Achieving Greater
Consistency in Social
Security Disability
Adjudication: An Empirical
Study and Suggested
Reforms

Harold J. Krent
IIT Chicago-Kent College of Law

Scott Morris
IIT College of Psychology
April 3, 2013
This report was prepared for the consideration of the Administrative Conference of the United States. The views
expressed are those of the author and do not necessarily reflect those of the members of the Conference or its
committees.

ADMINISTRATIVE CONFERENCE
OF THE UNITED STATES

TABLE OF CONTENTS
INTRODUCTION .................................................................................................................... 1
METHODOLOGY ................................................................................................................... 3
I.

STRUCTURE OF SSI AND SSDI ADJUDICATION ............................................................ 4

II.

DATA ANALYSIS ........................................................................................................ 10
A.

Summary of Statistical Analysis of ALJ Variances ........................................... 14
1.

Distribution of Disposition Frequencies ......................................................... 14

2.

Distribution of Allowance Rates .................................................................... 15

3.

Identifying Outliers......................................................................................... 16

4.

Changes in Disposition Outcomes Over Time ............................................... 21

B.

Correlation Between High Number of Dispositions and Allowances................ 24

C.

Difference Between Video and Non-Video Hearings ........................................ 28

III.

IMPACT OF INCREASED CASELOAD ON ALJ ALLOWANCE RATES ........................... 29
Recommendation 1 - Annual ALJ Disposition Goal ................................................ 34

IV.

CASE MANAGEMENT .............................................................................................. 34

A.

Requiring Presentation of Information Before the Hearing ............................... 36
Recommendation 2 – Pre-Hearing Briefs by Claimants or Their Representatives .. 41

B.

Enhancing Communication Between ALJs and Decisionwriters ...................... 42
Recommendation 3 –Assignment of Decisionwriters to ALJs ................................. 43

V.

VIDEO HEARINGS ....................................................................................................... 44
Recommendation 4 - Use of Video Hearings ........................................................... 49

VI.

ASSESSING THE APPEALS PROCESS ......................................................................... 50

A.

Appeals Council Functions ................................................................................ 50

B.

Error Correction Goals ....................................................................................... 54

C.

Improving the Appeals Council’s Role & Function........................................... 60
Recommendation 5 – Rotation of ALJs to Serve on the Appeals Council ............... 60
Recommendation 6 - Publication of Appeals Council Decisions ............................. 61
Recommendation 7 – Distribution of SSA Office of General Counsel
Memoranda ............................................................................................................... 62
Recommendation 8 – ALJ Drafting of Decisions on Remand from Federal
Courts ........................................................................................................................ 62
Recommendation 9 – Expansion of Own Motion Review by the Appeals Council
................................................................................................................................... 63
Recommendation 10 - Use of Statistical Sampling and Other Neutral Criteria to
Focus Discretionary Review by the Appeals Council .............................................. 69
i

Recommendation 11 – Expansion of SSA’s Statistical Quality Assurance
Programs ................................................................................................................... 70
D.

Consideration of More Extensive Reform of the Appeals Council ................... 72
Recommendation 12 - Adoption of Appeals Council Audit Function ..................... 77

VII.

DDS RECONSIDERATION LEVEL ............................................................................. 79
Recommendation 13 - Considerations for SSA to Evaluate Before Reinstitution of
Reconsideration in Prototype States ......................................................................... 81

VIII.

CONTINUING DISABILITY REVIEW....................................................................... 81
Recommendation 14 - Amendment of the Social Security Act to Include “Term”
Disabilities ................................................................................................................ 86

LIST OF TABLES
Table 1: Extreme Values for Number of Dispositions and Allowance Rates
(FY 2011) .......................................................................................................................... 20
Table 2: Number of ALJs with Multiple Years in the Top and Bottom 1% of the
Disposition Frequency and Allowance Rate Distributions (FY 2009 – 2011) ................. 20
Table 3: Changes in Allowance Rates (2009 – 2011)....................................................... 23
Table 4: Annual Distribution of ALJs with Allowance Rates Substantially Above and
Below the Mean ................................................................................................................ 24

LIST OF FIGURES
Figure 1: Distribution of Yearly Number of Dispositions ................................................ 15
Figure 2: Distribution of Yearly Allowance Rate (Fully or Partially Favorable
Decisions) ......................................................................................................................... 16
Figure 3: Average Yearly Disposition Frequency Over Time .......................................... 22
Figure 4: Average Allowance Rate Over Time ................................................................ 23
Figure 5: Disposition Outcome Rates for ALJs Close to Yearly Disposition Goal.......... 27
Figure 6: Predicted Allowance Rate for Video Hearings (2011) ...................................... 29

ii

INTRODUCTION
Adjudication of social security disability claims has received great attention, both
because of the increasing number of claims adjudicated each year 1 and because of
perceived problems of inconsistencies in adjudication. 2 Administrative Law Judges
(“ALJs”) adjudicate roughly 800,000 cases a year, 3 and social security disability cases
represent about 5% of the entire number of civil cases filed in U.S. district courts 4 and
one-third of all civil cases involving the federal government. 5 The adjudication system
has been plagued by delays, with substantial backlogs preventing needy individuals from
receiving their due. 6 Moreover, the sharply divergent allowance rates among ALJs, 7
strongly suggest that the claims are being resolved in an inconsistent manner, which
undermines the integrity of the benefits system. ALJs labor under a SSA target of

1

SOC. SEC. ADVISORY BOARD, ASPECTS OF DISABILITY DECISION MAKING: DATA AND MATERIALS 54 fig.
49 (2012), available at http://www.ssab.gov/Publications/Disability/GPO_Chartbook_FINAL_06122012.
pdf [hereinafter ASPECTS OF DISABILITY DECISION MAKING].
2
Damian Paletta, Disability-Claim Judge Has Trouble Saying ‘No’, WALL STREET J., May 19, 2011; Adam
Smeltz, Explosion of Disability Payouts Hobbles Program, PITTSBURGH TRIB.-REV., Aug. 11, 2012.
3
SOC. SEC. ADMIN. ANNUAL PERFORMANCE PLAN FOR FY 2013 AND REVISED PERFORMANCE PLAN FOR FY
2012 13 (2012), available at http://www.ssa.gov/performance/2013/FY%202013%20APP%20and%
20Revised%20Final%20Performance%20Plan%20for%20FY%202012.pdf [hereinafter ANNUAL
PERFORMANCE PLAN].
4
U.S. DISTRICT COURTS – CIVIL CASES FILED, BY NATURE OF SUIT tbl. 4.4, available at http://www.
uscourts.gov/uscourts/Statistics/JudicialFactsAndFigures/2010/Table404.pdf (last visited Feb. 24, 2013).
5
U.S. DISTRICT COURTS – CIVIL CASES COMMENCED, BY BASIS OF JURISDICTION AND NATURE OF SUIT,
DURING 12-MONTH PERIODS ENDING DECEMBER 31, 2010 AND 2011 tbl. C-2, available at http://www.
uscourts.gov/uscourts/Statistics/StatisticalTablesForTheFederalJudiciary/2011/Dec-11/C02Dec11.pdf (last
visited Jan. 30, 2013).
6
Reducing the backlog is an SSA priority. ANNUAL PERFORMANCE PLAN, supra note 3, at 11.
7
Using data provided by SSA on adjudication outcomes from FY 2009 to FY 2011, we found an average
allowance rate of 56%, and a standard deviation (“SD”) of 15%. STATISTICAL APPENDIX – ANALYSIS OF
ADMINISTRATIVE LAW JUDGE DISPOSITION AND ALLOWANCE RATES (FISCAL YEARS 2009 – 2011) 13 (Apr.
3, 2013) [hereinafter STATISTICAL APP.]. The yearly allowance rates ranged from 4% to 98%, with 95% of
the rates falling between 26% and 85%. Id. at 13-14. Additional information on the data analysis is
provided in Part II; see also http://www.ssa.gov/appeals/DataSets/03_ALJ_Disposition_Data. html (listing
disposition rates for all SSA ALJs). Note that the terms “allowance,” “grant,” and “favorable” are used
interchangeably in this report.
1

adjudicating 500-700 cases a year. 8 Although substantial progress has been made to
minimize delays in adjudicating claims, the 350-day median wait 9 for a hearing before an
ALJ is still unconscionable from the perspective of claimants who frequently are in dire
need. 10
Suggestions for reform range from creating a new Article I court system to handle
such claims, as with veterans’ claims, 11 to requiring a government representative to
participate in ALJ hearings. 12 Alterations in the adjudication system may ensure more
consistent results and possibly save hundreds of millions of dollars annually.
The purpose of the current study is not to reinvent the wheel but to consider
whether, after reading the voluminous commentary previously written, interviewing a
range of interested parties and assessing statistical data, reforms can be suggested either
to streamline the adjudication process or help ensure consistency among ALJs, the
Appeals Council (“Council”), and federal courts in assessing disability claims. A
consensus exists in the academy and among commentators that the disparities in
allowance rates among ALJs are alarming because, by and large, the claims share similar

8

SSA’s Chief ALJ articulated the goal in a 2007 Memorandum. SOC. SEC. ADMIN. OFFICE OF THE
INSPECTOR GENERAL, CONGRESSIONAL RESPONSE REPORT: OVERSIGHT OF ADMIN. LAW JUDGE WORKLOAD
TRENDS, A-12-11-01138, at 3 n.4 (Feb. 2012) [hereinafter OVERSIGHT OF ALJ WORKLOAD TRENDS].
9
See Hearing Before the Subcomm. on Soc. Sec. of the H. Comm. on Ways & Means, 112th Cong. (June
27, 2012) (statement of Michael J. Astrue, Comm’r, Soc. Sec. Admin.), available at http://waysandmeans.
house.gov/uploadedfiles/astrue_testimony.pdf [hereinafter Astrue Testimony].
10
ASPECTS OF DISABILITY DECISION MAKING, supra note 1, at 66 fig. 61 (2012).
11
See Paul R. Verkuil & Jeffrey S. Lubbers, Alternative Approaches to Judicial Review of Social Security
Disability Cases, 55 ADMIN. L. REV. 731, 778 (2003) [hereinafter Alternative Approaches]; Richard E.
Levy, Social Security Disability Determinations: Recommendations for Reform, 1990 B.Y.U. L. REV. 461,
528 (1990).
12
STAFF OF S. COMM. ON HOMELAND SEC. & GOVERNMENTAL AFFAIRS, PERMANENT SUBCOMM. ON
INVESTIGATIONS, 112TH CONG., SOC. SEC. DISABILITY PROGRAMS: IMPROVING THE QUALITY OF BENEFIT
AWARD DECISIONS, 5 (2012), available at http://www.hsgac.senate.gov/subcommittees/investigations/
hearings/social-security-administrations-disability-programs [hereinafter IMPROVING THE QUALITY OF
BENEFIT AWARD DECISIONS].
2

characteristics within a regional office, and to a significant extent, across the country. 13
Claims based on mental impairments and muscular skeletal disease dominate the
system 14 and such claims largely turn on subjective testimony. Thus, although there
should be some differences given the divergent social and economic conditions in various
locales, the range in allowance rates should be much narrower.

METHODOLOGY
We initially canvassed much of the relevant literature on SSA adjudication, and
familiarized ourselves with the governing statutes and regulations. We then conducted
interviews to assess various perspectives on the challenges in and possible improvements
to the SSA disability adjudication system. Although we focused on the ALJ level, we
also considered adjudications before the Appeals Council and district courts. We talked
with SSA officials, claimants, claimant representatives, ALJs, decisionwriters, federal
judges, and magistrates. Those discussions and readings enabled us to fine tune a request
for data to SSA to permit us to run a regression analysis on correlates of ALJ
decisionmaking. At the same time, those discussions served as the predicate for
hypotheses and later conclusions on how best to accomplish reform.
Although we received much helpful data from SSA, some relevant data could not
be examined. Part of the reason stemmed from limitations due to the way SSA gathers
and stores data, which we comment on later. Part of the reason as well arose from SSA’s

13

SOC. SEC. ADVISORY BOARD, IMPROVING THE SOC. SEC. ADMIN.’S HEARING PROCESS 6 (Sept. 2006)
[hereinafter IMPROVING THE HEARING PROCESS]; see also Richard J. Pierce, What Should We Do About
Social Security Disability Appeals?, REGULATION, Fall 2011, at 41 (advocating for elimination of ALJ
review), available at http://www.cato.org/sites/cato.org/files/serials/files/regulation/2011/9/regv34n3-3.pdf.
14
For dispositions issued from Fiscal Year (“FY”) 2009 to FY 2011, musculoskeletal impairments were
cited in 41% of claims and mental impairments were cited in 26% of claims. See STATISTICAL APP., supra
note 7, at 53 tbl. A-23. No other impairment was cited in more than 6% of claims. Id. Additional
information on impairment frequency is provided in Part IV.E.10 of the STATISTICAL APPENDIX.
3

concern about the privacy of ALJs. Our analyses of correlates of ALJ decisionmaking
nonetheless generated useful information to the study.

I.

STRUCTURE OF SSI AND SSDI ADJUDICATION

The Supplemental Security Income (“SSI”) program provides a minimum level
of income to people who are aged, blind, or disabled. 15 To be eligible for SSI, applicants
must be both indigent and disabled. 16 Social Security Disability Insurance (“SSDI”)
benefits in contrast are not based on the financial wherewithal of the claimant, but rather
are predicated instead on a determination that claimants are both insured and disabled. 17
The programs share the same definition of “disability”: inability “to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than [12] months.” 18 SSA must
engage in the following five-step process to determine whether an individual is
disabled: 19
1. SSA will consider the individual’s work activity. If the individual is
engaged in substantial gainful activity, the agency will find the individual
not disabled. 20
2. SSA will consider the severity of the individual’s medical impairment(s).
If the agency determines that the individual does not have a severe
medically determinable physical or medical impairment, or a combination
of such impairments that is severe and meets the duration requirement, it
will find the individual not disabled. 21
15

42 U.S.C. § 1382c(a) (2013); 20 C.F.R. § 416.110 (2013).
Nobles v. Comm’r of Soc. Sec. Admin., 2002 WL 553735, at *1 (E.D. Tex. Apr. 10, 2002) (citing H. R.
Rep. No. 92-231, (1972)); see also 42 U.S.C §§1382(a), 1382c(a)(3)(A)–(C) (2013).
17
42 U.S.C. § 423 (2013). Social Security deducts an amount from a worker’s paycheck if the worker
earns sufficient wages. Every quarter of the year in which the worker pays Federal Income Contributions
Act (“FICA”) taxes is considered a quarter of coverage. Most claimants must work forty quarters of
coverage to be considered “insured.” See 20 C.F.R. § 404.130, 404.140 (2013).
18
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (2013).
19
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2013).
20
Id. §§ 404.1520(a)(4)(i), (b), 416.920(a)(i), (b).
21
Id. §§ 404.1520(a)(4)(ii), (c), 416.920(a)(4)(ii), (c).
16

4

3. SSA will continue to consider the severity of the individual’s medical
impairment(s). If SSA determines that an impairment meets or equals one
of the listings in appendix 1 to subpart P of part 404, SSA will find the
individual disabled. 22 If SSA does not find the individual disabled, before
the agency moves from this step to the next, it will assess an individual’s
residual functional capacity (“RFC”). 23
4. SSA will consider its assessment of the individual’s RFC and past relevant
work. If the agency finds that the individual can do his or her past
relevant work, it will find the individual not disabled. 24
5. SSA will consider its assessment of the individual’s RFC, as well as his or
her age, education, and experience to determine whether the individual can
make an adjustment to other work in the economy. If the individual can
make such an adjustment, SSA will find the individual not disabled. If the
individual cannot make such an adjustment, SSA will find the individual
disabled. 25
Social Security disability claimants must complete an application with the local
Social Security office or online. 26 The local office determines if the applicant is indigent
when applying for SSI or insured when applying for SSDI. 27 If the claimant is not
entitled to benefits under either program, a notice of denial is mailed to the claimant; if
the claimant is qualified, the file is sent to a state government agency operating as a
Disability Determination Service (“DDS”) under contract with SSA. 28 DDS may then
gather medical documents or order an examination by a contracting physician or

22

Id. §§ 404.1520(a)(4)(iii), (d), 416.920(a)(4)(iii), (d). The Appendix 1 “listings” include the following
categories of impairments: growth impairment, musculoskeletal system, special senses and speech,
respiratory system, cardiovascular system, digestive system, genitourinary impairments, hematological
disorders, skin disorders, endocrine disorders, congenital impairments that affect multiple body systems,
neurological disorders, mental disorders, malignant neoplastic diseases, and immune system disorders. Id.
§ 404 app. 1.
23
Id. §§ 404.1520(a)(4), (e), 416.920(a)(4), (e).
24
Id. §§ 404.1520(a)(4)(iv), (f), (h), 416.920(a)(4)(iv), (f), (h).
25
Id. §§ 404.1520(a)(4)(v), (g), (h), 416.920(a)(4)(v), (g), (h).
26
James A. Maccaro, The Treating Physician Rule and the Adjudication of Claims for Social Security
Disability Benefits, 41 SOC. SEC. REPORTING SERV. 833, 833 (1993). A similar process occurs when
Continuing Disability Reviews (“CDRs”) are undertaken for those already receiving benefits. See infra
Part VIII.
27
20 C.F.R. §§ 404.902 to .905, 416.1402 to .1405 (2013); see also Charles H. Koch, Jr. & David A.
Koplow, The Fourth Bite at the Apple: A Study of the Operation and Utility of the Soc. Sec. Admin.’s
Appeals Council, 17 FLA. ST. U. L. REV. 199, 219 (1990) [hereinafter Fourth Bite at the Apple].
28
Fourth Bite at the Apple, supra note 27, at 219.
5

psychologist, termed a “consultative examination,” to make a decision regarding the
claimant’s disability status. 29 DDS approval rates in the states vary considerably. 30
In all but ten states, a dissatisfied claimant may ask for a “reconsideration.” 31 A
reconsideration involves the same procedures as an initial determination, but the decision
is made by a different team in the same office. 32 The ten states that do not have the
reconsideration level of review are termed “prototype” states. 33 As a whole, states
approve less than 40% of disability claims. 34
A claimant may appeal a decision within sixty days, 35 and about one-third of
those whose claims were denied in fact appealed. 36 An ALJ presides over the appeal,
conducting an in-person de novo hearing. 37 No deference is afforded the DDS
determination, and the ALJ may consider additional medical examinations, vocational or
medical expert testimony, and personally question the claimant or other witnesses. 38
Although ALJs preside at the hearings, they do not typically write the opinions. Rather,
they provide instructions to decisionwriters, who may not even be attorneys, to write the
opinions after they decide whether to allow or deny benefits. 39 The decisionwriters
29

Id.
See ASPECTS OF DISABILITY DECISION MAKING, supra note 1, at 43-44 figs. 38-39; see also Jon C. Dubin
& Robert E. Rains, Scapegoating Social Security Disability Claimants (and the Judges Who Evaluate
Them), AMERICAN CONSTITUTION SOCIETY ISSUE BRIEF, Mar. 2012, at 4-5.
31
20 C.F.R. §§ 404.907, 416.1407 (2013). Ten states do not permit reconsideration. See Soc. Sec. Admin.,
POMS § DI 12015.100-Disability Redesign Prototype Model (Feb. 13, 2012), available at https://secure.
ssa.gov/poms.nsf/lnx/0412015100.
32
See Astrue Testimony, supra note 9.
33
See infra Part VII.
34
For more specific figures and differences in allowance rates among the states, see ASPECTS OF
DISABILITY DECISION MAKING, supra note 1, at 43-44 figs. 38-39 (2012).
35
20 C.F.R. §§ 404.909, 416.1409 (2013).
36
SOC. SEC. ADMIN., ANNUAL REPORT OF THE SUPPLEMENTAL SECURITY INCOME PROGRAM FY 2011 88 tbl.
V.C1 (2011), available at http://www.ssa.gov/OACT/ssir/SSI11/ssi2011.pdf.
37
20 C.F.R. §§ 404.929, 416.1429 (2013).
38
See id. 404.944, 416.1444.
39
Clearing the Backlog: Hearing Office Performance: Hearing Before the Subcomm. on Soc. Sec. of the H.
Comm. on Ways & Means, 110th Cong. (Sept. 16, 2008) (statement of Hon. Ron Bernoski, President,
Assoc. of Admin. Law Judges).
30

6

usually do not attend the hearings. SSA management, as opposed to ALJs, supervises the
decisionwriters, who typically serve as part of a “pool” in each hearing office from which
writing assignments for decisions are made. 40 Senior attorney advisors, drawn from the
ranks of decisionwriters, now can review claims, and order payment on their own based
on on-the-record decisions. 41 If they conclude that the case for payment is not clear, they
transmit the files to the ALJs to schedule hearings.
In contrast to many administrative adjudications, the agency is not represented at
the hearing, 42 while we found claimants to be represented 77% of the time. 43 Another
study notes that at ALJ hearings, about 75% of representatives are attorneys and 20% are
non-attorneys. 44 The percentage of cases in which claimants are represented has soared
in the past thirty years. 45 ALJs have the duty to develop the record where needed,
irrespective whether the claimant is represented. 46 ALJs in the past several years have
determined that disability is warranted in roughly 60% of the cases decided, although the
40

See Jeffrey S. Wolfe, Civil Justice Reform in Social Security Adjudications, 64 ADMIN. L. REV. 379, 40809 (Spring 2012) [hereinafter Wolfe].
41
Astrue Testimony, supra note 9.
42
There are a number of administrative adjudications where an agency is represented at the hearings. See,
e.g., 8 C.F.R. §§ 240 et seq. (2012) (providing regulations allowing for agency representation at U.S.
Department of Justice Executive Office for Immigration Review proceedings and issued pursuant to the
Immigration and Nationality Act of 1952); 20 C.F.R. §§ 725 et seq. (2012) (providing regulations allowing
for agency representation at the U.S. Department of Labor’s Federal Black Lung Program proceedings and
issued pursuant to the Black Lung Benefits Act); 17 C.F.R. § 3.60 (2012) (providing regulations allowing
for agency representation at the U.S. Commodity Futures Trading Commission proceedings and issued
pursuant to the Commodity Exchange Act); 16 C.F.R. §§ 3 et seq. (2012) (providing regulations allowing
for agency representation at the Federal Trade Commission proceedings and issued pursuant to the Federal
Trade Commission Act).
43
Among dispositions issued from FY 2009 to FY 2011, we found a claimant representative to be present
in 77% of hearings. STATISTICAL APP., supra note 7, at 48 & tbl. A-21, fig. A-15. This percentage was the
same in each of the three years examined. Id. We determined a correlation between representation and
successful appeals. For an average ALJ, the expected allowance rate was 64% when a representative was
present, but only 47% in hearings without a representative. Id. at 48. However, it is unclear whether that
correlation arises because of the effectiveness of the representatives or due to the fact that representatives
agree to help claimants only in stronger cases.
44
ASPECTS OF DISABILITY DECISION MAKING, supra note 1, at 60 fig. 55 (figures for FY 2010).
45
The number of represented cases in 1971, for instance, was 20,000; today it is over 700,000. See Wolfe,
supra note 40, at 406.
46
See, e.g., Hildebrand v. Barnhart, 302 F.3d 836, 838 (8th Cir. 2002).
7

percentage has declined in recent years. 47 The overall allowance rate (i.e., percentage of
Fully or Partially Favorable decisions issued by ALJs and senior attorneys combined)
dropped from 61% in FY 2009 to 50% in FY 2012. 48
If the claimant is dissatisfied with the ALJ’s decision, the claimant has sixty days
to appeal the adverse decision to SSA’s Appeals Council, 49 although the Council is not
required by law to review each appeal on the merits. 50 The Appeals Council will review
a case if: (1) the ALJ committed an abuse of discretion; (2) there is an error of law; (3)
the ALJ’s decision was not supported by substantial evidence; or (4) there is a broad
policy or procedural issue that might affect the public interest. 51 The Appeals Council
may affirm, modify, reverse, or remand the ALJ’s decision. 52 The Appeals Council also
may exercise the authority to review cases prior to effectuation on its “own motion,” also
called “own motion review.” 53
The Appeals Council represents the final step in the administrative process. A
claimant may appeal the agency’s decision within sixty days to federal court. 54 The
Department of Justice is in charge of litigation in federal court, as it is for most
47

