In its current form, does the Appeals Council have any legitimate function? The Appeals Council usually takes at least a year and often much longer. It reverses only about 5% of the decisions it reviews and remands only about 20%. I have never seen any rationality in Appeal Council decisions. Frequently, review is denied even though the Administrative Law Judge (ALJ) decision has obvious, severe defects. This is not just my judgment. Social Security's Office of General Counsel (OGC) clearly agrees with me. Often, after attorneys file civil actions is Social Security cases, OGC takes a voluntary remand because they know they cannot defend the ALJ decision. This probably happens in 25% or more of cases. The remands and reversals that do come out of the Appeals Council seem almost to have been selected at random.
Does the Appeals Council serve any purpose other than to delay and frustrate claimants who want to obtain review of ALJ decisions? To put it another way, I ask myself the question: "If you could waive Appeals Council review and proceed directly to District Court, would you?" The answer to me is obviously "yes."
The question of whether the Appeals Council should be abolished has been around a long time. It has usually been coupled with the question of whether reconsideration should be abolished. However, reconsideration does not waste nearly as much time as the Appeal Council and, in its own way, is not nearly as irrational as the Appeals Council.
The calls to abolish the Appeals Council were pretty loud before 1999 when claimants were allowed to file new claims while cases were pending at the Appeals Council. In fact, the pressure was so bad at that time that Social Security employees often refused to enforce the policy that sought to prevent a claimant from filing a new claim while an appeal was pending. The 1999 decision to allow a claimant to file a new claim and an appeal released much of the pressure. The issuance of Social Security Ruling 11-1p, which seeks to prevent a claimant from filing a new claim and an appeal, bottles up that pressure once again. This time I think the pressure will build more rapidly because the Appeals Council is even less effective than it was in 1999. As of 1999, if I remember correctly, the Appeals Council was remanding in something like 30% of cases. It's now about 20%, making the Appeals Council even more useless than it was in 1999.
I agree that there are legitimate questions about the need for and effectiveness of the AC. It is especially hard to understand the long delay in a decision being made since the AC ultimately denies review in a high percentage of cases. How hard is it to say, "No, we are not going to review your case".
ReplyDeleteHowever, the fact that the AC used to remand 30% of its cases and now only remands 20% of its cases does not establish it is useless or less effective unless there is credible evidence of what the actual ALJ error rate is (information that does not exist). Maybe the remand rate has been decreased because of changes like the FIT template that help streamline and structure the ALJ decision. Maybe the AC is doing a better job of not remanding cases inappropriately (I have seen my fair share of nonsensical remands). One common cause of remands was lost hearing recordings. With digital hearings, this is less of a problem, since they can be stored on a server, than it was when hearings were on cassette tapes.
Also, the District Court upholds a fair number of appeals, meaning that cases that you (and other representatives) feel were made in error are determined to actually be legally sound (meaning the AC was correct to deny review or uphold the ALJ decision).
I was going to observe that remand rate is not a measure of "usefulness," but 12:38 made that point already.
ReplyDeleteIsn't the question really how much consistency can be expected from a four-tier, mass-adjudication program, which from a temporal standpoint, must hit a moving target as claimants age and medically deteriorate?
Mr. Hall's analysis is defective in many ways. I mention only ten.
ReplyDelete(1) The AC provides relief for some issues that federal courts do not. For example, the AC enforces internal rules that some federal courts do not.
(2) The AC provides relief in 4-5 times as many matters as the courts.
(3) The AC is much more efficient than the federal courts on disposing of matters in terms of human resources. Court cases can also take years.
(4) It would be disgrace to dump thousands more garbage ALJ decisions into the federal courts. The AC properly cleans up the Agency's own mess.
(5) Many individual federal district court judges, magistrate judges, and jurisdictions generally are more anti-claimant than the AC. For many claimants, the AC is the only hope.
(6) The AC is mostly correct. Just because the AC gets it right only most of the time -- it should grant many 10% more requests for review (pushing the grant rate from, e.g., 25% to 35%) -- does not mean that the AC should be abolished.
