Disability Programs
SSA Has Taken Steps to Address Conflicting Court Decisions, but Needs to Manage Data Better on the Increasing Number of Court Remands Gao ID: GAO-07-331 April 5, 2007The Social Security Administration's (SSA) Disability Insurance and Supplemental Security Income programs provided around $128 billion to about 12.8 million persons with disabilities and their families in fiscal year 2005. Claimants who are denied benefits by SSA may appeal to federal courts. Through current initiatives, SSA is attempting to reduce the number of cases appealed to courts and remanded back to SSA for further review. In addition, there have been long-standing concerns about how SSA responds to court decisions that conflict with its policies. GAO was asked to examine: (1) trends over the past decade in the number of appeals reviewed by the courts and their decisions, (2) reasons for court remands and factors contributing to them, and (3) SSA's process for responding to court decisions that conflict with agency policy. GAO reviewed SSA data and documents on court decisions, remands and SSA's processes and interviewed agency officials and stakeholders on data trends, reasons for remands, and SSA processes.
Between fiscal years 1995 and 2005, the number of disability appeals reviewed by the federal district courts increased, along with the proportion of decisions that were remanded. More disability claims were remanded than affirmed, reversed, or dismissed over the period, and the proportion of total decisions that were remands ranged from 36 percent to 62 percent, with an average of 50 percent. Remanded cases often require SSA to re-adjudicate the claim, with the result that--along with the passage of time and new medical evidence--the majority of remanded cases result in allowances. According to SSA officials and outside observers, a range of errors prompted by heavy workloads is responsible for court remands of SSA's disability determinations, but data that would confirm or clarify the issue are incomplete and not well-managed. SSA has only recently begun collecting data on remands, and we found these data to be incomplete. Additionally, this information is collected by two different offices that have created somewhat different categories for the data, making some of the information inconsistent and possibly redundant. Meanwhile, SSA has acknowledged the need to reduce remands and, in 2006 along with other initiatives, introduced new decision-writing templates to improve efficiency and reduce errors. SSA has a process in place for determining whether appellate court decisions conflict with the agency's interpretation of disability statutes or regulations and has taken steps in recent years to align its national policies with appellate court decisions. For example, officials and stakeholders attributed a downward trend in appellate court decisions that conflict with agency policy to significant policy changes instituted by SSA in the mid-1990s. In addition, for those cases where the agency acceded to conflicting appellate court decisions by issuing acquiescence rulings within the related circuits, we found that about half of the rulings issued were eventually replaced with national policy. Moreover, GAO found that the timeliness of acquiescence rulings had improved since 1998, when SSA established a timeliness goal of 120 days.
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Director: Team: Phone:GAO-07-331, Disability Programs: SSA Has Taken Steps to Address Conflicting Court Decisions, but Needs to Manage Data Better on the Increasing Number of Court Remands
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Increasing Number of Court Remands' which was released on April 5,
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
April 2007:
Disability Programs:
SSA Has Taken Steps to Address Conflicting Court Decisions, but Needs
to Manage Data Better on the Increasing Number of Court Remands:
GAO-07-331:
GAO Highlights:
Highlights of GAO-07-331, a report to congressional requesters
Why GAO Did This Study:
The Social Security Administration‘s (SSA) Disability Insurance and
Supplemental Security Income programs provided around $128 billion to
about 12.8 million persons with disabilities and their families in
fiscal year 2005. Claimants who are denied benefits by SSA may appeal
to federal courts. Through current initiatives, SSA is attempting to
reduce the number of cases appealed to courts and remanded back to SSA
for further review. In addition, there have been long-standing concerns
about how SSA responds to court decisions that conflict with its
policies.
GAO was asked to examine: (1) trends over the past decade in the number
of appeals reviewed by the courts and their decisions, (2) reasons for
court remands and factors contributing to them, and (3) SSA‘s process
for responding to court decisions that conflict with agency policy. GAO
reviewed SSA data and documents on court decisions, remands and SSA‘s
processes and interviewed agency officials and stakeholders on data
trends, reasons for remands, and SSA processes.
What GAO Found:
Between fiscal years 1995 and 2005, the number of disability appeals
reviewed by the federal district courts increased, along with the
proportion of decisions that were remanded. More disability claims were
remanded than affirmed, reversed, or dismissed over the period, and the
proportion of total decisions that were remands ranged from 36 percent
to 62 percent, with an average of 50 percent. Remanded cases often
require SSA to re-adjudicate the claim, with the result that”along with
the passage of time and new medical evidence”the majority of remanded
cases result in allowances.
Figure: Percent of Federal District Court Decisions by Type, Fiscal
Year 1995 to Fiscal Year 2005:
[See PDF for Image]
Source: GAO analysis of SSA data.
[End of figure]
According to SSA officials and outside observers, a range of errors
prompted by heavy workloads is responsible for court remands of SSA‘s
disability determinations, but data that would confirm or clarify the
issue are incomplete and not well-managed. SSA has only recently begun
collecting data on remands, and we found these data to be incomplete.
Additionally, this information is collected by two different offices
that have created somewhat different categories for the data, making
some of the information inconsistent and possibly redundant. Meanwhile,
SSA has acknowledged the need to reduce remands and, in 2006 along with
other initiatives, introduced new decision-writing templates to improve
efficiency and reduce errors.
SSA has a process in place for determining whether appellate court
decisions conflict with the agency‘s interpretation of disability
statutes or regulations and has taken steps in recent years to align
its national policies with appellate court decisions. For example,
officials and stakeholders attributed a downward trend in appellate
court decisions that conflict with agency policy to significant policy
changes instituted by SSA in the mid-1990s. In addition, for those
cases where the agency acceded to conflicting appellate court decisions
by issuing acquiescence rulings within the related circuits, we found
that about half of the rulings issued were eventually replaced with
national policy. Moreover, GAO found that the timeliness of
acquiescence rulings had improved since 1998, when SSA established a
timeliness goal of 120 days.
What GAO Recommends:
GAO recommends that the Commissioner of Social Security take steps to
improve the reliability and collection of data on remands. SSA agreed
with GAO‘s recommendations and outlined actions it plans to take to
implement them.
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-07-331].
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Daniel Bertoni at (202)
512-7215 or bertonid@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Court Reviews and Remands Have Increased in Recent Years with Remands
Often Resulting in SSA's Subsequently Awarding Benefits:
Remands Have Been Attributed to a Range of Errors Caused by Heavy
Workloads, but SSA Data That Could Shed More Light on the Problem Are
Inadequate:
SSA Has Taken Several Steps Since 1990 to Align Its Policies Nationally
with Court Decisions:
Conclusions:
Recommendations:
Agency Comments:
Appendix I: Objective, Scope, and Methodology:
Appendix II: Summary of Process Unification Rulings:
Appendix III: Key Federal Court Rulings on Social Security
Administration Disability Adjudication:
Appendix IV: Additional Information on Disability Appeals:
Appendix V: Summary of Court Holdings for Acquiescence Rulings Related
to Disability Determinations:
Appendix VI: Comments from the Agency:
Appendix VII: GAO Contact and Staff Acknowledgments:
Related GAO Reports:
Figures:
Figure 1: Map of Federal Judicial Circuits:
Figure 2: Disability Process after SSA Final Decision:
Figure 3: Federal District Court Decisions on Disability Claims, Fiscal
Year 1995 to Fiscal Year 2005:
Figure 4: District Court Decisions on Disability Claims:
Figure 5: District Court Decisions by Circuit (Fiscal Year 2005):
Figure 6: SSA Decisions on Remanded Disability Claims, Fiscal Year 1995
to Fiscal Year 2005:
Figure 7: SSA Decisions on Disability Claims Following Court Remands by
Judicial Circuit, Fiscal Year 1995 to Fiscal Year 2005:
Figure 8: Number of Acquiescence Rulings Issued, 1990 to 2006:
Figure 9: Number of Acquiescence Rulings by Circuit, 1990 to 2006:
Figure 10: Timeliness of Acquiescence Rulings, 1990 to 2006:
Figure 11: How Acquiescence Rulings Were Rescinded, 1990 to 2006:
Figure 12: Appeals Council Denials of Social Security Claims, Fiscal
Year 1994 to Fiscal Year 2004:
Figure 13: SSA Decisions on Disability Claims Following Court Remands:
Figure 14: Social Security Claims Reviewed in Federal District Courts
in Fiscal Year 2005 by Judicial Circuit:
Abbreviations:
ALJ: administrative law judge:
CPMS: Case Processing and Management System:
DI: Disability Insurance:
DOJ: Department of Justice:
DSI: Disability Service Improvement:
FIT: Findings Integrated Template:
NDMIS: National Docketing/Management Information System:
ODAR: Office of Disability Adjudication and Review:
OGC: Office of the General Counsel:
SSA: Social Security Administration:
SSI: Supplemental Security Income:
United States Government Accountability Office:
Washington, DC 20548:
April 5, 2007:
The Honorable Charles B. Rangel:
Chairman:
The Honorable Jim McCrery:
Ranking Minority Member:
Committee on Ways and Means:
House of Representatives:
The Honorable Michael R. McNulty:
Chairman:
The Honorable Sam Johnson:
Ranking Minority Member:
Subcommittee on Social Security:
Committee on Ways and Means:
House of Representatives:
The Honorable Sander M. Levin:
House of Representatives:
In fiscal year 2005, the Social Security Administration (SSA) provided
approximately $128 billion in cash benefits to about 12.8 million
persons through the nation's two largest programs for persons with
disabilities and their families--the Disability Insurance (DI) and the
Supplemental Security Income (SSI) programs. In administering these
programs over the past decade, SSA has faced challenges associated with
lengthy decision-making processes and difficult disability
determinations. In an effort to introduce more efficiency and fairness
in its decision making, SSA has undertaken a "Disability Service
Improvement Process," about which we offered testimony in June of 2006.