See STATISTICAL APP., supra note 7, at 14-15 & tbl. A-3. There is no objective way to measure whether
ALJs or state DDS systems measure “disability” more accurately. The ALJ proceeding aligns with
traditional notions of due process given that testimony is allowed. For one intriguing study concluding that
ALJs are more likely to get it “right,” see Hugo Benitez-Silve, Moshe Buchinsky, & John Rust, How Large
Are the Classification Errors in the Social Security Disability Award Process?, THE NAT’L BUREAU OF
ECON. RESEARCH, Jan. 2004.
48
See STATISTICAL APP., supra note 7, at 15 tbl. A-3 (FY2009 data); Data.gov, ALJ Disposition Data,
https://explore.data.gov/Social-Insurance-and-Human-Services/ALJ-Disposition-Data/zdyy-hq2m (last
visited Mar. 1, 2013) (FY2012 data).
49
20 C.F.R. §§ 404.968(a), 416.1468(a) (2013).
50
Astrue Testimony, supra note 9.
51
20 C.F.R. §§ 404.970(a), 416.1470(a) (2013). The Appeals Council will also, under certain
circumstances, review a case involving new and material evidence if such evidence relates to the period on
or before the date of the ALJ hearing decision, and the ALJ’s action, findings, or conclusions are contrary
to the weight of the evidence. Id. § 404.970(b).
52
See id. §§ 404.979, 416.1479. For a more complete assessment of the Appeals Council’s functions and
limitations, see infra Part VI.
53
See infra Part VI. “Prior to effectuation” refers to the period after a decision is rendered on a particular
claim, but prior to when that claim is paid.
54
See 20 C.F.R. §§ 404.981, 416.1481 (2013).
8

agencies. 55 The Office of General Counsel (“OGC”), however, in a significant number
of cases, declines to defend the agency decision in court and, instead seeks a consent
order with the claimant to remand the case back to the agency. 56 Typical reasons include
inadequate ALJ analysis of the material in the file, contradictions within the ALJ decision
itself, or new evidence presented. 57 When faced with an ALJ (or Appeals Council)
decision with such issues, the attorneys in the OGC may believe that the decision will not
survive judicial review as written. 58
When cases are litigated in federal court, the reviewing court must uphold the
agency’s findings if they are supported by “substantial evidence.” 59 The court may
affirm, modify, or remand the decision. 60 Courts only see appeals from denials of claims,
so in that sense they do not consider a representative sampling of ALJ decisions. They
reverse outright in under 3% of the cases. 61 They remand at a rate of close to 50%, and
most of the remanded cases result in an eventual allowance of benefits. 62 In FY 2011, the
percentage remanded dipped to 42%. 63

55

DAVID E. LEWIS & JENNIFER L. SELIN, ACUS SOURCEBOOK OF UNITED STATES EXECUTIVE AGENCIES
115-16 & n.296 (1st ed. Dec. 2012); see also Center for the Study of Democratic Institutions, Sourcebook
of United States executive Agencies, ACUS Sourcebook Data, http://www.vanderbilt.edu/csdi/sourcebook.
php (last visited Feb. 15, 2013) (data coding SSA as an agency without independent litigating authority).
56
There were 2229 voluntary requests for remands in FY 2011, 2419 in FY 2010, 2403 in FY 2008, 2496
in FY 2007, and 2763 in FY 2006. No information was available for FY 2009 due to a change in software.
Those numbers represent roughly 15% of all cases appealed. See E-mail from Rainbow Forbes, Appeals
Officer, Soc. Sec. Admin. Office of Appellate Operations, to Harold J. Krent, Dean and Professor of Law,
IIT Chicago-Kent College of Law (Sept. 28, 2012) (on file with author) [hereinafter Forbes E-mail].
57
Telephone Interview with Jeffrey C. Blair, Associate General Counsel, Soc. Sec. Admin. Office of the
General Counsel (Sept. 14, 2012) [hereinafter Blair Interview].
58
Id.
59
42 U.S.C. §§ 405(g), 1383(c)(3) (2013); see also 5 U.S.C. § 706(2)(E) (2013) (providing for substantial
evidence review under the Admin. Procedure Act (“APA”)).
60
42 U.S.C. §§ 405(g), 1383(c)(3) (2013).
61
Astrue Testimony, supra note 9.
62
See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-07-331, SSA HAS TAKEN STEPS TO ADDRESS
CONFLICTING COURT DECISIONS, BUT NEEDS TO MANAGE DATA BETTER ON THE INCREASING NUMBERS OF
COURT REMANDS 3 (2007) [hereinafter SSA HAS TAKEN STEPS]; see also Alternative Approaches, supra
note 11, at 741. With respect to district court remands, roughly 2/3 of the remanded claims are paid. See
9

Once disability is determined, claimants will continue receiving benefits unless a
continuing disability review (“CDR”) is performed, and the review shows a claimant is
not considered disabled under the Act. 64 Congress has directed that SSA conduct CDRs
at least every three years. 65 In implementing that mandate, SSA reviews disability cases
periodically to see if the beneficiary is still disabled. 66 If SSA determines that an
individual is no longer eligible for disability benefits, it provides a formal written notice
to him or her explaining the basis for the decision. 67 Such determinations may be
appealed, and the person is entitled to a hearing before an ALJ. 68

II.

DATA ANALYSIS

To better understand the variability in (and factors underlying) ALJ adjudication
decisions, we conducted statistical analyses of SSA-provided data from its case
processing system and other agency sources. A detailed discussion of our statistical
studies is provided in full in the accompanying Statistical Appendix – Analysis of
Administrative Law Judge Dispositions and Allowance Rates (Fiscal Years 2009 – 2011).
We summarize in this section our methodology and highlight some of our more
significant empirical findings.
We analyzed data provided by SSA to assess the degree of variability and
correlates of disposition outcomes. Data on ALJ dispositions and related hearing
information were obtained from the Office of Disability Adjudication and Review

SSA HAS TAKEN STEPS, supra note 62, at 16; see also Alternative Approaches, supra note 11, at 761;
Martinez v. Astrue, 630 F.3d 693, 695-96 (7th Cir. 2011) (summarizing available data).
63
See STATISTICAL APP., supra note 7, at 54 tbl. A-24; see also Forbes E-mail, supra note 56.
64
42 U.S.C. §§ 405(b)(2); 1383(k) (2013); 20 C.F.R. §§ 404.1594, 416.994 (2013).
65
42 U.S.C. §§ 421(i), 1382c(a)(3)(H) (2013).
66
For brief summary of CDR process, see infra Part VIII; see also 42 U.S.C. §§ 421(i), 1382c(a)(3)(H)(ii)
(I) (2013).
67
20 C.F.R. § 404.1597(a)-(b) (2013).
68
Id. §§ 404.1597(b), 416.995.
10

(“ODAR”) case processing management system (“CPMS”) management information data
tables. 69 The data consisted of disposition and other case-related information relating all
ALJs who had issued at least 200 dispositions in a fiscal year (“FY”) between 2009 and
2011. 70 Monthly and yearly data on disposition frequency and allowance rates were
available for each ALJ across each of the three studied fiscal years. 71 All data used in the
analysis was coded by randomly generated pseudo-name in order to shield all personally
identifiable information (i.e., ALJ identities). 72 Further, no data on dispositions
contained information about specific regions or hearing offices. 73
The data set used for this analysis consisted of 1509 ALJs. 74 Data were available
for 1129 ALJs in FY 2009, 1256 ALJs in FY 2010, and 1360 ALJs in FY 2011. 75 All
together, the data set thus included a total of 3745 yearly data points. 76 Three separate
data sets were created representing monthly, yearly, and overall average statistics for
each ALJ. 77 The primary variables of interest for this analysis were the number of
dispositions conducted in a time period (either monthly or yearly), and the proportion of
allowances (either Fully Favorable or Partially Favorable). 78

69

See STATISTICAL APP., supra note 7, at 1-5.
Following the procedure used by OVERSIGHT OF ALJ WORKLOAD TRENDS, supra note 8, we excluded
from our analyses ALJs who had an unusually low number of dispositions (less than 200 dispositions in a
given fiscal year). See STATISTICAL APP., supra note 7, at 2. These low frequencies might be due to new
hires, retirement, part-time work, or may be ALJs with other duties in addition to adjudicating cases. Id.
One hundred fifty-two (9%) data points were removed due to low activity. Id.
71
See STATISTICAL APP., supra note 7, at 2.
72
Id. at 2.
73
Id.
74
Id.
75
Id. at 2-3.
76
Id. at 8 tbl. A-2.
77
Id. at 3-5.
78
See STATISTICAL APP., supra note 7, at 3-4. Outcomes were initially classified into four categories: Fully
Favorable, Partially Favorable, Unfavorable, and Dismissed. Id. at 3. Additional information on each of
the disposition outcome categories can be found in Parts II.B.1 & III.B of the STATISTICAL APPENDIX.
70

11

Our first set of analyses was conducted to provide a description of the distribution
of disposition and allowance rates. To represent typical values of each variable, we
calculated the mean (or average) and the median. The median is the score at the midpoint
of the distribution, such that half the distribution falls above and half below this value. 79
Of particular important to this research is the degree of spread or variability in
disposition and allowance rates – that is, the extent to which ALJs differ from one
another on these variables. The variability of scores is indexed by the standard deviation
(“SD”). The SD is calculated as the square root of the average squared distance from the
mean, and can therefore be loosely interpreted as how far, on average, scores differ from
the mean. 80
In addition, we also report percentiles, which are useful for describing the upper
and lower tails of the distribution. A percentile is the value of a variable below, which a
certain percent of observations fall. 81 For example, the 1st percentile is the score that
separates the lower 1% of the distribution from the upper 99%, while the 99th percentile
is the score that separates the upper 1% from the lower 99%.
Correlation analyses were conducted to evaluate the relationship between
disposition and allowance rates. The correlation coefficient is an index of the strength
and direction of a relationship between two variables. The correlation coefficient can
take on values from -1 to 1, with 0 indicating that variables are completely unrelated,
values close to 1 indicating a strong positive relationship (higher scores on one variable
are associated with higher scores on the other), and values close to -1 indicating a strong

79

MORRIS H. DEGROOT & MARK J. SCHERVISH, PROBABILITY AND STATISTICS § 9.9 (4th ed., 2012)
[hereinafter PROBABILITY AND STATISTICS].
80
See PROBABILITY AND STATISTICS, supra note 79, § 4.3.
81
Id. § 3.3.
12

negative relationship (higher scores on one variable are associated with lower scores on
the other). 82
Multiple regression analyses estimate how well a set of variables are able to
predict a single outcome variable. The analysis produces a regression equation that
predicts the outcome as a function of predictor variables. 83 The unique contribution of
each predictor is reflected in the regression coefficient, which determines the weight
given to a predictor in the equation. 84 The regression coefficient can be interpreted as the
relationship between a predictor and the outcome, while controlling for all of the other
variables in the model. 85 Like the correlation coefficient, regression coefficients of 0
indicate no relationship, and positive/negative coefficients reflect positive/negative
relationships. 86
Additionally, results from analyses of SSA data were evaluated for both statistical
and practical significance. The statistical significance test produces a p-value, which is
the probability of obtaining a result purely due to chance, if there were actually no
relationship at all in the population. If the p-value is extremely small, the result is likely
not due to chance, and the result is considered significant from a statistical perspective.
For our analyses, results with p<.01 were considered statistically significant, which is a
commonly used value to assess statistical significance. 87
Finding a result to be statistically significant, however, does not necessarily
connote practical significance. Practical significance refers to an assessment of whether

82

See STATISTICAL APP., supra note 7, at 18.
Id. at 33-34.
84
Id.
85
Id.
86
Id.
87
E.g., PROBABILITY AND STATISTICS, supra note 79, at § 9.9.
83

13

an observed result is something that will have a practical impact. When sample size is
very large (as with the ALJ adjudication data), some very minor effects will be
statistically significant, even if their actual impact on adjudication outcomes is trivial. To
assess practical significance, we describe the strength of relationships, and depict patterns
in the data graphically so that the impact on adjudication outcomes can be readily
understood. 88
A.

Summary of Statistical Analysis of ALJ Variances
1.

Distribution of Disposition Frequencies

Over the three-year period studied, ALJs issued an average of 538.9 dispositions
per year (Median=530, SD=180.5). 89 The majority of ALJs (67%) met the goal of 500 or
more dispositions per year. Yearly disposition frequencies showed considerably
variability, however, as evidenced by the large SD of 180.5. As depicted in Figure 1,
there was a wide range of yearly disposition frequencies. Ninety-five percent of ALJs
disposed of between 255 and 878 claims per year, therefore ranging from about half of
the yearly goal to 75% over the goal. A small number of ALJs had very high disposition
frequencies. One percent of ALJs had annual disposition frequencies above 1079, and
one ALJ issued 3620 dispositions in a single year.

88

Id.
Unless otherwise noted, all figures and statistical analyses in this section can be found in Part II.A.1 of
the STATISTICAL APPENDIX.
89

14

Figure 1: Distribution of Yearly Number of Dispositions

Number of Dispositions (N=3745)

2.

Distribution of Allowance Rates

On average, the annual ALJ allowance rate was 56% for the three studied fiscal
years. 90 There was, however, significant variation in allowance rates across ALJs, as
depicted in Figure 2 and suggested by the SD of 15% in allowances rates. Indeed, 95%
of the allowance rates fell between 26% and 85%. 91 ALJs at the lower end of the
distribution thus had allowance rates less than half of the average, while those at the top
of the distribution had allowance rates over 50% higher than the average. The lowest and
highest allowance rates (4% and 98%, respectively) very nearly spanned the full range of
possible values.

90

Unless otherwise noted, all figures and statistical analyses in this section can be found in Part II.B.1 of
the STATISTICAL APPENDIX.
91
A similar range was found when considering only Fully Favorable dispositions, where 95% of the rates
were between 20% and 82%. See STATISTICAL APP., supra note 7, at 13.
15

Figure 2: Distribution of Yearly Allowance Rate (Fully or Partially Favorable Decisions)

Allowance Rate

3.

Identifying Outliers
a)

Methodology for Identifying Outliers

From a purely statistical perspective, an outlier is defined as a score that is
atypical given the overall distribution.92 This approach merely identifies outliers and
does not provide any information that might explain why a score is atypical. 93 This kind
of outlier is thus an observation that warrants further attention to determine why the
unusual event has occurred. 94

92

See STATISTICAL APP., supra note 7, at 19.
Id.
94
Id.
93

16

Outliers are defined relative to an assumed distribution of scores. 95 In the context
of social security disability claims, some variability in outcomes across adjudication of
claims is to be expected due to the random assignment of cases to ALJs. 96 Each claimant
is different, as is his or her individual case. And similar types of cases may be distributed
somewhat unevenly across ALJs purely as a matter of chance. Once the range of
expected variation due to chance has been specified, outliers can be defined as scores that
are outside of these bounds. 97
In order to define the expected range of scores, outliers can be defined relative to
a normal distribution. 98 In many areas of research, variables are found to have a
“normal” distribution, where scores are distributed symmetrically around the mean, and
the density of scores decreases with distance from the mean, forming a bell-shaped
curve. 99 An example of a normal distribution is depicted by the smooth curve in Figure
2, which shows that allowance rates had an approximately normal distribution.
If a distribution is normal, nearly all scores will fall within 2 SD of the mean. 100
Only about 5% of scores will be more than 2 SD from the mean (with 2.5% at the high
end of the distribution, and 2.5% at the low end), and only 1% of scores will be more
than 3 SD from the mean. 101 Because only a small fraction of observations will naturally

95

Id. at 20.
See 5 U.S.C. § 3105 (2013) (“Administrative law judges shall be assigned to cases in rotation so far as
practicable.”); see also Soc. Sec. Admin., HALLEX I-2-0-2-Hearing Before an Admin. Law Judge—
General (Sept. 28, 2005), available at http://www.ssa. gov/OP_Home/hallex/I-02/I-2-0-2.html (noting that
Hearing Office Chief ALJs (“HOCALJs”) “assign ALJs to hold hearings, issue decisions or orders, and
take other appropriate action to resolve disputed issues”); Soc. Sec. Admin., HALLEX I-2-1-55Assignment of Service Area Cases to Admin. Law Judges (Feb. 12, 2009), available at http:// www.ssa.
gov/OP_ Home/hallex/I-02/I-2-1-55.html (noting “[s]pecial [s]ituations [w]hich [r]equire a [c]hange in the
[o]rder in [w]hich [c]ases are [a]ssigned”).
97
See STATISTICAL APP., supra note 7, at 19-20.
98
Id. at 20.
99
Id.
100
Id.
101
Id.
96

17

fall outside a 2 SD range, scores outside these bounds are not likely to have occurred due
to chance, and are therefore likely to have been produced by some process that differs
from the rest of the distribution. 102
With any rule for identifying outliers, there is a risk of false positive and false
negative decisions. 103 A false positive would occur if an observation is classified as an
outlier when it occurred simply due to chance. 104 Identifying outliers using a 2 SD rule
will have a 5% false positive rate, because 5% of scores in a normal distribution are
expected to fall outside 2 SD from the mean. 105 Setting a more stringent criterion will
tend to reduce the false positive error rate. 106
A false negative error would occur if an observation falls within the 2 SD interval,
yet was actually generated by a different distribution. 107 That is, a hypothetical ALJ who
is applying overly lenient standards might nevertheless still produce an allowance rate
within the 2 SD bounds, simply due to chance. 108 The probability of a false negative
error cannot be known precisely in the context of ALJ disposition and allowance rates,
but as the criterion for identifying an outlier becomes more stringent, the probability of a
false negative error increases. 109
The decision of where to put the cutoff for defining outliers depends on the
desired balance of false positive and false negative errors. 110 Setting the cutoff too low

102

Id.
Id. at 20-21. The terms “false positive” and “false negative” are used here to designate statistical errors
in the identifying of outlier data points, and have nothing to do with the merits (or lack thereof) of the
underlying disability determinations. Id.
104
STATISTICAL APP., supra note 7, at 20.
105
Id.
106
Id.
107
Id.
108
Id.
109
Id.
110
Id. at 21.
103

18

will flag many observations as outliers when they are simply due to chance; while setting
the cutoff too high will fail to identify many true outliers. 111 It is common for
statisticians to define outliers as observations falling 2 or 3 SD above or below the
mean. 112
b)

Outliers in ALJ Disposition and Allowance Rates

Establishing a cutoff for ALJ adjudication data is complicated by changes in the
distribution of disposition and allowance rates over time. 113 Although the average
number of dispositions was relatively stable from FY 2009 to FY 2011, the variability in
ALJ disposition rates has declined. 114 Mean allowance rates declined over the three years
of the study, suggesting that standards for defining an outlier should be tied to yearly
statistics. 115 Table 1 provides the cutoffs corresponding to 2 and 3 SD above and below
the mean for yearly disposition frequency and allowance rates. Table 1 also includes
percentile values, which do not rely on an assumed shape of the distribution. 116
Applying a 2 SD rule to allowance rates would classify outliers as all ALJs with
allowance rates below 23% (approximately 37, or 3% ALJs in FY 2011) and ALJs with
allowance rates above 82% (approximately 30, or 2% ALJs). 117 Similarly, 3% of ALJs
(approximately 38) had disposition frequencies over 878. 118

111

Id.
Id.
113
Id.
114
Id.
115
Id.
116
Because the data here did not exactly reflect a normal distribution, the 2 or 3 SD rules need to be applied
with caution. See STATISTICAL APP., supra note 7, at 21. For the number of dispositions, the presence of
large positive outliers will slightly inflate both the mean and the SD, so that the cutoff established using
these rules may be too high. Id. Further, because the allowance rate is a percentage, it is constrained by a
maximum value of 100%, which may cause compression of values near the upper limit. Id.
117
Id. at 22.
118
Id.
112

19

Table 1: Extreme Values for Number of Dispositions and Allowance Rates (FY 2011)

Fiscal Year
2011

Mean SD

3 SD 2 SD 2 SD
3 SD
Below Below Above Above
Mean Mean Mean Mean

1st
5th
95th
%tile %tile %tile

99th
%tile

Number of
537.5
Dispositions

170.1 -

-

878

1048

-

-

780

959

Allowance
Rate

15%

23%

82%

96%

18%

29%

77%

88%

53%

9%

(Note: Because data from ALJs with fewer than 200 dispositions were excluded from the analysis,
it was not possible to use the distribution to identify outliers corresponding to low number of
dispositions.)

Another way to identify outliers is to evaluate the consistency of outcomes over
time. 119 An ALJ who is in the top or bottom 1% one year might be the result of chance
variation. However, if the same individual appears in the top or bottom 1% in multiple
years, this is more likely to be due to something unique to that individual. 120 Therefore,
special attention should be paid to ALJs who have consistent extreme scores in multiple
years. 121 Table 2 reports the number of ALJs appearing for multiple years in the top and
bottom 1% of the disposition and allowance rates.
Table 2: Number of ALJs with Multiple Years in the Top and Bottom 1% of the Disposition
Frequency and Allowance Rate Distributions (FY 2009 – 2011)

Years in Top or
Bottom 1%
At least 1 year
At least 2 years
All 3 years

Number of ALJs With
Disposition Frequencies in
Top 1%

Number of ALJs With Allowance
Rates (Full + Partially Favorable)
in Top/Bottom 1%
Bottom 1%
Top 1%

22
10
6

24
10
5

119

Id.
Id.
121
Id.
120

20

25
10
3

Ideally, outliers would be defined relative to a predictive model that accounts for
important characteristics of the portfolio of cases reviewed by an ALJ, and other relevant
variables. 122 The Statistical Appendix describes an initial attempt to identify case
characteristics that correlate with adjudication outcomes, but additional work is needed to
build a model that incorporates all relevant factors. 123 Therefore, we did not attempt
herein to account for such factors in our definition of outliers.
4.