(7) The AC takes far less resources for the representative than does a court case. It takes 3-10 times more hours to litigate in federal court than to present arguments to the AC. No rational representative wants to do more work that would be unnecessary.
(8) In 95% of cases, the relief from court is the same as the relief that the AC would provide.
(9) The AC dispositions are mostly rational, not irrational. Or at least understandable. The AC correctly calls the bluff of claimants' representatives in the majority of cases.
(10)The main problem at the AC is not the AC, but claimants' representatives who provide substandard representation.
I agree with Mr. Hall's analysis.
ReplyDeleteSSA has in my opinion disenfranchised the most vulnerable of claimant's who receive a defective ALJ decision. The poor, terminally and or mentally ill, the homeless, the majority of SSI claimants who cannot wait 1 - 2 years for an unexplained AC pass. Moreover, most ALJs dislike remands. Many know representatives who will file an AC appeal if the ALJ decision is defective, and take that into mind when writing their decision. When some of these ALJs (let’s call them outliers, or those with less regard for the program than most of their peers) realize there is less chance of an AC appeal, I suspect their disregard of regulations will increase.
If the AC would review an appeal in 6 months and explain why they did not remand or reverse an ALJ decision, then perhaps they would be worthwhile. Otherwise, I see no rhyme or reason in their actions, nor do I believe statistics exist to document they are cleaning up the agency's mess or the quality of briefs they encounter. In fact oversight and consistency are not hallmarks of the agency's reviews in general.
I'm on Mr. Schnaufer's side of this debate. Anyone with any experience can relate periods where there is a rash of A/C remands, followed by a drought. During the drought times, it's easy to dismiss the A/C as useless. The droughts can be dependent on the particular branch involved, the experience of the staff in that branch at that time, and workloads.
ReplyDeleteI also recall a slew of new hires a year or so ago. That may be contributing to a lack of scrupulous review.
I also agree with the poster who pointed out the possibe consequences on "bad" ALJs if they knew they had nothing to fear from an A/C remand. Court remands are much less useful as an "education" tool because they take too long.
Perhaps the question is not whether the AC should be abolished but whether it is possible to improve it. Mr Hall has a very good point about inconsistency. I've seen silly remands and egregious affirmations. I doubt the answer to the inconsistency is abolition, but improvement is sorely needed.
ReplyDeleteMr. Hall's main point was that he would like to bypass the AC and go directly to court. (You can do this now in court-remand cases. See 20 CFR 404.984. (I don't address DSI.)) Mr. Hall's core argument is that the AC stands in the way of the claimant obtaining any relief and/or speedy relief. That position has no basis. Yes, of course improve the AC. But don't do what Mr. Hall suggests -- bypassing the AC to get to federal court.
ReplyDeleteMr. Hall made a diatribe against the AC not to improve it, but to trash it a la eliminating reconsideration. That is wholly misguided. We should be grateful every day that the AC exists even in its imperfect form.
Yes, there are myriad reasonable criticisms that one can make of the AC. But the solution is not either to eliminate the AC or to bypass the AC and proceed directly to court.
I mostly litigate cases. My uniform advice to my attorney clients: keep the claims out of the AC by winning them before ALJs. Keep them out of court by obtaining relief from the AC.
anon 6:57 presents the issue most clearly. the issue is not should we abolish the A/C altogether, but if or how we can improve it. the issue presented thus far is a false choice between abolishing or not.
ReplyDeletei think mr. hall would agree the A/C would be fine if it was just doing its job correctly and efficiently. right now ogc is having to do the work of persuading the A/C to take back obviously incorrect decisions. i don't know if this is the result of poor representation before the A/C as mr. schnaufer suggests but it is a likely possibility, given that many ssa reps don't work on the federal court case.