Among the problems this initiative is designed to address is the number
of SSA disability decisions that are appealed to the federal courts and
subsequently remanded or referred back to the agency for re-
adjudication. Such appeals and remands can add several years to the
time it takes disability claimants to receive final decisions on their
applications. Most appealed cases are reviewed only by the district
courts, the first level of court review. However, if a disability claim
reaches the appellate court or Supreme Court, the decision may have
implications for SSA policy. There has been a long-standing concern
that SSA does not respond adequately to appellate court decisions that
conflict with its own policies by taking timely and appropriate action
to reconcile them.
You asked that we examine: (1) the trends of the past decade in the
number of appeals reviewed by the district courts and their decisions;
(2) the reasons for court remands and factors that may contribute to
the incidence of those remands; and (3) SSA's process for responding to
appellate court decisions that conflict with agency policy and the
agency's response in recent years.
To address the first research objective, we analyzed data from SSA on
the number and types of decisions made by federal district courts for
fiscal years 1995 to 2005. We also grouped and analyzed district court
decisions by circuit for fiscal year 2005, the only year for which
complete data by circuit were available. Furthermore, we analyzed
agency data on the decisions SSA made after a case was remanded (i.e.,
allowances or denials of claims) for fiscal years 1995 to 2005. We also
analyzed these remand data to identify trends over time and by circuit,
a category that we created using SSA data on claimant state of
residence. SSA officials were interviewed to gather information on
potential reasons for any trends. To address the second objective, we
obtained data on cited reasons for remands from two SSA databases that
are maintained by two separate offices in SSA responsible for
litigating claims in court and re-adjudicating remanded cases. We
compared the data to determine how effectively SSA was capturing
information on reasons for remands within the agency. In addition, we
interviewed SSA officials and other stakeholder groups, including
federal court judges and claimant representatives, on reasons for
remands and factors that influenced them. For the third objective, we
interviewed SSA officials and obtained available documents on how SSA
determines whether a court of appeals decision conflicts with its
policies and what option to pursue to address conflicting decisions,
e.g., appeal or issue an acquiescence ruling whereby the agency agrees
to abide by the court judgment in future cases, albeit only in that
jurisdiction. We also obtained data on the number of acquiescence and
other rulings that SSA issued since establishing its regulations on
acquiescence in 1990. For acquiescence rulings, we further reviewed
SSA's timeliness in issuing acquiescence rulings, as well as the number
issued by circuit and how SSA replaced acquiescence rulings with
nationwide policies. We were unable to independently determine how
significantly any given court decision conflicted with SSA policy or
whether SSA should have pursued one option over another. We also
interviewed SSA officials and relevant stakeholders--including selected
federal court judges and claimant representatives from the Seventh and
Ninth circuits, which represent those with the lowest and highest
numbers of SSA policy changes associated with acquiescence rulings--to
obtain information on how court decisions and their related agency
rulings have affected SSA's disability adjudication policy in recent
years. After interviewing officials and reviewing related data reports
and manuals, all quantitative data used in this report were assessed
and, with the exception of the reason for remand data, were determined
to be sufficiently reliable for the purposes of this report. Issues
related to the reason for remand data are discussed further on pages 20
to 21. All work was conducted between February 2006 and January 2007
according to generally accepted government auditing standards. See
appendix I for more information on our methods.
Results in Brief:
Over the past decade, the number of disability appeals reviewed by the
district courts and the proportion of remands increased, and SSA
subsequently granted benefits to claimants in many of the remanded
cases. Between 1995 and 2005, the number of cases reviewed by federal
district courts grew by 20 percent--from about 10,300 to some 12,400--
which roughly corresponds to workload increases at SSA during the same
period. During this period, the courts upheld SSA's decisions to deny
benefits in 44 percent of cases on average and reversed 6 percent.
However, the most frequently occurring decisions were remands back to
the agency for further review (50 percent), essentially resulting in
additional work for SSA. The proportion of reviewed cases that were
remanded increased by 36 percent over this period, with 1998 being the
pivotal year when the proportion of remands exceeded affirmations.
According to some SSA officials, this notable increase may have been
due to new national guidelines for SSA adjudicators--known as the
process unification rulings--that may have also led to federal courts
using more remands to ensure that the guidelines were followed. With
regard to the disposition of cases by geographic jurisdiction or
judicial circuit, there was substantial variation in 2005, the year for
which detailed data were available. Federal district courts in the
Second Circuit--which serves part of the Northeast--affirmed 19 percent
and remanded 74 percent of cases, while district courts in the Sixth
Circuit--which serves Michigan, Ohio, Kentucky, and Tennessee--
affirmed 61 percent and remanded 35 percent. According to SSA
officials, case outcomes may vary from circuit to circuit because of
differences such as judges' interpretations of laws and the volume of
cases that circuits examine. We also found that once cases were
remanded back to SSA for re-adjudication, the majority of claimants--66
percent--were awarded benefits. According to agency officials, the
changing nature or severity of claimants' disabilities over the often
lengthy period of appeal may contribute to the extent of allowances for
remanded cases.
While stakeholders suggested that remands result from a range of errors
caused by heavy workloads, SSA data that would confirm and perhaps
elaborate on these errors are incomplete and not well managed.
Administrative law judges (ALJ), who adjudicate cases appealed within
SSA; claimant representatives; and others whom we interviewed said
district courts often remand cases back to the agency for re-
adjudication due to errors associated with poor decision writing and
improper use of evidence. For example, many stakeholders said SSA
decision makers had failed to properly consider the opinions of
treating physicians. Many agency officials as well as outside
stakeholders attributed the errors resulting in remands to a heavy
workload. For example, ALJs we spoke with expressed the view that their
caseload--around 50 to 60 cases per month--undermined the quality of
their written decisions. SSA introduced new decision-writing templates
for ALJs and their staff in order to ensure more legally sufficient
documentation of decisions and improve the efficiency of the
administrative-hearings process. However, the agency's ability to
identify trends in reasons for remands and take corrective actions to
reduce remands is limited by the absence of reliable data. We found
that SSA's data were incomplete and that the collection of these data,
conducted by two separate offices, was inconsistent and inefficient.
SSA officials acknowledged that improvements to these data and their
management were needed, but currently lacks specific plans and
timetables for addressing these problems.
SSA has a process in place for addressing appellate court decisions
that conflict with agency interpretation of law or regulations and has
taken steps since 1990 to align its policies nationally with appellate
court decisions. Specifically, SSA's offices of General Counsel (OGC)
and Disability Programs regularly review appeals court decisions for
their policy implications. When SSA has determined that an adverse
appellate court decision conflicts with its own interpretation of
disability statutes or regulations, the agency then decides either to
pursue further judicial review of the issue or accede to the court's
decision only within the specific circuit. SSA accedes to appellate
court rulings within the specific circuits by issuing acquiescence
rulings, which are meant to be temporary guidance for program
implementation until the agency can determine how to address court
decisions in a way that minimizes regional variations. Since
establishing regulations on acquiescence in 1990, SSA issued 45
acquiescence rulings in response to appellate court decisions, although
there have been fewer such rulings in recent years. SSA officials said
fewer acquiescence rulings have been needed because new guidelines for
adjudicators, the process unification rulings of 1996, clarified SSA
policy and filled gaps in policy that were previously open for the
courts to fill, leading to a closer alignment of agency policy and
court interpretations of disability law. Also, nearly half of the
acquiescence rulings issued during the period of our study have been
rescinded and eventually replaced with new laws and regulations to
ensure consistency in program implementation. We also found that
acquiescence rulings were issued significantly sooner, following the
agency's establishment in 1998 of a new 120-day guideline.
To ensure the agency has accurate and well-managed information to use
in identifying corrective actions for reducing remands, we recommended
that the Commissioner of SSA: (1) take steps to ensure the reliability
of data on the reasons for remands and (2) coordinate agency data
collection on remands and ascertain how best to use this information to
reduce the proportion of cases remanded by federal courts.
In comments to our draft report, SSA agreed with both of our
recommendations for improving data on remands and outlined actions it
plans to take to improve the reliability and collection of remand data.
See appendix VI for a copy of SSA's comments. SSA also provided a
number of technical comments, which we generally incorporated where
appropriate.
Background:
Disability Determination and Administrative Appeals:
In fiscal year 2005, the Social Security Administration (SSA) paid
approximately $128 billion in cash benefits to about 12.8 million
beneficiaries through the two largest federal programs available to
persons with disabilities and their families: the Disability Insurance
(DI) program and the Supplemental Security Income (SSI) program. Both
programs serve those who are medically determined to be unable to
engage in any substantial gainful activity due to a severe physical or
mental impairment that is expected to last at least 12 months or result
in death.[Footnote 1]
Claimants must apply to SSA to receive disability benefits from these
programs and if awarded benefits, claimants may also have to requalify
for support through what are known as continuing disability
reviews.[Footnote 2] In most of the country currently, claimants who
are denied initial or continuing benefits by SSA may appeal their
denials administratively up to three times, each time for review by a
different adjudicatory entity.[Footnote 3] These entities are 1) the
state disability determination service that performs the initial review
of disability claims and, in most states, a reconsideration
determination, 2) an administrative law judge (ALJ) in SSA's Office of
Disability Adjudication and Review, and 3) a group of appellate
reviewing officials within SSA known as the Appeals Council. The number
of claims or appeals reviewed at each level in 2005 were: over 2.6
million by state agencies, almost 520,000 by ALJs, and over 94,000 by
the Appeals Council.
Disability determinations at all of these levels are often complex and
necessarily involve some degree of subjectivity by adjudicators, and
the nature of these decisions have contributed to long-standing
concerns about the extent to which adjudicators across the agency
consistently interpret and implement SSA's national disability policy.
