To help ensure the SSA can meet this challenge, the Administrative Conference of the United States (ACUS), a federal agency charged with identifying governmental best practices, has issued a series of recommendations that concentrate on two goals for SSA adjudications: to improve consistency and efficiency.
SSA adjudications follow a specific procedure. Initially, a state agency makes a decision on a SSA disability claim based on federal guidelines. Any individual not approved to receive benefits at the state level may request reconsideration; if denied again, the individual may apply for a hearing from a federal Administrative Law Judge (ALJ).
The ALJ freshly reviews the claim, without giving weight to the previous state determinations. Then, an SSA employee—a writer, not assigned to any specific ALJ—composes the ALJ’s holding.
After this, the Appeals Council, consisting of one- to two-person panels, may consider an appeal and decide to grant, deny, dismiss, or send the claim back to an ALJ. Additionally, the Appeals Council has the authority (although it currently is not using it) to review unappealed decisions on its own accord—an “own motion” review. If claimants are still unsatisfied, they may appeal to a federal district court for review.
With this multi-layered procedure in mind, ACUS has issued a set of consistency-based recommendations, which focus on both the ALJ hearing stage and the Appeals Council stage. At the ALJ hearing stage, ACUS recommends a protocol for claimants to submit pre-hearing briefs that provide medical evidence and the justifications for the SSA disability request. ACUS claims that adopting its recommendation will increase transparency and shed light on the issues that the parties need to address during the hearing. Moreover, ACUS suggests assigning decision writers to specific ALJs. By pairing writers with ALJs, the writers will be able to capture the reasoning of an ALJ and will create clearer precedents.
At the Appeals Council stage, ACUS’s recommendations concentrate on the consistent application of SSA policy to signal ALJs on the appropriate course of action in similar cases. To meet this goal, ACUS stated that the SSA should explicitly clarify the Appeals Council’s function of consistently applying policy. To do so, ACUS recommended that the Appeals Council provide more policy interpretations by publishing more opinions, thereby highlighting policy gaps and establishing clear precedents. Doing so may also help ALJs identify and avoid common mistakes when deciding on SSA disability claims.
Further, ACUS has recommended that remands should go to the ALJ who initially decided the claim; or, at a minimum, that ALJs should receive notice of remands. ACUS explained that an “ALJ can learn from seeing the deficiencies firsthand.”
Additionally, ACUS proposes that the SSA should develop a system whereby ALJs serve on the Appeals Council. If ALJs participate in the appeals process, they may respect the process more. Furthermore, ACUS hopes that working with the Appeals Council will help ALJs learn new analytical skills and understand current SSA policy.
In addition to issuing recommendations for claims appealed to the Appeals Council, ACUS recommends the expansion of “own motion” review as a means of quality assurance. To do this, the ACUS recommendations say the SSA should manufacture express, neutral, and objective criteria to review unappealed decisions. ACUS suggests that the SSA revise the agency’s regulations so that the “own motion” decisions provide policy clarifications, review cases where there is a high likelihood of error or lack of policy compliance, and provide precedents for challenging issues of fact or law. As ACUS notes, the “Appeals Council can play a critical role in error correction.”
Further, ACUS makes recommendations for the “treating source rule”—that is, the rule that determines the weight given to the resolutions of certain medical professionals. The treating source rule currently gives “controlling weight” to the opinions of an individual’s “treating physician, psychologist, or certain other acceptable medical source.” ACUS zeroed in on this rule because it is the basis for ten percent of the Appeals Council’s remands, and federal courts have said that it leads to thirty-five percent of remands. According to ACUS, this is likely due to the dramatic evolution of health care, where people see multiple medical professionals. Thus, it is difficult for ALJs to decide the weight given to each physician’s opinion.
Focusing on the treating source rule, ACUS recommends that the SSA amend its regulations to eliminate the controlling weight rule in favor of a more flexible, discretionary approach. Additionally, the SSA should include the decisions of other medical professionals, including nurse practitioners, physician assistants, and licensed clinical social workers, on the list of opinions ALJs should provide some deference. This way, ALJs will be able to consider medical professionals’ opinions in light of the current state of the U.S. health care system.
To improve efficiency, ACUS also concentrated on the electronic case management systems of SSA adjudications. Currently, both levels of disability claims processing—that is, ALJ hearings and Appeals Council review—use different case processing systems. Because claimants introduce so much data before, during, and after the ALJ hearing stage, ACUS recommends that the SSA create a way to associate cases and issues in the electronic system. This is also important because policymakers may use data from SSA adjudications to form policy and operational-consistency determinations.
