What We Should Do about Social Security Disability: A Response to Richard J. Pierce, Jr

Article excerpt

In an article in the Fall 2011 issue of Regulation, George Washington University law professor Richard J. Pierce, Jr. considers the rising cost of Social Security disability benefits and asks (in the words of his title), "What Should We Do about Social Security Disability?" He posits that the program's woes lie in its administrative law judges (ALJs), who hear appeals from initial Social Security Administration (SSA) determinations to deny benefits to individual applicants. He concludes that what needs to be done is "to abolish the ALJ-administered part of the disability decisionmaking process."

In his view, to quote an American idiom, judges are giving away the store. Pierce points to significant increases in the numbers of persons applying for and being adjudicated as "disabled" under the Social Security Act. He refers to statistics showing increases in the raw numbers of applications for Social Security disability benefits and notes a "28 percent" increase in the number of favorable decisions between 2007 and 2010, attributing this in large measure to de novo decisions by administrative law judges who are reversing underlying administrative denials. He asserts that judges are responsible for the all-but-wrongful award of billions in disability benefits.

We respectfully disagree. The Social Security Act itself and the outdated jurisprudence underlying the current hearings and appeals system are the problem. Thus Congress and the SSA, rather than administrative law judges, should be the focus of Pierce's criticism.

Social Security Disability

Disability determinations are initially made following a paper review by a federally funded "State Agency" (typically called "Disability Determination Services") present in each of the 50 states by agreements entered into with the SSA. These administrative determinations are made by state employees: disability examiners (DEs) supervised by medical professionals. These "determinations" (not "decisions" under governing regulation) are not a product of "hearings" as mischaracterized by Professor Pierce in his earlier article, but are instead unilateral considerations of documentary evidence supporting a claimant's application, tempered by additional medical development. The claimant does not have an opportunity to respond to the agency's findings or opinions, nor is the claimant generally asked to respond to discrepancies in the application. "Development" by the agency includes obtaining treatment records and, when there is a paucity of such information, sending the claimant to a medical examination at government expense to assess alleged mental or physical conditions ("impairments"). A federal reviewing body, the Disability Quality Branch, monitors this determination process, sometimes rejecting proposed favorable awards for reasons of "programmatic integrity."

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The legal paradigm by which disability determinations are made and which governs later decisionmaking by administrative law judges-is a "5-step sequential evaluation." The S-step analysis looks to legal, medical, and vocational factors, with potentially favorable decisions made as a result of a defined medical condition (mental, physical, or both) or as a result of functional limitations arising out of an impairment or a combination of impairments. The decisionmaking standard is, however, ultimately a question of law: the judge makes findings of fact and law based on a legal analysis at each step of the 5-step sequential evaluation, all by a preponderance of the evidence.

The claims process is relatively straightforward. A claimant makes an initial application for disability benefits and, if denied, within 60 days seeks "reconsideration." If denied again, he or she may appeal-again, within a short 60-day window-requesting an in-person hearing before a federal administrative law judge. The hearing is the first opportunity a claimant has to present his or her case in person, as the initial and reconsidered determinations are essentially paper reviews. …