Changes in Disposition Outcomes Over Time

The data indicate that variability in disposition rates is becoming less extreme
over time, while average dispositions have remained relatively constant. 124 The average
number of dispositions has not changed substantially across years. 125 As shown in Figure
3, ALJs issued an average of 543.8 dispositions in FY 2009, 535.9 in FY 2010, and 537.5
in FY 2011. However, the variability in the number of dispositions decreased over the
years SD=194.1 in FY 2009, SD=178.8 in FY 2010, and SD=170.1 in FY 2011. 126 The
spread of disposition frequencies in 2011 was over 10% smaller than in 2009. Thus,
while there still exist large differences in ALJ productivity, with some ALJs issuing
substantially more dispositions than others, these discrepancies have been on the decline.

122

Id. at 23.
Id. at 23; see also id. Parts III & IV.
124
Id. at 9.
125
Id.
126
Id. The SD in FY 2009 was significantly greater than in FY 2010, F(1128, 1255)=1.18, p=.002) and
greater than in FY 2011, F(1128, 1359)=1.30, p<.001. Id. The difference between FY 2010 and FY 2011
was not statistically significant, F(1255, 1359)=1.11, p=.04. Id.
123

21

Figure 3: Average Yearly Disposition Frequency Over Time
800
700
600
500
400
300
200
100
0
2009

2010

2011

(Note: Error bars indicate 1 SD above and below the average.)

Allowance rates have been steadily declining since FY 2009, as shown in Figure
4. The mean allowance rate dropped from 59% in FY 2009 to 58% in FY 2010 and 53%
in FY 2011. 127 More recent data suggest that this trend is continuing, with an allowance
rate of 48% in FY 2012. 128 The variance in allowance rates (i.e., differences between
ALJs in allowance rates) has been relatively stable over time. 129 This decline occurred
across the entire distribution of allowance rates, although there tended to be less change
at the lower end of the distribution. 130 Table 3, below, demonstrates the change at three
points of the distribution. For the median and 90th percentile, allowance rates dropped

127

The allowance rates reported here only reflect decisions by ALJs. If favorable decisions by senior
attorneys are included in the calculation, the overall allowance rate was 61% in FY 2009, 61% in FY 2010,
and 56% in FY 2011. See STATISTICAL APP., supra note 7, at 14; see also infra fig. 4.
128
Including favorable decisions by senior attorneys, the overall allowance rate was 50% in FY 2012.
Data.gov, ALJ Disposition Data, https://explore.data.gov/Social-Insurance-and-Human-Services/ALJDisposition-Data/zdyy-hq2m (last visited Feb. 21, 2013).
129
See STATISTICAL APP., supra note 7, at 14-15.
130
Id. at 15.
22

by 2-3% from FY 2009 to FY 2010 and by 5% from FY 2010 to FY 2011. At the lower
end of the distribution, there was no change in the 10th percentile between FY 2009 and
FY 2010, and a change of 4% from FY 2010 to FY 2011.
Corresponding to the drop in the mean allowance rate, the number of ALJs with
extremely high rates has been declining. As shown in Table 4, below, the percentage of
ALJs with allowance rates over 80% has dropped by half, from 9% in FY 2009 to 4% in
FY 2011. At the other end of the distribution, the percentage of ALJs with extremely low
allowance rates has been relatively stable (i.e., 5% in FY 2009 and 6% in FY 2011).
Figure 4: Average Allowance Rate Over Time
80%
70%
60%
50%
40%
30%
20%
10%
0%
2009

2010

2011

(Note: Error bars indicate 1 SD above and below the average.)

Table 3: Changes in Allowance Rates (2009 – 2011)

Percentile
10th %tile
Median
90th %tile

2009
38%
59%
79%

2010
38%
57%
76%

2011
34%
52%
72%

23

Table 4: Annual Distribution of ALJs with Allowance Rates Substantially Above and Below
the Mean

2009
2010
2011

B.

Percent of ALJs
below 20%
Allowance Rate
1%
1%
2%

Percent of ALJs
below 30%
Allowance Rate
5%
4%
6%

Percent of ALJs
above 70%
Allowance Rate
25%
21%
13%

Percent of ALJs
above 80%
Allowance Rate
9%
7%
4%

Correlation Between High Number of Dispositions and Allowances
The SSA Office of the Inspector General (“IG”) has reported that some ALJs who

feel pressure to meet yearly disposition goals may decide more cases in favor of
claimants. 131 Several analyses were conducted to test whether higher disposition rates
were associated with higher allowance rates. Overall, there was little correlation between
disposition and allowance rates, although some relationships were found at the
extremes. 132 ALJs with extremely high productivity in multiple years tended to have
higher allowance rates than less extreme ALJs. 133
First, we examined the correlation between the allowance rate for each ALJ and
the average number of dispositions per year. We found a modest but statistically
significant correlation. 134 Although significant, this correlation is extremely small
(.15). 135 A correlation of this level implies that the number of dispositions can account
for about 2% of the variance in allowance rates. 136 Thus, when considering the entire

131

OVERSIGHT OF ALJ WORKLOAD TRENDS, supra note 8, at 7.
See STATISTICAL APP., supra note 7, at 23-25, 29.
133
Id. at 23-25.
134
Id. at 28.
135
Id.
136
Id.
132

24

distribution of ALJs, the data do not support the general proposition that ALJs achieve
higher productivity by allowing more claims.
Although we did not find a general relationship between disposition and
allowance rates, it may be that they are related at extreme levels of the two variables. If
those ALJs with extremely high disposition rates also tend to have high allowance rates,
this would support the idea that they may be issuing allowances to claimants to clear
backlogs, meet disposition goals, or make themselves appear more productive.
The top 1% of yearly disposition frequencies was defined as those with 1079 or
more dispositions in a fiscal year. 137 This consisted of 22 ALJs, six of whom were
outliers in all three years, four of whom were outliers in two years, and 12 were outliers
in a single year. 138
Comparison of the top 1% to other ALJs indicates that these outliers issued fewer
Partially Favorable (2% vs. 5%), fewer Unfavorable (16% vs. 29%), and more Dismissed
dispositions (23% vs. 15%). 139 The difference in Fully Favorable rates (58% vs. 50%)
was not statistically significant. 140 Further, there was a trend of higher Fully Favorable
rates among those with 2 or 3 years on the top 1% (65% Fully Favorable) compared to
those in the top 1% for 0 or 1 year (50% Fully Favorable). 141
Second, we also explored whether dispositions differed for outliers identified in
terms of allowance rates. For this analysis, we studied ALJs who had atypically high or
low allowance rates. The top 1% of allowance rates (those issuing Fully or Partially
Favorable decisions in over 89% of cases) consisted of 25 ALJs, 15 with 1 year in the top
137

Id. at 7.
Id. at 23 tbl. A-8.
139
Id. at 24.
140
Id.
141
Id.
138

25

1%, seven with 2 years in the top 1%, and three with 3 years in the top 1%. 142 Groups
defined by number of years in the top 1% of allowance rates differed significantly in the
number of dispositions issued. ALJs with 3 years of high allowance rates tended to issue
a high number of dispositions per year (M=866, SD=360), as did ALJs with 2 years of
high allowance rates (M=724, SD=338). Those with a single year in the top 1% issued a
similar number of dispositions (M=557, SD=220) to those who were never in the top 1%
(M=537, SD=177).
The bottom 1% of allowance rates (those under 19%) consisted of 24 ALJs, 14
with one year in the bottom 1%, five with 2 years in the bottom 1%, and five with 3 years
in the bottom 1%. 143 There was no consistent pattern in the number of dispositions
issued. The number of dispositions tended to be below average for ALJs with one year in
the bottom 1% (M=405, SD=158) and those with 3 years in the bottom 1% (M=417,
SD=87). 144 However, those with 2 years in the bottom 1% (M=530, SD=81) were similar
to those who were never in the bottom 1% (M=541, SD=181). 145
“Hurry up” Dispositions. The distribution of yearly disposition frequency
suggested a tendency of individuals close to the goal of 500 dispositions per year to put in
extra effort to reach that goal. 146 That is, the distribution displayed a lower number of
dispositions in the range of 450-499 than would be expected from a normal distribution,
and an excess of dispositions in the range of 500-549. 147 In this section, we examine

142

Id.
Id. at 24-25.
144
Id. at 25.
145
Id.
146
Id. at 10.
147
Id.
143

26

whether this pattern was produced by an increase in activity toward the end of the fiscal
year, and what impact this increased activity had on allowance rates.
As expected, being close to the goal was found to have an impact on ALJ activity
in September. ALJs who were just below the yearly goal (450-499 dispositions) tended
to have a lower number of dispositions per month than those just above the goal (500-549
dispositions), except for the month of September, where there was no difference between
the two groups. 148 Thus, it appears that individuals below the goal were increasing
disposition output in September.
An analysis was conducted to determine whether this push to meet the goal led to
changes in disposition outcomes. The data did not support the hypothesis that ALJs
would issue more allowances if they were near the goal. Those near the goal (450-549
dispositions per year) did not show a different pattern of allowance rates, when compared
to other ALJs (see Figure 5).
Figure 5: Disposition Outcome Rates for ALJs Close to Yearly Disposition Goal
100%
90%
80%
70%
60%

Fully Favorable

50%

Partially Favorable

40%

Unfavorable

30%

Dismissed

20%
10%
0%
Not Close to Goal

Close to Goal

148

Id. at 11. The analysis of monthly disposition frequencies is described in greater detail in Part II.A.3 of
the STATISTICAL APPENDIX.
27

To further explore the year-end rush, we examined ALJs who were just over the
yearly goal (500-549 dispositions per year) and who had high activity in September
(greater than 1 SD above the September average number of dispositions). These ALJs
had September allowance rates that were slightly lower than in other months (54% in
September, 58% in other months). 149 However, a similar differential was observed
among other ALJs (55% in September, 57% in other months). 150 Thus, the data provide
no evidence that allowance rates were increasing at year-end among ALJs who were
hurrying to meet the yearly goal.
C.

Difference Between Video and Non-Video Hearings
Analyses were conducted to determine whether use of video hearings was

correlated with adjudication frequencies and allowance rates. First, to investigate
whether use of video hearings was associated with productivity, we calculated the
proportion of hearings each ALJ conducted by video, and correlated this with the average
number of dispositions per year. We found a correlation coefficient of .03, indicating
virtually no relationship. 151 Thus, ALJs who conducted more hearings by video issued
neither more nor fewer dispositions than those who used video hearings less often.
A second analysis examined the relationship between use of video hearings and
allowance rates. Our analysis showed a small, but statistically significant impact. On
average, video hearings had allowance rates about 3% lower than non-video hearings (see
Figure 6). 152 Although the average effect of video hearing was small, some ALJs showed

149

Id. at 13.
Id.
151
Id. at 41 tbl. A-16.
152
See also id. at fig. A-10.
150

28

a larger effect. 153 While the majority of ALJs (80%) showed lower allowance rates, 20%
showed higher allowance rates on video hearings. 154
Figure 6: Predicted Allowance Rate for Video Hearings (2011)
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
No Video

III.

Video

IMPACT OF INCREASED CASELOAD ON ALJ ALLOWANCE RATES
There is no question but that SSA’s increased emphasis on reducing the backlog

has yielded results. As Commissioner Astrue summarized to Congress, the average
waiting time peaked in 2008 at 532 days, and that has been pared down to 350 days. 155
Much of the success can be traced to ALJs’ mounting workload: ALJs in the past ten
years have increased their average number of dispositions from 350 to 550 a year. 156
Commissioner Astrue also attributed the success to “expanded automation tools” and to
“standardizing business practices.” 157 In addition, more ALJs have been hired. 158 The

153

Id.
Id.
155
Astrue Testimony, supra note 9.
156
Astrue Testimony, supra note 9.
157
Id.
158
Id.
154

29

reduction is impressive and, at first blush, the decrease in backlog combined with falling
remand rates appears to be an unadorned success.
With the disclosures of impropriety in the West Virginia SSA Office, however,
journalists and others suggested a link between ALJs with a high number of dispositions
and the percentage of claims allowed. 159 For instance, the Wall Street Journal’s Damian
Paletta reported on Judge Daugherty who allowed benefits in 1280 of 1284 decisions in
2010 and in 1001 of 1003 cases the next year before he was put on leave. 160 The
Pittsburgh Tribune-Review’s Adam Smeltz compared the allowance rate of one ALJ in
Western Pennsylvania who allowed benefits in 78% of the cases as opposed to a
colleague who allowed claims in 15% of cases. 161
SSA’s principal priority has been to reduce the backlog. 162 One way for ALJs to
generate large numbers of dispositions is to allow a higher percentage of claims, because
such decisions need not be legally defensible in the absence of an appeal or own motion
review by the Appeals Council. Indeed, the Office of Appellate Operations (“OAO”) has
documented that decisions that allow benefits are shorter in length. 163 Thus, the fallout
from management’s focus on reducing the backlog may be an excessive allowance rate,
at least among those resolving a great many claims.

159

Paletta, supra note 2.
Judge Daugherty is no longer employed as an ALJ at SSA. See Wsaz.com, The man in the middle of a
Social Security office controversy has retired, July 19, 2011), http://www.wsaz.com/news/headlines/Local_
Social_ Security_Judge_Under_Scrutiny_122259399.html (last visited March 1, 2013).
161
Smeltz, supra note 2.
162
Astrue Testimony, supra note 9.
163
Soc. Sec. Admin. Office of Appellate Operations Executive Director’s Broadcast, at 4 (Jan. 20, 2012)
(on file with author) [hereinafter Exec. Dir. Jan. 2012]. Of course, the mere fact that a Fully or Partially
Favorable decision is shorter in length does not necessarily mean that it does not comport with SSA policy
or other legal requirements for allowance of Social Security disability claims. Nonetheless, as we discuss
later, see infra Part VIII, spartan decisions allowing claims make CDR more difficult.
160

30

In response to a congressional inquiry about the variance in ALJ allowance rates,
the SSA IG conducted an investigation into ALJs with disposition and allowance rates
well above and below the mean. 164 Of relevance here, the IG reported that some “ALJs
mentioned that peers who felt pressured to meet the 500 to 700 disposition benchmark
may have allowed more cases because allowances are easier to process than denials.” 165
The IG also found a correlation between high disposition and allowance rates. 166
In response to that publicity, management recently limited the assignment of new
cases to 960 cases annually. 167 Overall, the allowance rate has gone down the last four
years, from 61% in FY 2009 to 50% in FY 2012. 168 The percentage remanded from the
courts has also decreased, 169 suggesting improvements in ALJ decisionmaking.
Our data confirm that the link between dispositions and allowance rate is
weakening, perhaps, in part, because of adverse publicity. We found that higher
disposition rates were not substantially correlated with higher grant rates. 170 Caution is
needed, however, before any consideration is given to increasing the current production
goals. First, our data demonstrate a continuing link between high dispositions and
164

OVERSIGHT OF ALJ WORKLOAD TRENDS, supra note 8, at 1.
Id. at 7.
166
See id. at 8-9.
167
See E-mail from Maren Weight, Appeals Officer, Soc. Sec. Admin. Office of Appellate Operations, to
Amber Williams, Att’y Advisor, Admin. Conf. of the U.S. (Mar. 1, 2013) (on file with ACUS) (noting the
new number limit) [hereinafter Weight E-mail]; see also Hearing Before the Senate Comm. on Homeland
Security and Governmental Affairs, 112th Cong. (2012) (statement of Judge Patricia Jonas, Executive
Director, Soc. Sec. Admin. Office of Appellate Operations, Office of Disability Adjudication and Review),
available at http://www.ssa.gov/legislation/ testimony_091312.html (noting previous number limit).
168
See supra note 128 and accompanying text (discussing the more recent 2012-13 allowance rate figure).
Additional analyses of allowance rates from FY 2009 to FY 2011 are reported in the Part II.B of the
STATISTICAL APPENDIX.
169
Forty-eight percent of cases filed in the federal courts were remanded in FY 2009 (based on six months
of data), 47% were remanded in FY 2010, and 42% were remanded in FY 2011. Id. at 54 tbl. A-25. These
percentages were calculated using the number of cases filed and remands issued by the courts in a given
fiscal year. Id.at 53. Because some cases may be filed and decided in different years, these percentages
are only approximate. Id. Additional analysis of federal court remand rates can be found in Part II.B of the
STATISTICAL APPENDIX.
170
See STATISTICAL APP., supra note 7, at 23-25.
165

31

allowance rates for outliers. 171 The data culled suggest that ALJs with the largest
number of dispositions tended to issue fewer Partially Favorable decisions, fewer
Unfavorable decisions, and more Dismissals. 172 Further, recurrent outliers (those who
were in the top 1% for more than one year) tended to issue more Fully Favorable
decisions than other ALJs. 173 Given that writing allowance decisions typically takes less
time than denials, the correlation is logical. As the IG report earlier noted, increased
productivity at the outlier level has resulted in higher allowance rates for this group of
ALJs. 174 And a greater number of allowances, if improvidently granted, results in
substantial additional cost to the taxpayers.
Second, the diminishing correlation does not itself necessarily suggest that the
quality of ALJ decisionmaking has improved. In another report, the IG noted that the
Office of Quality Performance (“OQP”) – a component within SSA that issues advice
and recommendations regarding quality to other SSA components – determined that there
were errors in roughly 16% of cases allowing benefits that it randomly selected for
review. 175 OAO’s experience with own motion review revealed that “[s]horter decisions
tend to mean briefer descriptions and evaluation of the medical evidence and the RFC.
‘Sometimes you have to reconstruct the rest of the decision to figure out the basis for the
ALJ’s finding of the RFC before you can ask whether it is supported by substantial

171

Id. at 23.
Id. at 23.
173
Id. at 24.
174
OVERSIGHT OF ALJ WORKLOAD TRENDS, supra note 8, at 8-9.
175
SOC. SEC. ADMIN. OFFICE OF THE INSPECTOR GENERAL, CONGRESSIONAL RESPONSE REPORT: THE
SOCIAL SECURITY ADMINISTRATION’S REVIEW OF ADMIN. LAW JUDGES’ DECISIONS, A-07-12-21234, at 910 (Mar. 2012) [hereinafter REVIEW OF ALJS’ DECISIONS] (reporting results of a post-effectuation disability
case review of a random sampling of 722 allowances, as well as 722 denials); see also SOC. SEC. ADMIN.
ORGANIZATIONAL MANUAL, at Subchapter TK (Soc. Sec. Admin.), available at http://www.
socialsecurity.gov/org/orgdcqp.htm.
172

32

evidence.’” 176 In the view of many ALJs, they simply do not have the time to evaluate
each piece of evidence cogently. 177 As a result, it may be that not only are payments
made to claimants who are not disabled, but payments also are denied to claimants who
are deserving.
Third, some believe that the increased disposition goal has increased tension
between SSA and the ALJ corps. 178 Some ALJs perceive that SSA’s goal is to meet the
target above all considerations, including quality and accuracy. 179 According to a
relatively recent grievance by the Association of Administrative Law Judges (“AALJ”),
the union of SSA ALJs, agency pressure on ALJs to reach the target has included
“berating judges who fail to reach 500 cases, and threatening discipline or adverse
consequences for judges who do not get to 500 cases. . . . Agency pressure has led to
management insensitivity, overwork, and stress-induced health issues.” 180 The grievance
alleged that, hearing office chief ALJs (“HOCALJs”) “have hoarded dismissals, and
monopolized the best decision writers to avoid giving detailed instructions or doing
extensive editing.” 181 In the words of one ALJ, “resources follow production.” 182 Some
ALJs also relayed to the IG their concern that the primacy of the disposition goal has
176

Exec. Dir. Jan. 2012, supra note 163, at 4.
See discussion infra at 34 & n.182.
178
Wolfe, supra note 40, at 409-10. It is beyond the scope of this study to ascertain the propriety of any
particular disposition goal. Rather, this report attempts to assess the impact of SSA’s current disposition
goal and traces steps in Part IV to ensure better quality decisionmaking.
179
Interview with Hon. J.E. Sullivan, Admin. Law Judge, formerly with Soc. Sec. Admin. (Feb. 13, 2013)
[hereinafter Sullivan Interview]; Survey by Assoc. of Admin. Law Judges (Feb./Mar. 2012) [hereinafter
AALJ Survey] (copy on file with author).
180
Post-Hearing Brief of Grievant Gilbert at 5, Gilbert v. Soc. Sec. Admin., FMCS#12109-00200-8 (Dec.
17, 2012) [hereinafter Post-Hearing Brief]. The FMCS arbitrator subsequently denied the Gilbert
grievance, finding that the agency’s case disposition goal violated neither the APA nor the collective
bargaining agreement. See Decision of Arbitrator Rod Falor (Jan. 6, 2013). To date, ALJs challenging the
500 - 700 annual disposition goal on legal grounds have been unsuccessful. E.g., SSA v. Shapiro, No. CB7521-11-0024-T-1, 2012 MSPB LEXIS 6123 (Oct. 18, 2012).
181
Post-Hearing Brief, supra note 180, at 5.
182
Interview with Hon. Mike Logan, Admin. Law Judge, Soc. Sec. Admin. (Feb. 11, 2013) [hereinafter
Logan Interview].
177

33

caused a number of HOCALJs to satisfy their own goals principally by assigning the
simplest cases to themselves – those that require no hearings. 183
These perceptions – irrespective of the reality – were also reflected in an
anonymous survey distributed by the AALJ. Although the union may not be an unbiased
observer, the results from the survey – which earlier had been shared with SSA –
document a widespread belief that ODAR management is concerned only about numbers
as opposed to quality. 184 Frequent comments were the lack of an equitable distribution of
cases among ALJs (chief ALJs and favored ALJs received easier cases), the lack of a
rotation of the best decisionwriters among ALJs, insufficient time to review the record, as
well as the impossibility of writing all 500-700 decisions in a cogent manner. 185
Recommendation 1 - Annual ALJ Disposition Goal: Increased productivity
successfully has helped reduce the backlog of appeals, but that reduction has come with a
cost, both to the coherency of ALJ decisionmaking and to the relationship between
ODAR and many ALJs. 186 Accordingly, we recommend that ODAR not increase the
target for the foreseeable future and signal to ALJs that quality remains a central goal of
the system.

IV.

CASE MANAGEMENT

SSA has attempted to streamline disability adjudication in a number of ways.
First, it has removed responsibility from ALJs to write decisions and to manage the

183
184

OVERSIGHT OF ALJ WORKLOAD TRENDS, supra note 8, at 10-11.
See AALJ Survey, supra note 179. About 370 ALJs in the SSA ALJ corps provided survey responses.

