supreme Court and the Federal
Circuit, 60 AM. U. L. REV. 1201, 1252 (2011).
739
See, e.g., www.cafc.uscourts.gov/sites/default/files/the-court/statistics/appeals_filed_in_major_origins_10year_06-15.pdf.
740
38 U.S.C. § 7292(a).

165

relegate its non-patent docket to a second-class status. 741 Were the Federal Circuit to display a
lack of interest in its social security docket, the paucity of appellate guidance would leave district
courts to drift in their own directions. While the agency would have only a single circuit’s set of
decisions to deal with, inconsistency might actually worsen, as districts within the same circuit
would have less legal glue holding them together.
Even if the Federal Circuit took an active interest in its social security docket, the agency
and social security claimants might be worse off. While active Federal Circuit involvement
might produce more uniformity among the districts, it might also produce instability in
governing law. 742 The Federal Circuit constantly remakes patent law, probably in part due to its
proprietary interest over the field. 743 Were the Federal Circuit to develop the same proprietary
interest in social security law, the agency would constantly have to negotiate with the court for
control over key doctrines. Finally, the addition of 650 or so appeals annually to the Federal
Circuit’s workload would expand it by about 25%, a significant increase that would come at the
expense of time spent on other cases.
We support leaving the existing system in place, as the benefits of uniformity and
consistency that either alternative would promise are either too speculative or too modest to
compensate for the costs of specialized review. A third alternative might lead to more
uniformity and consistency without replacing the present structure. The Board of Immigration
Appeals (“BIA”) selects a very small number of cases out of its voluminous docket for decision
by full-dress opinion, issued after consideration by a panel of adjudicators. 744 Generally

741

On the identity of the Federal Circuit as a national patent court, see Paul R. Gugliuzza, The Federal Circuit as a
Federal Court, 54 WM. & MARY L. REV. 1791, 1857 (2013).
742
We are grateful to Paul Gugliuzza for suggesting this idea.
743
Paul R. Gugliuzza, Saving the Federal Circuit, 13 CHI.-KENT J. INT. PROP. 350, 352-355 (2014).
744
In 2014, the BIA decided 28 cases by full opinion, out of 30,000 total cases completed. See
www.justice.gov/eoir/precedent-decisions-volume-26;
www.justice.gov/sites/default/files/eoir/pages/attachments/2015/03/16/fy14syb.pdf.

166

speaking, these BIA decisions receive Chevron deference from the federal courts, 745 a doctrine
designed in part to produce greater uniformity in the judicial interpretation of federal statutes. 746
The Appeals Council could do the same. It could instruct analysts to look out for cases that
involve uncertain or inconsistent interpretations of the Act or regulations. A qualifying appeal
could be taken out of the ordinary appeals process and reviewed by a panel of AAJs, for decision
by opinion.
Were the Appeals Council to act on this recommendation, one urged previously by
ACUS, 747 it should craft a process that would give claimant representatives and concerned
organizations ample opportunity to participate in any case that might produce a precedential
decision. This process should include notice of the case and its issues and an invitation to
interested parties to submit amicus briefs or otherwise participate.
B. Suggestions for the Agency
The scope of our Report does not permit us to comment on everything about disability
claims adjudication that we believe could improve. 748 Nonetheless, we believe that the agency
should consider a variety of initiatives in addition to what it currently pursues. Consistent with
our charge, we limit our suggestions for improvement to aspects of agency processes that
intersect with the federal courts.
Suggestion 1. The agency should investigate further the relationship between hearing
office performance and work environment, on one hand, and remand rates in district
courts, on the other.

745

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999).
E.g., Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 MICH. L. REV. 885, 926-927
(2003).
747
ACUS Recommendation 87-7, A New Role for the Social Security Appeals Council, 1 C.F.R. § 305.87-7(1)
(1993).
748
For example, we are convinced that the eBB needs significant improvements if it will have the ameliorative
effect that the agency hopes. We also believe that the How MI Doing? tool needs adjustments, especially to
emphasize decisional quality more expressly.
746