To help achieve more consistent application of policy between the state
disability determination service level and the ALJ level, in 1996, SSA
established the process unification rulings, a set of nine Social
Security rulings for all SSA disability adjudicators to follow in
matters involving difficult judgments, such as the weight to be given
to opinions of claimants' treating physicians versus medical opinions
from other sources, and the evaluation of pain and other subjective
symptoms. See appendix II for more details on process unification
rulings.
Cases in Federal Court:
After claimants exhaust all administrative review options within SSA,
they may then appeal their claims outside the agency to federal court.
A claimant must first file an appeal with a federal district court
within one of 12 federal judicial regions, known as judicial circuits.
Figure 1 provides information on which states and territories are
included in these circuits.
Figure 1: Map of Federal Judicial Circuits:
[See PDF for image]
Source: Administrative Office of U.S. Courts (data), map, Map Resources
(presentation).
Note: There is a thirteenth federal judicial circuit, known as the
Federal Circuit, which does not hear SSA disability cases.
[End of figure]
In deciding the case, a district court judge or magistrate usually
either affirms an agency decision, reverses the decision (essentially
affirming the claimant's case), or remands it back to SSA for further
review.[Footnote 4] According to SSA officials, remanded cases are
generally reviewed by the ALJ who made the original decision.[Footnote
5] Judges can also dismiss a case if its scope is outside the court's
legal jurisdiction. Furthermore, if SSA prefers not to defend a case
that has been filed, usually because of an error it has identified, the
agency may request that the judge remand the case back for the agency's
review.[Footnote 6]
Court remands have implications for SSA's workload, the types of
decisions SSA adjudicators make on remanded cases, and the time
claimants must wait for decisions on their cases. Generally, when cases
are remanded, ALJs must perform new hearings, which could involve new
evidence presented at the time of court reviews. These remanded cases
add to the already high workloads that ALJs have in reviewing denials
by the agency's disability determination service offices. The load may
also affect ALJ decisions: In its September 2006 report, the Social
Security Advisory Board found a small correlation between increased ALJ
workload and increased allowances.[Footnote 7] Furthermore, although
remanded cases are given priority in the line of cases that must be
reviewed by ALJs, a substantial amount of time may pass before new
decisions can be made at this administrative level, and the ALJ's
decision may undergo another review by the Appeals Council. In fiscal
year 2006, it took SSA nearly a year on average to process court
remanded cases from the district courts.
After a district court decision, both the claimant and SSA may appeal
the case to a circuit court of appeals (also called an appellate court)
and, beyond this, to the Supreme Court. However, few cases reach these
appellate court levels and most disability cases are resolved in the
district courts. According to SSA, no more than 20 district court cases
have been appealed by the agency to the appellate courts each year
since 2000. The Supreme Court has only reviewed four cases involving
disability claims since 1991. See figure 2 for an overview of the
disability appeals process.
Figure 2: Disability Process after SSA Final Decision:
[See PDF for image]
Source: GAO analysis.
Note: This figure depicts the typical appeals process. Circuit court
decisions can be appealed to the Supreme Court. SSA decisions on
remanded cases can be appealed back to the federal courts. For court
remands involving continuing disability reviews, SSA decides to cease
or continue, rather than deny or grant benefits.
[End of figure]
How Federal Court Decisions May Affect SSA Policy:
SSA is not obligated to follow a district court decision that conflicts
with agency policies beyond that specific case.[Footnote 8] However,
the agency is required to follow appellate court decisions for cases
within that circuit, unless the agency seeks further judicial review.
If the Supreme Court issues a decision, SSA is bound to follow the
decision nationally. Several district, appellate, and Supreme Court
decisions have affected disability policy in the past two decades.
Appendix III outlines some cases that have resulted in such changes.
SSA implemented its current policy of acquiescence in 1990 in response
to the concerns of external stakeholders, including claimant
representatives, that SSA had failed in the 1980s to offer timely and
appropriate responses to appellate court decisions.[Footnote 9] With
the acquiescence ruling, SSA agrees to follow the appellate court's
holding on new cases only when they fall within the jurisdiction of
that appellate court. SSA rescinds an acquiescence ruling if one of the
following occurs: 1) the Supreme Court overrules or limits the relevant
appellate court decision; (2) an appellate court overrules or limits
itself on the relevant issue; (3) Congress enacts a law that obviates
the acquiescence ruling; or (4) SSA clarifies, modifies, or revokes the
regulation or ruling that was the subject of the pertinent appellate
court decision.
Disability Service Improvement Process:
With new regulations issued in March 2006, SSA began implementing the
Disability Service Improvement (DSI) process in August 2006 on a
limited basis--i.e., in states in the Boston Region--and plans to
gradually roll out the initiative to other regions. The regulations
include changes to the appeals process within the agency that could
potentially affect the number and types of cases that will go to
federal courts in the future. Among these changes is the gradual
replacement of the Appeals Council with a Decision Review Board,
designed to ensure the accuracy of SSA decisions and reduce remands
from federal courts. The Board would only review select cases based on
whether they are considered likely to have contained errors or involved
new policies, rules, and procedures. Under the DSI process, claimants
who are unhappy with ALJ decisions, therefore, could no longer turn to
the Appeals Council, but rather must appeal directly to the federal
courts. In our June 2006 testimony, we reported that the public and
stakeholders were concerned that replacing the Appeals Council with a
Decision Review Board may increase the number of cases appealed to, and
thus the workloads of, the federal courts.[Footnote 10] In its response
to these concerns, SSA officials maintained that DSI improvements will
ultimately reduce the need for court appeals and also reduce remands.
As part of its DSI initiative, the agency is making a systematic effort
to collect and analyze data on court decisions in the course of
training staff and keeping ALJs current. Such monitoring and data
collection are consistent with the Office of Management and Budget's
and GAO's internal control standards for all federal agencies.[Footnote
11]
Court Reviews and Remands Have Increased in Recent Years with Remands
Often Resulting in SSA's Subsequently Awarding Benefits:
Between fiscal years 1995 and 2005, the number of disability appeals
reviewed by the courts and decisions to remand these cases increased,
and in the majority of remanded cases, claimants were subsequently
granted benefits by SSA. In 2005, the year for which disaggregated data
were available, GAO found the proportion of remands by district courts
varied significantly by circuit. However, GAO did not find substantial
variation by judicial circuit in SSA decisions on court remanded cases.
Cases Reviewed by District Courts Increased over the Past Decade, as
Did the Proportion Remanded Back to the Agency:
We found that federal district courts reviewed an increasing number of
disability cases over the past decade, which corresponded with the
increasing number of cases processed by SSA. Although the number of
cases reviewed by federal district courts fluctuated over time, they
generally increased by 20 percent from about 10,300 in fiscal year 1995
to about 12,400 by fiscal year 2005. (See fig. 3.) According to SSA
officials, the increase in the number of claims reviewed by the courts
may be a result of the increase in the number of claims that passed
through the Appeals Council, SSA's final decision-making body, over the
same time period.[Footnote 12]
Figure 3: Federal District Court Decisions on Disability Claims, Fiscal
Year 1995 to Fiscal Year 2005:
[See PDF for image]
Source: GAO analysis of SSA data.
[End of figure]
Over the same period, remands were generally the most common district
court decision, and their proportion increased by 36 percent from 1995
to 2005. Of those SSA cases decided by the district courts on the
merits and not dismissed, 50 percent were remanded, 44 percent were
affirmed, and 6 percent were reversed on average.[Footnote 13] (See
fig. 4.) Notably, the proportion of remands reached its peak in 2001.
Although a range of factors may affect the extent of court remands,
some SSA officials suggested that the Appeals Council, having reviewed
a record number of ALJ decisions in 2000, may have made mistakes in a
greater share of cases that were subsequently appealed to, then
remanded by, the district courts.
Figure 4: District Court Decisions on Disability Claims:
[See PDF for image]
Source: GAO analysis of SSA data.
Note: This figure excludes cases that were dismissed.
[End of figure]
The proportion of remands exceeded the proportion of affirmances in
1997 and continued to increase until 2001. Specifically, in 1995 only
36 percent of SSA decisions were remanded by the courts while 57
percent were upheld or affirmed. However, by 1998, the proportion of
remands increased to 49 percent, while the proportion of affirmances
declined to 46 percent. When we showed SSA officials these trends, they
generally attributed the shift to the process unification rulings,
which the agency had established in 1996. According to SSA officials,
the increased remands reflected district court efforts to assure that
SSA adjudicators were following the agency's new procedures.
The Proportion of Remanded Cases Varied by Circuit:
GAO found substantial variation in the proportion of cases remanded by
judicial circuit in fiscal 2005, the only year for which data by
circuit were available. (See fig. 5.) Although remands and affirmances
were the most frequently occurring types of decision in each circuit,
the proportion of each varied considerably among the circuits.
Specifically, the percent of remands ranged from a low of 35 percent to
high of 78 percent, while affirmances ranged from 22 percent to 61
percent.
Figure 5: District Court Decisions by Circuit (Fiscal Year 2005):
[See PDF for image]
Source: GAO analysis of SSA data.
Note: This figure excludes cases that were dismissed.
[End of figure]
SSA officials were not in agreement about why there might be
differences in the types of decisions across judicial circuits.
According to some, differences might be due to judges in different
circuits interpreting disability laws differently. Others told us that
disparities in the number of claims appealed to district courts across
circuits may contribute to these differences. (See app. IV, fig. 14 for
more information on the number of cases reviewed by circuit for fiscal
year 2005.) Currently, SSA does not have sufficient data that would
allow them to determine why these decisions vary by circuit but plans
to obtain this information as part of the DSI process implementation.
In the Majority of Remanded Cases, Claimants Were Awarded Benefits:
Of the 57,000 cases remanded by the district courts between 1995 and
2005, SSA awarded benefits to the majority of claimants--about 66
percent--upon re-adjudication, with the remainder being denied (about
30 percent) or dismissed (5 percent). (See fig. 6.) Agency officials
said the large percentage of awards in remanded cases were due, in
part, to the fact that the lengthy period of the appeals process
increased the likelihood that the nature or severity of claimants'
disabilities would change. The officials also attributed the awards to
information in the court's written judgments that made it possible for
ALJs, in reviewing cases anew, to make more accurate decisions. The
proportion of allowances in court-remanded cases after re-adjudication
is just below the average allowance rate of 70 percent for all ALJ
decisions.