Id.
185

Id. at 13-19, 49-71. In terms of overall survey results, it bears noting that the majority of respondents
(72.6%) found it “not difficult at all” or only “somewhat difficult” to reach 500 dispositions or more in one
year; the remaining 27.4% of respondents found this disposition goal “very difficult.” Id. at 4. Text-based
comments provided by survey respondents noted the concerns listed above. See id. at 13-19, 31-45, 49-71.
186
To alleviate pressure on ALJs, we suggest the changes in Part IV infra.
34

caseload, reserving for them the principal duty of deciding cases. 187 Clerks or attorney
advisors are assigned to work up files, determine if key evidence is missing, and schedule
hearings. 188 Second, SSA has mandated technological reforms in an effort to expedite
the process. The file is now electronic, and the agency has constructed an electronic
template, called Findings Integrated Template, to assist ALJs and decisionwriters in
handling cases. 189 As we will discuss, the agency also has encouraged the utilization of
video hearings. 190
The agency, however, has not fully considered deploying the resources of one of
the key participants in the process: the claimant’s representative. Claimants are
represented in roughly 80% of the cases and attorney representatives stand to gain up to
20% from any award (up to $6000). 191 Unlike in most court systems, SSA’s disability
adjudication process is non-adversarial. 192 SSA has not prescribed the records that the
claimants’ representative must furnish to the ALJs and the format that they should be
in. 193 Elsewhere, litigants must present prescribed information in briefs in a particular
format. For instance, in many jurisdictions at the trial level, litigants must clearly state

187

Wolfe, supra note 40, at 406-07; see also 20 C.F.R. §§ 404.942, 416.1442 (2013).
Wolfe, supra, note 40, at 425. Some commentators, indeed, believe that the ALJ’s limited role
contributes substantially to the inefficiency. See, e.g., id. at 426-27.
189
Astrue Testimony, supra note 9.
190
See infra Part V. See Soc. Sec. Admin., POMS § DI 80850.005-Video Hearings (July 19, 1996),
available at http://policy.ssa.gov/poms.nsf/lnx/0480850005.
191
See Wolfe, supra note 40, at 406-07, n.94.
192
See Richardson v. Perales, 402 U.S. 389, 403 (1971) (“We bear in mind that [SSA] operates essentially,
and is intended so to do, as an adjudicator and not as an advocate or adversary.”).
193
See Soc. Sec. Admin., HALLEX I-2-5-85-Use of Prehearing Questionnaires – General (Sept. 28, 2005),
available at http://www.ssa.gov/OP_ Home/hallex/I-02/I-2-5-85.html [hereinafter HALLEX Prehearing
Questionnaires]; see generally ADMIN. CONFERENCE OF THE U.S., SSA DISABILITY BENEFITS PROGRAMS:
THE DUTY OF CANDOR AND THE SUBMISSION OF ALL EVIDENCE 6-8 (2012), available at http://www.acus.
gov/sites/default/files/documents/ACUS_Final_ Report_SSA_Duty_of_Candor.pdf [hereinafter DUTY OF
CANDOR] (discussing obligation of claimants and their representatives under current SSA regulations to
disclose evidence).
188

35

the relief requested 194 and, at the appellate level, litigants often must include a section
describing the relevant standard of review. 195 Moreover, litigants customarily must
compile items such as the complaint and transcripts in a record appendix. 196 The failure
to require anything of claimant representatives is more telling in that there is no
government representative, unlike in litigation with the government generally, to marshal
the information and present it in a way to ease the burden on the judicial factfinder.
A.

Requiring Presentation of Information Before the Hearing
In this section, we trace three ways to enhance case management by utilizing the

claimant’s representative to streamline the adjudication process.
First, mandating all medical records to be submitted before the hearing and
requiring additional prescribed information to be presented in a pre-hearing brief would
clarify the record and save the agency time. 197 The agency by rule could direct claimants
to assemble and summarize all the critical information before a hearing is scheduled, such
as prior work history, asserted impairment, medical records, onset date, RFC, and the
like. Much time is spent by the ALJs and staff sifting through the record, and delays
arise when, right before a hearing, ALJs realize that key medical evidence is missing. 198
Such clarity might precipitate more on-the-record decisions to award allowances and

194

See FED. R. CIV. P. 12(b)(6) (2013).
See FED. R. APP. P. 28(a)(9)(B) (2013).
196
Agencies at times require full disclosure as well. Practice before the Patent & Trademark Office
provides one example. See 37 C.F.R. § 1.56(b) (2013).
197
Claimants already have the burden of proof to demonstrate disability. See 20 C.F.R. §§ 404.1512(a),
416.912(a) (2013) (including furnishing “medical and other evidence that [SSA] can use to reach
conclusions about [claimants’] medical impairment(s). If material to the determination whether [claimants]
are blind or disabled, medical and other evidence must be furnished.”).
198
Cf. Williams v. Astrue, 788 F.Supp.2d 769, 776 (N.D. Ill. 2011) (explaining that the ALJ was left to rely
mostly on hearing testimony and draw inferences from the record in the absence of medical evidence from
the relevant period).
195

36

thereby minimize delay for the claimants. 199 Requiring a pre-hearing brief and disclosure
of all medical records would make for a crisper, more focused hearing. Representatives
and claimants who intentionally omit relevant information obfuscate the record and could
face adverse consequences. 200
Experience from the National Hearing Centers (“NHC”), five offices established
by SSA to adjudicate claims via video as part of a strategy to reduce the hearings
backlog, 201 supports this recommendation. There, attorneys employed by the ALJs work
up the cases and present a pre-hearing brief to the supervising ALJs. 202 According to the
IG report, the vast majority of ALJs interviewed found the briefs extremely helpful. 203
Our recommendation shifts the burden to the claimant to save agency resources,
particularly in venues outside the NHC.
To be sure, claimant representatives (or claimants themselves) might use such
pre-hearing briefs to marshal information from the often-voluminous files to create as
strong a position for the claimants as possible. After all, that is the attorney’s craft. ALJs
might be too overworked to locate conflicting information deep in the file. On the other

199

After this project was launched, SSA initiated a parallel study to consider whether to impose a duty to
disclose information upon the claimant, analogous to a prosecutor’s duty pursuant to Brady v. Maryland,
373 U.S. 87 (1963), to ensure that all relevant information be presented to the ALJ for determination, as
opposed to snippets of evidence that can be misleading. The very consideration of such a proposal
highlights the current weakness in the system for generating an adequate record. We fully encourage the
adoption of the options put forward in the subsequent study that impose a disclosure duty upon claimants.
See DUTY OF CANDOR, supra note 193, at 39-41.
200
See Drew A. Swank, Money for Nothing: Five Small Steps to Begin the Long Journey of Restoring
Integrity to the SSA Disability Program, 41 HOFSTRA L. REV. 155, 170-74 (2012) [hereinafter Swank]
(setting forth potential consequences and embracing requirement of full disclosure).
201
SOC. SEC. ADMIN. OFFICE OF THE INSPECTOR GENERAL, A-12-11-11147, THE ROLE OF THE NATIONAL
HEARING CENTERS IN REDUCING THE HEARINGS BACKLOG 1 (2012), available at http://oig.ssa.gov/sites/
default/files/audit/full/pdf/A-12-11-11147.pdf [hereinafter ROLE OF THE NHC].
202
ROLE OF THE NHC, supra note 201, at 1-2.
203
Id. at 8.
37

hand, claimant representatives currently have the option to file such pre-hearing briefs, 204
and many have not done so, whether to conserve effort or for reasons of strategy. 205 Our
proposal to make the pre-hearing brief option mandatory would, therefore, not invest
claimants with any new power. And, the prospect of discipline might chill selective
presentation of evidence.
Second, requiring pre-hearing briefs also would facilitate settlement. Unlike with
most civil litigation, currently there is no formal settlement process in the 800,000 cases
filed before ALJs annually. All must proceed to a hearing or be paid in full. Indeed,
unlike in a typical civil case, the amount that would be due assuming disability rarely is
at issue because of calculations from work history. Pressuring or permitting claimants to
negotiate a lesser disability amount given some uncertainty in eligibility seems
inconsistent with the statutory system. Claimants either are disabled or not.
At least two subsets of cases, however, are well suited for settlement. First, a
number of cases turn on the onset date of the disability. 206 The only issue for resolution
in such cases is the amount of disability owed in the past. Such a fact-bound issue is
appropriate for settlement. Settlement would ensure that claimants receive benefits
faster, eliminate the need for a hearing, and preserve ALJ resources. Some onset cases
currently are adjudicated relatively quickly in the on-the-record hearings, but the ALJ
resources expended are unnecessary. SSA instead could delegate the power to settle the
case to an attorney adviser – such advisers already are employed by the program and
204

THE OFFICE OF THE CHIEF ADMIN. LAW JUDGE OF THE SOC. SEC. ADMIN., BEST PRACTICES FOR
CLAIMANTS’ REPRESENTATIVES 7 (2011), available at http://www.ssa.gov/appeals/documents/
BestPractices_508. pdf.
205
ALJs have the authority to request pre-hearing questionnaires. See HALLEX Prehearing
Questionnaires, supra note 193.
206
For examples of cases in which disability onset dates were at issue, see, e.g., Blea v. Barnhart, 466 F.3d.
903 (10th Cir. 2006). Magallanes v. Bowen, 881 F.2d 747 (9th Cir. 1989); Larlee v. Astrue, 694 F. Supp.2d
80 (D. Mass. 2010); Folio v. Astrue, 2008 U.S. Dist. LEXIS 63907 (D. Ariz. 2008).
38

could readily adapt to the settlement challenge. 207 They would present settlement to the
ALJ for approval. 208
In addition, settlement is also possible in cases in which the disability has
concluded and the only issue is duration. Many claimants have received a traumatic
injury such as from a car crash or accident at the workplace. With time and therapy, they
can reenter the workplace. The critical question in such cases is duration. 209 When prehearing briefs reveal that the only issues for resolution are onset date and/or duration, the
claims can be diverted for settlement discussions.
There is no way to ascertain the number of cases in which only onset date or
duration is at issue because SSA for some reason does not code such disputes.
Nonetheless, even if 5% of the 800,000 cases annually fall within such categories, gains
from such settlement would be significant. 210 We believe that, given the narrow issue at
stake, the prospect for settling most of such cases is strong. Thus, assuming the 5%
figure, tens of thousands of cases annually might be removed from hearings through
settlements, and claimants would receive much-needed funds more rapidly.
Third, a pre-hearing brief requirement would furnish yet another reason to close
the record, something that has been urged in many quarters for a long time. 211 Currently,

207

An assessment of current workloads would need to be conducted in order to gauge the feasibility of
adding an additional task.
208
Alternatively, the agency could assign attorneys working at SSA’s OGCto serve in this settlement role,
and settlements would then be approved by OGC rather than by the ALJ, freeing up more time for ALJs.
209
There may be other cases suitable for settlement. For instance, in some cases there are disputes as to the
amount of money that the wage earner had made prior to the disability.
210
See Wolfe, supra note 40, at 423 (noting that appeals based on issues other than disability itself are
“statistically significant”).
211
See, e.g., id. at 419; Frank S. Bloch, Jeffrey S. Lubbers, & Paul R.Verkuil, Developing a Full and Fair
Evidentiary Record in a Nonadversary Setting: Two Proposals for Improving Social Security Disability
Adjudications, 25 CARDOZO L. REV. 1, 7-8 (2003); IMPROVING THE QUALITY OF BENEFIT AWARD
DECISIONS, supra note 12, at 5. SSA requested that the Office of the Chairman of the Admin. Conference
of the U.S. study the impact of the pilot program in Region I which, among other things, closes the
evidentiary record five days before the ALJ hearing absent a showing of good cause. See 73 Fed. Reg.
39

claimants can furnish new evidence, usually physician records, even after the hearing
before the ALJ. 212 ALJs must delay hearings and, at times, re-hear a case in light of the
new evidence. 213 And, should claimants present new evidence after the ALJ decision, the
Appeals Council often remands the case for yet another hearing. According to the
Appeals Council’s data, 5% of the cited reasons for remanding a case back to ALJs were
based on introduction of new evidence after the ALJ hearing. 214 Those remands account
for 7000 additional hearings that would not have been required but for lack of an
evidentiary cutoff. Moreover, 3% of all cases remanded from the federal courts
addressed insufficient attention paid to evidence submitted after the ALJ decision. 215 The
open record rule is incompatible with efficient adjudication. 216
Accordingly, we examined the remand data from the Appeals Council in cases
arising from Region I to determine the remand rate. 217 Region I is the only SSA region in
which claimants (or their representatives) are required to submit written evidence five
business days prior to the scheduled date of the ALJ hearing, subject to certain
exceptions. 218 Although no definitive conclusions can be drawn, we note that the remand

2411 (Jan. 15, 2008) and 76 Fed. Reg. 24802 (May 3, 2011). Admin. Conference staff is currently
conducting this study and a final report is expected in the summer of 2013.
212
Soc. Sec. Admin., HALLEX I-3-3-6-New and Material Evidence (Dec. 27, 2012), available at http://
www.ssa.gov/OP_Home/hallex/I-03/I-3-3-6.html (In Region I, 20 C.F.R. § 405.401(c) (2012) applies).
213
Interview with Hon. Zachary Weiss, Admin. Law Judge, Soc. Sec. Admin. (Mar. 1, 2013); Logan
Interview, supra note 182.
214
Each remanded decision is coded by the Appeals Council with up to three reasons for remand. The
percentages reported here reflect the number of cases where new evidence was cited as a reason for
remand, relative to the total number of cited remand reasons. New evidence was cited with a 4.5%
frequency rate as a reason for remand in FY 2009, a 4.7% frequency rate in FY 2010, and a 4.4% frequency
rate in FY 2011. Information on other reasons for Appeals Council remands can be found in STATISTICAL
APP., supra note 7, at 58-59.
215
For court examples, see, e.g., Brews v. Comm’r Soc. Sec. Admin., 682 F.3d. 1157 (9th Cir. 2012);
Schala v. Apfel, 134 F.3d 496 (2d Cir. 1998).
216
SSA Region I is an exception, in which claimants are (generally) required to submit all written evidence
“no later than five business days before the date of the scheduled [ALJ] hearing.” 20 C.F.R. § 405.331(a)
(2013).
217
STATISTICAL APP., supra note 7, at Part V.A.3.
218
See 20 C.F.R. § 405.331 (2013).
40

rate from Region I is significantly lower (although not the lowest) than the median,
perhaps in part due to the rule barring introduction of new evidence after the ALJ
hearing. 219
Moreover, an open record prevents settlement. As we have suggested, facilitating
settlement is in the interests of all sides – claimants receive benefits earlier and SSA
avoids the expense of adjudication. SSA and claimants will not be able to determine
whether settlement is appropriate and, if so, at what level unless the record is closed.
Recommendation 2 – Pre-Hearing Briefs by Claimants or Their
Representatives: We recommend that SSA require claimants to furnish all relevant
medical information and to summarize justification for their eligibility in a pre-hearing
brief, after which no new information could be submitted. Altering the case management
system as sketched above (e.g., pre-hearing briefs) would reflect a modest change that
could benefit claimants, while saving ALJs time and resources by reducing the demand
on ALJs appreciably. Many claimant representatives file pre-hearing briefs currently, so
the additional burden imposed would be marginal. Unrepresented claimants – who
account for approximately 20% of claimants at the hearing level 220 – could also file prehearing briefs. The greater transparency would clarify issues to resolve at the hearing
even aside from the prospect of facilitating settlement.

219

See STATISTICAL APP., supra note 7, at 55 tbl. A-25. Six percent of remands were from Region I. Id.
Region VIII had the lowest number of remands, comprising 2% of all remands. Id. Other regions with
relatively low remand rates included Region VII (6%) and Region X (7%). By contrast, regions with the
highest remand rates included Region IV (21%), Region VI (14%), and Region IX (13%). Id. Percentages
were calculated relative to the total number of remands, and did not account for differences across regions
in the number of dispositions or claims filed. Id. at 53.
220
See supra n.43 and accompanying text.
41

B.

Enhancing Communication Between ALJs and Decisionwriters
In addition to the need to improve case management, communication between

ALJs and staff has proven problematic. 221 Given the time demands, communication
between ALJ and staff must be as seamless as possible. In particular, we believe that the
separation between decisionwriters and ALJs has engendered much of the weakness in
ALJ decisions.
First, there may be poor communication between ALJ and decisionwriter. Some
ALJs may give scant instruction and leave it up to the decisionwriter to figure out how to
allow or deny a claim. 222 The problem is that the decisionwriters have not made the
credibility decisions or determined the weight of all critical information in the file. 223 As
a result, there may well be gaps in reasoning. 224
Second, the split between ALJ and decisionwriter, whom he or she does not
superintend, makes it likely that the ALJ has less pride in authorship. Some ALJs may,
of course, rigorously edit the work of decisionwriters to make it their own. Others may
be content if the decisionwriters get the gist of their reasoning. Given the incredible
caseload, it is understandable that many ALJs edit only lightly. Although difficult to
221

See e.g., AALJ Survey, supra note 179 (documenting ALJs’ frustrations). Some illustrative text
comments from respondents include: “The writers want information spoon-fed instead of using reasoning
to get to my conclusion.” Id. (comment #4). “The writers are also under increasing pressures to just crank
out a decision and they do not pay attention to the instructions.” Id. at 37 (comment #5). “[T]he writers
do what SSA management tells them to do, which may have little or nothing with getting out good draft,
which mean that the writers get the fact of the case wrong, or they get the law of the case wrong, or they
fail to fully and fairly discuss credibility.” Id. at 37-38 (comment #11). “[S]ome decisions are so chaotic it
is hard believe writers understand the concept of longitudinal or chronological.” Id. at 39 (comment #38).
“They should be able to work with a Judge understadn [sic] the Judge’s theory and have the Judge give
them the RFC and the writers should be able to write a very specific, detailed, legal opinion that needs little
review or editing. I know of very few writers who can do that.” Id. at 42-43 (comment #84). Overall,
however, 69.2% of the ALJs responding to the survey were satisfied with the quality of the work of the
decisionwriters in their office. Id. at 6 (Question #9).
222
Interview with Hon. Susan Blaney, Admin. Law Judge (ret.), Soc. Sec. Admin. (Feb. 7, 2013)
[hereinafter Blaney Interview]; Logan Interview, supra note 182.
223
Id.
224
See AALJ Survey, supra note 179 (describing issues between ALJs and decisionswriters from ALJs’
perspectives).
42

prove, much of the lack of reasoned elaboration in ALJ decisions discussed before may
stem from the split between ALJ and decisionwriter.
Indeed, evidence from the relatively recently created NHC reinforces this
recommendation. 225 There, ALJs supervise their decisionwriters directly. The decision
to create the NHC sparked intense controversy because it precluded unionization for the
judges assigned to the NHC in light of their new supervisory role. 226 Yet, as the IG
report noted, the ALJs at the NHC believe that the decisionwriters assigned “develop[ed]
a good understanding of their supervising ALJ’s preferences.” 227
SSA does not capture the remand rate for ALJs in the NHC. But, should SSA
determine that the remand rate is below the mean, it should extend the initiative to one of
the regional offices for a two-year period. SSA has not experimented with this new
structure other than in the NHC, which focus exclusively on video hearings, so the
extension to a more traditional office would determine whether the tighter
ALJ/decisionwriter relationship works in that setting as well. Moreover, unlike with the
NHC, the rearrangement should be neutral with respect to unionization – ALJs should be
allotted decisionwriters and have some supervisory input over their work but not have to
leave the union as a price for the greater responsibility. 228 No ALJs in the NHC can join
a union. 229
Recommendation 3 –Assignment of Decisionwriters to ALJs: We recommend a
pilot project in which, for a two-year period, ALJs in one regional office are assigned two
225

The first NHC office opened in Oct. 2007. ROLE OF THE NHC, supra note 201, at 1.
ROLE OF THE NHC, supra note 201, at 8 n.15.
227
Id. at 7.
228
For purposes of this study, we have not considered how best to structure the pilot project to permit – if
desired – continued unionization for the ALJs involved. Best efforts should be made to separate
restructuring from the question of unionization.
229
Bargaining unit employees cannot manage other bargaining unit employees. Union judges cannot
manage union decisionwriters, at least directly. See generally 5 U.S.C. §§ 7103 et seq. (2013).
226

43

decisionwriters or law clerks to help them work up and write initial drafts of decisions.
The assigned decisionwriters would understand the reasoning of the ALJ and be able to
craft a draft much more to the thinking of the ALJ. ALJs must supervise the clerks at
least in part and, accordingly, will assume more responsibility for the end product. In
that way, the drafts likely will be better analyzed and more able to withstand review at
the Appeals Council or federal court level. The ALJs may spend somewhat more time
writing opinions but save time in working up the case. Ultimately the drafts should
improve and the likelihood of remand decrease, thus minimizing the number of hearings.
If the statistics after the trial period do not show that such ALJ decisions are remanded
less, or do not show that ALJs can keep up with the workload, then the project should be
dismantled.

V.