167

We argue in Part IV that district-wide cultures explain a good deal of the variation in
remand rates from one federal district to the next. We conclude with the hypothesis that appeals
to various districts may involve ALJ decisions of uneven quality, and that these differences may
explain in part why districts have different cultures. The agency should investigate this
hypothesis further. As argued, we doubt that district courts will view their remand rates as
aberrational or as evidence of too stringent or too lenient review unless they are convinced that
the inputs for decision-making – that is, ALJ decisions – do not vary geographically.
Suggestion 2. The agency should add bottom-up, localized experiments to their quality
assurance initiatives. This experimentation could include a pilot project in several
hearing offices that uses district court decisions for guidance and critique.
The agency’s attempts to improve decisional quality have included a number of ventures
pursued by personnel in its headquarters, including mapping out 2,000 policy compliant
pathways to decisions, analysis of large amounts of data to identify recurring problems, and
focused reviews that may prompt “senior managers and executives” to take corrective actions. 749
These initiatives are consistent with what scholars have identified as efforts in public
administration to “strongly reduce[] the scope of administrative discretion.” 750 The agency
should consider a different, but complementary, approach to quality assurance that scholars in
another context have called “experimentalism.” 751 These are bottom-up, localized experiments
that do not involve “a top-down form of supervision,” as Daniel Ho puts it, but rather “a method
for mutual, all-around learning . . . .” 752

749

Ray & Lubbers, supra note 225 at 1593; id. at 1598.
Mark Bovens & Stavros Zouridis, From Street-Level to System-Level Bureaucracies: How Information and
Communication Technology is Transforming Administrative Discretion and Constitutional Control, 62 PUB. ADMIN.
REV. 174, 177 (2002)
751
See generally Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L.
Rev. 267 (1998); see also Daniel E. Ho, Does Peer Review Work? An Experiment of Experimentalism, 69 STAN. L.
REV. __ (forthcoming) (on file with authors) (discussing and testing experimentalism in the context of one type of
high volume agency adjudication).
752
Ho, supra note 751 at 31.
750

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The agency could challenge hearing offices to devise their own quality assurance
initiatives and thereby learn from a variety of experiments. A hearing office, for example, might
use district court decisions as a basis for possible improvements. The office could prepare a
memorandum regularly, perhaps every six months, that summarizes and analyzes all relevant
district and circuit court opinions. This memorandum should identify trends in district court
decision-making and compare the latest appellate case law to existing agency policy. ALJs
should meet to discuss this memorandum, with three objectives in mind: (1) to identify problems
that district courts have identified with agency decision-making; (2) to identify federal judicial
preferences that can be accommodated without producing a conflict with agency policy; and (3)
to identify judicial preferences that, if honored, would occasion a rupture with agency policy. 753
ALJs should not go through this exercise in order to craft their own idiosyncratic
approaches to disability determinations, or to eschew agency policy in favor of fidelity to case
law. If the hearing office discovers a different but policy-compliant preference for the analysis
of a particular issue – drug and alcohol materiality, for instance 754 – ALJs could consider
addressing the courts’ concerns going forward. But the hearing office should immediately
communicate any adjustment to decision making based on case law to headquarters, to enable
agency officials to confirm that the hearing office’s decisions remain policy compliant. Also, if
the hearing office identifies a trend in a district court that conflicts with the agency’s approach to
an issue, for example, the office should report this clash so that the agency can consider an
appropriate response.

753
An ALJ or someone working within the hearing office should prepare this memorandum, for several reasons.
While an OGC lawyer may be best situated to do so, a couple of OGC lawyers mentioned that they have
encountered some resistance from ALJs when offering feedback. Moreover, such experimentalist methods of
performance management are premised on peer review and evaluation. OGC Lawyer 2 at 4; OGC Lawyer 11 at 6.
754
We use this example because a federal judge told us that agency indifference to case law on this issue causes
unnecessary remands. Federal Judge 19 at 6.

169

The agency can use this exercise or one like it as an opportunity for bottom-up reform.
These memoranda and the dialogue with headquarters that they would catalyze could allow ALJs
to participate in a structured conversation with the agency about best approaches to policy
compliant decision-making. A common lament from ALJs is that agency headquarters does not
always listen to them. This exercise could address this concern.
This proposal is just one of many such experiments or pilot projects the agency could
allow in an attempt to leverage hearing office wisdom more aggressively. Our specific
suggestion has a particular motivation. It comes from our interviews of ALJs working within the
low remand district, who believe that this exercise, or a version of it, has improved their
decision-making.
Also, our suggestion would offer the agency a way to test the educative value of case law.
The agency discourages ALJs and decision writers from citing case law, and it does not typically
grant RVRs based on inconsistency with case law. Only after the agency issues an acquiescence
ruling will it honor a circuit opinion as binding, and district court opinions are never proper
authorities. This policy makes a certain amount of sense. Were ALJs and decision writers to try
to follow case law, the agency would necessarily sacrifice its legitimate pursuit of consistency in
the implementation of a single national program. Case law differs from circuit to circuit, and
district court decisions would add innumerable variations into the mix. Also, attempted fidelity
to case law would multiply the sources that ALJs and decision writers would try to honor,
amplifying the likelihood that idiosyncratic applications of the Act and regulations would
produce inconsistent results.
We wonder, however, whether a bright-line rule against attention to case law sends the
best signal to agency personnel about the legitimacy and educational value of federal judicial