Figure 6: SSA Decisions on Remanded Disability Claims, Fiscal Year 1995
to Fiscal Year 2005:
[See PDF for image]
Source: GAO analysis of SSA data.
Note: Some percentages may exceed 100 due to rounding. Because cases
can be appealed and remanded more than once, GAO included in its
analysis only claims that SSA determined had never before been remanded
to the agency from the courts. Such cases made up about 92 percent of
the sample of remands re-decided by SSA between 1995 and 2005. See
appendix III, figure 13 for information on the number of cases re-
decided by SSA over this period.
[End of figure]
We did not find substantial variation in SSA decisions on court-
remanded claims across judicial circuits. As shown in figure 7, the
proportion of allowances for remanded cases ranged from 62 percent to
72 percent by circuit--relative to a national average of 66 percent.
Figure 7: SSA Decisions on Disability Claims Following Court Remands by
Judicial Circuit, Fiscal Year 1995 to Fiscal Year 2005:
[See PDF for image]
Source: GAO analysis of SSA data.
Note: GAO used the claimants' state of residence reported by SSA to
determine judicial circuit.
[End of figure]
Remands Have Been Attributed to a Range of Errors Caused by Heavy
Workloads, but SSA Data That Could Shed More Light on the Problem Are
Inadequate:
According to agency officials and stakeholders, a range of errors
precipitated by heavy workloads is responsible for court remands of
SSA's disability determinations, but SSA data that would confirm or
clarify reasons for remands are incomplete and not well managed. SSA
has acknowledged the need to reduce remands and in 2006, along with
other initiatives, introduced a new writing tool for ALJs in order to
improve efficiency and better document decisions. However, agency data
that would inform the problem and help address remands are incomplete
and not well managed.
Stakeholders Attribute Various Reasons for Remands to High SSA
Workloads:
Stakeholders commonly cited two reasons for remands: written
explanations that did not support the decisions and inadequate
documentation of consideration given to medical evidence. They
expressed the view, however, that errors made with respect to
documenting decisions were due, in large part, to heavy SSA adjudicator
workloads. Poor decision writing by ALJs and their staff was cited by
all groups of stakeholders we interviewed, including SSA officials,
district court judges, claimant representatives, and other
stakeholders. Specifically, district court judges said they did not
always believe that SSA's decisions were wrong, but that the written
explanations did not always support those decisions. Some claimant
representatives said that poorly written decisions may be symptomatic
of improper consideration of evidence and procedures by ALJs.
With regard to the inadequate documentation of consideration given to
medical evidence as a reason for remands, district court judges and
claimant representatives we interviewed said ALJs either do not
document how they weighed treating physicians' opinions and assessed
claimant statements about pain and other symptoms, or they do not
consider them as required by the process unification rulings. ALJs we
interviewed responded that addressing such evidence is sometimes very
difficult and cited cases in which the treating physician appeared to
be simply repeating claimants' opinions about their inability to work,
rather than offering substantive information about the conditions that
would prevent work. Some district judges agreed that considering and
incorporating medical evidence into a decision can be difficult, but
stressed the importance of articulated and well-documented opinions in
order for district court judges to make a decision other than to
remand.
Stakeholders we interviewed varied in their opinions regarding whether
requirements of the process unification rulings were overly cumbersome
and, therefore, resulted in remands. Members of the Appeals Council and
the Social Security Advisory Board staff we spoke with believe that the
process unification rulings provide important guidance, but have also
made procedures for making decisions and decision-writing more
cumbersome. On the other hand, representatives of the Association of
Administrative Law Judges told us that they have not heard such
complaints and, while acknowledging that decision-making involved more
work, believe the rules did not make decision-writing overly
cumbersome.
At the same time, many of those we interviewed, including ALJs and
district court judges, said the heavy ALJ workload was behind the
apparent errors in documenting agency determinations that lead to
remands. Some ALJs asserted that the frequency of court remands has not
been unreasonable considering the number of cases that they must
review.[Footnote 14] These ALJs also said their workload expectations
of 50 to 60 hearings a month affected the time and attention they could
give to each case.[Footnote 15] They asserted that they would need to
write significantly fewer decisions in a month in order to assure that
the work would withstand scrutiny by the federal courts. They noted
that other ALJs who are able to write decisions that the courts uphold
produce as few as five a month. Because the time needed to review cases
and write decisions varied, however, representatives of the Association
of Administrative Law Judges were unable to suggest an ideal number of
cases that would be reasonable for ALJs to process. Specifically, these
representatives said that decisions to deny benefits take substantially
longer to document than those involving allowances. These
representatives also stated that the number and quality of staff that
ALJs have available to help process and write decisions vary.[Footnote
16]
Finally, stakeholders also suggested that a variety of other factors
contribute to remands, such as: ALJs' providing poor instructions to
decision writers, SSA's not providing adequate feedback to ALJs on
reasons for remands, and federal courts' having bias against ALJs'
decisions. Some stakeholders further stated that federal court bias may
be rooted in concerns over how well decisions are generally written,
expectations about how determinations should be made, and concerns with
the amount of time and attention given to cases under the current
workload.
Acknowledging the need to address remands from the federal court, SSA
is taking steps to mitigate common documentation errors. One step has
been to promote the use of a decision-writing tool known as the
Findings Integrated Templates (FIT). This tool contains more than 1,600
templates for presenting analysis of evidence and ensuring that
required statutes and regulations are followed. These templates are
also designed to prevent common mistakes, such as failure to establish
an appropriate date for the onset of disability benefits. SSA officials
also said this tool is intended to help manage workloads by reducing
the potential for miscommunication between ALJs and their staff and the
time spent writing decisions. According to SSA officials, SSA plans to
monitor the extent to which decisions written with this tool are
remanded from the federal courts. Appeals Council judges we interviewed
have reviewed some decisions written with FIT and have found them to be
better articulated than decisions that did not rely on this tool.
However, both Appeals Council judges and ALJ association
representatives mentioned that the tool will not replace the need for
additional, competent decision-writing staff.
Additionally, SSA is pursuing a broader set of initiatives under its
Disability Services Improvement (DSI) initiative that it hopes will
result in more accurate decisions earlier in the process and, thereby,
ultimately reduce workloads at the ALJ level. For example, as a part of
DSI, SSA is implementing an expedited determination process for clear-
cut cases, which it calls its Quick Disability Determinations. The
agency also plans to add a level of reviewing attorneys, known as
federal reviewing officials, who can affirm, reverse, or modify
appealed agency decisions prior to their reaching ALJs. However, DSI is
currently underway only in the Boston Region, and SSA has yet to
evaluate the effectiveness of this initiative.
Agency Remand Data Are Incomplete and Not Well Managed:
While SSA collects data on reasons for remands, we found that the data
are not well managed, incomplete, and therefore not reliable. Two
separate SSA offices recently began collecting data on remanded cases
to identify and track the reasons for remands in order to help train
ALJs and their staff on how to reduce the number of remands.
Nevertheless, while the two offices were collecting and using the data
for the same purpose--training--they told us that they were not
collaborating. When the two offices--the Office of Disability
Adjudication and Review (ODAR) and the OGC--developed lists of
categories to group reasons for remands, the offices did not consult
with each other. As a result, the lists of categories used by these
offices are not the same, and SSA officials told us that the offices
may well classify similar remands differently. Moreover, some remand
categories in the two data systems may be duplicative, resulting in an
inefficient use of agency resources. SSA officials acknowledged that
better data reliability and collaboration between the two offices are
needed and that, while the agency plans to develop a common vocabulary
for remand reasons, it has yet to develop specific plans and timetables
for addressing these issues.
Through our conversations with SSA officials and reviews of reports, we
also found that these data were not consistently entered into the
agency's databases. Within both systems, at least one reason should be
entered per remanded case, but this did not always occur; instead, we
found the extent to which this information was entered varied by
database and SSA regional office. For the OGC reports, we found that
the number of reasons recorded exceeded the number of cases, as would
be expected; however officials were not confident that the data on
remands reasons were accurate or complete because the officials have
not been able to assess the quality of the data. Within the ODAR
reports for fiscal years 2005 and 2006, on the other hand, there were
substantially fewer reasons reported than cases.[Footnote 17] Regional
reports showed that SSA's Seattle and New York offices have been
collecting the most information on remands. Notably, the agency's
Boston office--which is the first to implement the structural changes
of DSI--and the Philadelphia office have collected the least amount of
information. SSA officials told us that they were aware that remand
data were not entered into ODAR's system consistently in early fiscal
year 2005, and said they subsequently reiterated the importance of
collecting this information to staff. SSA officials also mentioned that
they are considering making remand reasons a mandatory field in the
ODAR database to improve collection.
SSA Has Taken Several Steps Since 1990 to Align Its Policies Nationally
with Court Decisions:
SSA officials have a process in place for determining whether appellate
court decisions conflict with the agency's interpretation of disability
statutes or regulations, and the agency has taken steps in recent years
to align its policies nationally with appellate court decisions. In
those cases where the agency acceded to certain appellate court rulings
by issuing acquiescence rulings, we found that about half of the
rulings were eventually replaced with national policy. Also, we found
that the number of acquiescence rulings has declined in more recent
years, a decline that SSA officials mainly attributed to the agency's
implementation of its process unification rulings of 1996, which
officials believe created less room for differences of opinion between
the courts and the agency regarding broader policies. Moreover, we
found that the timeliness of acquiescence rulings had improved since
1998, when SSA established a timeliness goal of 120 days.