VIDEO HEARINGS

SSA has encouraged greater utilization of video hearings, and the number of such
hearings each year has increased. In FY 2011, ALJs conducted approximately 20% of all
hearings via video. 230 Video hearings can reduce the backload of cases and limit
expenditures by minimizing the need for ALJ and claimant travel, 231 obviating payment
for travel costs. 232 For example, if there is a backlog in New York City, ALJs across the
country can step in to help by adjudicating the backlog via video. It is estimated that
SSA’s use of video hearings will save $52 million to $109 million over a 10-year

230

SOC. SEC. ADMIN. OFFICE OF THE INSPECTOR GENERAL, A-05-12-21287, CONGRESSIONAL RESPONSE
REPORT: THE CURRENT AND EXPANDED USE OF VIDEO HEARINGS 3 (2012), available at http://oig.ssa.gov/
sites/default/files/audit/full/pdf/A-05-12-21287.pdf [hereinafter VIDEO HEARINGS REPORT].
231
SSA currently reimburses ALJs, claimants, and even claimant representatives for trips in excess of 75
miles. Reimbursement may cover travel costs, meals, and at times lodging. See
www.socialsecurity.gov/appeals/hearing_process.html (providing when the agency can pay for travel
costs).
232
The IG report determined that such savings were difficult to calculate with any precision, but at least
resulted in savings of several million dollars a year. VIDEO HEARINGS REPORT, supra note 230, at 9, 15.
44

period. 233 Although we did not find that video hearings reduced disparities among
ALJs, 234 SSA for a variety of reasons, 235 might encourage utilization of video even more
expansively by promising claimants less waiting time if they resorted to video, or even
mandating use of video by all concerned. SSA has stated that expanded use of video
services is a priority. 236
To date, however, there has been scant assessment of the impact of video hearings
on the ALJ hearing itself. In a 2006 report, the Social Security Advisory Board noted:
“The comments we have heard on the use of [video hearings] have been overwhelmingly
positive . . . . The technology obviously meets the requirements of due process, and it is
in widespread use in other types of adjudications.” 237 Some might posit that ALJs are
more sympathetic to claimants whom they see face-to-face, and therefore that video
hearings would tend to be tougher on claimants. Or, conversely, to the extent that ALJs
no longer observe claimants’ behavior before and after the hearing, perhaps ALJs are
likely to be more pro-claimant in video hearings given that such observation, at times,
may lead ALJs to doubt the credibility of claimant testimony.
233

E-mail from Elizabeth Ochoa, Senior Auditor, SSA OIG Office of Audit, to Funmi Olorunnipa, Att’y
Advisor, Admin. Conf. of the U.S. (June 28, 2012) (on file with ACUS).
234
See STATISTICAL APP., supra note 7, at 40. Data provided by SSA on yearly disposition outcomes
indicate the opposite pattern, with larger variance across ALJs in allowance rates for video hearings
(SD=.25) than for non-video hearings (SD=.17). Id. However, these numbers are not directly comparable,
due to differences in the number dispositions used in the calculation of rates for these two conditions. Id.
at 41-42. The variance due to sampling error for rate statistics is influenced by the number of data points.
Specifically, the SD of a rate p computed from n data points is �𝑝(1 − 𝑝)/𝑛 . Id. at 42. As the number of
data points increases, the SD of the rate will decrease. Id. From our data, the average yearly allowance
rate for non-video hearings was .50 based on an average of 101 dispositions, while the average yearly
allowance rate for video hearings was .55 based on an average of 350 dispositions. Id. Given these values,
the expected SD due to sampling error would be .05 for video hearings, and .03 for non-video hearings. Id.
235
In addition to cost savings, video hearings may serve as a check on speculation that there is a “small
town” bias that arises because the rumored allowance rates of judges in small towns exceed those
elsewhere due to the understandable empathy that an ALJ may have for an applicant. The suggestion is
that ALJs when in more frequent contact with claimants, whether in a grocery store, church, or post office,
tend to be more sympathetic. Due to limitations in the data received, we were not able to test this
hypothesis, but a rational agency could utilize video as an antidote if such bias existed.
236
ANNUAL PERFORMANCE PLAN, supra note 3, at 27.
237
See IMPROVING THE HEARING PROCESS, supra note 13, at 21.
45

More generally, however, videoconferencing technology is in widespread and
accepted use today in a broad spectrum of administrative, civil, and, occasionally,
criminal proceedings. 238 Some studies suggest that use of video hearings in these
contexts does not have a statistically significant effect on either perception of witnesses
or outcomes. 239 On the other hand, a recent study of video hearings in asylum cases
concluded that the allowance rate in video cases was sharply lower than for the rate in
more traditional face-to-face hearings, though lower representation rates for asylum
applicants at video hearings makes it difficult to draw broad generalizations. 240
Our analysis of the data collected from SSA is not definitive, but lends credence
to the conclusion that a switch to video hearings does not materially affect the outcome.
We looked at two sets of data to examine the impact of video hearings. First, we
compared the allowance rate between video and traditional hearings. We found a 3%
differential – the allowance rate in video cases is 3% less than for other
determinations. 241 Over time, this differential has remained relatively constant. 242 We

238

See, e.g., Frederic I. Lederer, The Potential Use of Courtroom Technology in Major Terrorism Cases, 12
WM. & MARY BILL OF RTS. J. 887, 908-14 (2004); see also Federal Judicial Center, Report of a Survey of
Videoconferencing in the Court of Appeals 1 (2006), available at http://www.fjc.gov/public/pdf.nsf/lookup/
vidconca.pdf/$file/vidconca.pdf [hereinafter Videoconferencing Survey] (discussing results of survey of
appellate judges in the Second, Third, Eighth, Ninth, and Tenth Circuits using videoconferencing for oral
arguments and noting that, for judges interviewed, the benefits of such technology outweighed the
disadvantages); Fed. R. Civ. P. 43(a) (“For good cause . . . the court may permit testimony in open court
by contemporaneous transmission from a different location.”); National Center for State Courts,
Videoconferencing Survey 2010 Results (Sept. 2010) (finding widespread use of videoconferencing for
civil and criminal (bail) hearings by state courts), available at http://www.ncsc.org/services-and-experts/
areas-of-expertise/technology/~/media/Files/Video%20Conferencing%202010/Videoconferencing%
20Survey-3.ashx.
239
See Lederer, supra note 238, at 908-09; Videoconferencing Survey, supra note 238, at 1, 7-12.
240
See discussion in Frank M. Walsh & Edward M. Walsh, Effective Processing of Assembly-Line Justice?
The Use of Teleconferencing in Asylum Removal Hearings, 22 Geo. Immigr. L.J. 259, 271-272 (2008)
(finding that in FY 2005 and FY 2006, claimants who had hearings in person were almost twice as likely to
be granted asylum as those who had hearings by video). However, more claimants were unrepresented in
hearings done by video than those done in person, so the difference in grant of asylum rate found may not
have been as profound.
241
See STATISTICAL APP., supra note 7, at 40.
46

also considered the incidence of representation in video cases to see if that might account
for any differential. Representation rates were not substantially different. 243 The lowest
allowance rate was 4% and the highest allowance rate was 98%. 244 In light of that
substantial variance among ALJs, the three percentage point difference overall seems
modest.
Second, we compared the allowance rates of ALJs who conducted both video and
traditional hearings to determine if there was a significant difference in allowance rate in
those two settings for each particular ALJ. A majority of ALJs decided for claimants
more in face-to-face than in video hearings, although the differential was modest. 245
Thus, we did not observe substantially different allowance rates in video as compared
with traditional face-to-face hearings for those ALJs who conducted both types of
hearings.
This is not to slight the dignity interests at stake in disability hearings. The ability
to tell one’s story directly to the decisionmaker respects the seriousness and importance
of the claim. Win or lose, claimants likely have more faith in the system if they obtain
the chance to address the judge on a more intimate level. Indeed, courts in related
contexts have noted the differences between in-person and video testimony. For instance,
in the asylum setting, the Seventh Circuit in Thornton v. Snyder 246 stated that the
“importance of presenting live testimony in court cannot be forgotten. The very
ceremony of trial and the presence of the factfinder may exert a powerful force for truth

242

E-mail from Ben Gurga, SSA Program Analyst, SSA, to Scott Morris, Associate Dean & Professor, IIT
College of Psychology (Feb. 28, 2013) (on file with author).
243
Id.
244
See STATISTICAL APP., supra note 7, at 13-14.
245
Id. at 29-31, 40-42.
246
428 F.3d 690 (7th Cir. 2005).
47

telling. The opportunity to judge the demeanor of a witness face-to-face is accorded
great value in our tradition.” 247 Similarly, the Fourth Circuit in Rusu v. INS 248 stated in
an asylum case that “[v]irtual reality is rarely a substitute for actual presence and . . . even
in an age of advancing technology, watching an event on the screen remains less than the
complete equivalent of actually attending it.” 249
While the “ceremony of trial” is ingrained in our culture, contemporary studies
have questioned the salience of demeanor evidence. “[T]here is some evidence that the
observation of demeanor diminishes rather than enhances the accuracy of credibility
judgments.” 250 Ordinary observers often do not derive benefit from observing either a
person’s face or that person’s nonverbal behavior. 251 In fact, in the court context,

247

Id. at 698.
296 F.3d 316 (4th Cir. 2002).
249
Id. at 322.
250
Olin Guy Wellborn III, Demeanor, 76 CORNELL L. REV. 1075, 1076 (1991); see also Gregory L. Ogden,
The Role of Demeanor Evidence in Determining Credibility of Witnesses in Fact Finding: The Views of
ALJs, 20 J. NAALJ 1, 3-4 (2000), which states:
Social science research casts significant doubt on the core assumption behind the weight given to
demeanor evidence in making credibility determinations. Specifically, the psychological studies
show that the non verbal cues associated with demeanor evidence do not provide increased
accuracy in making credibility determinations, either in detecting whether a witness is telling the
truth or lying, or in assessing the believability of a witness who may be sincere but inaccurate or
mistaken in their testimony.
Id. at 3-4; Max Minzner, Detecting Lies Using Demeanor, Bias, and Context, 29 CARDOZO L. REV. 2557,
2558 (2006) (noting that a series of social science studies in the early 1990s demonstrated “that test
subjects in laboratory experiments correctly determined when a person was lying only slightly more than
half the time,” therefore undermining the traditional view that juries can make accurate credibility
determinations from observation of demeanor). The article goes on to say that current studies show that
demeanor evidence is more complicated, and that “biases about witness credibility play a large role in
determining whether deception will be caught.” Id.
251
Id. at 1088. The study states:
Taken as a whole, the experimental evidence indicates that ordinary observers do not benefit from
the opportunity to observe nonverbal behavior in judging whether someone is lying. There is no
evidence that facial behavior is of any benefit; some evidence suggests that observation of facial
behavior diminishes the accuracy of lie detection. Nor do paralinguistic cues appear to be of
value; subjects who receive transcripts consistently perform as well as or better than subjects who
receive recordings of the respondent’s voice. With respect to body cues, there is no persuasive
evidence to support the hypothesis that lying is accompanied by distinctive body behavior that
others can discern.
Id.
248

48

[w]hen a juror is told that he may use a witness’s conduct, manner, bearing or
demeanor in order to assess that witness’ credibility, the juror will attempt to use
cues and behavior which actually mislead him and cause him to conclude that a
witness is perjurious more often than the juror should. 252
In the administrative adjudication context, using demeanor to determine credibility does
not fare much better. A survey was given to ALJs to test the role of demeanor evidence
in determining witness credibility. 253 “Demeanor evidence ranked dead last in terms of
relative importance as a fact finding factor.” 254 ALJs place “relatively low value . . . on
demeanor evidence by comparison to other relevant factors.” 255 Thus, even if video
hearings impaired an ALJ’s ability to assess demeanor evidence, there likely would not
be an adverse impact on accuracy.
Recommendation 4 - Use of Video Hearings: In short, the government’s interest
in flexibility, coupled with both the sophistication of advanced video techniques, and the
fact that the disposition rates of hearings conducted via video as compared with hearings
conducted in-person are relatively similar, supports greater utilization of video in social
security disability hearings. The video questioning may be viewed by some as not as
effective as face-to-face questioning, but it comes close enough to satisfy basic principles
of fairness. As Justice Scalia commented in Barnhart v. Thomas 256 “[t]here is good
reason to use a workable proxy” in social security determinations. Given that the system
“is probably the largest adjudicative agency in the western world … the need for

252

Jeremy A. Blumenthal, A Wipe of the Hands, A Lick of the Lips: The Validity of Demeanor Evidence in
Assessing Witness Credibility, 72 NEB. L. REV. 1157, 1197 (1993).
253
See generally Ogden, supra note 250.
254
Id. at 22.
255
Id.
256
540 U.S. 20 (2003).
49

efficiency is self-evident.” 257 Thus, we recommend – as did the Social Security Advisory
Board in 2006 258 – that SSA continue its push to utilize video technology more widely.

VI.
A.

ASSESSING THE APPEALS PROCESS

Appeals Council Functions
SSA long has experimented with how best to utilize its Appeals Council. The

Social Security Board created the Council in 1940, originally with three members, to
review work of the referees who at that point resolved claims for benefits. 259 After the
enactment of the Administrative Procedure Act (“APA”), SSA granted disappointed
claimants the right to appeal adverse decisions to the Council and delegated its final
decisionmaking power to the Council. 260
Prior to 1980, SSA did not have a formal program for Appeals Council review of
unappealed ALJ allowance decisions – generally referred to as own motion review – and,
as a consequence, reviewed such decisions infrequently. 261 The caseload before the
Appeals Council thus consisted largely of appeals from ALJ decisions denying benefits.
In 1980, Congress passed a set of statutory reforms of the Social Security disability
program to, among other things, streamline the hearings process, address the proliferation

257

Id. at 28 (citation omitted).
IMPROVING THE HEARING PROCESS, supra note 13, at 21.
259
Irving Ladimer, Hearing and Review of Claims and Wage-Record Cases Under Old-Age and Survivors
Insurance, 3 SOC. SEC. BULL. 21, 22-23 (July 1940).
260
The statutory authority is implicit: “The Commissioner of Social Security is further authorized, on the
Commissioner’s own motion, to hold such hearings and to conduct such investigations and other
proceedings as the Commissioner may deem necessary or proper for the administration of [disability
benefits programs].” 42 U.S.C. § 405(b)(1) (2013).
261
E.g., RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 9.10 (5th ed. 2010). The Social
Security Act nonetheless provides the agency with wide discretion to establish procedures governing the
process for adjudicating disability claims, including entertaining own motion review of ALJ allowance
decisions. See, e.g., supra note 260.
258

50

of claims, and respond to perceived inconsistencies in ALJ decisionmaking. 262 The socalled “Bellmon Amendment,” which was part of this enactment, specifically directed the
agency to launch a program for Appeals Council review of ALJ decisions allowing
disability claims prior to payment or “effectuation.” 263 While the particular program
initiated by SSA as a result of the Bellmon Amendment was largely abandoned after
several years due to legal challenges, 264 SSA nonetheless has maintained some form of
regulatory own motion review under its regulations since that time. 265
Currently, the Appeals Council reviews ALJ decisions in two ways. Most
prominently, disappointed claimants enjoy the right to appeal, and approximately
173,000 did so in FY 2011. 266 The Council processed 126,992 requests for reviews the
same year, some of which were filed the year before, and the average processing time
was 360 days. 267 Of those reviews, 75.6% were denied or dismissed, 21.2% remanded,
1.4% fully allowed and 1.1% partially allowed. 268
Second, SSA on its own motion can select a sampling of cases for the Appeals
Council to review pre-effectuation or before the ALJ decision becomes a final decision of
the agency. The SSA regulation provides that “[w]e will identify cases for referral to the

262

Pub. L. No. 96-265, 94 Stat. 441 (1980); see also John R. Kearny, Social Security and the “D” in
OASDI: The History of a Federal Program Insuring Earners Against Disability, 66 SOC. SEC. BULL. 3, 1415 (2005/2006).
263
Pub. L. No 96-265, § 304(g), 94 Stat 441, 456 (1980) (codified at 42 U.S.C. § 421 note); see also supra
Part VI.C (discussing Bellmon Amendment).
264
See discussion infra Part VI.C.
265
See, e.g., 20 C.F.R. §§ 404.969(a)-(d), 416.1469(a)-(d) (2013) (setting current regulatory procedures for
identification of own motion review cases).
266
Hearing Before the Subcomm. on Soc. Sec. of the H. Comm. on Ways & Means, 112th Cong. (June 27,
2012) (statement of Jeffrey S. Lubbers, Professor, American University Washington College of Law)
(citing SSA, General Appeals Council Statistics, http://www.ssa.gov/appeals/ac_statistics.html) (last visited
Feb. 25, 2013).
267
Soc. Sec. Admin. Office of Appellate Operations Executive Director’s Broadcast (Oct. 7, 2011) (on file
with author).
268
The percentage of cases remanded has declined over the years, which might suggest improvement in
ALJ decisionmaking. See ASPECTS OF DISABILITY DECISION MAKING, supra note 1, at 62.
51

Appeals Council through random and selective sampling techniques, which we may use
in association with examination of the cases identified by sampling.” 269 Despite this
regulatory authorization for selective sampling, SSA currently selects cases for the
Appeals Council to review on own motion purely on a random (rotational) basis. 270 In
FY 2011, own motion cases represented roughly 3.4% of the Council’s docket. 271
Both ALJs and the Appeals Council are lodged within ODAR. In 2010, the
Appeals Council created the Division of Quality Review (“DQR”), which focuses on
enhancing the consistency of ALJ decisions. 272 DQR alerts the Appeals Council to
questionable determinations in the random sampling of cases it reviews. 273 In FY 2011,
DQR examined 3692 Fully Favorable cases in favor of claimants pre-effectuation, and
the Appeals Council took own motion review of 812 cases, or 22%, because of
weaknesses in analyses. Ultimately, the Council issued 73 Fully Favorable decisions, 57
Partially Favorable decisions, and returned 550 cases to ALJs for further development. 274
Another 128 had not been resolved by the end of the FY. 275

269

20 C.F.R. §§ 404.969(b), 416.1469(b) (2013); see also Soc. Sec. Admin., HALLEX I-3-1-30-Workup of
Case by Analyst – Unappealed Review, at (A) (Oct. 13, 2011), available at http://www.ssa.gov/
OP_Home/hallex/I-03/I-3-1-30.html [hereinafter HALLEX Unappealed Review].
270
E-mail from Gerald Ray, Deputy Exec. Dir., Soc. Sec. Admin. Office of Appellate Operations/Admin.
Appeals Judge to Harold J. Krent, Dean and Professor of Law, IIT Chicago-Kent College of Law (Aug. 30,
2012) [hereinafter Ray E-mail].
271
The vast majority of cases the Appeals Council reviews result from actions related to appeals by
claimants, but a small percentage represent own motion review (i.e., bureau protests and pre-effectuation
review of Fully Favorable decisions) of ALJ allowance decisions. Data from SSA show that in FY 2011,
the Appeals Council processed 126,992 requests for review, whereas it processed 4351 cases under own
motion review (data on file with ACUS). In FY 2012, the Appeals Council processed 166,020 requests for
review, while processing 7598 cases under own motion review (same). Additionally, the Appeals Council
also processes remands from federal courts. See Soc. Sec. Admin. Office of Appellate Operations
Executive Director’s Broadcast, at 3 (Jan. 13, 2012) [hereinafter Exec. Dir. Special Ed.] (on file with
ACUS).
272
SOC. SEC. ADMIN. ORGANIZATIONAL MANUAL, at Subchapter TK(II)(D) (Soc. Sec. Admin.), available
at http://www.socialsecurity.gov/org/orgdcqp.htm#oqr.
273
IMPROVING THE QUALITY OF BENEFIT AWARD DECISIONS, supra note 12, at 13-16.
274
Exec. Dir. Jan. 2012, supra note 163, at 1.
275
Id.
52

SSA must decide within 60 days of the ALJ decision whether to exercise own
motion review, 276 based upon the agency’s determination that review is appropriate even
in the absence of an appeal by a disappointed claimant, or more commonly, when an ALJ
or senior attorney advisor has directed that a claim be paid. 277 If own motion review is
selected, the Council notifies claimants and provides a 25-day window for submission of
additional evidence and testimony. 278 If the Council has not reached a decision within
110 days of the hearing, interim benefits must be paid and are not recaptured if the
decision is overturned. 279
There are 70 Administrative Appeals Judges (“AAJs”) serving on the Council. 280
They are agency officials exercising judicial functions who lack the protections of the
APA. There are 56 Appeals Officers (“AOs”) who aid in the review process, and
additional support staff to assist that effort. 281 A single AAJ or AO may deny review of
the appeal, which makes the ALJ’s denial of benefits final, while two AAJs must agree to
a reversal or remand of an ALJ decision denying benefits. 282 SSA has considered
inviting ALJs to serve with AAJs on the Council for a brief rotation. 283
Third, DQR also reviews a stratum of cases post-effectuation, in other words after
the ALJ’s decision has become final, for quality control purposes. In FY 2011, DQR
started performing post-effectuation studies on various topics based on identified
276

20 C.F.R. §§ 404.969(b), 416.1469(b) (2013); see also HALLEX Unappealed Review, supra note 269,
at (D).
277
20 C.F.R. §§ 404.969(b), 416.1469(b) (2013); see also HALLEX Unappealed Review, supra note 269,
at (E).
278
See Exec. Dir. Special Ed., supra note 271, at 4.
279
Id.
280
Soc. Sec. Admin., Brief History and Current Information about the Appeals Council,
http://ssa.gov/appeals/about_ac.html (last visited February 13, 2013).
281
Id.
282
See Soc. Sec. Admin., HALLEX I-3-8-1-General (Sept. 8, 2005), available at http://www.ssa.gov/OP_
Home/hallex/I-03/I-3-8-1.html.
283
Exec. Dir. Jan. 2012, supra note 163, at 2. While ALJs have served details on the Appeals Council in
the past, none are currently doing so.
53

anomalies including ALJs, hearing offices, medical sources, a claimant representative,
and a disability issue. 284 For each focused review, DQR examines about 70 cases
featuring the troubling characteristic it identified. Much of the information gained from
focused review is used to enhance future training. ODAR will talk to ALJs reviewed
only if a distinct pattern of errors emerges.
B.

