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Nov 6, 2011

An Attack On Social Security ALJs

     Richard Pierce of the George Washington University Law School has a "fair and balanced" piece in Regulation, a Cato Institute periodical. A few highlights:
The 1,400 administrative law judges (ALJs) who work for the Social Security Administration are making a significant contribution to the economic problems the United States is now experiencing. ...

If we are to believe ALJ decisions, the incidence of permanent disability in the U.S. population has more than doubled since 1970. That belief is beyond implausible. ...

The decision to allow an applicant to appeal two negative decisions made by two examiner/medical adviser teams to an ALJ and to allow an ALJ’s decision to grant an application for benefits that has been rejected twice by the bureaucracy to become final must be based on the belief that ALJ decisions are more likely to be accurate than decisions made by two independent examiner/ medical adviser teams. There is no basis for that belief, however, and many reasons for the contrary belief. ...

The executive branch of government is powerless to address the growing problem of ALJs’ unwarranted commitment of billions of dollars to undeserving applicants for disability benefits....
Most of the dubious grants of benefits by ALJs are attributable to findings that an applicant suffers from nonexertional restrictions, such as mental illness or pain, that are so severe that he cannot perform the functions of any job available in the U.S. economy. It follows that we could eliminate the problem simply by amending the statute to eliminate nonexertional restrictions as a potential qualifying impairment. ..

We could save scores of billions by removing all of the ALJs who now decide appeals from SSA decisions that deny disability benefits....
[T]he present method of SSA disability decisionmaking is clearly unconstitutional.
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  • 17 Comments:

    Anonymous Anonymous said...

    "It follows that we could eliminate the problem simply by amending the statute to eliminate nonexertional restrictions as a potential qualifying impairment".

    I have a disability. It seems unreasonable to eliminate any cause of symptoms that affect functioning.

    "We could save scores of billions by removing all of the ALJs who now decide appeals from SSA decisions that deny disability benefits".

    I believe alj roles should be changed. They should only determine whether substantial evidence exist on the record to support the state level denial.

    Thusly a reduction in salary or employees would save or help the budget.

    1:25 PM, November 06, 2011  
    Anonymous Anonymous said...

    No one seems to understand that if an ALJ does OTRs their approval rating will be higher than a ALJ who does not do them. If a ALJ has a run of claimants who are over 55 their approval rating will be higher. If an ALJ does more federal court or appeals council remand cases, their approval rating will be higher. Is no one taking these factors into consideration before bashing all ALJs? As far as this author's statement regarding the removal of non-exertional impairments as disabling - hogwash. These types of outlandish poo-poo on SSA arguments have existed since the time of FDR. At least the author could have came up with something original. Arguing that ALJ decisionmaking is unconstitutional is quite cliche don't you think?

    7:38 PM, November 06, 2011  
    Anonymous Anonymous said...

    i didnt read the article but i dont know what is inherently unconstitutional about ssa disability. however, the lack of meaningful review of favorable decisions (a la alj daugherty) really concerns me, so i agree with that premise of the article. and dont tell me cdrs are meant to keep those unjustified favorables in check.

    9:57 PM, November 06, 2011  
    Anonymous Anonymous said...

    Oh, the irony.

    ALJs are NOT there to provide a better result. They are there because people do not trust big government bureaucracy.

    I would concur that not having ALJs would not be a bad thing. But, if that were not the case, the courts would certainly not be happy...

    8:39 AM, November 07, 2011  
    Anonymous Anonymous said...

    please, so many of the state level denials are laughable. Instead of attacking ALJ reviews, why not address the complete failure of the states to properly adjudicate these claims in the first place. state level contractors (doctors who are often not in active practice) get paid a nominal fee per case reviewed. and often do not provide more then a sentence or two why an individual is not disabled. if people don't like the pay rate, change the law to limit who is eligible.

    10:19 AM, November 07, 2011  
    Anonymous Anonymous said...

    Clearly, Professor Pierce has never handled a disability claim or spoken with a disability ALJ or anyone else who has actually adjudicated a disability claim. I would doubt that he has ever met a disability claimant. Pontificating on the law from the Ivy Tower is easy; dealing with real claims and real people in the trenches is hard. Just read his resume.....

    11:35 AM, November 07, 2011  
    Anonymous Anonymous said...

    I would love some insight into how the current ALJ system is unconstitutional. In my view, removing the claimant's absolute right to a hearing would be the unconstitutional system. Mr. Pierce's unwavering faith in the bureaucracy is a trait I do not share. If ALJ review is abolished, then FICA taxation should be optional. If one is being forced to support the system, they should then be entitled to due process.