In the end, ACUS’s recommendations may well provide a template for improving not only the SSA’s claims processing but other agencies’ adjudications as well. Certainly attaining consistency and efficiency is a general goal for any adjudication, including disability claims.
Interested members of the public can receive notifications and updates on ACUS’s SSA adjudication project by signing up for the agency’s newsfeed.
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Elizabeth Warren is the senior United States Senator from Massachusetts. Senator Warren has served in the Senate since 2012, and she is the ranking member on the Economic Policy Subcommittee of the Committee on Banking, Housing, and Urban Affairs. She was the driving force behind the Consumer Financial Protection Bureau, and in 2008, she headed the Congressional Oversight Panel for the Troubled Asset Relief Program.
Jason Furman is the 28th Chairman of the Council of Economic Advisers, a role in which he serves as President Obama’s Chief Economist and as a Member of the President’s Cabinet. A member of President Obama’s Administration since the start of his presidency, Chairman Furman previously served as Principal Deputy Director of the National Economic Council and as Assistant to the President.
Jed S. Rakoff
Jed S. Rakoff is a United States District Court Judge for the Southern District of New York. He ascended to the bench in 1996 after being nominated by President Bill Clinton, and he assumed senior status on December 31, 2010. He is a leading authority in securities law and white-collar crime as well as a prolific writer, having authored four books, 100 published articles, over 220 speeches, and over 425 judicial opinions.
Susan Dudley is the Director of the GW Regulatory Studies Center and distinguished professor of practice at GW’s Trachtenberg School of Public Policy and Public Administration. She serves as president of the Society for Benefit-Cost Analysis, and as a senior fellow of the Administrative Conference of the United States. She served from 2007 to 2009 as the Administrator of the Office of Information and Regulatory Affairs within the Office of Management and Budget.
Richard L. Hasen
Richard L. Hasen is the Chancellor’s Professor of Law and Political Science at the University of California, Irvine. A leading expert in campaign finance regulation and election law, he is the author of the book, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections, as well as the writer of the widely regarded Election Law Blog.
Wendell Pritchett is the Presidential Professor of Law and Education at the University of Pennsylvania Law School, and he is a recognized leader in the field of higher education. He was Deputy Chief of Staff and Director of Policy under Philadelphia Mayor Michael Nutter, who later appointed him to the School Reform Commission, where he served from 2011 to 2014. He also served as Chancellor of Rutgers-Camden from 2009 to 2014.
Mike Lee is the junior United States Senator from Utah. He is the Chairman of the Senate Steering Committee; the Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights; and the Water and Power Subcommittee of the Energy and Natural Resources Committee. He was previously General Counsel to Utah Governor Jon Hunstman, and law clerk to Supreme Court Justice Samuel Alito.
Patricia L. Bellia
Patricia L. Bellia is Notre Dame Law School’s William J. and Dorothy K. O’Neill Professor of Law. A teacher and researcher in multiple areas including constitutional law, administrative law, and cyberlaw, Professor Bellia is co-author of a leading cyberlaw casebook and has published articles on internet law and separation of powers. She previously served as an attorney-adviser in the Justice Department’s Office of Legal Counsel.
Donald C. Langevoort
Donald C. Langevoort is the Thomas Aquinas Professor of Law at Georgetown University. He was previously Vanderbilt University School of Law’s Lee S. and Charles A. Speir Professor, and the U.S. Securities & Exchange Commission’s Special Counsel in the Office of the General Counsel. An authority in the area of securities regulation, he is the co-author of a securities regulation casebook and author of a treatise on insider trading.
Rena Steinzor is a professor at the University of Maryland Carey Law School. She is a founder, former president, and member scholar of the Center for Progressive Reform. She teaches and has authored and co-authored books on administrative law, consumer safety, public health, and environmental law. She has testified before Congress multiple times, addressing such issues as the impact of health, safety, and environmental regulations on the economy.
Richard L. Revesz
Richard L. Revesz is New York University School of Law’s Director of the Institute for Policy Integrity and the Lawrence King Professor of Law. From 2002 to 2013, Professor Revesz was the Dean of NYU School of Law. He is a nationally recognized expert in the fields of environmental and regulatory law and policy, with a focus on issues including the use of cost-benefit analysis in administrative regulation.
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