My goodness, what an old argument this is. Been going around and around for years. Eric is certainly right that having a mediocre AC is better (for claimants and the process) than no AC at all. And a better AC would, of course, be ideal. JOA will recall, but it was a couple of law professors, Koch and Block, who last took a half-way in-depth look at the AC, but their study is now aged and of questionable value. Let's talk about ideas for improving the AC's performance--in this budgetary climate, mind you.
ReplyDeleteEvidence from today. I have two AC denials.
ReplyDeleteCase 1: Before the AC denied review, I wrote to the referring attorney: "The claimant is obviously disabled. The AC will likely deny review because there is a tinge of exaggeration and the AC does not care about Spanish-speaking laundry folders. I recommend a civil action if the AC denies review." We will proceed to court.
Case 2: The ALJ on remand violated the AC's remand order. The AC wrote 1.5 pages single-spaced justifying its denial of review. The AC stated that it changed its mind and that the ALJ could properly violate its order. That denial of review reduces the chance of success in court probably 15%. Yes, the AC does provide explanations in some cases. And it is like a knife in the stomach.
Should the AC have granted review in both? Yes. Should the AC be abolished because it didn't? No. Would the claimants have been better off proceeding to court without the AC? I would never have taken that risk.
Mr. Hall wrote this:
ReplyDelete“As of 1999, if I remember correctly, the Appeals Council was remanding in something like 30% of cases. It's now about 20%, making the Appeals Council even more useless than it was in 1999.”
This comment about a 20% remand rate strikes me as highly ironic.
20% happens to be just about the rate at which AC denials go on to civil actions. A bit more than half of this 20% end up with the court vacating the Commissioner's decision (meaning the ALJ's decision). So that drops the court remand rate down to something closer to 10% of all AC denials. If a 20% remand rate is an indicator of uselessness, what then does a 10% remand rate mean?
There are strong grounds for suspecting that at least part of the reason for the low rate at which cases go to court after AC denial has to do with the supply of attorneys willing and able to do that kind of work. So if there's anything to the way Mr. Hall presents his standard of uselessness, then it looks like it also spills over to the group he belongs to.
Is there anything to this last conclusion? Not much. So Mr. Hall escapes the charge that he's slanging the overall group of attorneys who aren't willing to litigate more disability cases. But he escapes because of his own faulty reasoning about what inferences can properly be drawn from a 20% remand rate at the AC. Mr. Schnaufer has amply demonstrated just how faulty this reasoning is.
BTW, that 20+ year old study was by Koch and Koplow.
JOA
The Appeals Council is valuable. Many of my clients may not have prevailed w/o the Appeals Council. Elimination of the Appeals Council is a terrible idea. I believe it would cause a massive influx of cases into the Federal Court and this could result in pressure coming from several directions to establish a specialized court to handle SS cases similar to the Veterans Court.
ReplyDeleteWow, who would have thought this would be such a hot-button topic? For what it's worth, I'll throw my two cents in. I believe another anon already mentioned this, but I strongly second it: if the AC took a reasonable amount of time to review cases (6 months or less, like an IA app) and provided at least some sort of quasi-rational plenary analysis (like some IA denials), I think all clients and most of us reps would be pretty happy with that. But when you have a great case that runs into a foul ALJ and gets denied, there's no greater punch in the gut than taking that case to the AC, waiting almost 1.5 to 2 years for a decision, and then getting a BOILERPLATE denial with no intelligent analysis whatsoever. You can't have it both ways, AC: either give us quick decisions with no rational decision or let us wait the 2 years and at least give us a 1-2 page explanation for why there was no single reason to remand for further consideration.
ReplyDeleteAll good points. The new rule about not being able to file a new application along w/ an AC appeal is ludicrous. I understand this can create a backlog. But it should be the claimant's right, just like it has been since 1999.
ReplyDeleteWith the new rule, you have to seriously think about filing a new application and forget about the AC. This is especially true if you have a terrible ALJ. Like said before, most ALJs hate remands and the terrible ones almost never overturn themself. It's probably better to bite the bullet and file a new application. This means a loss of a lot of back due benes. But at least you can circumenvent the slow and tedious AC process.
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ReplyDelete