    1:14 PM, November 07, 2011  
    Anonymous Anonymous said...

    The system is not unconstitutional, but it also not necessarily necessary. ALJs arose at a time when federal agencies did not engage in rulemaking or very much rulemaking and so ALJs were a method of creating the law and set interpretations of the law. Many agencies have gotten rid or greatly reduced their ALJs because of the abundance of rule-making that now occurs. SSA could get rid of ALJs and just rely on hearing officers, with the appeal to the court level being limited to arguments that a regulation or law was improper/unconstitutional.

    2:42 PM, November 07, 2011  
    Anonymous Anonymous said...

    The issue is not with ALJs or with DDS decisions. The fact that DDS examiners are not given as much information, or the ability to properly use steps 4-5 of sequential evaluation leads to the high number of denials at levels 1 and 2 that later turn into awards. No one is doing their part wrong, but it would benefit everyone if SSA would change the regulations so that these cases that will turn into later awards can be identified and approved earlier. This would save claimants time and SSA an incredible amount of resources.

    3:46 PM, November 07, 2011  
    Anonymous Anonymous said...

    Most DDS denials that turn into ALJ awards are cases involving "older" individuals where either the ALJ finds a more restrictive RFC or the person reaches one of the magic ages after the DDS denial and the claimant amends the onset date to attainment of the magic age. The person is not actually disabled, but rather benefits from inappropriate assumptions about employability of older individuals, a factor that is not supposed to be relevant. If the age-based presumptions were eliminated, the approval rate would decline significantly. There would also be less incentive for unmotivated older individuals (and their representatives) to pursue appeals (especially in situations where the individual can reasonably do light work), giving the ALJs more time to focus on the harder cases.

    4:18 PM, November 07, 2011  
    Anonymous Anonymous said...

    The good professor is making a very narrow constitutional argument, he says that the ALJ system is unconstitutional not because of the adjudication process, but that they have too many protections in place against removal by the president. Citing a 2010 SCOTUS case, he says that they are officers of the US, and likely 'principal officers' and should be directly answerable to the president, rather than the Comish of SSA and the MSPB. It's a weasly way to reach the word "unconstitutional" and grab more attention for his axe grinding, because as these comments show, no one actually reads the article.

    4:31 PM, November 07, 2011  
    Anonymous Anonymous said...

    The age-based rules are out of date, and tie the hands of an ALJ. A 55 year old who needs a sedentary job is de facto disabled,when that is often very far from the truth.

    7:03 PM, November 07, 2011  
    Anonymous Anonymous said...

    Obviously this man has never been thru the process himself.. not wishing anything bad on anyone but.. god forbid he gets rear-ended on the way home tonight...then maybe it will be "fair and balanced" in his next article about SSA disability

    11:19 PM, November 07, 2011  
    Anonymous Anonymous said...

    @ anon 11:19...

    Even if he did get "rear-ended" he wouldn't be disabled. That's one of the nice things about having an education. He could work at a sedentary job. However, based on the SSA rules, he would likely GRID out as an age 55, less than sed and become disabled. You are only making the point of the people that you were trying to ridicule.

    7:26 AM, November 08, 2011  
    Anonymous Anonymous said...

    Quite a piece of "scholarship".

    1. no real discussion of the actual regulations, interpretive court decisions and rulings that impact how ALJ's are to rule. The difference between the state/dds pay rates and ALJ pay rates is not mostly the whim of ALJ's

    2. he recommended throwing a very millions of deserving claimants off of disability because their complaints are nonexertional. He did admit this would hurt some deserving claimants, but implied they were a small minority (without any actual facts to support that claim).
    3. he cited a Scalia article in his argument that ALJ's are too expensive, in a way that at least implied that Justice Scalia agreed with that conclusion. Contrary to that implication, the Scalia article he cited did not criticize the role of ALJ's. It was an argument against the selection process at that time.

    10:03 AM, November 08, 2011  
    Anonymous Anonymous said...

    Pretty much a ridiculous article. Prof is probably right the SSA needs to be overhauled. But actually the SSA serves a tremendous purpose in US government.

    Eliminating it would put millions of disabled people on the streets. Good luck dealing w/ that.

    2:12 PM, November 08, 2011  
    Anonymous Anonymous said...

    as if the dds denials meant anything. usually it is only because dds did not have enough info to find disability. dds is under enormous time pressure to clear their decisions, too, the main purpose being to get people who have all their info lined up to get approved as quickly as possible. so take dds denials with a grain of salt. they usually only show the person didn't have enough info to prove disability at that time.

    3:36 PM, November 08, 2011  

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