SSA Has a Process in Place for Reviewing and Addressing Appellate Court
Decisions that Conflict with the Agency's Interpretation of Law or
Regulations:
When an appellate court decision is rendered, SSA officials review the
decision to determine whether it conflicts with agency interpretation
of law or regulations. The primary office responsible for this
evaluation is the OGC, SSA's office responsible for legal matters. For
disability issues, OGC works in conjunction with the Office of
Disability Programs, SSA's office responsible for policy
matters.[Footnote 18] These offices may consult with the Office of
Disability Adjudication and Review, which rendered the agency's final
decision prior to its being appealed to federal court, as well as the
Department of Justice (DOJ), the entity generally responsible for
representing SSA in federal court.
If SSA determines that the appellate court decision conflicts with its
policy, then it decides whether to appeal the case to the Supreme Court
or to modify its policy to conform with that decision.[Footnote 19]
According to officials, SSA rarely challenges appellate court
decisions, and decisions to appeal are ultimately the prerogative of
DOJ, because DOJ represents SSA in court. Some of the situations in
which SSA would consider appealing to the Supreme Court are: a conflict
between circuits; an issue of exceptional importance involving high
visibility or significant funds; a statute or regulation held by the
courts to be unconstitutional; or an important regulation held to be
invalid.
If SSA decides to follow the appellate court decision, it issues an
acquiescence ruling that applies only within that circuit. However,
because these rulings result in inconsistent policies throughout the
country, the agency has added a clarification in the preamble to its
1998 regulations that acquiescence rulings are generally temporary
policies that are not intended to remain in effect permanently.
Therefore, after issuing an acquiescence ruling, SSA attempts to pursue
a uniform national policy through various means, such as modifying
regulations or rules, issuing new regulations or policy
interpretations, seeking legislative changes, or re-litigating the
issue within the same circuit.[Footnote 20] When SSA successfully
incorporates the acquiescence ruling into national policy, it rescinds
the acquiescence ruling.[Footnote 21]
When SSA finds it necessary to issue an acquiescence ruling, it has
procedures in place for informing adjudicators of these departures from
national policy. According to officials, SSA communicates these and
other rulings to SSA officials who make claims determinations, such as
ALJs, through a variety of sources including: the Federal Register,
SSA's internal operations manual, the agency's Web site, and e-mails.
In some instances, officials learn about these rulings through training
sessions. However, because most acquiescence rulings since the 1990s
concerned narrow issues, SSA officials said the rulings have not
warranted special training for adjudicators.
SSA Has Taken Steps to Align Its Policies with Court Decisions by
Issuing Acquiescence Rulings More Quickly and Following with Changes in
National Policy:
SSA has taken steps to align its policies with the court decisions by
issuing acquiescence rulings in a timely manner and following up with
changes to its national policies. Since the implementation of its
current acquiescence policy, SSA has issued 45 acquiescence rulings,
the majority of which relate to determining whether a claimant is
eligible for disability benefits. (Fig. 8 shows the number of rulings
issued each year from 1990 to 2006, and app. V provides synopses of
court holdings concerning disability determinations that led to
acquiescence rulings.) Most of these rulings were issued between 1990
and 2000, when SSA published an average of four acquiescence rulings
per year. In contrast, during the 6-year period from 2001 to 2006, the
agency issued only five such rulings. SSA officials attributed the
decline in acquiescence rulings to implementation of its process
unification rulings, which they believe created less room for
differences of opinion between the courts and the agency regarding
broader policies. Specifically, officials commented that the process
unification rulings clarified SSA policy as well as filled gaps in
policy that were previously open for the courts to fill, and noted
that, while the courts are not bound by these and other Social Security
Rulings, the courts have frequently deferred to SSA's rulings.[Footnote
22] As a result, SSA has seen a decline in the number of significant
court cases involving disability law over time. (See app. III for a
listing of key court cases.)
Figure 8: Number of Acquiescence Rulings Issued, 1990 to 2006:
[See PDF for image]
Source: GAO analysis of SSA data.
[End of figure]
We found that the number of acquiescence rulings issued by SSA varied
by circuit during our study period (1990 to 2006), ranging from one in
the First Circuit to eight in the Ninth Circuit. (See fig. 9.) SSA
officials pointed out that the number of acquiescence rulings the
agency issues in a given circuit is a function of the number and types
of decisions issued by the appellate court within that circuit. For
example, officials said that the Ninth Circuit has the largest
disability caseload, and therefore, one would expect it to have the
highest number of acquiescence rulings.[Footnote 23] Also, because the
Ninth Circuit's decisions largely concerned technical issues, SSA
officials said they were less amenable to Supreme Court Review. This
official added that the Ninth as well as Eighth Circuits have had
precedent-setting decisions.
Figure 9: Number of Acquiescence Rulings by Circuit, 1990 to 2006:
[See PDF for image]
Source: GAO analysis of SSA data.
[End of figure]
Since SSA established a regulation in 1998 that included a timeliness
goal for issuing acquiescence rulings, the promptness of issuances has
improved. (Fig. 10 depicts the timeliness of acquiescence rulings
issued from 1990 to 2006.) Prior to establishing the regulation, SSA
took more than a year to issue over 80 percent of the rulings. Since
then, 54 percent of acquiescence rulings were issued within the
guideline of 120 days (or 4 months). For those rulings that were not
issued within 120 days, in most instances the timeliness goal did not
apply because SSA either sought further judicial review or needed to
coordinate with DOJ or other federal agencies.
Figure 10: Timeliness of Acquiescence Rulings, 1990 to 2006:
[See PDF for image]
Source: GAO analysis of SSA data.
Note: Percentages do not add up to 100 due to rounding.
[End of figure]
Once SSA has issued acquiescence rulings, the agency has frequently
succeeded in replacing them with uniform national policies. We found
that since 1990, nearly half of all acquiescence rulings (21 of 45)
were rescinded and replaced by more permanent guidance.[Footnote 24]
Further, most of these rescissions resulted from the agency's issuing
or modifying rulings or regulations. (Fig. 11 shows how acquiescence
rulings were rescinded.) According to officials, acquiescence rulings
are most commonly rescinded when the agency revises, publishes, or
revokes rules and regulations--actions that are fully within the
agency's control. Six other rescissions occurred through other means:
three from Supreme Court rulings upholding SSA's policies and three
from changes in law made by Congress.
Figure 11: How Acquiescence Rulings Were Rescinded, 1990 to 2006:
[See PDF for image]
Source: GAO analysis of SSA data.
[End of figure]
However, according to SSA, some issues brought about by federal court
decisions, such as those involving the Constitution or federal law,
have led to acquiescence rulings that have not been rescinded by the
agency. For example, acquiescence ruling 91-1(5), which involves a
claimant's right to cross-examine an examining physician, remains in
effect because SSA officials believe the only option for rescinding the
ruling would require re-litigating the case.[Footnote 25] However,
according to SSA officials, the relevant circuit appellate court and
the Supreme Court have declined to review this ruling. Other reasons
that acquiescence rulings may remain in effect include a lack of
practical implications of the acquiescence ruling for other circuits or
the fact that an acquiescence ruling was only recently issued.
Replacing the acquiescence ruling with nationwide policy typically
takes a significant period of time--in one case, 16 years.
Conclusions:
On the whole, SSA has taken many steps to align its policies with court
decisions and establish uniform national standards. The fact that the
agency made some substantial changes to its policies in the mid-1990's
may account for the reduced incidence of acquiescence rulings in the
past 5 years.
On the other hand, the high proportion of remanded and awarded claims
for the past decade has likely cost SSA additional time and resources
to process, and may have impeded the timely award of benefits to
eligible individuals. While the DSI improvement initiative is designed
to ameliorate this problem, the lack of reliably collected and well-
managed data on court remands is likely to inhibit that effort.
Although SSA plans, through the implementation of DSI, to gradually
address the heavy workload that has been cited by many for contributing
to errors that lead to remands, the agency cannot pinpoint specific
reasons for remands and take corrective action without more reliable
data. To the degree that the agency does collect some data, the fact
that collection is carried out by two different offices risks
inconsistency and divergent interpretations. This lack of complete and
consistent information ultimately undermines the agency's ability to
serve people with disabilities and their families.
Recommendations:
To ensure the agency has accurate and well-managed information to use
in identifying corrective actions for reducing remands, we recommended
that the Commissioner of SSA implement the following two measures:
* take steps to ensure the reliability of data on reasons for remands,
and:
* coordinate agency data collection on remands and ascertain how best
to use this information to reduce the proportion of cases remanded by
federal courts.
Agency Comments:
SSA provided us with comments on a draft of this report, which we have
reprinted in appendix VI. In its comments, SSA agreed with both of our
recommendations for improving data on remands and outlined actions it
plans to take to enhance data reliability and collection. Specifically,
in an upcoming update to the Case Processing Management System, SSA
plans to make the reasons for remands a mandatory data input field. In
addition, SSA plans to establish an intercomponent work group to
address issues related to remand data, and analyze data on the use of
the Findings Integrated Templates and court decisions.
SSA also provided technical comments which generally improved the
accuracy of the report, and we have incorporated them as appropriate.
Copies of this report are being sent to the Commissioner of SSA,
appropriate congressional committees, and other interested parties. The
report is also available at no charge on GAO's Web site at
http://www.gao.gov.
Please contact me on (202) 512-7215 if you or your staff has any
questions concerning this report. Contact points for our Offices of
Congressional Relations and Public Affairs may be found on the last
page of this report. Other major contributors to this report are listed
in appendix VII.