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feedback. Attention to case law and an attempt to honor federal court preferences may indeed
create inconsistency and administrative burden. 755 But the notion that ALJ regard for case law
can seriously threaten the consistent implementation of a single national policy strikes us, as well
as a couple of OGC lawyers we interviewed, as overstated, 756 especially if controlled in the
manner we suggest.
Decision writers should be involved in such initiatives as well. As we argue below, the
work they do is centrally important to the quality of ALJ decisions. By reviewing decisions
together, ALJs and decision writers can identify together what worked and what did not. An
ALJ can point out recurring issues with a decision writer’s drafts; a decision writer can identify
recurring problems with the ALJ’s instructions.
The agency stressed to us the efforts it has undertaken to improve consistency and policy
compliant decision-making; it worried that our suggestion might counteract some of its efforts
and encourage renegade approaches to claims adjudication. We appreciate these concerns and
for this reason suggest that the agency experiment with this idea as a pilot project. It could then
test whether district court opinions provide useful guidance and whether they interfere with
policy compliant decision-making. Bottom-up, experimentalist approaches to quality assurance
have demonstrated significant potential elsewhere. 757 If not our suggestion, we encourage the
agency to pursue one like it.
Suggestion 3. The Social Security Administration and the Administrative Office of the
U.S. Courts should provide the federal judiciary with a database listing district and
magistrate judge decision rates.
755

For example, the Fourth Circuit requires that an ALJ give “substantial weight” to the disability determination of
the Veterans’ Administration. Bird v. Commissioner of Social Security, 669 F.3d 337, 343 (4th Cir. 2012). The
applicable Social Security Ruling, in contrast, insists only that VA findings “cannot be ignored and must be
considered.” Soc. Sec. Ruling 06-3p.
756
OGC Lawyer 23 at 3 (agreeing with this thought); OGC Lawyer 31 at 5 (insisting that ALJs could both attend to
judicial preferences and honor agency policy “90%” of the time).
757
See generally Ho, supra note 751 (describing the encouraging results of an experiment with peer review
conducted by an agency that adjudicates a high volume of issues and has struggled with consistency).

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A district-wide aberrational remand rate might indicate underlying problems with ALJ
decisions flowing into the court. When a single judge within a district has an aberrational
remand rate, in contrast, the judge’s idiosyncratic views of social security law and policy might
be responsible. The luck of the draw – the judge to whom a case happens to be assigned –
produces different outcomes for otherwise similarly situated claimants. Consistency, a value that
a system of adjudication ought to serve, is frustrated. Moreover, consistency is a decent proxy
for accuracy. If they are deciding substantial numbers of cases, rather than just a potentially nonrepresentative handful, outlier judges are perhaps wrong on the law. 758
As we reported in Part IV, judges rarely diverge all that significantly from others within
their district. Still, individual judge idiosyncrasy, to the extent that it is a problem, merits a
response. The availability to judges of a database that includes remand rates, broken down by
judge, might help. 759 Such data are available for immigration judges, for social security ALJs,
and for federal judges with respect to their sentencing decisions. In the case of immigration
judges, these data produced significant scrutiny and public outcry, and ultimately they prompted
the Attorney General to respond. These immigration judge data have also given reviewing
courts a way to calibrate their review of particular decisions. 760 Some version of this benefit
might result from the availability of district and magistrate judge data. The Fourth Circuit, for
example, might review a district judge differently if it knew that the judge’s decision pattern
deviated from a district’s mean.

758

Legomsky, supra note 443 at 425 (explaining why inconsistent adjudicators are likely incorrect).
A database hosted by Syracuse University compiles judge-specific sentencing data, so precedent for this sort of
information gathering and publication exists. See http://trac.syr.edu/judges/aboutData.html.
760
For a different but related example, see Hu v. Holder, 579 F.3d 155, 158-59 (2d Cir. 2009). There, the Second
Circuit refused to defer to an immigration judge’s assessment of demeanor evidence because the IJ made findings
four years after the asylum applicant testified. The Second Circuit supported this determination with data indicating
how many asylum applications the IJ had ruled upon between the applicant’s hearing and the issuance of his
decision. Id. at 159.
759

