Judges rebuke Social Security for errors as disability denials stack up

By Lisa Rein

May 25, 2023 at 6:00 a.m. EDT

https://www.washingtonpost.com/politics/2023/05/25/social-security-disability-denials-court-remands/

Michael Sheldon of Cortez, Colo., suffered severe injuries after his road-paving truck flipped on the job in 2006, hurling him headfirst toward a mound of boulders. He waited 14 years for disability benefits. (Corey Robinson for The Washington Post/For The Washington Post)

Hurled from a road-paving machine, Michael Sheldon tumbled 50 feet down a Colorado slope and struck a mound of boulders headfirst on a summer day in 2006. After eight surgeries to his head, neck and spinal cord, his debilitating headaches, chronic pain and post-traumatic stress have made it impossible to return to his work preparing roads for new subdivisions.

Yet for more than a decade, the Social Security Administration repeatedly denied Sheldon’s full claim for disability benefits that would pay him $1,415 a month.

Even after three federal judges found significant errors with how his case was handled and sent it back to Social Security for new hearings, the agency continued to reject Sheldon, court documents show.

“They’ve done everything to prolong this to get me to quit,” he said after testifying in March at his fifth hearing. Now 59, he lives with his wife in a trailer in Cortez, Colo., and depends on food stamps and state benefits for the indigent. “I can’t replace the battery on a vehicle. Why has this taken 14 years?”

Like Sheldon, thousands of other disabled Americans battle for years for benefits, even after federal courts rule in their favor.

In the last two fiscal years, federal judges considering appeals for denied benefits found fault with almost 6 in every 10 cases and sent them back to administrative law judges at Social Security for new hearings — the highest rate of rejections in years, agency statistics show. Court remands are on pace to reach similar levels this year.

Federal judges have complained of legal errors, inaccurate assessments of whether claimants can work, failures to consider medical evidence and factual mistakes, according to court rulings and Social Security’s own data. The scathing opinions have come from district and appellate court judges across the political spectrum, from conservatives appointed by President Ronald Reagan to liberal appointees of President Barack Obama.

Northern California District Judge Susan Illston, appointed by President Bill Clinton, wrote in January that a disability claim denied by Social Security that ignored key physician records was “so vague as to be essentially unreviewable.” The judge reversed the decision and ordered the agency to pay benefits to the claimant, a woman who suffers from delusions, depressive disorder and schizophrenia.

Approval rates for benefits are down at every level of review, Social Security data show, even as the number of disabled people applying dwindled during the coronavirus pandemic. Fewer than 20 percent of those who lose their appeal at Social Security take their claim to federal court, as most lack the time or resources to keep fighting.

Approval and Denials at all levels of the disability process

Approval and Denials at all levels of the disability process.

“The system has become one of ‘how do we deny this claim’ rather than ‘what is the right answer in this person’s case?’” said Ann Atkinson, Sheldon’s attorney outside Denver. “And the federal court is agreeing with us: ‘You have to do a better job.’”

The high rate of rejections for cases handled by administrative law judges and the attorneys who write their decisions is driven by stringent monthly quotas set by Social Security officials and growing pressure to deny more cases, according to current and former officials, audits and attorneys who represent the disabled. The agency’s policies have been reshaped to give less deference to the expertise of doctors who, in some cases, have treated claimants for years, and its policies routinely depart from federal appellate court rulings.

The result has been an unmistakable shift to an adversarial disability system, advocates for the disabled claim: Rather than calling the case down the middle, they say, Social Security has stacked the cards against the approximately 2 million people each year who apply for help when they can no longer work.

Yet federal judges rarely order the agency to approve claims in deference to the government, but instead must typically refer the cases back to the administrative law judges — often the very ones responsible for the errors in the first place, a common practice in administrative law that avoids asking a new judge to rehear a complicated claim. Only about half of the agency judges assigned to rehear cases they initially denied reverse those rulings, prolonging the cycle of appeals and new remands for disabled claimants, few of whom have means to support themselves, a Washington Post analysis found.

“Some of them just dig in and say, ‘I’m going to find a way to deny this claim again,’” said Steven Weiss, regional managing attorney at Bay Area Legal Aid in Oakland, Calif.

