Jun 15, 2012

Wild Inconsistency At Appeals Council

     This is from the Social Security Advisory Board's Aspects of Disability: Decision Making: Data and Materials.Notice the wild inconsistency at the Appeals Council.
     I think there are those at Social Security who believe that if upper level management at the agency had better control over the state agencies and the Administrative Law Judges, that they could make the entire disability rational and consistent. Upper level management has the Appeals Council under near complete control and look at the results.


Anonymous said...

Yes as far as I can tell those are good and appropriate results. If an individual can't win at the hearing level they probably do not meet the definition of disability. People already win most of the time at the hearing level. Now you want all the denied ones to have great success at the AC level? Why not allow everyone? You're a joke.

Anonymous said...

Obviously, SSA does not agree with you. If they did, there would be no appeal higher than hearing level. Some ALJs just do not follow the rules in making decisions. Are you suggesting that those claimants unfortunate enough to have their cases assigned to one of those ALJs have no recourse but to file a new claim, and potentially give up years of retroactive benefits to which they might be entitled, or worse, if their DLI has already passed, to be limited to only SSI? No system is perfect; there are always going to be outliers and decisions that are just plain wrong. That's why we do appeals. I have had a case where the claimant met a listing, but the ALJ was having a bad day, which necessitated an appeal and after a few years a fully favorable new decision on remand. Court remands in our area run ~50%, which tells me that the AC is not doing its job properly (and then there was the disaster that was the Decision Review Board).

If you think Charles is a joke, why do you bother to read his blog?

Anonymous said...

Amen, 10:37. That first commenter clearly has some outstanding issues he/she needs to work through.
There are plenty of sure-fire cases of "disability" which even most conservative folk would agree should have been granted that go to hearings in places like Dallas or Queens or Louisiana to rot and die in the hands of uber-stringent ALJs who simply rubberstamp denials on most of the cases they see based seemingly off their own intuitions about the case or claimant without any regard for following the sequential evaluation process, or the CFR, or the SSRs, or even relevant circuit court law. THOSE are the cases that need AC review, and believe me, the AC gets those right. The borderline cases that should have lost at hearing, in my experience, lose at the AC about 98% of the time.
So stop crying, commenter #1, about how the AC remands too many cases. Justice needs to be done and ALJs need to be held accountable for their actions when they do not properly follow the rules.

Nobbins said...

What that graph shows me is that there seems to be an acceptance quota, and that any above that are denied or remanded. Every year, no matter how many applicants, you have the same acceptance number? That looks very, very fishy.

Anonymous said...

It's amazing how you distort my statements. I never said the AC should be abolished. I simply said that I find no problem with the graph showing a high denial rate at the AC level. In my view and in my experience in the agency, most cases that get denied at the ALJ level probably will not get approved unless there is a significant change in the claimant's conditions. Obviously, there are cases that the ALJ will get wrong but stats show that doesnt happen most of the time. I have never worked in my LA or TX so I cannot speak on the situations there, but in my state it seems if theres any grey area, the claimant usually gets the benefit of the doubt.

By the way I am entitled to my opinion of the stats and I am not "crying." I simply believe most cases that lose at the ALJ will never get approved and its only appropriate that AC reversals and remands should not be all that common.

Anonymous said...

@9:58am, Yes Charles does blow things out of proportion, but the data on this is there.

@Nobbins- I would be more interested in the remanded data as well. I have a feel based on the ones I have seen that those AC remands to the same ALJ end up having the same denial even after new development.

People may still fight through district courts, but so many claimants get discouraged because most firms do not wish to continue as representative past the ALJ/AC remand.

Anonymous said...

All one can ask is that the AC do their job accurately – this is not about allowance or denials – it is about a fair review. I have practiced in many states and unfortunately have to deal with Dallas. There are good ALJs in Dallas, but the outliers have little regard for the regulations in my opinion. I have penned many an appeal to the AC and there is no rhyme or reason to their reviews (see graph). A listing level allowance denied by an outlier ALJ should be remanded or reversed, period. In addition, I should not have to get the reviewer’s attention in the first 30 seconds prior to their nap and do it in two pages brief. When a component is unaccountable, there is no reason to expect competence.

Here is a suggestion. Since the Commish has implemented his new appeal policy, I suspect the number of appeals has dropped significantly. Hmm, means those AC reviewers have a little more time on their hands. Good. Get an appeal processed accurately in 6 months or less and explain the decision, now that the reviewers have quite a bit more time on their hands. Otherwise, AC is just another component of the agency answering to no one and contributing to the lack of consistency and quality that plagues the program.

