The dismal performance of the Social Security Administration in processing and paying Social Security Disability and SSI claims continues to generate interest in the national media. Lisa Rein, a reporter for the Washington Post, has done a great series of articles about the SSA and has shed light on a system in chaos. She writes that sixty percent of cases that get appealed to the Federal District Court are remanded back to the Social Security Administration. If you haven’t done so, we highly recommend you read her May 25, 2023 article, “Judges rebuke Social Security for errors as disability denials stack up.” You can find her earlier work as well. It is worth the time to read them.
Medical professionals struggle to understand administrative law. It is an arcane system that bears little resemblance to most people’s understanding of how judicial systems work. The judges in administrative law proceedings are different than the judges in state and federal courts. Social Security judges exist in a netherworld between being an attorney and being a judge. The best analogy I can make is they are like warrant officers in the military. Commissioned officers in the military must have a college degree. Warrant officers are specialists in their fields, but do not have to have a college degree. They are outranked by all commissioned officers. An administrative law judge (ALJ) is an attorney who is hired by the government to perform specific tasks. In the case of the Social Security Administration, ALJs were to review the medical evidence and the evaluation the agency had made in denying a disability or SSI claim.
The disability system worked very well for claimants until late in the 2010s. Then a scandal occurred. A crooked Administrative Law Judge named David B. Daugherty, a crooked lawyer appropriately named “Conn,” and a group of doctors conspired together to rip off the system. From 2004 until 2016, thousands of falsified claims were submitted with falsified medical documents that resulted in about $550 million in false claims being paid.
This scandal involved one of about 1,700 Social Security Administrative Law Judges. The government overreacted in response to this crime. The Social Security regulations were changed. Now ALJs in the Social Security scheme are not just to make certain legal decisions, they are now to read the medical records alone – virtually ignoring opinion evidence from physicians – and decide if the records justified the disability decision. Now judges consistently play doctor. They are woefully unprepared to do this. If you have been practicing medicine for any length of time you have seen patently disabled people denied their Social Security Disability benefits.
The biggest problem is that these ALJs who have no medical training at all, are looking for “objective medical evidence” to support a claim. Think of all the diagnoses that are based on trained evaluation of subjective complaints. That is pretty much all of psychiatry and certainly a substantial portion of physical illnesses. We are awaiting the day of the “pain-o-meter.” There are judges who seldom pay mental health cases.
Ms. Reins reports that fifty percent of cases are paid at the hearing level. I’m glad to tell you that we do substantially better than that. In the past year we have been averaging about 80% at this level. We have done that by consistently preparing for the hearing. We help our clients at each step of the process. There are important forms up front that the Social Security Administration weaponizes and uses to deny applicants. The ALJs are looking for the slightest inconsistency between what someone wrote on a form in the early days of a claim and what they testify to in a hearing. We never lie, cheat, or exaggerate on any form. But we do try to keep people from messing up. Many of our clients can’t read or write very well at all. They answer questions about activities not based on their current capability but based on what they did in the past. We also order and submit the medical records. People do not understand that they must prove their case to Social Security.