Nicole Tiggemann, a Social Security spokeswoman, disputed that the system has overly tilted against disabled people.

“The agency evaluates the totality of the evidence and decides cases based upon the issues and evidence in the particular case,” she wrote in an email. “The process has always been and continues to be non-adversarial.”

Yet the rate of cases remanded to the agency from federal judges has long been a source of alarm inside Social Security, current and former officials said. For the last decade, roughly half of all cases that made it to federal courts have been sent back. Under a law known as the Equal Access to Justice Act, the government paid attorneys of claimants who prevailed in federal court $68 million in fiscal 2022, the largest number of awards of any federal agency and more than triple the sum a decade ago, data from the Administrative Conference of the United States shows.

“It’s absolutely much higher than it should be,” said Asheesh Agarwal, Social Security’s chief lawyer during the first two years of the Trump administration. Given the stakes for disabled people and taxpayers, he argued, administrative law judges must do a better job deciding cases. “There’s a lot of money at stake when you think of a grant of lifetime benefits.”

Social Security spokesman Mark Hinkle in an email defended the system, noting that disability decisions appealed to federal court “constitute a very small fraction of the overall decisions issued by the agency.”

Hinkle acknowledged that “despite our consistent efforts to ensure quality decisions, the federal courts may remand decisions for further action.” He said that since courts rarely reverse the decisions of Social Security judges outright, “the agency is not directed to issue a decision in favor of the claimant” but must only “consider” new evidence — circumstances like age, a changed medical condition “and any specific action or analysis directed by the court.”

While Social Security officials defend the rate of court remands, current and former officials said that the agency’s own lawyers are increasingly admitting error before proceedings begin in federal court. Government attorneys frequently ask district courts to remand an appeal before the claimant’s attorney submits a written brief, a practice that spiked during the pandemic as the agency fell behind.

“They recognize right away that some of these cases aren’t defensible,” said Cody Marvin, a Chicago-based disability attorney who frequently takes cases to federal court. He estimated that 40 percent of the claims his firm appeals to district court judges are returned to Social Security in what are known as voluntary remands. The numbers vary by state, but Social Security acknowledges some degree of error in at least 15 percent of cases, officials said.

Administrative law judges and their representatives also acknowledge that the system is flawed. Som Ramrup, president of the organization that represents 1,084 Social Security judges not in management, cited the sustained imposition of monthly case quotas as the “number one reason” behind the high rate of remands. Each judge schedules up to 600 cases a year, according to Ramrup and other administrative law judges.

“The judges strive to issue quality decisions, but they certainly are encouraged to rush,” Ramrup said. “When you’re rushing, it’s not going to be perfect. It’s a business decision [by the agency] to say, ‘that’s an acceptable remand rate to us.’”

Disabled claimants, meanwhile, can spend years battling for benefits, only to see victories in federal court rejected by Social Security after follow-up administrative proceedings. After a Colorado district court found in 2020 that an administrative law judge had erred in denying benefits to Heather Fowler, her claim was returned to the same judge — who reached the same conclusion after a second hearing.

“It should not be this hard to help people get what they need,” said Fowler, 47, of Yuma, Colo., who has been unable to work after a diagnosis of dissociative identity disorder that she said arose from years of physical abuse as a child.

Sheldon near his home in Cortez. Three federal judges kicked the Social Security Administration's denial of his disability claim back to the agency for new hearings. He testified in March at his fifth hearing before an administrative law judge. (Corey Robinson for The Washington Post)

A system on the edge

The disability system has relied since the 1950s on administrative law judges, who were meant to serve as impartial fact-finders in disputes over decisions on claims for benefits. These judges adjudicate disputes in government programs, operating outside the federal judiciary as they work directly for more than two dozen agencies. Their trial-like hearings are supposed to be free from agency coercion or influence. A law degree is required for the job.

The largest share work at Social Security, which has 1,200 judges, including managers, with salaries ranging from $146,000 to $195,000. Unlike in standard courts, their hearings are closed to the public.