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These data should also document district-level variations. Such differences are more
important than disparities in outcomes produced by outlier judges. District and magistrate judges
and agency officials alike should know if a district deviates from its circuit’s mean, and circuit
judges should know if the mean of districts within their court’s boundaries deviates from the
national one. This information is a first step toward understanding what is going on within a
particular district. Perhaps the problem is the jagged quality of ALJ decisions. Perhaps it is
inadequate Appeals Council review. But it also might result from decisional heuristics that are
misleading federal judges within a district.
Suggestion 4. The Social Security Administration should attempt to quantify the “false
positive phenomenon,” or the number of court remands that, once adjudicated again, do
not result in the payment of benefits.
Agency officials complained to us of the cost of remands in terms of demands on agency
time. But these costs mean nothing on their own. If court remands generate benefits for
claimants who are in fact entitled to them, then the advantages of the more accurate
implementation of disability policy may exceed the costs of judicial review. A true positive in
this context is an agency denial reversed by a district court that properly results in the payment of
benefits. A false positive is a claim correctly denied by the agency the first time around that a
district court nonetheless remands. The value of district court review by a utilitarian metric
depends, at least in part, on whether true positives exceed false positives. If so, the additional
costs that remands create are probably justified. If not, a case for more deferential judicial
review is stronger.
Federal judges have little idea what happens to claims on remand. The agency should
gather information about ultimate outcomes and make it available to federal judges. If a federal
judge remands an unusually small number of claims and all end up getting paid, she might take

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another look at applicable law, to make sure that her understanding of it is not erroneous. If a
colleague who remands an unusually large number of claims learns that only 25% get paid, he
might do the same.
Such data would be too blunt, at least in one respect. False positives, as we have defined
them, would include instances where the judge does not have any opinion as to the merits of the
claim but instead remands due to some legal error in the ALJ’s order. One the ALJ performs the
required analysis, he may well still deny the claim. But the federal judge’s decision may well
have been the right one on the law. 761 Still, by comparing his numbers to a colleague’s in the
same district, a judge can get some rough sense of how many remands are really false positives.
If 30% of an outlier judge’s remands get paid benefits, while 70% of a colleague’s remands get
paid, the outlier judge might be encouraged to revisit his understanding of social security law.
Suggestion 5. To the extent possible, the Social Security Administration should require
that hearing offices assign court remands to the same decision writers who worked on the
cases the first time.
Decision writers are the least visible participants in the disability claims process. 762
Within the agency, of course, decision writers have well established and clear roles. But in
various communications with us, agency officials repeatedly downplayed their centrality. The
agency declined our request for data on decision writers’ remand rates, for example, on grounds
that ALJ responsibility for decisions that go out under their names renders information about
decision writer performance irrelevant. We appreciate that the ALJ, not the decision writer, is
the decision maker. But time pressures may preclude an ALJ’s extensive review of a decision
761

The agency could refine its classification scheme to separately identify cases that did not result in the payment of
benefits but were nonetheless correctly remanded. Doing so would require a qualitative assessment of claims that
get denied on remand, to identify those that the agency agrees were rightly remanded.
762
One federal judge told us that he only learned of decision writers’ existence twelve years and countless social
security appeals into his career on the bench. Federal Judge 6 at 4. A permanent clerk for one district judge with
several years of experience was unaware that they existed. Federal Judge 8 at 3. See also Transcript, Mar. 13, 2013,
at 14, at www.ssaconnect.com/260-sanctions (quoting a district judge referring to decision writers as
“ghostwriters”).

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writer’s draft, and decisions therefore may reflect the writer’s analysis as much as the ALJ’s for
certain issues. 763 Decision writer competence is key.
The agency has long had a policy of returning a court remand to the same ALJ who
decided it in the first instance. 764 This policy frustrates some claimant representatives, 765 but it
strikes us as a useful way to ensure that ALJs receive important feedback. This policy should
include decision writers as well. 766 Decision writers can learn of remands from How MI Doing,
but few, if any, of those whom we interviewed knew that they could get information about their
performance from it. A requirement that decision writers be assigned to remands of decisions
they drafted would ensure that they appreciate why their drafts failed appellate scrutiny the first
time. A decision writer might not remember the draft that he wrote the first time around, having
written so many in the interim. But he also could not dismiss the feedback as a comment on
someone else’s work, and thus he is more likely to learn from it. 767
Suggestion 6. The Social Security Administration should study the issue of an OGC
attorney’s ethical obligations and, where appropriate, provide clearer guidance.
We detected two understandings of the OGC lawyer’s role in our interviews. First, some
OGC lawyers treat the agency as their client, with duties attendant to this relationship that
include zealous advocacy. 768 This conception came up in conversations with us about RVR
practices. Although the threshold for when to request a voluntary remand differs around the

