By Brian A Jackson /

Administrative Law Judges Decry Social Security Rule that Would Take Cases Out of Their Hands

SSA argues allowing appeals judges to hear lower-level disability cases will decrease the agency’s backlog, but administrative law judges say the initiative is an effort to undermine their independence.

The Social Security Administration last month proposed a rule that would allow appeals judges to hear standard disability cases, arguing additional personnel are needed to reduce the number of pending cases.

But members of the Association of Administrative Law Judges, who currently are responsible for the cases, said the measure is an effort to undermine them and sidestep their judicial independence.

In a proposed rule posted to the Federal Register on Dec. 20, the Social Security Administration argued that administrative appeals judges at the agency should have the authority to take up standard cases, conduct hearings and issue decisions, responsibilities currently reserved for administrative law judges. Officials argued that the move would improve the speed at which the agency reviews whether applicants are eligible for Social Security disability benefits, citing the roughly 541,000 pending cases at the time the regulation was proposed.

“The proposed changes in these rules will increase our adjudicative capacity, when needed, allowing us to adjust to fluctuating short-term workloads, such as when an influx of cases reaches the hearings level,” the agency wrote. “This will also provide us with appropriate flexibility, particularly when budgets may not support additional hiring or unanticipated shifts in disability application rates occur.”

In recent years, the Social Security Administration struggled with a backlog of hearings, reaching as high as 1 million cases in 2016. The agency previously floated a similar initiative to handle the backlog, but relented after bipartisan congressional disapproval based on concerns about the relative lack of training and political independence of appeals judges when compared with administrative law judges.

Since 2016, ALJs have gotten rid of the backlog entirely, and the total number of pending cases is down to 524,000 as of Jan. 6, according to data reviewed by Government Executive. So far this year, the average time it takes Social Security to process disability claims sits at 414 days, only 24 days above the goal for fiscal 2020 of 390 days.

Gabrielle Vitellio, an administrative law judge and the legislative chairwoman of the Association of Administrative Law judges, said it is hard to justify the Social Security Administration’s plans, given that both the number of pending cases and the speed of resolution are at historic lows. She said the agency’s actual goal is to remove ALJs from the process altogether.

“The current proposed rule will eventually completely remove the ALJ at SSA as the presiding officer at Social Security hearings,” Vitellio said. “The impetus for this rule the last time it was issued on May 12, 2016, was the backlog. At that time, there were approximately 800,000 to 1 million pending appeals. As of March 2019, Teri Gruber, deputy commissioner of operations at SSA, who issued the rule [both times], states there is no longer a backlog and continuing disability reviews are up to date.”

In a statement last month, Paul Shearon, president of the International Federation of Professional and Technical Engineers, whose union includes the Association of Administrative Law Judges, accused the agency of trying to sidestep the due process protections promised to Americans who apply for disability benefits.

“[The proposal is] a transparent attempt to strip due process protections from disability claimants at a time when SSA believes nobody in Congress is watching, as lawmakers are heading home for the holiday,” Shearon said. “Along with Judicial Council 1, the Association of Administrative Law Judges, IFPTE will hit the ground running in the new year to attempt to block the SSA’s attempt to deny our most vulnerable citizens their right to their day in court.”