Signed by:
Daniel Bertoni:
Director, Education, Workforce, and Income Security Issues:
[End of section]
Appendix I: Objective, Scope, and Methodology:
We designed our study to obtain information on (1) the trends of the
past decade in the number of appeals reviewed by the district courts
and their decisions; (2) the reasons for court remands and factors that
may contribute to the incidence of those remands; and (3) SSA's process
for responding to appellate court decisions that conflict with agency
policy and the agency's response in recent years. To obtain information
on these issues, we collected relevant quantitative and qualitative
data from SSA; interviewed SSA officials and stakeholders within and
outside the agency, such as district court judges, claimant
representatives and experts; and reviewed agency policies and
regulations that address appellate court rulings that conflict with SSA
disability program policies. To determine the completeness and accuracy
of data we obtained, we took steps, described below, and determined
that these data, with the exception of reasons for remand, were
sufficiently reliable for use in this report. We conducted this work
between February 2006 and January 2007 according to generally accepted
government auditing standards.
To address the first research objective, we obtained national data from
SSA on the number and decisions of cases reviewed by federal district
courts--the first level of federal court review--for fiscal years 1995
to 2005 and analyzed these data for trends over time. Our analysis
excluded cases that were dismissed because dismissals are generally
decided on technical and procedural grounds rather than on the merits
of the claim. For fiscal year 2005, the only year for which complete
data were available, we obtained information from SSA on court
decisions by state. We then categorized and analyzed these data by
circuit. Furthermore, we obtained and analyzed agency data on the
decisions SSA made on disability cases after they were remanded (i.e.,
allowances or denials of claims) for fiscal years 1995 to 2005. We also
categorized and analyzed these data by circuit using information on the
claimant's state of residence. SSA officials were interviewed to gather
information on potential reasons for any trends. In addition, we
interviewed SSA officials and reviewed previously issued agency reports
and data manuals to assess the reliability of these data.
To address the second objective, we also obtained data on cited reasons
for remands from two SSA databases, the Case Processing and Management
System (CPMS), and the National Docketing/Management Information System
(NDMIS), which are maintained by two separate offices in SSA
responsible for re-adjudicating remanded cases and litigating claims in
court. We compared the data to determine how and what SSA is reporting
on reasons for remands within the agency. After interviewing agency
officials and reviewing reports, we determined that these data were not
sufficiently reliable for providing detailed information on reasons for
remands, although some information was used to illustrate what SSA
currently collects. In addition, we interviewed SSA officials and other
stakeholder groups, including federal court judges and claimant
representatives from the Seventh and Ninth circuits and experts, on
reason for remands and factors that influenced them. Stakeholders from
these two circuits were selected because these jurisdictions represent
those with the lowest and highest numbers of SSA policy changes
resulting from acquiescence rulings. Information from these interviews
is not generalizable to all circuits or stakeholders.
For the third objective, we interviewed SSA officials and obtained
available documents on how SSA determines whether a court of appeals
decision conflicts with its policies and what option to pursue to
address conflicting decisions, e.g., appeal or issue an acquiescence
ruling whereby the agency agrees to abide by the court judgment in
future cases, albeit only in that jurisdiction. We also obtained data
on the number of acquiescence and other rulings that SSA issued since
establishing its policy of acquiescence in 1990. For acquiescence
rulings, we further reviewed SSA's timeliness in issuing acquiescence
rulings as well as the number issued by circuit and how SSA replaced
acquiescence rulings with nationwide policies. We were unable to
independently determine the extent to which court decisions conflicted
with SSA policy or whether SSA should have pursued one option over
another. We also interviewed SSA officials and relevant stakeholders,
including selected federal court judges and claimant representatives,
to obtain information on how court decisions and their related agency
rulings have affected SSA disability adjudication policy in recent
years.
[End of section]
Appendix II: Summary of Process Unification Rulings:
* SSR 96-1p: "Application by the Social Security Administration of
Federal Circuit Court and District Court Decisions." Policy
interpretation stating that SSA decision-makers will be bound by SSA's
nationwide policy until an acquiescence ruling is issued and that SSA
does not acquiesce to federal district courts within a circuit.
* SSR 96-2p: "Giving Controlling Weight to Treating Source Medical
Opinions." Policy guidance for applying the regulatory provision that
requires the adoption of a treating source's medical opinion on the
nature and severity of an impairment when the opinion is not
inconsistent with other substantial evidence in the claimant's file and
the opinion is supported by medically acceptable diagnostic techniques.
* SSR 96-3p: "Considering Allegations of Pain and Other Symptoms in
Determining Whether a Medically Determinable Impairment is Severe."
Policy interpretation on the consideration of symptoms in determining
whether an impairment is "severe" at step 2 of the sequential
evaluation process.
* SSR 96-4p: "Symptoms, Medically Determinable Physical and Mental
Impairments, and Exertional and Nonexertional Limitations." Policy
interpretation explaining, among other things, that symptoms are not
medically determinable impairments; that limitations, not impairments,
are categorized as "exertional" or "nonexertional"; and that symptoms
may result in nonexertional or exertional limitations.
* SSR 96-5p: "Medical Source Opinions on Issues Reserved to the
Commissioner." Policy interpretation on evaluating medical source
opinions on issues such as whether an individual's impairment(s) meets
or is equivalent in severity to the requirements of a listing in SSA's
Listing of Impairments; what an individual's residual functional
capacity is; whether an individual's residual functional capacity
prevents him from doing past relevant work; and how the vocational
factors of age, education, and work experience apply.
* SSR 96-6p: "Consideration of Administrative Findings of Fact by State
Agency Medical and Psychological Consultants and Other Program
Physicians and Psychologists at the ALJ and Appeals Council Levels of
Administrative Review; Medical Equivalence." Policy interpretation
regarding weight given to Disability Determination Services level
medical and psychological consultant findings at the ALJ and Appeals
Council levels. Explanation of requirements for ALJs and the Appeals
Council to obtain the opinion of a physician or psychologist designated
by the Commissioner in making a determination about equivalence to the
listings.
* SSR 96-7p: "Evaluation of Symptoms in Disability Claims: Assessing
the Credibility of an Individual's Statements." Policy interpretation
on when the evaluation of symptoms, including pain, requires a finding
about the credibility of an individual's statements about pain and
symptoms, and the factors to be considered in assessing the credibility
of such statements.
* SSR 96-8p: "Assessing Residual Functional Capacity in Initial
Claims." Policy clarification of the term residual functional capacity
and discussion of the elements considered in assessing residual
functional capacity.
* SSR 96-9p: "Determining Capability to Do Other Work--Implications of
a Residual Functional Capacity for Less Than a Full Range of Sedentary
Work." Policy interpretation on the impact of a residual functional
capacity assessment for less than a full range of sedentary work on an
individual's ability to do other work.
[End of section]
Appendix III: Key Federal Court Rulings on Social Security
Administration Disability Adjudication:
1983:
Heckler v. Campbell, 461 U.S. 458 (1983) The U.S. Supreme Court upheld
SSA's use of its vocational grid regulations.
1984:
Hyatt v. Heckler, 579 F.Supp. 985 (W.D.N.C. 1984) In a class action,
the U.S. District Court for the Western District of North Carolina
found SSA's policy on pain contrary to Fourth Circuit law. This ruling
enjoined SSA from refusing to follow the law of the circuit.
Lopez v. Heckler, 725 F.2d 1489 (9th Cir. 1984) The Ninth Circuit Court
of Appeals enjoined SSA to uphold prior decisions requiring SSA to
apply a medical improvement standard before terminating benefits.
1985:
Stieberger v. Heckler, 615 F.Supp. 315 (S.D.N.Y. 1985) In a class
action, the U.S. District Court for the Southern District of New York
ruled that SSA had violated the rights of claimants by not following
circuit court law on the weight to give treating physician evidence.
After this decision SSA introduced its policy of Acquiescence Rulings
when the agency is not willing to implement an appellate decision
nationwide. Acquiescence rulings explain how SSA applies decisions of
Courts of Appeals in the circuit in which the decision was rendered.
1986:
Schisler v. Heckler, 787 F.2d 76 (2nd Cir. 1986) The Second Circuit
Court of Appeals found that a treating physician's opinion on the
subject of medical disability is binding unless contradicted by
substantial evidence.
1989:
Hyatt v. Heckler, 711 F.Supp. 837 (W.D.N.C. 1989) On remand, the U.S.
District Court for the Western District of North Carolina found SSA's
policies on pain did not conform to circuit law. The court ordered
these policies to be cancelled and drafted a new ruling on pain for
North Carolina adjudicators.
1990:
Sullivan v. Zebley, 493 U.S. 521 (1990) The U.S. Supreme Court struck
down SSA's regulations for determining whether a child is disabled
because the regulations denied benefits to children whose impairments
did not meet or equal the listing of impairments and did not allow the
child to qualify for benefits based on an individualized functional
assessment.
1993:
Schisler v. Sullivan, 3 F.3d. 563 (2nd Cir. 1993) The Second Circuit
Court of Appeals upheld SSA's 1991 regulations on the opinions of
treating physicians as a valid use of SSA's regulatory power.
1994:
Hyatt class action settlement SSA agreed to re-adjudicate 77,000 cases
under the 1991 regulations on the evaluation of pain and other
symptoms.
2002:
Barnhart v. Walton, 535 U.S. 212 (2002) The U.S. Supreme Court upheld
SSA's interpretation that the claimant's inability to work last, or be
expected to last, 12 months. The court also upheld SSA's regulation
precluding a finding of disability when the claimant returns to work
within a 12-month period.
2003:
Barnhart v. Thomas, 540 U.S. 20 (2003) The U.S. Supreme Court upheld
denial of benefits to a claimant who was still able to do her previous
work without determining whether that type of work continued to be
available in the national economy.
[End of section]
Appendix IV: Additional Information on Disability Appeals:
Appeals Council denials of Social Security disability claims increased
by about 36 percent from about 48,300 in Fiscal Year 1994 to about
65,800 in Fiscal Year 2004.
Figure 12: Appeals Council Denials of Social Security Claims, Fiscal
Year 1994 to Fiscal Year 2004:
[See PDF for image]
Source: GAO analysis of SSA data.
[End of figure]
SSA decisions on disability claims following remands from federal
district courts increased from about 3,000 in Fiscal Year 1995 to
almost 7,500 in Fiscal Year 2005.
