It is no secret that Social Security has fallen seriously behind in handling applications for disability benefits. In my local hearing office, the wait between asking for a hearing and getting one was as little as 6-7 months two years ago. Someone requesting a hearing today can expect to wait at least 20 months. The wait times are getting longer with every passing day. It sometimes seems to me that Social Security has given up on trying to get the wait times down.
Social Security would tell you, however, that they are working hard on this issue. One proposal they are considering threatens to make everything worse, even if it does improve wait times.
The Current System V. The Proposed Changes
Under the current approach, applicants for Social Security disability benefits are entitled to have their cases heard by an administrative law judge, or ALJ. The ALJ are supposed to be independent of Social Security and thus render decisions without showing any favoritism to their employer, the Social Security Administration. The ALJ’s have important statutory protection in the Administrative Procedure Act from interference from Social Security. They are not subject to performance reviews, for example.
Social Security is now proposing to take tens of thousands of cases away from the ALJ’s and give them to administrative personnel to decide. This gets a little complicated, but here is the basic idea: if a claimant lost in front of an ALJ, she can ask the Appeals Council (AC) to review the ALJ’s determination. Under the current system, the AC can send the case back to the ALJ for another hearing. The AC would do that if it found some error of fact or law in the ALJ’s unfavorable decision. Under the newly-proposed system, the AC would not send those cases back to the ALJ. Rather, the AC would allow it’s own personnel to make a decision on the merits of the claim. This would include both judges and attorney examiners at the AC. Yes, you read that right. Attorney examiners, who work directly for Social Security with no guarantee of independence or any other protections, could be deciding cases on their merits.
An Idea Riddled With Problems
The difficulties with this proposal include:
1. The AC is already hopelessly backlogged deciding if ALJs made reversible errors. How far behind are they going to get if they now go on and decide cases on the merits?
2. Would such a scheme encourage ALJ’s to be less careful with their unfavorable decisions? If an ALJ knows that she is not going to see a case again after she signs off on it, why would she make the effort to ensure is it as correct as possible?
3. How does the claimant get his day in court if the AC is deciding the case? Keep in mind, there is only one location for the AC, in Falls Church, Virginia. Does the claimant have to agree to a video hearing unless he is willing to travel to Virginia? A claimant is entitled to be heard one way or another, so there is no way to work around this one.
4. Does SSA even have the statutory right to allow anyone other than ALJ’s to decide a claim on the merits? If not, every adverse decision they make is subject to review in Federal Court. This means that ten years from now, a judge could decide that SSA exceeded its statutory authority and send tens of thousands of cases back to ALJ’s for hearings. This concern led Senator Lankford of Oklahoma to write to SSA and demand the legal basis for SSA’s proposed changes in procedure. If claimants do not sue SSA over this, the ALJs, with a very strong union, might. For the record, Marilyn Zahm, a spokesman for the ALJ union thinks SSA’s proposal is not legal.
If It Would Not Work Elsewhere, Why Would It Work Here?
I cannot imagine that this thinking would fly anywhere else in the legal system. Imagine telling someone accused of murder that we are going to let a lawyer who works for the state to decide your case because we are too busy to give you a trial. If the idea sounds crazy in that setting, it is no less crazy in this one.
Social Security needs to do something about its enormous backlog. But one thing they do not need to do is violate their own governing statutes, anger the ALJs, and invite years of litigation they are likely to lose. Get back to the drawing board, SSA, and give us some proposals that might actually help.