Administrative law judges must hear and make complex decisions in disability cases in less than three hours on average, Ramrup said. The role is complicated by the relatively subjective rules used to award benefits. While the judges ultimately answer to Social Security and do not enjoy the independence of the federal judiciary, they have chafed for years at a system that subjects them to scrutiny over how many claims they approve.

Two decades ago, Social Security judges were relatively generous, approving 70 percent of appeals in 2001 — a high point. But that changed after an explosive corruption case broke open in 2012, when a Kentucky lawyer was found to have defrauded taxpayers in a $600 million disability benefits scheme. The crime led to new congressional oversight and pressure to deny more claims, according to federal audits, attorneys and current and former Social Security employees.

Approval rates plummeted to 45 percent for several years, rising to 51 percent last year, agency data shows. Some administrative law judges who approved high numbers of cases found themselves under new scrutiny, a practice that accelerated during the Trump administration as political appointees took a hard line against paying claims, current and former judges and other officials said.

Jonathan Baird, an administrative law judge in the Lawrence, Mass., hearing office, said an agency review in 2020 warned that his pay rate of about 70 percent — which had never before caused concern — was “a huge red flag.” He said he was told to rely less on medical opinions from claimants’ treating doctors about whether they are disabled and more on treatment notes. These reviews had a chilling effect on his colleagues, Baird said. “They were out to get high-paying judges,” he said, referring to colleagues with high approval rates.

Other Social Security judges with similar rulings have been forced out. Michael Blanton, 63, a Seattle-based judge who approved between 89 and 93 percent of his cases from 2016 through 2020, was placed on administrative leave in 2021, then told he was being fired over alleged performance shortfalls. Before his dismissal, “I was never informed of any these issues,” said Blanton, who is challenging his firing, calling the reasons cited a pretext to attack his record of approving benefits.

Social Security officials declined to comment on specific judges or how widespread these reviews are today. The agency “monitors performance to ensure that decisions are consistent with [Social Security] policy, including regulations and rulings,” Hinkle wrote. “We provide feedback to [administrative law judges] regarding the quality of their decisions.”

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Sheldon can no longer work as a laborer laying roads for new subdivisions or drive his motorboat. (Corey Robinson for The Washington Post)

More than a decade ago, Social Security also imposed production quotas on judges to help address a historic backlog of appeals prompted by the Great Recession and a wave of baby boomers applying for benefits. But even after the logjam cleared, management continued to demand that judges hear and decide about 50 cases a month, Ramrup said. The bottleneck shifted to initial claims during the coronavirus pandemic, leaving fewer cases in the pipeline of appeals.

Given these caseloads, administrative law judges rely heavily on mid-level attorneys to draft their decisions. Known as decision writers, they face production quotas, too. It’s a high-turnover job that requires years to become proficient. Training suffered during the pandemic, said Spencer Bishins, who left in 2021 after a decade as a decision writer, then wrote a book about why it is so hard to win disability benefits.

“I’ve read a lot of very bad decisions,” Bishins recalled, “because the agency squeezes the [decision writers] so much.”

“The decisions are getting worse with fewer cases,” he added. “Shouldn’t they be getting better?”

Claims for disability benefits have declined from almost 3 million at the peak of the recession to 1.8 million last year, dropping during the pandemic when Social Security’s in-person operations ceased, its phones jammed and many claimants could not get help on its website.

The Government Accountability Office found in 2021 that the expectation that administrative law judges would hear and decide hundreds of appeals a year did not balance “timely case processing while maintaining high-quality work and employee morale.”

In response, Social Security hired a contractor to review the workloads, GAO reported, but told auditors in March that “Its long-standing expectations [of its judges] are reasonable.” Hinkle said production demands are necessary to “quality public service” and “effective docket management and time management skills in a high-volume environment.”

In recent years, the demands on administrative law judges have become more onerous as claimants have been required to submit more medical evidence, with records that can now run as large as 3,000 pages. The volume can result in more scrutiny when a case reaches a district court, whose staff has more time to review if the Social Security judge paid attention to the evidence, officials said.

Administrative law judges must often weigh medical evidence to determine if someone can still work despite their limitations, and if there are jobs they can still do. Their decisions fall into gray areas that require judgment calls rare in other safety-net programs, experts said.

