The Office of Inspector General (OIG) issued the second of a two-part report identifying Administrative Law Judges (ALJ) who are considered outliers because of the number of their disability decisions rendered either favorable or unfavorable. The report comes in response to a June 16, 2011 bipartisan request from Members of the Ways and Means Social Security Subcommittee asking the Social Security Administration's (SSA's) Inspector General to review ALJ workloads, adherence to Agency policies and procedures, and quality reviews. The Members made that request in the wake of a Wall Street Journal article exposing the practices of a West Virginia ALJ who granted awards in 1,280 of the 1,284 disability cases he handled.
Social Security Subcommittee Chairman Sam Johnson (R-TX) said, "ALJs are supposed to be making their decisions on behalf of the Commissioner of Social Security, but this report confirms that ALJs operate with virtually no oversight and no accountability.
"On review, Social Security disagreed with 1 out of 7 ALJ awards but couldn't reverse those decisions. What kind of a process allows a bad decision to stand because the decision-maker can't be challenged? That's just not right. Given that the Social Security Disability Insurance program will become insolvent in just a few short years, it is more important than ever that we protect taxpayers and ensure that the program pays benefits only to those who are truly disabled."
The key findings of the report, "Congressional Response: The Social Security Administration's Review of Administrative Law Judges' Decisions" are summarized below:
The Administrative Procedures Act (APA) prevents an agency from improperly influencing an ALJ's decision and protects ALJ decisional independence. However, ALJs must follow agency regulation, policy, and procedure in making decisions. Under the law, the agency may not review the decisions of a specific ALJ before their decisions are processed (such reviews are referred to as pre-effectuation reviews).
Reviews after a decision is processed, or post-effectuation reviews, along with special studies may target the decision of a specific ALJ based on anomalies in productivity or allowance rates. Based on these reviews, the SSA can issue directives to an ALJ for policy compliance; take disciplinary action; or identify training needs to bring ALJs more closely into alignment with Agency policies and procedures.
Recently, the SSA conducted three types of reviews of ALJs' decisions. Two of these involve a selected sample of cases to determine if regulations, policies, and procedures have been followed and also to identify training needs. The third was a series of special post-effectuation studies based on anomalies of decisions by seven ALJs that came to the SSA's attention. Out of these special studies performed, one ALJ was identified as not following polices and procedures, was corrected, and became compliant.
The OIG concluded that the SSA has authority to review ALJ decisions but faces legal restrictions in conducting those reviews. Changes to current law would be needed to allow the SSA to review and correct decisions of specific ALJs based on unusually high or low allowance rates.