Error Correction Goals
Unlike other administrative agencies, SSA does not make policy through

adjudication. 285 The Appeals Council’s goal principally is to ensure that ALJ decisions
correctly apply SSA policy to the facts of the case and are consistent with each other. 286
Such consistency manifests respect for the claimant and promotes the integrity and
fairness of the disability adjudication system nationwide. Secondarily, the Council’s
objective is to enhance ALJ decisionmaking and thereby minimize the remand and
reversal rate from the Appeals Council and federal courts. 287
Many signals point to the need to correct ALJ errors. The 50% court remand rate
is high and has been consistent for decades and, as previously noted, OQP’s study
determined that there was a 16% error rate in grants and 9% error rate for denials. 288 The
quality control program instituted by the Appeals Council is commendable – it identifies
sources of error in ALJ decisions so as to permit more effective training and feedback in
the future. We cannot say whether, on an objective basis, the Appeals Council, ALJs, or
284

In FY 2011, DQR performed 19 focused reviews. Exec. Dir. Oct. 2012, supra note 302, at 3.
In contrast, the National Labor Relations Board (“NLRB”) makes policy almost exclusively through
adjudication. See, e.g., Mark H. Grunewald, The NLRB’s First Rulemaking: An Exercise in Pragmatism,
41 DUKE L.J. 274, 281-82 (1991).
286
See Astrue Testimony, supra note 9 (describing that the agency relies “on the A[ppeals] C[ouncil] to
improve the quality of our hearing decisions”).
287
See id. (describing that the Appeals Council conducts focused reviews to identify common errors in ALJ
decisions).
288
See REVIEW OF ALJS’ DECISIONS, supra note 175, at 9-10.
285

54

the district courts make fewer errors, but the Appeals Council of the three institutions is
the only one whose goal it is to ensure consistency throughout the system.
A recent investigation by Republican staffers on the Senate Permanent
Subcommittee on Investigations reinforces the importance of the Appeals Council’s
goals. 289 Based on a study of 300 randomly selected cases awarding benefits from
Virginia, Alabama, and Oklahoma, subcommittee investigators reviewed the cases and
determined that the ALJ reasoning in about one quarter of the cases was seriously
deficient. The ALJ decisions ignored salient evidence or failed to support conclusions
sufficiently – the decisions “failed to properly address insufficient, contradictory, or
incomplete evidence.” 290
The investigators did not necessarily disagree with the bottom line, but concluded
that the decisions were legally indefensible. 291 The report summarized ALJ adjudications
in which credibility determinations were mishandled, in which ALJs failed to cite
relevant information, and in which ALJs misapplied SSA standards. 292 More problems
are likely to arise in decisions awarding benefits because ALJs understandably may spend
less time writing and editing decisions allowing as opposed to denying benefits because
such allowances largely are not reviewed on appeal. 293 Nonetheless, the subcommittee’s
investigation reveals that many decisions upholding benefits were not just insufficiently
reasoned, but wrong. Thus, the subcommittee report suggests a serious deficiency in ALJ
reasoning and analysis.
289

See generally IMPROVING THE QUALITY OF BENEFIT AWARD DECISIONS, supra note 12.
Id. at 3-4. For our own analysis of SSA data on the degree of variability and correlates of disposition
outcomes, see generally the STATISTICAL APPENDIX accompanying this report. STATISTICAL APP., supra
note 7.
291
See id. at 3-5 (noting report’s findings of fact).
292
Id. at 3-4, 20-87, 104-32.
293
The problem that arises, however, is that such terse decisions may create an inadequate baseline from
which to determine if a beneficiary’s condition has improved sufficiently. See infra Part VIII.
290

55

Our statistical analysis reinforces what the subcommittee staffers determined on
several levels. 294 Allowance rates have become less extreme over time; 295 nevertheless
substantial inconsistencies remain. For instance, in FY 2011, 10% of ALJs had
allowance rates in excess of 72%, while 10% had allowance rates less than 34%. 296
Twenty-five ALJs allowed claims at least 90% of the time, and about the same number
denied claims 80% of the time. 297 Although some variability is to be expected due to
differences in the cases reviewed by each ALJ, the observed range of allowance rates is
considerably wider than would be expected due to case differences. 298 Given the
similarity in the pools of claims nationwide, disparities of this magnitude should not
arise.
Moreover, the remand statistics from both federal courts and the Appeals Council
previously discussed suggest that ALJ decisionmaking has room for improvement. With
remand rates at close to 50% from the federal courts and over 20% from the Appeals
Council, there is little question as to the need to enhance consistency and accuracy. 299
Given the pressure to decide 800,000 cases annually, the challenges endemic to
ALJ decisionmaking should not be surprising. 300 Based on the high remand rate, the
subcommittee investigation, and OQP’s analysis, much improvement is needed in ALJ
decisionmaking.
294

See STATISTICAL APP., supra note 7, at Parts II.E., III.B. Federal courts have been critical as well. See
generally, e.g., Martinez v. Astrue, 630 F.3d 693 (7th Cir. 2011) (decrying ALJ decisions as incomplete
and perfunctory).
295
The percentage of ALJs with allowance rates over 80% dropped from 9% in FY 2009 to 4% in FY 2011.
See STATISTICAL APP., supra note 7, at 15.
296
Id. at 16 tbl. A-4.
297
Id.
298
Id. at 58-59.
299
See SSA HAS TAKEN STEPS, supra note 62, at 18-20 (noting lack of documentation and clear articulation
in cases remanded back to ALJs).
300
The average number of decisions resolved in FY 2005 was 401. In FY 2002, the average number was
360. SOC. SEC. ADVISORY BD., IMPROVING THE SOCIAL SECURITY ADMINISTRATION HEARING PROCESS, at
12 (Sept. 2006), available at http://www.ssab.gov/documents/HearingProcess.pdf.
56

Appellate review not only results in error correction but also error prevention. If
the ALJ decisions treat vocational testimony incorrectly or if they misapply the treating
physician rule, 301 then such information will be of considerable help to ALJs resolving
the next 500 cases on their dockets. The difficulty is that most ALJs have not until
recently received notice of their reversals and remands. 302
Appeals Council decisions are rarely published. 303 The individual ALJ generally
receives a copy, as does his or her head of office, but no one else. If the ALJ switches
offices, the Council does not inform the ALJ of the remand. 304 Some HOCALJs will
discuss Appeals Council actions with ALJs in their office, but given time demands, those
discussions are few and far between. 305 Even if the ALJ involved reads the Appeals
Council decision, no other ALJ likely will. 306 Moreover, on own motion review, the
Council does not inform ALJs of the disposition of cases that are not remanded back and,
again, ALJs will only learn of remands if they remain in the same office. Nor does
ODAR always inform ALJs of the results of post-effectuation studies, except in rare

301

For our recent assessment of the treating source rule challenging its continuing efficacy, see ADMIN.
CONFERENCE OF THE U.S., SSA DISABILITY BENEFITS PROGRAM: ASSESSING THE EFFICACY OF THE
TREATING PHYSICIAN RULE (2013), available at http://www.acus.gov/research-projects/social-securitydisability-adjudication (last visited Apr. 3, 2013).
302
In Aug. 2011, the Appeals Council rolled out “a web-based system called ‘How MI Doing?’ (HMID).”
Exec. Dir. Special Ed., supra note 271, at 5. The HMID resource gives adjudicators extensive information
about remands, including the reasons for remand, as well as information on performance in relation to other
ALJs in the office, region, and nation. Id. The Appeals Council is continuing to develop the system and is
currently developing training modules related to each of 170 identified reasons for remands that will be
linked to the HMID tool. Soc. Sec. Admin. Office of Appellate Operations Executive Director’s Broadcast,
at 6 (Oct. 19, 2012) [hereinafter Exec. Dir. Oct. 2012].
303
Occasionally, the Appeals Council issues Appeals Council Interpretations, and these decisions are
posted on HALLEX and may also serve as the basis for Social Security Rulings. See Soc. Sec. Admin.,
HALLEX II-5-0-1-Introduction to Appeals Council Interpretations (July 1, 2005).
304
Telephone Interview with Gerald Ray, Deputy Exec. Dir., Soc. Sec. Admin. Office of Appellate
Operations/Admin. Appeals Judge (Aug. 24, 2012).
305
Sullivan Interview, supra note 179.
306
Strides are being made to share information with ALJs. For example, through the HMID tool, ALJs can
see what errors they are making, as well as overall areas proving troublesome for their peers. See Exec.
Dir. Special Ed., supra note 271, at 5.
57

circumstances when it deems that serious errors have been made. 307 Moreover, OGC
does not share with individual ALJs internal memoranda outlining reasons why it
declined to pursue an appeal of a particular denial decision to court. 308
The Appeals Council also has only recently started sharing the same information
with decisionwriters. 309 Unlike in many adjudicative systems, decisionwriters do not act
as clerks to the judges but rotate among judges in a particular office. As a consequence,
judges may not know each decisionwriter’s strength and weakness and vice versa. It may
well be that some ALJs provide copious instructions to decisionwriters and review drafts
carefully. Others may give scant instructions, and the Appeals Council remands may be
due to shortcomings in the communication between ALJ and decisionwriter. 310 Thus, the
weaknesses in the decisions remanded may reflect as much the decisionwriter’s haste as
that of the ALJ. Decisionwriters do not always work on the same case if remanded from
the Appeals Council or federal courts, but they, too, can benefit from learning of
perceived inadequacies in their analysis. Indeed, management might wish to evaluate
decisionwriters in part based on remand rates.
Remands do not count against ALJs in reaching their target goals. When ALJs rehear the same case on remand, which they generally do, 311 they benefit if they can

307

In addition, ODAR does not inform ALJs in NHC whether their decisions have been remanded.
Telephone Interview with Gerald Ray, Deputy Exec. Dir., Soc. Sec. Admin. Office of Appellate
Operations/Admin. Appeals Judge (Feb. 20, 2013). It is important to note, however, that recently, more
information regarding focused reviews is being shared with the Office of Chief ALJs. Exec. Dir. Special
Ed., supra note 271, at 4.
308
We learned that the OGC was concerned that such memos be leaked to claimants, but why ALJs would
do so is unclear. Blair Interview, supra note 57.
309
Decisionwriters have access to the HMID tool through which they receive feedback on the decisions
they wrote that have been remanded. See Exec. Dir. Special Ed., supra note 271, at 5; Exec. Dir. Oct.
2012, supra note 302, at 6.
310
Blaney Interview, supra note 222.
311
See SSA HAS TAKEN STEPS, supra not 62, at 9.
58

dispose of a remanded case readily because they receive credit for a second
disposition.312
SSA would provide substantial incentive for more detailed decisions if it
discounted cases remanded or reversed in assessing whether each ALJ satisfied his or her
goal. On the other hand, stripping ALJs of credit for remands might prompt ALJs in
close cases to allow more claims, given that allowances are rarely reviewed. Moreover, a
focus on minimizing the remand rate might slow down the adjudication process and
thereby increase the backlog. Greater accuracy cannot be achieved seamlessly. To the
extent that own motion review is enhanced to focus more on allowances, then eliminating
credit for remanded cases might be plausible. 313 However, the risk of lowering the
disposition rate cannot be discounted.
Finally, even when receiving information about the remands, it is possible that
some ALJs do not respect the Appeals Council given that its members are not governed
by the APA and may be perceived as more aligned with management. 314 In other words,
ALJs may look at Appeals Council remands with skepticism. Judges on the Appeals
Council are not protected under the APA and therefore lack the independence enjoyed by
the ALJs. 315 Tension between management and ALJs has been simmering for years,
punctuated by litigation and grievances. 316 That lack of trust can undermine the didactic
role of the Council.

312

Evaluation based upon remand rates would not prompt decisionwriters to write more allowances given
that they only write at the direction of ALJs.
313
We suggest an analogous course, see infra Part VII.D. Of course, any systemic focus on quality in ALJ
decisionmaking may result in a declining disposition rate.
314
See Wolfe, supra note 40, at 382, 388, 391; Fourth Bite at the Apple, supra note 27, at 293.
315
Fourth Bite at the Apple, supra note 27 at 293.
316
IMPROVING THE HEARING PROCESS, supra note 13, at 15; Wolfe, supra note 40, at 388, 391.
59

C.

Improving the Appeals Council’s Role & Function
We suggest six revisions in administration of the Appeals Council that should

enhance the training role of the Appeals Council at very little cost.
Recommendation 5 – Rotation of ALJs to Serve on the Appeals Council:
ODAR should rotate ALJs on the Appeals Council. 317 A rotational program
would serve two purposes. First, it likely would increase the respect that ALJs have for
the appeals process. ALJs would be judged by their peers, at least in part. 318 Second, the
rotation should sharpen the tool kit of even the most experienced ALJ and ensure more
careful analytical reasoning in the future. Assessing the mistakes of peers can help the
ALJs serving on the Council avoid those mistakes when serving again as line ALJs.
To accomplish this goal, we recommend that the Office of Personnel Management
(“OPM”) relax its 120-day limit on rotation of ALJs. Currently, OPM’s relevant
regulation provides that “[a]n agency may detail an administrative law judge from one
administrative law judge position to another administrative law judge position within the
same agency” 319 but the obstacle is that judges on the Appeals Council are not ALJs.
The regulation continues that ALJs may be assigned to perform non-administrative law
judge duties only when “(1) The other duties are consistent with administrative law judge
duties and responsibilities; (2) The assignment is to last no longer than 120 days; and (3)
The administrative law judge has not had a total of more than 120 days of such
assignments or details within the preceding twelve months.” 320 Certainly, the work of the
Appeals Council is consistent with ALJ duties. Accordingly, we recommend that, for a
317

The Appeals Council has made plans to include ALJs in its review process. Exec. Dir. Special Ed.,
supra note 271, at 2.
318
This is not the first occasion on which peer review has been advocated. For discussion of prior peer
review efforts, see IMPROVING THE HEARING PROCESS, supra note 13, at 17.
319
5 C.F.R. § 930.207(b) (2012).
320
Id. §§ 930.207(c)(1)-(3).
60

detail to be more successful, the limit be pushed to one year and the ALJ cannot have had
more than one year of detail within the prior three years. Therefore, we recommend that
OPM either revise its regulation to allow longer intra-agency details of ALJs to appellate
bodies more generally or grant SSA a waiver, in accordance with its current
regulations, 321 for the purpose of allowing details of ALJs for up to one year to the
Appeals Council.
Recommendation 6 - Publication of Appeals Council Decisions: The Appeals
Council should publish all or at least a significant portion of its decisions (except for
summary affirmances). ALJs can benefit from others’ mistakes and internalize some of
the deficiencies identified in the remand decisions. Indeed, the IG Report focusing on the
NHC noted that ALJs at the NHC would benefit from learning about which decisions of
theirs were remanded and why. 322 A substantial percentage of remands from both the
Appeals Council and federal courts evidently are prompted by insufficiently reasoned
ALJ decisions. Decisionwriters can learn much from reading what the Council has
identified as weaknesses in prior decisions. Claimants as well can learn when to appeal
the denial of claims.
To be sure, ALJs and decisionwriters are not likely to find the time to scour
thousands of Appeals Council decisions each year, but some review will be of assistance.
The decisions are short, and the patterns identified by the Appeals Council should help
reduce the need for review in the future. Common mistakes could be avoided in the
future and excellent opinions emulated. Perhaps the Council alternatively could select a
representative sampling for publishing and, at the same time, ensure that the relevant ALJ

321
322

See id. § 930.207(d).
See ROLE OF THE NHC, supra note 201, at 12.
61

and decisionwriter be notified of every decision, whether reached via appeal, own
motion, or post-effectuation.
Recommendation 7 – Distribution of SSA Office of General Counsel
Memoranda: For similar reasons, OGC should share with ALJs and decisionwriters the
memoranda written by counsel that recommend remand for vulnerable ALJ decisions as
opposed to defending them in court. ALJs and decisionwriters can benefit from reading
why OGC believes that those decisions are not defensible in federal court.
Recommendation 8 – ALJ Drafting of Decisions on Remand from Federal
Courts: We propose that ALJs, where possible, be assigned to write decisions upon
remand from federal courts. The most direct way to learn from a perceived weakness in
the decision is for the ALJ to write the new decision him or herself. That limited exercise
should assist ALJs in giving better instructions to their decisionwriters in the future or at
least in editing drafts more carefully. Even when the deficient decision is attributable
more to the decisionwriter than to the ALJ, the ALJ can learn from seeing the
deficiencies firsthand.
Currently, there are roughly 6000 cases each year remanded from federal court. 323
Although writing a decision upon remand will sap ALJ resources at the margin, we think
the incremental addition in duties well worth the cost, and we suggest ways to free up
time elsewhere in the study. Those 6000 cases represent, on average, 3.5 cases per ALJ
per year, although the impact of this recommendation would vary from ALJ to ALJ.

323

There were 6182 remands in FY 2010 and 6171 remands in FY 2011. Additional information on federal
court remands can be found in the STATISTICAL APP., supra note 7, at 54 tbl. A-24.
62

Indeed, the more that ALJs are treated like “judges,” including granting decisionwriting
responsibilities, their ability to write legally defensible decisions may improve. 324
Recommendation 9 – Expansion of Own Motion Review by the Appeals
Council: We propose expanding own motion review. Through own motion review, the
Appeals Council can play a critical role in error correction. The Council can focus on
problem areas to minimize errors in the system. 325
A brief turn to history is needed to explain why own motion review currently is so
limited. Prior to 1980, SSA utilized own motion review sparingly. 326 Following
enactment of the Bellmon Amendment, the agency fashioned a “Bellmon Review
Program” that was intended, according to SSA, to improve decisional quality and
accuracy. 327 Initially, among other initiatives, this program targeted for Appeals Council
review the allowance decisions of ALJs whose allowance rates were higher than 70%,
hearing offices with allowance rates over 74%, and a national random sample of ALJ
decisions. 328 Over the course of the next several years, the contours of the Bellmon
Review Program’s targeted review changed as some aspects were discontinued (e.g.,
324

ALJs have authority to write decisions, see Soc. Sec. Admin., HALLEX I-2-8-25-Writing the Decision,
at (D) (Sept. 2, 2005), available at http://www.ssa.gov/OP_Home/hallex/I-02/I-2-8-25.html. See generally,
20 C.F.R. §§ 404.953, 416.1453 (2013); Soc. Sec. Admin., HALLEX I-2-8-1-General (May 16, 2008),
available at http://www.ssa.gov/OP_Home/hallex/I-02/I-2-8-1.html, but, as a general matter, do so
relatively infrequently.
325
SSA is not the only federal agency to employ own motion review. For instance, own motion review can
be exercised by the Medicare Appeals Council (42 C.F.R. § 405.1110 (2012)), the Provider Reimbursement
Review Board (see Loma Linda University v. Schweiker, 705 F.2d 1123, 1127-28 (9th Cir. 1983)), the
Federal Communications Commission (47 C.F.R. § 1.117 (2012)), the Federal Aviation Administration (14
C.F.R. §§ 16.1(a), 16.241(c) (2012)), and the Federal Maritime Commission (see Gregory Wicker, Federal
Maritime Commission v. South Carolina Ports Authority: Judicial Incursions into Executive Power, 69
BROOKLYN L. REV. 1555, 1560-61 (2004)).
326
PIERCE, supra note 261, at § 9.10; see also Fourth Bite of the Apple, supra note 27, at 247 (discussing
SSA’s appellate and own motion review practices prior to 1980).
327
E.g., AALJ, 594 F. Supp. at 1134; see also Stieberger v. Heckler, 615 F. Supp. 1315, 1377-78 (S.D.N.Y.
1985), vacated on other grounds, 801 F.2d 29 (2nd Cir. 1986).
328
E.g., Stieberger, 615 F. Supp. at 1377-78; AALJ, 594 F. Supp. at 1134; see also U.S. GOV’T
ACCOUNTABILITY OFFICE, GAO/HDR-89-48BR, RESULTS OF REQUIRED REVIEWS OF ADMINISTRATIVE
LAW JUDGE DECISIONS 8 (1989).
63

review of all decisions from some hearing offices), while others were modified (e.g.,
targeted review of particular ALJs changed to focus on high own motion review rates,
rather than individual allowance rates). 329 And, the agency initiated feedback and
training for ALJs with high allowance rates, 330 which, in some quarters was also viewed
as threatened discipline. 331 A number of lawsuits challenged the Bellmon Review
Program, eventually prompting the agency to reverse course. 332
In one prominent case, Association of Administrative Law Judges, Inc., (AALJ) v.
Heckler 333 the court ruled that the pre-effectuation review program undermined the quasiindependence of the ALJs. ALJs recognized that they would be targeted for review more
frequently the more that they ruled for claimants. The agency unsuccessfully argued that
such imbalance was appropriate given that appeals by claimants served as a check on
ALJs who ruled too infrequently for claimants, but that there was no analogous check on
ALJs who favored claimants. 334 As one court of appeals stated, “Bellmon Review placed
pressure first on ALJs to deny benefits and then, if the applicant was nevertheless
successful, insinuated that the Appeals Council should reverse.” 335 Another court
commented about the review program that “[t]o designate high allowance ALJs for
ongoing review of their allowance decisions inexorably tends to discourage these ALJs
from allowing benefits in close cases.” 336 Courts finally invalidated the program due to

329

E.g., Stieberger, 615 F. Supp. at 1377-78; AALJ, 594 F. Supp. at 1134-35.
Id.
331
See Wolfe, supra note 40, at 392-93; but see AALJ, 595 F. Supp. at 1138 (observing, when discussing
plaintiff-ALJ’s claim of “disciplinary” training under the Bellmon Review Program: “An administrative
decision was made that the education of these [high allowance rate] ALJs outweighed any expense and
delay involved. No punishment of any sort was intended.”).
332
See e.g., AALJ, 594 F. Supp. at 1141-43.
333
594 F. Supp. 1132 (D.D.C. 1984).
334
Id. at 1134-36.
335
Barry v. Bowen, 825 F.2d 1324, 1330 (9th Cir. 1987).
336
W.C. v. Heckler, 629 F. Supp. 791, 799–80 (D. Wash. 1985), aff’d, 807 F.2d 1502 (9th Cir. 1987).
330

64

the agency’s failure to engage in notice and comment rulemaking, without a definitive
ruling on the appropriate scope of own motion review. 337
A decade later, the agency amended its regulations relating to pre-effectuation
review. 338 The agency was careful to insulate itself from any charge that the preeffectuation review would proceed in a biased manner. 339 To that end, the rules
precluded the Appeals Council from basing its review on the identity of the ALJ or
hearing office. More specifically, the regulation provides that:
[w]e will use selective sampling to identify cases that exhibit problematic issues
or fact patterns that increase the likelihood of error. Neither our random sampling
procedures nor our selective sampling procedures will identify cases based on the
identity of the decisionmaker or the identity of the office issuing the decision. 340
The vice of Bellmon Review was the “unremitting focus on allowance rates,” 341 not the
agency’s utilization of own motion review itself.
We recommend that SSA conduct more extensive pre-effectuation review than the
current random sampling method for a number of reasons. First, given that the agency
itself cannot appeal an ALJ’s decision, own motion review ensures balance to the
process. Taxpayers deserve more of a check against ALJs who may be too generous with
public monies. 342 As stated in Matthews v. Eldridge, the government’s interest, and,

337

E.g., W.C. v. Bowen, 807 F.2d 1502, 1505 (9th Cir. 1987); but see Nash v. Bowen, 869 F.2d 675, 68081 (2nd Cir. 1988) (rejecting APA-based challenge to the Bellmon Review Program, and noting that
“[p]olicies designed to insure a reasonable degree of uniformity among ALJ decisions are not only within
the bounds of legitimate agency supervision but are to be encouraged”).
338
See, e.g., Soc. Sec. Admin., Administrative Review Process: Identification and Referral of Cases for
Quality Review Under the Appeals Council’s Authority to Review Cases on its Own Motion, 63 Fed. Reg.
36,560 (July 7, 1998) [hereinafter 1998 Final Rule] (codified at 20 C.F.R. pts. 404, 416).
339
See 1998 Final Rule, supra note 338, at 36,561-66 (discussing bases for final rule implementing random
and selective sampling methods for identifying cases for discretionary own motion review by Appeals
Council).
340
20 C.F.R. §§ 404.969(b)(1), 416.1469(b)(1) (2013).
341
AALJ, 594 F. Supp., at 1143.
342
There exist other checks in the system, including CDR and bureau protests. See infra Part VIII (CDR);
Soc. Sec. Admin., HALLEX I-3-9-10-Protest Cases (Sept. 8, 2005), available at http://www.ssa.gov/OP_
65

hence, that of the public, in “conserving scarce fiscal and administrative resources is a
factor that must be weighed.” 343 Although own motion review cannot fully substitute for
a government right to appeal adverse decisions, it can help to ensure greater oversight in
the disability adjudication process. There is nothing unfair with an administrative system
that permits the agency to review adverse determinations as long as those decisions are
not coupled with threatened discipline or other adverse measures if ALJ allowance rates
are too high. An ALJ has no expectation that his or her decision will invariably be
treated as final under current regulations (which already provide for Appeals Council
own motion review on a pre-effectuation basis), 344 nor does such review deprive ALJs of
the independence guaranteed under the APA. 345
Second, more assertive own motion review of allowances is important for
assuring quality decisonmaking. If ALJs tend to write cursory decisions when allowing
benefits, there may be an insufficient baseline from which to assess at a later date
whether there has been enough improvement to terminate benefits in a CDR. 346 If ALJs
recognize a greater likelihood that allowances will be reviewed, they will exercise greater
care in editing the decisionwriter’s opinions. Some ALJs may struggle to keep up with
the 500-700 goal, but the quality of opinions and potential for laying an objective
baseline for subsequent CDRs is a necessary condition for both allowances and denials.
Home/hallex/I-03/I-3-9-10.html (bureau protest cases); Soc. Sec. Admin., POMS § GN 03103.260-How to
Protest ALJ Decisions (July 8, 2010), available at https://secure.ssa.gov/poms.nsf/lnx/0203103260 (same).
343
Mathews v. Eldridge, 424 U.S. 319, 347-48 (1976); see also Sullivan v. Everhart, 494 U.S. 83, 95
(1990); Henry J. Friendly, Some Kind of Hearing, 123 U. PA. L. REV. 1267, 1276 (1975).
344
See Fourth Bite at the Apple, supra note 27, at 245-49.
345
Indeed, the APA specifically authorizes agency own motion review of initial decisions by adjudicators
such as ALJs, providing, in pertinent part, that when the “presiding employee makes an initial decision, that
decision then becomes the decision of the agency without further proceedings unless there is an appeal to,
or review on motion of, the agency within time provided by rule.” 5 U.S.C. § 557(b) (2013) (emphasis
added). See also Blankenship v. Bowen, 801 F.2d 1271, 1272 (11th Cir. 1986) (holding that “it is . . . clear
that the Appeals Council ha[s] the authority to review, on its own motion” decisions by ALJs); supra note
325, (providing illustrative list of federal agencies that use an own-motion review process).
346
See infra Part VIII.
66

