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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Professor Peter M. Shane came to Ohio State in 2003 from Carnegie Mellon University’s H. John Heinz III School of Public Policy and Management. He is an internationally recognized scholar in administrative law, with a specialty in separation of powers law and has co-authored leading casebooks on each subject. He has served on the faculty at the University of Iowa College of Law and was dean at the University of Pittsburgh School of Law. In addition to his outstanding law teaching and scholarship, Professor Shane has received a National Science Foundation grant for interdisciplinary study related to cyberspace and democracy.
Matthew D. Adler
Matthew Adler is the Richard A. Horvitz Professor of Law and Professor of Economics, Philosophy and Public Policy at Duke Law School. He previously taught at the University of Pennsylvania Law School and was affiliated with the Penn Program on Regulation. He is the author of Well-Being and Fair Distribution: Beyond Cost-Benefit Analysis (2012)
Robert A. Katzmann
Judge Robert A. Katzmann is a the Chief Judge of the U.S. Court of Appeals for the Second Circuit. At the time of his appointment, he was the Walsh Professor of Government, Professor of Law, and Professor of Public Policy at Georgetown University, as well as a Fellow of the Governmental Studies Program of the Brookings Institution.
David M. Driesen
David M. Driesen is a University Professor at the Syracuse University College of Law and a member scholar of the Center for Progressive Reform, where he regularly blogs about environmental and climate issues. He is the author of The Economic Dynamics of Law (2012).
John F. Cooney
John F. Cooney is a partner at Venable, a Washington, D.C.-based law firm. He previously served as an Assistant to the Solicitor General in the Department of Justice, Deputy General Counsel for Litigation and Regulatory Affairs in the Office of Management and Budget (OMB), and counsel for OMB's Office of Information and Regulatory Affairs.
Lisa Heinzerling is Professor of Law at the Georgetown University Law Center and a member scholar of the Center for Progressive Reform. She was Senior Climate Policy Counsel to the EPA from January to July 2009, and Associate Administrator of the EPA Office of Policy from July 2009 to December 2010. Professor Heinzerling also served as a member of President Obama’s EPA transition team.
Gillian E. Metzger
Gillian E. Metzger is the Stanley H. Fuld Professor of Law and Vice Dean at Columbia Law School. She writes and teaches in the areas of administrative and constitutional law, with a specialization in federalism. Professor Metzger previously served as a law clerk to Justice Ruth Bader Ginsburg of the U.S. Supreme Court.
Mickey Edwards served as a member of Congress for sixteen years, and then taught for another sixteen years at Harvard University's John F. Kennedy School of Government and at Princeton's Woodrow Wilson School of Public and International Affairs. He is a Vice President of The Aspen Institute, where he directs the Aspen Institute-Rodel Fellowships in Public Leadership.
Ronald M. Levin
Ronald M. Levin, the William R. Orthwein Distinguished Professor of Law, specializes in administrative law and related public law issues. He has testified before Congress on regulatory reform issues and has published numerous articles and book chapters on administrative law topics, including judicial review, rulemaking, and legislative reform of the regulatory process. Professor Levin has been active in the ABA Section of Administrative Law and Regulatory Practice for more than three decades and served as its Chair in 2000-01. He also served as the ABA’s advisor to the drafting committee to revise the Model State Administrative Procedure Act.
Susan Dudley directs the George Washington University Regulatory Studies Center and is a Research Professor in the Trachtenberg School of Public Policy & Public Administration. She served from 2007-2009 as the Administrator of the Office of Information and Regulatory Affairs within the Office of Management and Budget.
Anita L. Allen
Anita L. Allen serves as the Vice Provost for Faculty for the University of Pennsylvania. Professor Allen is also the Henry R. Silverman Professor of Law and Professor of Philosophy at the University of Pennsylvania. In 2010, she was appointed by President Obama to the Presidential Commission for the Study of Bioethical Issues.
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