763
See Letter from Frank A. Cristaudo, Chief Administrative Law Judge, to Colleagues, Dec. 19, 2007, at 2 (on file
with authors) (“We . . . ask the attorneys and paralegals to provide draft decisions that require little or no editing.
We do not want the ALJ, or anyone else, to waste precious time re-drafting decisions.”).
764
There are some exceptions to this policy. For ALJ case assignment policies, see generally HALLEX, supra note
38 § I-2-1-55.
765
Some believe that an ALJ who denied a claim the first time around may be particularly predisposed to doing so a
second time. E.g., Letter from Timothy Cuddigan & Barbara Silverstone to David Marcus, Aug. 14, 2015, at 13-14
(on file with the authors).
766
One experienced decision writer told us that she has argued for such a policy until she has been “blue in the
face.” Decision Writer 2 at 2.
767
A decision writer explained to us that, unless confronted with his or her own errors, a decision writer will dismiss
a court remand as a comment on someone’s competence. Decision Writer 2 at 4.
768
E.g., OGC Lawyer 31 at 4.

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country, 769 several OGC lawyers we interviewed described an attitude of “defend the case,
defend the case.” 770 An Appeals Council analyst offered a second understanding of the role;
OGC lawyers operate in part as a backstop that can catch errors that might slip past the Appeals
Council. An OGC lawyer agreed with this view. 771 ODAR is “numbers-oriented” because of its
huge volume, this lawyer told us, whereas OGC is “more quality-oriented.” When a case has a
“really complicated record,” he continued, “I might have been the first person to take substantial
time to look at it.” 772 Conceived of as a backstop, an OGC lawyer’s job is less the zealous
advocate and involves a more neutral task.
The ethical obligations of government counsel are notoriously complicated. 773 Based on
our interviews of thirty-one OGC lawyers, we hypothesize that inconsistent understandings of
what these obligations require prevail. The agency should study this issue more
comprehensively, to determine if OGC lawyers indeed harbor different conceptions of their
duties. This study could be the basis for more precise ethical guidance. In discussions with us,
for example, the agency challenged the neutral conception of the OGC lawyer’s role, suggesting
that, after multiple layers of review, the agency is entitled to have its position defended
vigorously in court. If this is so, the agency should make its position explicit. Our interviews
revealed that at least some personnel within the agency think differently at present.
769

OGC Lawyer 26 at 2; OGC Lawyer 2 at 2.
OGC Lawyer 13 at 1; OGC Lawyer 9 at 2 (noting that his office makes a policy of defending an appeal whenever
it can); OGC Lawyer 7 at 3 (describing an emphasis in his office to reduce RVRs); OGC Lawyer 10 at 2 (describing
how OGC lawyers would be congratulated if their RVR rates declined); OGC Lawyer 18 at 4 (describing how RVRing a case is not part of her mindset); OGC Lawyer 31 at 3 (describing a culture “not to RVR” and noting that he has
litigated cases his “gut” says not to); OGC Lawyer 5, Second Interview at 5 (insisting that she would RVR only an
“absolutely indefensible case”); OGC Lawyer 24 at 4 (insisting that she “will defend unless I have absolutely
nothing to say”).
771
Others did not. OGC Lawyer 18 at 4.
772
OGC Lawyer 31 at 3. Another OGC lawyer recounted that, when he was hired, he was told that he as an OGC
lawyer wore three hats – one for the agency itself, one for the taxpayer, and one for the claimant. OGC Lawyer 11
at 3. The claimant “hat” is inconsistent with an attitude of “defend the case, defend the case.”
773
E.g., Note, Government Counsel and Their Obligations, 121 HARV. L. REV. 1409, 1412-1416 (2008); FreeportMcMoRan Oil & Gas Co. v. F.E.R.C., 962 F.2d 45, 47 (D.C. Cir. 1992) (insisting that “government lawyers have
obligations beyond those of private lawyers”).
770

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***
We close with a final thought. Ultimately, all stakeholders have an interest in reducing
district court remand rates, provided that the reduction results from significant improvements in
the quality of agency adjudication. A variety of factors determine the rate at which claimants
prevail in the district courts: claim quality; the contours of the multi-layer process of agency
review; claimants’ beliefs about their chances of succeeding in the district courts; the quality of
claimant and agency lawyering; variation in applicable circuit law; and judicial preferences and
choices. In the presence of such a complex set of interactions, it is difficult to say with any
confidence what impact on the claimant win remand rate any particular reform would have. We
nonetheless believe that only a dramatic reduction in ALJ caseloads could permit significant,
across-the-board improvements in decision-making quality sufficient to cause the federal court
remand rate to plummet sharply. To avoid a spike in the backlog of claims, the size of the ALJ
corps would have to increase. Ultimately, this may be the most important reform of all.

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