There are a number of ways to structure review and avoid the partiality asserted
against the Bellmon Review Program. Currently, the Appeals Council only targets preeffectuation review based on random sampling. 347 But, it is authorized to be more
assertive. As one example, own motion review targeted at the length of hearings, which
may range from fifteen minutes or two hours, may be informative given the typical
hearing lasts about one hour. 348 Such review is consistent with the current regulation’s
disclaimer of targeting particular ALJs or offices. The decision would be targeted not at
the ALJ but at the manner in which an ALJ reached the decision. In similar vein, an
Appeals Council decision to target decisions that address problem areas such as the RFC
in psychological cases or obesity also would steer clear of the current prohibition. To the
extent that SSA has noted problematic tendencies in ALJ decisionmaking (through
Appeals Council data collected remands, post-effectuation reviews, or district court
remands), it can use those characteristics in exercising own motion review.
As has been urged before, 349 the Council could review such cases with an eye to
making policy clarifications. For instance, Appeals Council decisions elaborating on
ascertaining the RFC in cases of mental illness then could play a positive role in setting
policy for all ALJs to follow. Or, the Council could target obesity cases if it determined
that ALJs were struggling to assess the impact of obesity on listed impairments and use
the cases to provide policy guidance.
Moreover, the regulation does not confine the Council to reviewing only ALJ
allowance decisions on a pre-effectuation basis. The Council should review unappealed
347

See 20 C.F.R. §§ 404.969(b), 416.1469(b) (2012); see also Ray E-mail, supra note 270 (regarding
Appeals Council’s current pre-effectuation review practices).
348
Interview with Ed Kraus. Assoc. Clinical Professor of Law, IIT Chicago-Kent College of Law (February
15, 2013) [hereinafter Kraus Interview].
349
See Fourth Bite at the Apple, supra note 27, at 302, 305-07.
67

denials, particularly in cases from unrepresented claimants. 350 Review of both
allowances and denials would lend greater impartiality to own motion review, even if
own motion review independently can be justified by the absence of a government
representative. Given that the Appeals Council reviews both allowances and denials
post-effectuation, this slight expansion of the Appeals Council’s own motion review
should prove of little controversy.
The agency’s pledge to target neither particular ALJs nor hearing offices in own
motion review strikes us as excessively broad. For instance, SSA might decide to review
decisions from judges whose allowance rates are both well under and well above the
statistical average. 351 Indeed, several scholars have noted the potential salutary effect of
using statistics as a basis for review of “outlier” ALJs (based on several SD above or
below the norm) and, thereby, ensure greater decisional accuracy and consistency. 352
Moreover, such an approach to pre-effectuation own motion review by SSA
would prompt a greater dialogue with ALJs whose decisions, at least on the surface, are
likely not to be consistent with SSA policy, whether deciding for or against the claimant.
350

Our study documents that the allowance rate is higher when claimants are represented. See STATISTICAL
APP., supra note 7, at 48-49 & tbl. A-21, fig. A-15.
351
Indeed, the preamble to SSA’s 1998 Final Rule seems to contemplate the very sort of selective (focused)
sampling for pre-effectuation own motion review we suggest in this report. See 1998 Final Rule, supra
note 338, at 36,563. The preamble makes a point of distinguishing between a random sampling procedure
permitted under the rule that applies to “variously defined categories of cases (e.g., Unfavorable decisions
issued between given dates)” and other sampling methodologies that expressly target individual ALJs (by
name or certain hearing offices). Id. As discussed here, a focused review of ALJ allowance or denial
decisions based on objective, statistical deviations from the norm over a given period can hardly be said to
target – by identity – particular ALJs. Rather, such focused review would merely be a consequence of
falling “outside” the pre-determined deviation level.
352
See PIERCE, supra note 261, at § 9.10; see also Jerry L. Mashaw, The Management Side of Due Process:
Some Theoretical and Litigation Notes on the Accuracy, Fairness, and Timeliness in the Adjudication of
Social Welfare Claims, 59 CORNELL L. REV. 772, 775 (1974) (asserting that, in the social welfare context,
procedural due process encompasses “management processes which will tend to assure the accuracy of
claims adjudication”); Richard J. Pierce, Jr., Lessons from Chevron and Mistretta, 57 U. CHI. L. REV. 481,
483, 485-86 (1990) (likening statistical analysis of ALJ decisions as part of an agency quality review to the
federal sentencing guidelines, approved by the Supreme Court in Mistretta v. United States, since they each
further due process goals by facilitating greater consistency and addressing overly wide variances in
decisional outcomes).
68

For instance, the agency reasonably could decide to review decisions by outlier judges,
those whose allowance rates were two SD from the mean. The distance from the mean
strongly suggests that such judges’ decisions are not due to case mix or chance, but,
rather, some other factor(s) such as lack of policy compliance (whether for reasons of
ideology, misapplication of regulations, or cutting corners). There should be no
allegation of partiality from a review program that targets an equal number of judges
whose rates are well outside the statistical mean, whether in terms of denying or allowing
claims. 353
Nonetheless, an issue might arise under the regulation as currently drafted
because statistics particular to a judge would inform the selection process. Similarly, in
this study we have focused on the allowance rates in video hearings in an effort to
compare them to allowance rates elsewhere. Had the Appeals Council, on the other hand,
targeted video hearings for special attention on own motion review, it likely would have
violated the regulation by selecting cases for review in part based on the identity of a
hearing office because ALJs at the NHC only adjudicate claims via video. 354
Recommendation 10 - Use of Statistical Sampling and Other Neutral Criteria to
Focus Discretionary Review by the Appeals Council: We therefore suggest that SSA
consider revising the current regulation to clarify that pre-effectuation own motion
review is permitted for any unappealed decision so long as the selection of such
decision(s) is predicated on published neutral and objective criteria. The key protection
lies in the publication requirement. If SSA determines to utilize own motion review to
353

Utilizing own motion review solely for judges with allowance rates over the mean might threaten
decisional independence by suggesting that the agency is only concerned when ALJs grant too many claims
as opposed to too few. Cf. AALJ, 594 F. Supp. at 1143 (finding that “unremitting focus” of Bellmon
Review Program on allowance rates violated “spirit” of APA).
354
ROLE OF THE NHC, supra note 201, at 2.
69

assess cases arising from video hearings or from ALJs whose allowance rates are either
much lower or greater than the mean, the potential for adverse impact on ALJs is
minimized. At the same time, the transparency from publishing the criteria provides
some protection for ALJs or claimants who distrust the own motion review mechanism.
The vice of the Bellmon Review Program was not aggressive own motion review, but
rather utilizing own motion review to create an atmosphere that seemingly pressured high
allowance ALJs to rule against claimants.
Expansion of own motion review would not be costless. Additional AAJs and
AOs on the Council would be needed. Perhaps that expansion can be funded by some of
the savings suggested elsewhere in this study. 355 Moreover, with the expansion of own
motion review, post-effectuation studies could be eliminated and the savings transferred.
The same analysis gleaned from post-effectuation studies could be ascertained more
directly via own motion review.
Recommendation 11 – Expansion of SSA’s Statistical Quality Assurance
Programs: SSA apparently does not link data reporting systems so that ALJ remand
rates – either by the Appeals Council or federal courts – can be more easily tracked and
assessed empirically. The agency therefore has missed the opportunity to study more
fully the characteristics of ALJs whose decisionmaking has been deemed deficient in one
way or another at a higher rate. For instance, it may be that ALJs with greater seniority
are remanded more than others, 356 ALJs utilizing video hearings may be remanded at a
greater rate than those conducting traditional hearings, or that ALJs with backgrounds in

355

The savings would come from not conducting post-effectuation studies. See supra Part VI.A.
Some have advocated that ALJs should receive renewable terms in office, as opposed to appointments
for life. See, e.g., Jeffrey S. Lubbers, Federal Administrative Law Judges: A Focus on Our Invisible
Judiciary, 33 ADMIN L. REV. 109, 110 (1981).

356

70

litigation as opposed to positions within the agency may be remanded more. We simply
do not know. Moreover, it may be that one group of judges receives more remands back
from the Appeals Council but fares comparably better when their cases are appealed to
federal courts. The responsible step would be for the agency to capture the information
to acquire a more complete picture as to which ALJs are being remanded and reversed,
whether by the Council or federal courts, and why. That information, for example, might
help the agency recommend different ALJ selection criteria to OPM or might shape
training initiatives. The importance of studying ALJ characteristics is highlighted by our
analyses of the correlates of allowance rates. These analyses found considerable
variability in both the direction and strength of correlations between case characteristics
and allowance rates. For example, while the average ALJ tended to have slightly lower
allowance rates in video hearings compared to non-video, this effect was found to be
much stronger for some, and in the opposite direction for others. 357 Identifying which
ALJs are more or less sensitive to the format of the hearing will allow for targeted
training programs to reduce the observed variances.
We thus believe that SSA should attempt to correlate remand rates with attributes
of ALJs, such as experience, use of video, and seniority. Of course, ALJs with very high
allowance rates will receive very few remands, so the marker of percentage remanded
should be evaluated in context. And, as noted before, the agency must be careful not to
use a percentage-remanded rate as a lever to discipline ALJs for fear of providing
incentive for ALJs to allow more claims, unless own motion review of allowances is

357

See STATISTICAL APP., supra note 7, at 40-42. ALJs at one extreme had substantially lower allowance
rates for video hearings (55% allowance rate for video hearings and 71% for non-video hearings). Id. at 40.
ALJs at the other end of the distribution showed the opposite pattern, with an allowance rate of 75% for
video hearings and 66% for non-video hearings. Id.
71

expanded significantly to reach a statistically valid sample at the individual ALJ level.
Overall, however, information about which ALJs are being remanded at a greater rate can
lay the foundation for more effective use of the Council in subsequent years.
D.

Consideration of More Extensive Reform of the Appeals Council
Finally, we have pretermitted to this point the question whether the Appeals

Council’s appellate function should continue. 358 The above recommendations
presuppose that the Appeals Council remains intact to consider appeals from denials of
all claims. We believe that the pedagogic role of the Council is critical but are less
convinced that an appeal as of right to the Council is defensible.
First, Appeals Council review adds significant time to a process that is already
quite protracted. The timeframe, from filing a claim to ALJ determination, spans over a
year. 359 Average disposition time at the Appeals Council level adds another year to the
process, 360 doubling the wait for claimants who have appealed adverse determinations at
the DDS level, many of whom are in desperate financial need. The delay in and of itself
is troubling.
Second, the Appeals Council in FY 2010 issued Fully or Partially Favorable
decisions in only 2.5% of the cases appealed. 361 Over 2500 claimants received disability
benefits that they either would not have received otherwise, 362 or possibly only after
appeal to the district court. One can assume, however, that if claimants were inclined to
358

This issue has been addressed before, including by the Admin. Conference of the U.S. See Admin.
Conference of the U.S., Recommendation 87-7, A New Role for the Social Security Appeals Council, 52
Fed. Reg. 49,143 (Dec. 30, 1987).
359
ASPECTS OF DISABILITY DECISION MAKING, supra note 1, at 66 fig. 61.
360
It is also important to note that 48% of the cases processed at the Appeals Council were completed in
less than 120 days in FY 2012. See Weight E-mail, supra note 167.
361
See id. at 62 fig. 57, and underlying data; see also Astrue Testimony, supra note 9 (stating that just
under 3% were partially or fully reversed).
362
ASPECTS OF DISABILITY DECISION MAKING, supra note 1, at 62 fig. 57, and underlying data.
72

appeal these cases to the Council, they would appeal to the district court if the Council
did not exist. The delay in court currently is roughly a year, as with an appeal to the
Appeals Council, so the delay likely for claimants would not be any more protracted than
it already is, putting to the side any impact on the district courts. Moreover, OGC
through its gatekeeping function likely would minimize that impact by preventing many
of those cases from being litigated in federal court.
Third, there is serious question as to the Council’s current effectiveness in
screening cases before they reach court. OGC seeks consent from the claimant for a
voluntary remand in approximately 15% of all cases appealed to the federal courts. 363
That OGC is unwilling to defend in federal court 15% of cases that the Appeals Council
affirms (or declines to review) itself suggests gaping holes in the system.
There is other evidence that the Council’s review itself is far from complete. It is
not difficult to provide troubling examples. In Coleman v. Astrue, 364 for instance, the
ALJ denied benefits for a claimant suffering epileptic seizures. 365 The testimony from
two different medical experts (“MEs”), which was contradictory, is almost beside the
point. The ALJ convened a hearing on February 15, 2005, and the ALJ called an SSAprovided ME who agreed with the treating physician’s statements that the claimant could
only control his epilepsy with large doses of medication that made him unfit for work. 366
Without explanation, the ALJ scheduled a second hearing, which convened on July 1,

363

See Forbes E-mail, supra note 56.
2007 WL 2298377 (N.D. Ill. Aug. 3, 2007).
365
Id. at *1.
366
Id. at *3.
364

73

2005. 367 This time, a different ME testified that the need for medication would not
prevent the claimant from working in a number of jobs in the economy. 368
The ALJ relied on the second ME and denied the claim. 369 In reaching the
decision, the ALJ never mentioned the first hearing, let alone justified why a second
hearing was necessary, and therefore never even attempted to discredit the first ME’s
opinion that supported disability. 370 The Appeals Council denied the claimant’s request
for review. 371 SSA subsequently attempted to justify the ALJ’s decision in federal court
on the ground that the glaring procedural improprieties were of no moment and that the
ALJ might have ignored the first ME’s testimony for a number of legitimate reasons. 372
Not surprisingly, the court reversed. 373 It is difficult to understand not only how an ALJ
could have resolved Coleman in the way that he did, but also how the Appeals Council
let the decision stand.
For a perhaps more typical example, consider the district court’s decision in
Larlee v. Astrue. 374 In that case, the ALJ rejected claimant’s testimony of disabling pain
from fibromyalgia. 375 In so doing, the ALJ stated that claimant’s testimony of disabling
pain was “not entirely credible to the extent alleged in view of the medical evidence and
clinical findings[,] as well as claimant’s own testimony.” 376 The court noted that the ALJ
not only failed to articulate why he discredited the claimant’s subjective testimony of
367

Id.
Id. at *4.
369
Id.
370
Id. at *6.
371
Id. at *1.
372
Id. at *7. SSA’s argument ignored the Chenery doctrine’s central tenet that a reviewing court can only
review the justifications underlying an agency’s decision relied upon by the agency at the time it made its
decision. See SEC v. Chenery, 318 U.S. 80 (1943).
373
Coleman, 2007 WL 2298377 at *10.
374
694 F. Supp.2d 80 (D. Mass. 2010).
375
Id. at 81, 86.
376
Id. at 86 (quotations omitted).
368

74

pain, but that he failed as well to make findings “sufficiently specific to make clear to the
individual and to any subsequent reviewers the weight the adjudicator gave to the
individual’s statement and the reason for that weight.” 377 Indeed, social security rulings
require such specificity and provide a roadmap to ALJs evaluating subjective evaluations
of pain. 378 The ALJ examined only one of the six factors mandated by SSA in
determining whether to discredit testimony of pain. 379 The Appeals Council twice had
the opportunity to remedy the deficiencies in the ALJ reasoning in the case and declined,
despite the ALJ’s failure to follow SSA guidelines. 380 The district court ordered
immediate payment of the claim instead of remanding the case in light of the prohibitive
delay. 381
In the absence of the Appeals Council, claimants would be forced to appeal
adverse decisions to the district court, which would be more expensive to litigate on both
sides than the paper hearings before the Appeals Council. From a claimant’s perspective,
however, the prospect of fees under the Equal Access to Justice Act (“EAJA”) 382 in lieu
of the fees from the benefits owed (capped at $6000) 383 should provide incentive to find
representation for an appeal in close cases. There is no question but that staff in OGC
would need to expand to handle the additional cases, but it is possible that, after

377

Id. (quotations omitted).
See SSR 96-7p (“It is not sufficient for the adjudicator to make a single, conclusory statement that ‘the
individual’s allegations have been considered,’ or that ‘the allegations are not credible.’ . . . The
determination or decision must contain specific reasons for the finding on credibility.”). Soc. Sec. Admin,
Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual’s Statements, reprinted in 61 Fed. Reg. 34,483 (July 2, 1996).
379
Larlee, 694 F. Supp.2d at 86.
380
Id. at 81-82.
381
Id. at 87.
382
28 U.S.C. § 2412(d)(1)(A) (2013) (authorizing the “award [of attorney’s fees] to a prevailing party [in a
suit against the United States] unless the court finds that the position of the United States was substantially
justified”).
383
Soc. Sec. Admin., Maximum Dollar Limit in the Fee Agreement Process; Notice, 74 Fed. Reg. 6080
(Feb. 4, 2009).
378

75

reviewing the files, OGC might settle quickly at least in cases for which the Appeals
Council currently either reverses or remands. Unquestionably, altering the Appeals
Council’s role would also result in an increased number of Social Security disability case
filings in federal district courts, and, thereby, potentially disrupt the federal court
system. 384
Currently, given that the Appeals Council affirms denials in almost 100,000 cases
a year, only a modest percentage of claimants appeal denials to federal court, whether
because of weakness in their cases or lack of perseverance. Claimants drop their cases
for a variety of reasons. Some may not be able to find an attorney. Others may drop
appeals to file a new claim for a subsequent period because the evidence has improved. 385
Predicting the number of appeals to federal court if the Appeals Council no longer hears
cases as of right accordingly is quite difficult, but the federal courts’ potential exposure
would be significant.
Any influx of appeals likely would be unwelcome by federal courts. Social
Security disability cases may not take nearly as much time as a typical civil case to
resolve in court, but the sheer volume of cases would increase. U.S. magistrates may
struggle to keep up with the increased volume. Although it is hard to predict with

384

SSA recently experimented with removing the Appeals Council, replacing it with the Decision Review
Board (“DRB”). The DRB has since been eliminated, in part, because “[t]he DRB’s workload [grew so]
quickly [to] become overwhelming.” Soc. Sec. Admin., Reestablishing Uniform Nat’l Disability
Adjudication Provisions; Notice of proposed rulemaking, 74 Fed. Reg. 63,688, 63,689 (Dec. 4, 2009).
Often, the DRB could not review its cases and would simply certify them to federal court. See, e.g.,
Grouzis v. Astrue, 2012 U.S. Dist. LEXIS 136489, *1 (D. Mass. Sept. 25, 2012) (noting that a case before
the court was ripe for judicial review after finding that an ALJ’s decision became the final decision of SSA
when the DRB failed to complete its review of the plaintiff’s claim in the time allowed); Johnson v.
Astrue, 2012 U.S. Dist. LEXIS 135077, *1 (D. Mass. Sept. 21, 2012) (same); Marques v. Astrue, 2012 U.S.
Dist. LEXIS 29143, *2 (D. Mass. Mar. 6, 2012) (same); Roeschlaub v. Astrue, 2011 U.S. Dist. LEXIS
153939, *3 (D. Mass. Dec. 5, 2011) (same).
385
Kraus Interview, supra note 348.
76

confidence, the caseload of social security claims in the district courts would increase
significantly even if we posit an expanded role for OGC.
We tentatively believe that altering the Appeals Council focus to quality control
as opposed to appellate review as of right is warranted. The appellate review function
does not justify the added delay to often deserving claimants and the increased
administrative costs attendant upon resolving in excess of a 100,000 appeals each year.
Recommendation 12 - Adoption of Appeals Council Audit Function: The
Appeals Council should adopt an audit function by reviewing a sampling of both
allowances and denials, without reviewing each denial appealed as it currently does. 386 If
the Appeals Council reviewed 5% of each ALJ’s decisions, ALJs would have greater
incentive for care in writing decisions both allowing and denying benefits. The Council
could couple that review with a certiorari policy in which it could opt to review any other
denial for good cause shown. The Council could accept review because of the policy
issues involved or because of the egregiousness of the ALJ’s error. The overall caseload
of the Council likely would decrease, permitting the Council more time to focus on
decisions clarifying policy, assuming judicious use of the discretionary review power.
By reviewing 5% of each ALJ’s workload, the Council could more readily
determine if additional training were needed, as the Appeals Council currently does in a
more modest fashion through post-effectuation review. Although the Appeals Council
only would consider appeals from a portion of denials automatically, there is to our
knowledge no agency that guarantees plenary appellate review of an ALJ’s

386

This proposal is somewhat akin to the DRB model that SSA abandoned in Region I but with the critical
difference that the Council would adopt an audit function coupled with the authority to review appeals on a
discretionary basis. The Council therefore maintains the keys to its own workload. See IMPROVING THE
HEARING PROCESS, supra note 13, at 16-17; see also SSA HAS TAKEN STEPS, supra note 62, at 11-12.
77

determination. As Justice Powell articulated in Mathews v. Eldridge, “Significantly, the
cost of protecting those whom the preliminary administrative process has identified as
likely to be found undeserving may in the end come out of the pockets of the deserving
since resources available for any particular program of social welfare are not
unlimited.” 387 The key would be to devise a way to handle the additional cases in the
district courts without overburdening the court system. 388
Thus, we recommend a pilot project in one SSA region to eliminate automatic
Appeals Council review of denials in an effort to study further the Appeals Council’s
transition from an appellate body to more of a policy entity. The Appeals Council should
examine a sampling of denials and allowances from all ALJs in that region and determine
on a discretionary basis which appeals from denials seem most compelling for review.
OGC should accordingly heighten its screening function for appeals arising from that
region. After two years of experience, a final decision could be made whether to
reinstate the Council’s traditional appellate review function, or eliminate it nationwide.
The additional burden on federal courts would need to be assessed and various responses
weighed. In the interim, the Council should adopt the more modest reforms suggested to
help facilitate its pedagogic role. 389

