If the judge in my Social Security disability appeal works for the Social Security Administration, how can I be sure he will be fair to me?

(This is the fourth post in this series about the independence of the administrative law judge who will preside over your Social Security disability appeal.)

“What’s past is prologue”

Shakespeare, The Tempest

There are strong efforts in both houses of our current Congress to enact legislation that will deprive your judge of his independence. It is useful to revisit past efforts to do the very same thing.As Shakespeare so gracefully observed, history is the context for the present.

As we noted in our last post:

Thirty-five years ago, with its Bellmon amendmentincluded in the Social Security Amendments of 1980, Congressrequired that the Secretary of Health and Human Services initiate a program of “reviewing”favorable decisions rendered by SSA’s administrative law judges.The intent to influence judges’ decisional outcomes was right out there in the open.

Associate Commissioner Louis Hayes undertook this mission with a vengeance. In 1983, he issued a memorandum to SSA’s administrative law judges, announcing a “BellmonReview” of judges who had awarded benefits to claimants in more than 66 2/3 % of their cases. It was determined that judges who allowed more that percentage were aberrational and needed to be “studied” to determine how to “counsel”them and thereby “promote behavioral change”.Certain judges were selected and notified to appear at SSA headquarters for this Orwellian exercise.

So how did this all work out?

To its everlasting credit, the independent Association of Administrative Law Judges sued the Social Security Administration. They asserted their right under the Administrative Procedure Act (APA) to be free of agency interference with and influence over their independent adjudications of Social Security claims. These honorable administrative law judges (ALJ’s) stood up for our Constitution.The case is titled Association of Administrative Law Judges, Inc. v. Heckler, 594 F. Supp. 1132(D.D.C. 1984).

The United States District Court Judge in the case found evidence that Associate Commissioner Louis Hayes had warned that “if, after further review an ALJ’s performance had not improved, “other steps” would be considered.” Understandably, the ALJ’s viewed that as a warning that SSA would recommend that charges be brought before the Merit Systems Protection Board (MSPB) seeking adverse personnel action, including being fired.

In other words – SSA had bluntly stated to its ALJ’s that if you disagree with us in these disability claims too many times, we will have you fired.

Exposed by this law suit to the light of day, the Social Security Administration beat a hasty retreat. The District Court Judge in his decision commented that “Most recently, SSA, under a new Associate Commissioner, has eliminated entirely the individual ALJ portion of Bellmon Review.”

The Judge nevertheless stated that “with reason, plaintiff and its members viewed defendants’ combined actions as a message to ALJs to tip the balance against claimants in close cases to avoid reversal or remand by the Appeals Council,which would increase their own motion rate, which would result in being placed on Bellmon Review,with the added potential for peer counseling and MSPB proceedings.” And he concluded that SSA’s“unremitting focus on allowance rates in the individual ALJ portion of the Bellmon Review Program created an untenable atmosphere of tension and unfairness which violated the spirit of the APA”.

 The good guys won that day. But the bad guys never give up. So now, as Yogi Berra said in his own Shakespearian way:

“It’s like déjà vu all over again.”