On May 25, 2023, the Washington Post published a long, detailed article about systemic problems in the Social Security disability adjudication process written by senior reporter Lisa Rein.
The article uses data published by the Social Security Administration to show how the adjudication process has become less fair over time. It details the increase in claim denials at nearly every level of the adjudication process. It points to quotas imposed on Social Security judges. It describes how high claim-approval rates trigger performance reviews, which are used to reign in judges who approve too many claims. Most notably, the article discusses the rate of remands that occur when a claimant brings a case in federal court.
In the fiscal year that ends in June, the Social Security Administration will have suffered the highest number of losses in federal court in the history of the agency. A little background is useful in describing why that fact is so significant. Social Security judges are not part of the judicial branch of government. They are employees of the Social Security Administration. Since the 1950s, the Social Security Administration has tasked these agency employees with acting as independent fact finders in a non-adversarial hearing process. However, over the last 25 years, as detailed in the article, the Social Security Administration has altered regulation after regulation to make it more difficult for judges to approve benefits while also imposing production quotas on the judges.
According to the Washington post, Social Security judges are expected to adjudicate 600 hearings a year when claim files routinely contain as many as 3000 pages of dense medical records. Even assuming that the average claim file contains half as many pages, given that production quota a Social Security judge is expected to analyze close to two million pages of medical records a year.
As Ms. Rein’s sources discuss in her article, the obvious result has come to pass. The quality of claims has dropped, and judges are making legal errors at the highest rate in history.
As an attorney who has represented claimants for more than a decade — first as a social worker non-attorney advocate and as an attorney practicing before the agency, before the District Court, and before the 9th Circuit Court of Appeals — I have noticed another change. Administrative law judges have a very difficult job and have to make very important decisions about the lives of others. It is obviously a stressful occupation. But, as one claimant told me after a recent hearing that had been remanded by the federal court. “Well, at least I never have to see that judge again.” What she meant was that the judge was aggressive, adversarial, and disrespectful. It’s a sad fact that judges are under so much pressure that civility suffers. She would never have to see that judge again because, although a case that is remanded by the federal court is sent to the same judge who erred in the first hearing, if it’s remanded again the claimant gets a new judge.
As an attorney and advocate for disabled people in Portland, I have to ask, “What is to be done about this problem?” Ms. Rein’s article and other recent reporting in the Washington Post does a great job of throwing light on the problem. Social Security claim representatives have an excellent national organization, NOSSCR, that advocates for changes within the Social Security Administration. Our local representatives in the House and Senate, including Representative Earl Blumenauer and Senator Jeff Merkley, have advocated for reform. Those are the national solutions.
On the ground level, the solution is excellent advocacy. Given the judges’ workload and the number of pages of medical records that they must review, it is essential that disability attorneys, like myself, know the medical record page for page and produce well-cited briefs that summarize the medical records. We also have to prepare our clients for the personality of the judges who will be deciding their claims. Sometimes that means counseling them to take a deep breath when confronted with an aggressive or disrespectful judge. Sometimes that means helping to bring down the temperature in the room ourselves through calm but firm advocacy.
Last, the ground level solution is that, as advocates for the disabled, we never give up on a case that can be won. Often, that means taking a case to federal court more than once. Sometimes it means taking a case to the 9th Circuit Court of Appeals. But in the end, tenacity combined with excellent advocacy is the only way to shepherd a claimant through the Social Security system that we work in today.