387

424 U.S. 319, 348 (1976).
SOC. SEC. ADMIN. OFFICE OF THE INSPECTOR GENERAL, OVERALL DISABILITY CLAIM TIMES FOR 2009,
A-01-10-10168, at 8 (May 2011), available at http://oig.ssa.gov/sites/default/files/audit/full/pdf/A-01-1010168.pdf [hereinafter CLAIM TIMES FOR 2009] (reporting that in FY 2009, the average disability case was
not resolved for 1895 days, from filing to federal court decision).
389
See infra Part VI.C. We hope to study disparities among federal court judges at a later date. The
variation in remand rates suggests that federal judges as well as ALJs harbor different notions of disability.
The asymmetrical nature of the SSDI and SSI adjudication system, under which claimants but not the
agency can appeal adverse ALJ decisions, may lead to excessively strict district court review of the many
ALJ decisions that deny disability. OGC must understand its burden in this unbalanced system to present
to federal judges an understanding of the decisions that are not appealed. For instance, attorneys can cite
statistics such as of the 100,000 cases each year based on mental impairments, 50,000 are allowed, or of the
20,000 cases in which the testimony of two treating physicians conflict, disability is allowed in 25% of the
388

78

VII. DDS RECONSIDERATION LEVEL
Although not within the scope of our original study mandate, we noted an
unexpected finding in our data worthy of additional consideration. In 40 states,
individuals whose claims are denied at the initial DDS level have a right to seek
reconsideration. In those non-prototype states, a team, including a disability examiner
and a medical or psychological consultant, none of whom was involved in the first case,
reviews the claimant’s case. The team does not defer to the initial disability
determination. Reconsideration added over 100 days to the review process, 390 and the
allowance rate at the reconsideration level is 14%. 391 Roughly a quarter of those whose
claims are denied at the reconsideration level drop their appeal. 392
We examined whether appeals to ALJs from cases arising in the 10 prototype
states that eliminated reconsideration were resolved at a similar rate as for appeals from
denials in states that permitted the reconsideration option. Given that the reconsideration
level results in allowances to 14% of claimants and that an additional 25% or so of
disappointed claimants do not appeal after reconsideration, one might surmise that ALJs
would allow a higher percentage of claims in cases arising from the prototype states
because there would be more deserving claims. Our data reveal the opposite – Fully
Favorable rates for claims reviewed by ALJs from prototype states (i.e., no
reconsideration) were in fact lower than for non-prototype states (i.e., reconsideration

cases and so on. In that vein, judges may reflect a little longer before remanding a case for further
deliberation.
390
See CLAIM TIMES FOR 2009, supra note 388, at 3.
391
See SOC. SEC. ADMIN. OFFICE OF THE INSPECTOR GENERAL, CONGRESSIONAL RESPONSE REPORT:
REINSTATEMENT OF THE RECONSIDERATION STEP IN THE MICHIGAN DISABILITY DETERMINATION SERVICES,
A-01-10-20153, at 7 (2010), available at http://oig.ssa.gov/sites/default/files/audit/full/pdf/A-01-1020153.pdf [hereinafter REINSTATEMENT OF THE RECONSIDERATION STEP IN MICHIGAN].
392
Id.
79

permitted). 393 We calculated a 3% differential. 394 That finding is counter intuitive. The
reconsideration level, in other words, did not screen out a sufficient number of cases to
alter the mix of claims on appeal to ALJs. 395
The data collected therefore suggest that the DDS reconsideration level may not
filter out sufficient errors to justify the cost and delay. 396 It is possible that ALJ
determinations are so random that the allowance rates would remain the same no matter
the pool of cases appealed to the ALJs. Or, it may be that claimants decide to appeal to
ALJs in roughly the same percentage, whether or not reconsideration is an option,
because of factors not directly linked to the strength of their cases. But, we think it far
more likely that, had the reconsideration level significantly caught mistakes, the number
of appeals from the states would be smaller or the percentage of allowances much less.
On the other hand, at each level of the disability adjudication process – DDS,
reconsideration, ALJ, Appeals Council, and federal court – a substantial number of
claimants drop their cases. 397 In other words, the levels of appeal provided by SSA may
not only weed out weak claims but also may provide disincentive for claimants to
continue the process. In particular, the reconsideration level may be more successful in
deterring appeals to ALJs than it is in catching mistakes at the DDS level.
393

Our finding is similar to the sample study conducted by the Inspector General. See CLAIM TIMES FOR
2009, supra note 388, at app. F.
394
STATISTICAL APP., supra note 7, at 50-52. The interpretation of the difference in Fully Favorable rates
is complicated by the higher dismissal rate for prototype states (18%) than for non-prototype states (14%).
Id. Considering only cases where a decision was reached (i.e., excluding dismissals), the Fully Favorable
rate was 58% in prototype states and 59% in non-prototype states. Id.
395
This trend may be in part due to other differences between prototype and non-prototype states. Id. In
particular, hearings from prototype states are more likely to involve Title XVI claims, and to be held
without a claimant representative; both of which we found to be correlated with lower allowance rates. Id.
at 50-51. After controlling for these factors, claims from prototype states showed slightly higher allowance
rates (2%) than claims from non-prototype states. Id.
396
The SSA calculated roughly the same differential for claims filed in FY 2008. ASPECTS OF DISABILITY
DECISION MAKING, supra note 1, at 17.
397
SSAB data show that the attrition from initial denial at the DDS level to appeal is significantly greater in
the prototype states. See id.
80

Recommendation 13 - Considerations for SSA to Evaluate Before Reinstitution
of Reconsideration in Prototype States: Accordingly, we suggest that the agency should
hesitate before reinstituting the reconsideration level in the prototype
states. 398 Eliminating reconsideration at the DDS level saves resources and minimizes
the time between determination at the state level and possible appeal to the ALJ. The
reconsideration level dissuades both deserving and undeserving claimants from pursuing
their cases. Accordingly, SSA should calculate the cost in added appeals to the ALJ level
in the prototype states but balance that cost against the prospect that deserving
beneficiaries are not receiving their due.

VIII. CONTINUING DISABILITY REVIEW
Although the study was designed to improve the role of the Appeals Council and
streamline the ALJ hearing process, an issue arose during the course of interviews that
warrants priority attention, even though it is outside the scope of the original study
mandate. The hearings backlog and difficulty of using ALJ decisions as baselines to
determine medical improvement have impaired functioning of the CDR system as
designed. The delays in hearings cause substantial loss to the trust fund because
payments continue to beneficiaries who are no longer disabled, 399 and that loss threatens
availability of funds down the road to claimants who are disabled.
The Social Security Act requires the agency to conduct periodic review of the
well over ten million beneficiaries to ensure continuing eligibility for benefits. 400 The
agency evaluates certain criteria in determining which cases to pull for CDR. It bases the
398

SSA had considered reinstating reconsideration in Michigan. See generally REINSTATEMENT OF THE
RECONSIDERATION STEP IN MICHIGAN, supra note 391.
399
See Soc. Sec. Disability Reform Act of 1984, Pub. L. No. 98-480, § 423, 98 Stat. 1794; Pub. L. No. 97455, § 213(g)(2)(A), 98 Stat. 2497 (1983) (codified at 42 U.S.C. § 1395(g)(2)(A)).
400
See 42 U.S.C. §§ 421(i), 1382(a)(3)(H)(ii)(I); Swank, supra note 200, at 166.
81

evaluation on beneficiary characteristics contained in SSA’s computerized records, such
as age, impairment, and length of disability. 401 SSA places beneficiaries in three
categories – medical improvement expected, medical improvement possible, and medical
improvement not expected. 402 Full medical reviews generally are required every 18
months in the first category, and paper reviews are initiated for every beneficiary within
three years in the second category and five to seven years for those not expected to
improve. 403 Based on the paper reviews of medical information, the agency at the DDS
level then determines whether there is sufficient evidence of improvement to end benefits
or at least schedule a medical CDR. 404
In FY 2010, SSA completed 324,567 full medical CDRs, finding that benefits
should be ended in 84,574 cases, principally due to perceived medical improvement
(roughly 25% of cases selected). 405 It predicted that benefits ultimately would be
terminated in over 50,000 cases. 406 On the other hand, the IG has reported that 1.4
million CDRs were expected to be pending at the end of FY 2011 407 and the agency

401

See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-03-662, SOCIAL SECURITY DISABILITY: REVIEWS OF
BENEFICIARIES’ DISABILITY STATUS REQUIRE CONTINUED ATTENTION TO ACHIEVE TIMELINESS AND COST
EFFECTIVENESS 7 (2003) [hereinafter REVIEWS OF BENEFICIARIES’ DISABILITY STATUS]; SOC. SEC. ADMIN.
OFFICE OF THE INSPECTOR GENERAL, FULL MEDICAL CONTINUING DISABILITY REVIEWS, A-07-09-29147,
at 2 (2010), available at http://oig.ssa.gov/sites/default/files/audit/full/pdf/A-07-09-29147.pdf.
402
REVIEWS OF BENEFICIARIES’ DISABILITY STATUS, supra note 401, at 7.
403
See SOC. SEC. ADMIN., ANNUAL REPORT OF CONTINUING DISABILITY REVIEWS FISCAL YEAR 2010, at 2
(2012), available at http://www.ssa.gov/legislation/FY%202010%20CDR%20Report.pdf [hereinafter FY
2010 CDR REPORT].
404
See Soc. Sec. Admin., POMS § DI 28001.015-Kinds of Events That May Initiate a CDR (Mar. 12,
2012), available at https://secure.ssa.gov/poms.nsf/lnx/0428001015.
405
FY 2010 CDR REPORT, supra note 403, at 1.
406
See id.
407
SOC. SEC. ADMIN. OFFICE OF THE INSPECTOR GENERAL, OFFICE OF AUDIT WORK PLAN FY 2012 at 13
(Oct. 2011), available at http://ssaoigstg.prod.acquiasites.com/sites/default/files/audit/full/pdf/FY%202012% 20Audit%20Plan_0.pdf [hereinafter AUDIT WORK
PLAN]; see also FY 2010 CDR REPORT, supra note 403, at 7; SOC. SEC. ADMIN. OFFICE OF THE INSPECTOR
GENERAL, FOLLOW-UP, CHILDHOOD CONTINUING DISABILITY REVIEWS AND AGE 18 REDETERMINATIONS,
A-01-11-11118, at 3 (2011), available at http://oig.ssa.gov/sites/default/files/audit/full/pdf/A-01-1111118_0.pdf.
82

conducted more CDRs ten years ago than it does today. 408 In addition to problems of
delay, 409 the agency’s success rate may be limited because if the evidence girding the
initial disability finding is conclusory, SSA’s burden to show improvement is daunting.
Each beneficiary whom the agency determines has improved to the point of resuming
gainful employment is entitled to a hearing before an ALJ. 410
The $300,000 average cost over a lifetime for finding disability (including
benefits and health coverage) 411 would diminish significantly if claimants whose
condition improved were removed from the rolls, although there is no guarantee that such
individuals would resume work. 412 SSA studies have suggested that, for every dollar
spent on CDRs, the government saves almost ten dollars. 413 At some point, that ratio
would flatten out, but, in the meantime, there is substantial ground to be gained.
There are a number of reasons plausibly to explain why the agency has not been
more aggressive in CDR. First, the legacy of the 1980s – when the agency apparently
forced a substantial number of individuals with disabilities off the rolls, precipitating
scathing rebukes from the federal judiciary – may continue to influence the agency. 414
Second, Congress and/or the agency understandably may not wish to appear as if
it is targeting people with disabilities. Those receiving disability benefits largely are
poor, even if they have recovered from their illness or injury, and they may face difficulty
408

See ASPECTS OF DISABILITY DECISION MAKING, supra note 1, at 18.
For additional data documenting delay, see Swank, supra note 200, at 166-68.
410
See 20 C.F.R. § 404.1594 (2006). SSA also conducts reviews to ensure that beneficiaries are not
earning in excess of permitted amounts. See 20 C.F.R. § 404.1589 (1986).
411
See Paletta, supra note 2.
412
Only a modest number of beneficiaries ever return to work once on disability. See RICHARD V.
BURKHAUSER & MARY C. DALY, THE DECLINING WORK AND WELFARE OF PEOPLE WITH DISABILITIES 5867 (2011).
413
See ASPECTS OF DISABILITY DECISION MAKING, supra note 1, at 21; FY 2010 CDR REPORT, supra note
403, at 6.
414
See, e.g., Levy, supra note 11, at 484–89; Robert E. Rains, A Specialized Court for Social Security? A
Critique of Recent Proposals, 15 FLA. ST. U. L. REV. 1 (1987) (summarizing spate of wrongful terminations
and adverse reaction in the courts).
409

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in finding gainful work, particularly in our current economy. SSA over the years,
therefore, may have shifted priorities to preventing those who are not disabled from
receiving insurance benefits at the outset. 415
Third, Congress simply may not have the will to increase funding for an agency
that addresses entitlements, even if the funds are targeted at saving money. 416 There may
be insufficient political backing to allocate more money for SSA CDR review.
A procedural innovation would help address the backlog and yet comport with the
underlying goal of the Social Security Act to ensure that those who are disabled receive
benefits. Congress could reverse the presumption of disability for those most likely to
recover by altering the statute to allow a finding of disability for a discrete term. 417 A
significant number of claimants may suffer traumatic injury through an automobile crash,
fall, or disease. Their disability is not in question, but the likelihood of recovering to the
point of gainful employment may be substantial. SSA may not be able to gauge whether
a particular disability likely will last another two or four years, but it can be reasonably
confident that it will not extend beyond that period. Currently, SSA only has the option
to conclude that such individuals are disabled, with benefits to continue until the agency
can bear the burden to determine that the disability has ceased. And, for reasons
previously suggested, the CDR process as currently constituted is not fully effective, both
because of delay and the inadequacies of the ALJ decision allowing benefits.

415

SSA in addition may not wish to precipitate more requests for hearings, which would threaten to
increase the backlog. See Swank, supra note 200, at 169.
416
See FY 2010 CDR REPORT, supra note 403, at 7.
417
Similar proposals have been issued periodically, but never come close to implementation. See, e.g.,
CONG. BUDGET OFFICE, CBO MEMORANDUM: TIME-LIMITING FEDERAL DISABILITY BENEFITS (1997),
available at http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/40xx/doc4013/1997doc02-entire.pdf.
84

The “term disability” concept would change the dynamic of CDRs in four
respects. First, term beneficiaries once again would have the burden of persuasion to
demonstrate disability at the end of the term, as with claimants generally. It is difficult to
assess what difference that change in burden would make, but it would, at a minimum, set
a different “tone” at hearings to determine whether the predicted medical improvement
occurred. The shift in burden likely will result in more accurate determinations both
because recovery was predicted and because the underlying ALJ opinion allowing
benefits often is ambiguous. Moreover, because the beneficiary uniquely has access to
information on whether the predicted recovery materialized, shifting the burden accords
with traditional justifications for allocating burdens. 418 Second, cabining disability for a
term may have the heuristic value of communicating to claimants that they should
continue thinking about employment possibilities even when collecting benefits. Third,
the burden of overcoming inertia would switch from agency to beneficiary. Under
current policy, it is the agency that must schedule the CDRs, collect medical information,
and then determine whether to terminate benefits. Under the “term” proposal,
beneficiaries must initiate the process, and some beneficiaries whose health has improved
might well desist. 419 Fourth, and related, the term disability approach would minimize
the protracted delays that currently beset the CDR process before SSA determines that
beneficiaries are no longer disabled, and therefore minimize government

418

Cf. Richard A. Posner, An Economic Approach to the Law of Evidence, 51 STAN. L. REV. 1477 (1999);
Bruce L. Hay & Kathryn E. Spier, Burdens of Proof in Civil Litigation: An Economic Perspective, 26 J.
LEGAL STUD. 413 (1997).
419
Indeed, a significant number of beneficiaries, several thousand a year, when contacted by SSA do not
comply with SSA’s request to provide medical updates and therefore are terminated from the rolls for that
reason. FY 2010 CDR REPORT, supra note 403, at 3.
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overpayments. 420 For a mixture of reasons, therefore, a procedural shift to the term
disability concept likely would help ensure that payments are confined to those who
remain disabled.
Recommendation 14 - Amendment of the Social Security Act to Include
“Term” Disabilities: Accordingly, Congress should amend the Social Security Act to
give the agency the option to determine disability for a term, with the ability to choose
between three and five years. After that time, the claimant would have to demonstrate
continuing disability based on current medical information. To the extent that the
disability lasts longer than predicted by the ALJ, claimants will have the former findings
made by the ALJ in their favor and need only supplement the record with contemporary
physician reports. SSA should consider an age cutoff for such term-limited allowances,
such as 55, given that the likelihood of reentering the workforce for a claimant who is
disabled and close to retirement age is minimal. Moreover, ALJs should only be able to
decide upon a term disability once per claimant. Thereafter, the choice would become
binary, as it is now – either the claimant is disabled or not. Otherwise, ALJs might be too
tempted to impose one term after the next and trigger too many new hearings.
ALJs are not physicians, and even physicians have no crystal ball in
prognosticating the length of disability. But, through hearing 500-700 cases annually,
ALJs develop a sense of how long particular traumatic injuries are likely to continue, and
they have the medical reports at hand. A part of their caseload each year includes CDRs,
so they have experience in assessing the duration of disability. Given that ALJs see
claimants well after the injury has taken place, they gain a sense as to the pace of
420

AUDIT WORK PLAN, supra note 407, at 13 (estimating that, from calendar year (“CY”) 2005 through CY
2010, SSA “will have made benefit payments of between $1.3 and $2.6 billion that could have been
avoided if the medical CDRs in the backlog had been conducted by DDSs when they were due”).
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recovery. SSA already calculates the likelihood of recovery based upon sophisticated
analytics, which should aid ALJs in their determination. Claimants should be protected
by continuing to receive benefits for a period after expiration of the term to enable them
to pursue disability again at the DDS level by filing a new application.
Adoption of the finite disability concept would not be cost free. SSA would face
more hearings as beneficiaries challenge whether they have improved significantly at the
end of their designated term. For the sake of discussion, assume that ALJs determine that
50,000 claimants a year fall within the term disability category, or roughly 7% of all
those turned down at the DDS level who seek a hearing before an ALJ. 421 If all 50,000
later challenge whether they are still disabled at the end of the term, which is unlikely,
SSA would face a 7% increase in filings. Given that some term beneficiaries are likely
not to re-file, some will gain disability at the DDS level, and that the claims of some
would have been remanded anyway, the increase in hearings annually at the ALJ level
would be significantly less.
The impact of even that increase in hearings is not to be minimized. Nonetheless,
most of the additional cases would turn on disabilities already documented in the record.
If the claimant loses at the DDS level and appeals, the hearing would be relatively
straightforward given that the only issue for resolution would be medical improvement,
unless a new disability were implicated.
More importantly, if 50% of those 50,000 claimants are found to have improved
to the point that they are no longer disabled (in conformance with ALJ predictions) – a

421

The CBO in 1997 estimated that as many as 50% of claimants fall within a category of possible
improvement. TIME-LIMITING FEDERAL DISABILITY BENEFITS, supra note 417, at 2. We recommend that
the disability term category be used only for claimants who are “likely” to improve.
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relatively modest assumption 422 – then the lifetime savings to the trust fund would, in
crude arithmetic, approach 7.5 billion dollars (25,000 claims at $300,000 each,
discounted somewhat by disability payments distributed during the term). And, these
savings would arise each year, although the savings would only hit the trust fund over an
extended period of time. Of course that figure does not take into account that SSA
eventually may determine through the current CDR process that many of those
beneficiaries are no longer disabled. The “term disability” concept, however, would
force reconsideration of disability much sooner than is now the case, and the IG has
estimated that even the delay – without considering any impact of the changes from
reallocating the burden of persuasion – would save hundreds of millions of dollars each
year. 423 In contrast to such savings, the additional process costs assumed by SSA seem
quite modest in comparison.
On the other hand, if the option of a “disability term” existed, it is possible that
ALJs in close cases would allow more claims than they do now, because the
government’s exposure is less. Although the criteria for determining disability would not
have changed, an ALJ’s sympathies might be determinative in close cases. The
possibility should be monitored closely, but a quick arithmetic look suggests that the

422

SSA has found roughly 6% of those subjected to CDR routine review to be no longer disabled. See FY
2010 CDR REPORT, supra note 403; David H. Autor & Mark G. Duggan, The Growth in the Social Security
Disability Rolls: A Fiscal Crisis Unfolding, J. ECON. PERSPECTIVES (2006). That percentage has remained
constant. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO/T-HEHS-97-222, SSA IS MAKING PROGRESS IN
ELIMINATING CONTINUING DISABILITY BACKLOGS (1997).
423
See SOC. SEC. ADMIN. OFFICE OF THE INSPECTOR GENERAL, FULL MEDICAL CONTINUING DISABILITY
REVIEW, A-07-09-29147, at 2-3 (Mar. 2010). Indeed, the amount saved may be greater; see also AUDIT
WORK PLAN, supra note 407, at 13 (estimating that from calendar year (“CY”) 2005 through CY 2010,
SSA “will have made benefit payments of between $1.3 and $2.6 billion that could have been avoided if
the medical CDRs in the backlog had been conducted by DDSs when they were due”). Moreover, SSA
calculates that 6% of the 1.25 million beneficiaries whose cases currently are in the CDR backlog are no
longer disabled. See FY 2010 CDR REPORT, supra note 403. If those CDRs could be scheduled, therefore,
the agency stands to recoup over one billion dollars (70,000 claims at $15,000 a year) a year until they can
catch up on their docket.
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increase in the allowance rate would have to be substantial before the long run savings
would be eliminated. 424
Finally, we are inclined to make an agency decision as to a “term disability”
nonappealable. Claimants in that category will be receiving benefits for at least the next
three years, and have the option to file for disability at that time if their condition has not
improved. This is not to minimize the interest of the claimant in an uninterrupted flow of
benefits, but we doubt that federal court judges would favor an increase in their workload
based on the argument that SSA mispredicted the likelihood that claimant’s condition
will change over time.
In short, the absence of a disability term results in payment of benefits to
beneficiaries who are no longer disabled. Congress should authorize ALJs to find that
claimants’ disability is expected to continue, but that is not likely to continue past a
period of three or five years. After that time, claimants would once again have the
burden to demonstrate disability. Although many readily could prove continuing
disability, a significant percentage could not due to the expected improvement in
condition.

424

Ultimately, the term disability concept could be applied at the state DDS level as well.
89