Anonymous said...

There is no rhyme or reason for what the AC does. I have seen cases make it past the AC only to be remanded by the district court and I cannot fathom how the AC let it get past, while I have also seen numerous AC remands where the AC claims a particular issue was not discussed and I can quickly and easily point to the section of the written decision that discusses the issue. One of my favorite AC remands was when the AC sent it back because of a "lost" hearing recording, but when the file was provided to me to analyze for the ALJ, the hearing recording was attached to the A section of the paper file, just like it was supposed to be.

Anonymous said...

You should not be surprised to see wacky AC decisions considering that the initial evaluation is conducted by individuals who generally have no more than a high school education, who have no legal or medical training, and just follow a check-the-box form.

Anonymous said...

The spike in cases and denials in the late 1990s can be explained by the change in the law regarding DA&A -- lots of alcoholics and addicts were tossed off the roles -- many of them appealed, lost through the hearing level, and review denied by the AC; the drop in denials and caseload in the mid-2000s would correspond with the exhaustion of that increased workload; the reason that the denial and remand rates are still high compared to earlier decades is because applications in general have increased greatly (which leads to more cases available for appeal).

Anonymous said...

Let’s suppose that for most of the past 10-15 years the AC’s grant review rate ran between 26 and 28%. If it did, then notwithstanding this considerable degree of consistency, fluctuations is the total number of dispositions could still give the wild ups and downs in the top line of the chart.

It could be, of course, that there were fluctuations in both number of dispositions and in the rate at which the AC granted review. But even in this event, the first phenomenon would work to exacerbate the second to generate the wild ups and downs in the top line.

My memory of having worked through most of the period the chart depicts is that prior to last 2-3 years, there was in fact a long period of stability mostly within a 26-28% grant review rate. These days it’s closer to 20-22%.

You can get a hint of this if you read the legend for the chart instead of depending on how Mr. Hall presents it:

“Over the years, most of the cases handled by the Appeals Council have been either denied or remanded back to the ALJ hearing level. The increase in dispositions through 2000 reflects a marked increase in the number of requests for Appeals Council review beginning in 1996 through 2000. As the number of cases being reviewed as grown, so has the number of cases being remanded back to the ALJs. However, the percentage of remands has declined from 40 percent of all Appeals Council dispositions in 1990, to 22 percent of dispositions in 2010.”

About other comments above:

1. If you’re going to draw conclusions from a 50% court remand rate, then you have to make some allowance for how the litigation rate is only 20%. Doesn’t this mean that typically only the more meritful cases go forward?

2. Anon of 1:51 encountered a lost-recording AC remand and the hearing recording. This scenario most often occurs when the missing recording shows up after the remand. That was happening so often (look, we found it!) that there’s now a special procedure for the hearing office to ask the AC to vacate a lost-recording remand.

3. The comment by Anon of 1:53 about “individuals who generally have no more than a high school education” is surely aimed at the analysts who work up cases for the AC. What’s absolutely delicious about this comment is that these days the large majority of analysts are attorney advisors. The change started in 2009.

I claim a history that’s relevant to above, especially no. 3 above. I was an analyst for the AC 1982-2011. Over 2011-2012, I worked for a law firm. I’m still connected to the process.


Anonymous said...

I am disappointed to hear JOA say that most AC reviewers are attorney advisers. I assumed they were nonlawyers. Seems like they apply a generous "harmless error" or "would I approve this claim" test rather than a due process approach, asking if the ALJ actually applied ODAR's rules to see if the result was reached by a correct, fair application of the rules to the facts. The AC seems to be a much bigger rubber stamp than previously. They pass on stinkers so bad the General Counsel will not defend them in court.

Anonymous said...

From a Deputy Commissioner message dated 5/24/12:

"April also brought exciting news from the Office of Appellate Operations, where we exceeded our dispositional target for the fifth month in a row. Meanwhile, we are seeing an amazing trend -- fewer and fewer cases are coming back to the Appeals Council from the federal courts. We are analyzing the precise reasons for this trend, but we have seen an unprecedented 45% decline in returns to the Appeals Council from the federal courts."

Boom goes the dynamite.

~ attorney analyst

Anonymous said...

As far as I can tell it's all a money game. The reason I say this is because I know people who have filed for their SSI/SSDI, and to wait for years 4 max, to only get denied at the ALJ then at the AC..in which there was a good amount of back pay, but to not pay those monies out the case is denied and you file again with a clear disability and get awarded the benefits. You don't get the back pay from all those years of waiting. So yes it's all about the money.