Figure 13: SSA Decisions on Disability Claims Following Court Remands:
[See PDF for image]
Source: GAO analysis of SSA data.
[End of figure]
The twelve judicial circuits with district courts that review Social
Security disability claims varied in the number of claims they reviewed
in Fiscal Year 2005. For example, the District of Columbia District
Court reviewed less than 100 claims, while the district courts in the
Ninth Circuit reviewed almost 3,000.
Figure 14: Social Security Claims Reviewed in Federal District Courts
in Fiscal Year 2005 by Judicial Circuit:
[See PDF for image]
Source: GAO analysis of SSA data.
[End of figure]
[End of section]
Appendix V: Summary of Court Holdings for Acquiescence Rulings Related
to Disability Determinations:
Acquiescence ruling number and circuit: AR 90-3 (4th Circuit);
Rescinded?: X;
Court holding: The court held that social security regulations allow
the use of a vocational expert only at step five of the sequential
evaluation process; and therefore, reliance on a vocational expert is
improper in making the step four determination as to whether a claimant
can return to past relevant work.
Acquiescence ruling number and circuit: AR 90-4 (4th Circuit);
Rescinded?: [Empty];
Court holding: The court held that SSA can re-open an otherwise final
administrative determination at any time when a claimant, who had no
individual legally responsible for prosecuting the claim at the time of
the prior determination, established a prima facie case that mental
incompetence prevented him from understanding the procedure to request
administrative review, unless SSA holds a hearing and determines that
mental incompetence did not prevent the claimant from filing a timely
appeal.
Acquiescence ruling number and circuit: AR 91-1 (5th Circuit);
Rescinded?: [Empty];
Court holding: The court held that entitlement to a subpoena for cross-
examination purposes of an examining physician is automatic and must be
granted.
Acquiescence ruling number and circuit: AR 92-2 (6th Circuit);
Rescinded?: [Empty];
Court holding: The court held that in deciding the appeal of a
determination that an individual's disability has medically ceased, the
adjudicator must consider the issue of the individual's disability
through the date of the Secretary of Health and Human Services' final
decision, rather than only through the date of the initial cessation
determination.
Acquiescence ruling number and circuit: AR 92-4 (11th Circuit);
Rescinded?: X;
Court holding: The court held that an Appeals Council dismissal of a
request for review of an ALJ decision for reasons of untimeliness is a
"final decision" and subject to judicial review.
Acquiescence ruling number and circuit: AR 92-6 (10th Circuit);
Rescinded?: X;
Court holding: The court held that a person's return to substantial
gainful activity within 12 months of the onset date of his or her
disability, and prior to an award of benefits, does not preclude an
award of benefits and entitlement to a trial work period.
Acquiescence ruling number and circuit: AR 92-7 (9th Circuit);
Rescinded?: [Empty];
Court holding: The court held that an initial determination in the
Social Security or SSI programs must be reopened when the notice of the
initial determination did not explicitly state that the failure to seek
reconsideration results in a final determination, and the claimant did
not pursue a timely appeal.
Acquiescence ruling number and circuit: AR 93-1 (4th Circuit);
Rescinded?: X;
Court holding: The court held that a claimant for disability or SSI
benefits who has an IQ score in the range covered by listing 12.05C and
who cannot perform his or her past relevant work because of a physical
or other mental impairment has per se established the additional and
significant work-related limitation of function requirement.
Acquiescence ruling number and circuit: AR 93-2 (2nd Circuit);
Rescinded?: X;
Court holding: The court held that, in making a determination following
an individual's re-entitlement period that an individual with a
disabling impairment has engaged in substantial gainful activity, the
Secretary of Health and Human Services may not consider work and
earnings by the individual in a single month rather than an average of
work and earnings over a period of months.
Acquiescence ruling number and circuit: AR 94-2 (4th Circuit);
Rescinded?: X;
Court holding: The court held that, in making a disability
determination on a subsequent disability claim with respect to an un-
adjudicated period, an adjudicator must adopt a finding regarding a
claimant's residual functional capacity, made in a final decision on a
prior disability claim arising under the same title of the Social
Security Act unless there is new and material evidence.
Acquiescence ruling number and circuit: AR 95-1 (6th Circuit);
Rescinded?: X;
Court holding: The court held that, in order to find that the skills of
a claimant who is close to retirement age are "highly marketable"
within the meaning of the Secretary of Health and Human Services'
regulations, SSA must first establish that the claimant's skills are
sufficiently specialized and coveted by employers as to make the
claimant's age irrelevant in the hiring process and enable the claimant
to obtain employment with little difficulty.
Acquiescence ruling number and circuit: AR 97-2 (9th Circuit);
Rescinded?: X;
Court holding: The court held that a claimant for Disability Insurance
or SSI benefits based on disability who has an amputation of a lower
extremity and cannot afford the cost of a prosthesis has an impairment
that meets the listings.
Acquiescence ruling number and circuit: AR 97-4 (9th Circuit);
Rescinded?: [Empty];
Court holding: The court held that, in making a disability
determination on a subsequent disability claim with respect to an un-
adjudicated period, where the claim arises under the same title of the
Social Security Act as a prior claim on which there has been a final
decision by an ALJ or the Appeals Council that the claimant is not
disabled, SSA must: (1) apply a presumption of continuing nondisability
and, if the presumption is not rebutted by the claimant, determine that
the claimant is not disabled; and (2) if the presumption is rebutted,
adopt certain findings required under the applicable sequential
evaluation process for determining disability, made in the final
decision by the ALJ or the Appeals Council on the prior disability
claim.
Acquiescence ruling number and circuit: AR 98-1 (8th Circuit);
Rescinded?: X;
Court holding: The court held that a person's return to substantial
gainful activity within 12 months of the onset date of his or her
disability, and prior to an award of benefits, does not preclude an
award of benefits and entitlement to a trial work period.
Acquiescence ruling number and circuit: AR 98-2 (8th Circuit);
Rescinded?: X;
Court holding: The court held that a claimant for Disability Insurance
benefits or SSI benefits based on disability who has mental retardation
or autism with a valid IQ score in the range covered by Listing 12.05C
and who cannot perform his or her past relevant work because of a
physical or other mental impairment has per se established the
additional and significant work-related limitation of function
requirement of the regulations.
Acquiescence ruling number and circuit: AR 98-3 (6th Circuit);
Rescinded?: [Empty];
Court holding: The court held that, in making a disability
determination or decision on a subsequent disability claim with respect
to an un-adjudicated period, where the claim arises under the same
title of the Social Security Act as a prior claim on which there has
been a final decision by an ALJ or the Appeals Council, SSA must adopt
the finding of the demands of a claimant's past relevant work made in
the prior decision unless new and material evidence or changed
circumstances provide a basis for a different finding.
Acquiescence ruling number and circuit: AR 98-4 (6th Circuit);
Rescinded?: [Empty];
Court holding: The court held that in making a disability determination
or decision on a subsequent disability claim with respect to an un-
adjudicated period, where the claim arises under the same title of the
Social Security Act as a prior claim on which there has been a final
decision by an ALJ or the Appeals Council, SSA must adopt the finding
of a claimant's residual functional capacity made in the final decision
by the ALJ or the Appeals Council on the prior disability claim unless
new or additional evidence or changed circumstances provide a basis for
a different finding.
Acquiescence ruling number and circuit: AR 99-2 (8th Circuit);
Rescinded?: X;
Court holding: The court held that SSA is required to find that a
claimant close to retirement age and limited to sedentary or light work
has "highly marketable" skills before determining that the claimant has
transferable skills and, therefore, is not disabled.
Acquiescence ruling number and circuit: AR 99-3 (5th Circuit);
Rescinded?: X;
Court holding: The court held that SSA is required to find that a
claimant close to retirement age and limited to sedentary or light work
has "highly marketable" skills before determining that the claimant has
transferable skills and, therefore, is not disabled.
Acquiescence ruling number and circuit: AR 99-4 (11th Circuit);
Rescinded?: [Empty];
Court holding: The court held that an Appeals Council dismissal of a
request for review of an ALJ decision for reasons of untimeliness is a
"final decision" and subject to judicial review.
Acquiescence ruling number and circuit: AR 00-1 (4th Circuit);
Rescinded?: [Empty];
Court holding: The court held that, in making a disability
determination on a subsequent disability claim with respect to an un-
adjudicated period, SSA must consider a finding of a claimant's
residual functional capacity made in a final decision by an ALJ or the
Appeals Council on the prior disability claim as evidence and give it
appropriate weight in light of all relevant facts and circumstances but
that SSA does not have to adopt the finding.
Acquiescence ruling number and circuit: AR 00-2 (7th Circuit);
Rescinded?: X;
Court holding: The court held that a determination of medical
equivalence under the regulations must be based solely on evidence from
medical sources.
Acquiescence ruling number and circuit: AR 00-3 (10th Circuit);
Rescinded?: X;
Court holding: The court held that an ALJ, when receiving evidence from
a vocational expert must ask the expert how the testimony or
information corresponds to information provided in the Dictionary of
Occupational Titles and must ask the expert to explain the difference
if the testimony or evidence differs from the Dictionary.
Acquiescence ruling number and circuit: AR 00-4 (2nd Circuit);
Rescinded?: X;
Court holding: The court held that SSA has the burden of proving at
step five of the sequential evaluation process that the claimant has
the residual functional capacity to perform other work which exists in
the national economy.
Acquiescence ruling number and circuit: AR 00-5 (6th Circuit);
Rescinded?: [Empty];
Court holding: The court held that a claimant's return to substantial
gainful activity within 12 months of the alleged onset date of his or
her disability, and prior to an award of benefits, does not preclude an
award of benefits and entitlement to a trial work period.