But Social Security has also tilted the scales in recent years away from key medical evidence, critics say, in another sign of the shift toward granting fewer claims. While administrative law judges once based much of their decision on evidence from primary care doctors or psychiatrists who best understood their patients’ medical issues, that policy changed in 2017. Now judges are free to disregard the opinions of these treating physicians and rely heavily instead on contracted doctors who examine claimants for as little as 15 minutes, according to claimants, their attorneys and former Social Security employees. This often leads to shoddy records and poor decisions, federal courts have found.

Social Security officials said they changed the rules “to focus more on the content and reliability of medical opinions and less on who the treatment source is,” a system they say helps courts “better assess whether substantial evidence supports the decision” to grant benefits. The agency’s regulations also emphasize that outside doctors spend “sufficient time” examining claimants, officials said.

In recent years, other agency rules have also made it harder on applicants to prove their cases. Less weight is given to certain musculoskeletal conditions, for example. IQ tests that show mental impairments do not automatically grant benefits. Evidence can be excluded if a claimant submits it too close to a hearing. If someone applying for benefits cannot communicate in English, that language barrier is no longer a factor considered in awarding benefits under a rule change enacted in 2020. Critics of the agency contend that its administrative decisions are often at odds with precedents set by federal appeals courts, citing, for instance, its refusal to be bound by a 2017 ruling giving substantial weight to Veterans Affairs disability ratings.

The Supreme Court has allowed vocational experts to refuse to disclose how they come up with jobs a claimant could still do or how many exist in the economy. An internal panel that must consider appeals before they go to federal court sent just 12 percent back to administrative law judges last year.

These policies have exasperated federal judges.

“Social Security has attempted by regulation to authorize its judges’ decisions to be of lower quality in the eyes of a federal court,” said David Camp, president of the National Organization of Social Security Claimants’ Representatives.

But the agency cannot totally disregard the testimony of physicians who know claimants the best. That’s what happened to a 55-year-old South Carolina woman with severe depression who was denied benefits despite her suicidal ideations, anxiety and other mental impairments. In February, the U.S. Court of Appeals for the 4th Circuit ordered the agency to pay benefits outright after finding that Social Security had improperly accorded “little weight” to the testimony of the woman’s longtime treating psychiatrist — among other mistakes.

“Given the ALJ’s duty to balance the record’s evidence, to disregard a 20-year treatment relationship … is a disproportionate response,” the judges wrote.

In another South Carolina case, Shanette Rogers, an Army veteran from Myrtle Beach, who was raped twice in the military, waited five years for a ruling from the 4th Circuit in March that her post traumatic stress syndrome justified an award of disability benefits. The appeals court found that Social Security had ignored evidence from her psychiatrist that her symptoms were tied to her menstrual cycle, chronically restricting her ability to work.

“I just feel like I’ve been really passed along a lot,” Rogers, 53, said. “My cycle is a trigger for me. It brings out the demons I’m battling.”

Advocates say change is needed at every level of review to shift a culture that encourages Social Security judges to deny claims at the expense of the law.

“Claims must be properly reviewed at the initial application,” said George Piemonte, a disability attorney in Charlotte who represents Rogers. “This can be a matter of life or death for a huge proportion of disabled people. Social Security needs to focus its efforts on getting things right in the first instance.”

For many claimants, it’s easier to walk away than to keep battling.

Sheldon only carried on because, he said, he was entitled to benefits he paid for through payroll taxes during decades as a laborer before his accident. “It’s just almost like they’re against you from the get go,” he said.

At his hearing in March, a new Social Security judge considered the rulings by three federal judges who found that the agency failed to properly consider the severity of his headaches, nerve damage and other impairments by ignoring treatment notes from his doctors. An outside doctor Social Security hired to examine him also described severe “pain and anxiety” from his injuries.

He prepared to wait for months for another rejection.

Instead, the written decision came just two weeks later: Sheldon had been awarded the monthly benefits — along with $205,000 in back pay. His first check landed in his bank account this month.

https://www.washingtonpost.com/politics/2023/05/25/social-security-disability-denials-court-remands/