(This is the fifth post in this series about the independence of administrative law judge who will preside over your Social Security disability appeal.)
In our previous posts on this subject, we discussed how the Social Security Administration’s targeting of administrative law judges it decided were approving too many disability claims is against the law. As the United States Ninth Circuit Court of Appeals summarized the Bellmon experiment:
“Administrative decision makers do not bear all the badges of independence that characterize an Article III judge, but they are held to the same standard of impartial decision making. A program or policy that creates systemic, structural bias plainly falls outside the range of appropriate review. Bellmon Review was such a program. Indeed, every court that has addressed the issue has concluded that the program did have this pernicious effect. If there ever was a chilling of judicial independence, this is it. This is like threatening a lawyer with disbarment if he takes a case of a controversial nature. This is the same as saying that every law judge in the country should be deciding a certain percentage of cases against the claimant. To designate high allowance ALJs for ongoing review of their allowance decisions inexorably tends to discourage these ALJs from allowing benefits in close cases.”
But like the “Terminator”, Bellmon review is an evil creature that just won’t die.
In 2010, the Social Security Administration created a Division of Quality (DQ) to focus specifically on “improving the quality” of the disability appeal process. Since 2011, DQ has been conducting reviews on a supposedly random sample of ALJ allowances. Federal regulations after the Bellmon review experiment have required that – for reviews of ALJ decisions before cases are completed – decisionsmust be selected at random and may not be based on the identity of any specific ALJ or hearing office.
But DQ also performs “post-effectuation focused reviews” looking at “specific issues”. These reviews occur after the 60-day period a claimant has to appeal the ALJ decision, so they do not result in a change to the decision itself.Importantly, the restrictions to regarding random sampling do not apply to post-effectuation focused reviews. Subjects of a focused review inquisition may be individual ALJs.
And now we introduce the Son of Bellmon Review, a sequel.
Congressman Darrell E. Issa (R CA) is perhaps most notably known as the guy who cuts off his microphones in hearings when he is committee chairman and wished to terminate the remarks of his political opponents. He has also been at the forefront of Congressional attacks on the SSA Disability Insurance program.
Part of Issa’s war on the disabled, naturally, is to renew the attack on the independence of Social Security’s administrative law judges. This time around, Issa’s Son of Bellmon review strategy has found a strong ally in Social Security’s Inspector General.
On November 14, 2014, Inspector General Patrick P. O’Carroll, Jr. wrote to Congressman Darrell E. Issa:
“In a January 7, 2014 letter, you asked my office to identify administrative law judges (ALJ) who had issued 700 or more dispositions and who had allowance rates of 85 percent or higher in any 2 fiscal years since 2007. You requested that we review a statistically significant, random sample of these cases to determine whether the ALJs processed the cases in a manner consistent with the Social Security Administration’s (SSA) policies and procedures. You also were interested in the level of SSA monitoring of the ALJ outlier group, including subsequent actions taken with outlier ALJs based on this monitoring.”
Issa made great use of O’Carroll’s OIG Report, as we will see in our next post.