Acquiescence ruling number and circuit: AR 01-1 (3rd Circuit);
Rescinded?: [Empty];
Court holding: The court held that SSA may not apply the Medical-
Vocational Guidelines (grid rules) as a frame work to deny disability
benefits at step 5 of the sequential evaluation process when a claimant
has a nonexertional limitation without either: (1) taking or producing
vocational evidence; or (2) providing notice of the agency's intention
to take official notice of the fact that the particular nonexertional
limitation does not significantly erode the occupational job base.
Acquiescence ruling number and circuit: AR 03-1 (7th );
Rescinded?: [Empty];
Court holding: The court held that for cases concerning Listings 12.05
or 112.05 decided by ALJs or the Appeals Council before September 20,
2000, which have been remanded by the courts to SSA, the ALJ should
apply the pre-September 20, 2000 version of the Listing as interpreted
by the Seventh Circuit.
Acquiescence ruling number and circuit: AR 04-1 (9th Circuit);
Rescinded?: [Empty];
Court holding: The court held that for certain applicants under age 18,
ALJs and Administrative Appeals Judges must make reasonable efforts to
ensure that a qualified pediatrician or other specialist evaluates the
case.
Source: Applicable appellate court decisions and GAO analysis.
[End of table]
[End of section]
Appendix VI: Comments from the Agency:
Social Security:
The Commissioner:
March 13, 2007:
Mr. Dan Bertoni,
Director, Education, Workforce, and Income Security Issues:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, D.C. 20548:
Dear Mr. Bertoni:
Thank you for the opportunity to review and comment on the Government
Accountability Office (GAO) draft report, "Disability Programs: SSA
Needs to Manage Data Better on Court Cases Requiring Re-adjudication"
(GAO-07-331). The attached comments provide specific responses to the
recommendations and identify technical corrections that should be made
to enhance the accuracy of the report.
If you have any questions, please contact Ms. Candace Skurnik,
Director, Audit Management and Liaison Staff, at (410) 965-4636.
Sincerely,
Signed by:
Michael J. Astrue:
Enclosure:
We are in the process of reevaluating DSI and looking at more direct
ways to reduce backlogs. Your analysis will be helpful to that effort--
thanks!
Social Security Administration:
Baltimore MD 21235-0001:
Comments On The Government Accountability Office (GAO) Draft Report,
"Disability Programs: SSA Needs To Manage Data Better On Court Cases
Requiring Re-Adjudication" (GAO-07-331):
Thank you for the opportunity to review and comment on the draft
report. Generally we agree with the report's findings and
recommendations. We appreciate your acknowledgement that, over the
years, the Social Security Administration (SSA) has collected reliable
data that identified the number of cases being processed by the Agency,
including the number of cases being processed after remand. It also
correctly concludes that, until recently, we did not systematically
collect information regarding the specific reasons that cases were
remanded by the Federal courts.
Regarding the differences in remand data provided by the Office of
Disability Adjudication and Review (ODAR) and the Office of the General
Counsel (OGC), we offer the following explanation:
In March 2005, ODAR implemented the new Case Processing Management
System (CPMS). CPMS is a web-based, user-friendly system that provides
significant case processing and workload management enhancements for
ODAR. Among other things, the new system features interactive screens,
a secure and centralized repository of data, improvements in hearing
scheduling capabilities, and hyperlinks to reference material, as well
as interfaces with other SSA systems. While the system contains a
"reason for remand" data field, the current release does not require a
remand field entry. As indicated in our response to recommendation
number 1 below, the CPMS update, scheduled for June 2007, will require
a mandatory input of the remand reason codes on all pending Appeals
Council and court remands. This will provide more complete data for
analysis as to why cases are remanded from this system.
In March 2006, OGC began collecting more explanatory data about remand
reasons. The system allows for the collection of multiple reasons,
which explains why GAO found that the number of reasons exceeded the
number of remand cases. OGC has been using the information collected in
that system for a number of purposes, including working with individual
hearing offices (HO) under ODAR to alert them to some of the issues
being raised by the courts, providing training at the national level to
new Administrative Law Judges (ALJ), and augmenting the arguments we
make in our briefs to address the courts' concerns. Since the OGC
system is so new, a standardized procedure for validating the data on a
regular basis is not currently in place.
In summary, we recognize the need to establish an accurate and
consistent management information system to manage our remand case
workloads and we fully support GAO's recommendations. Below you will
find a description of the actions we plan to take to address the
specific recommendations. We are also providing some technical comments
that we believe will enhance the accuracy of the report.
Recommendation 1:
The Commissioner of Social Security should take steps to ensure the
reliability of data on reasons for remands.
Response:
We agree. An update of the CPMS, scheduled for June 2007, will require
a mandatory input of the "remand reason" codes on all pending Appeals
Council and court remands. This will provide more complete data for
analysis as to why cases are remanded. In addition we will continue to
enhance CPMS to collect data on the Disability Service Improvement
(DSI) workload, including Decision Review Board remands processed in
the HO.
We are also forming an intercomponent workgroup, which will include
ODAR and OGC, to outline a plan to ensure the reliability of remand
data, to coordinate the collection of remand data, and to improve the
legal sufficiency of hearing decisions to reduce the proportion of
cases remanded by the courts.
Recommendation 2:
The Commissioner of Social Security should coordinate data collection
on remands and ascertain how to best use the data.
Response:
We agree. As noted above, the intercomponent workgroup will coordinate
an Agency plan for data collection and use of the data to reduce the
proportion of cases remanded by the courts.
In an effort to further enhance the consistency of our decisions and
minimize the number of remands, we have implemented the Findings
Integrated Templates (FIT). Preliminary data from the Appeals Council
for February 2006 through December 2006, relative to the implementation
of FIT for drafting ALJ decisions, suggests a direct correlation
between the increased usage of FIT and the improvement in quality and
legal sufficiency of AU decisions. We have just begun to receive court
decisions involving FIT opinions and it is too early in the process to
make any definitive determinations concerning remand rates at that
level. We will continue to monitor the FIT/non-FIT remand rates at the
Appeals Council and in the courts. Additionally, it should be noted
that the system release, scheduled for June 2007, will provide
enhancements to the FIT program including a user option to retrieve
Acquiescence Rulings (AR) for a particular Federal court circuit.
[End of section]
[See PDF for image]
[End of figure]
[End of section]
Appendix VII: GAO Contact and Staff Acknowledgments:
GAO Contact:
Daniel Bertoni, (202) 512-7215, bertonid@gao.gov:
Staff Acknowledgments:
Robert E. Robertson (Director), Michele Grgich (Assistant Director),
Danielle Giese (Analyst-in-Charge), Susan Bernstein, Candace Carpenter,
Joy Gambino, Suneeti Shah, Albert Sim, Ellen Soltow and Rick Wilson
made significant contributions to this report. Luann Moy, Vanessa
Taylor, and Walter Vance provided assistance with research methodology
and data analysis. Daniel Schwimer provided legal counsel.
[End of section]
Related GAO Reports:
Social Security Administration: Agency Is Positioning Itself to
Implement Its New Disability Determination Process, but Key Facets Are
Still in Development. GAO-06-779T. Washington, D.C.: June 15, 2006.
Social Security Administration: Administrative Review Process for
Adjudicating Initial Disability Claims. GAO-06-640R. Washington, D.C.:
May 16, 2006.
High-Risk Series: An Update. GAO-05-207. Washington, D.C.: January
2005.
SSA's Disability Programs: Improvements Could Increase the Usefulness
of Electronic Data for Program Oversight. GAO-05-100R. Washington,
D.C.: December 10, 2004.
Social Security Administration: More Effort Needed to Assess
Consistency of Disability Decisions. GAO-04-656. Washington, D.C.: July
2, 2004.
Social Security Administration: Strategic Workforce Planning Needed to
Address Human Capital Challenges Facing the Disability Determination
Services. GAO-04-121. Washington, D.C.: January 27, 2004.
Social Security Disability: Disappointing Results from SSA's Efforts to
Improve the Disability Claims Process Warrant Immediate Attention. GAO-
02-322. Washington, D.C.: February 27, 2002.
Standards for Internal Control in the Federal Government. GAO/AIMD-00-
21.3.1 Washington, D.C.: November 1999.
FOOTNOTES
[1] For a child to be considered disabled and therefore eligible for
SSI, the child must have a physical or mental condition, or a
combination of conditions, that results in marked and severe functional
limitations. The child's condition or conditions must have lasted, or
be expected to last, at least 12 months or be expected to result in
death.
[2] Children who receive SSI are also subject to a re-determination of
their eligibility at age 18.
[3] As a part of the Disability Service Improvement process, SSA is
gradually implementing changes to the appeals process, starting with
the Boston regional office in August 2006.
[4] The court may also modify SSA's decision. According to SSA
officials, modified decisions are generally remanded to the agency and
are therefore classified as remands.
[5] Court remanded cases are generally re-adjudicated by ALJs but may
also be reviewed by the Appeals Council.
[6] When a case reaches the federal courts, SSA is generally
represented by U.S. Attorneys working for the Department of Justice
(DOJ).
[7] The Social Security Advisory Board is a bipartisan board that
provides advice to the President, Congress, and the Commissioner of
Social Security on matters related to Social Security and SSI. For more
information about the Board's report, see Daub, Hal et al., Improving
the Social Security Administration's Hearing Process, (Washington,
D.C.: September 2006).
[8] An exception is district court decisions involving class action
lawsuits, since these decisions apply to multiple individuals that may
reside in other circuits.
[9] The agency adopted the policy in 1985, but established regulations
explaining how it would implement this policy in 1990.
[10] See GAO, Social Security Administration: Agency Is Positioning
Itself to Implement Its New Disability Determination Process, but Key
Facets Are Still in Development, GAO-06-779T (Washington, D.C.: June
15, 2006).
[11] For more information on internal control standards, see GAO,
Standards for Internal Control in the Federal Government, GAO/ AIMD-00-
21.3.1 (Washington: D.C.: November 1999) and Office of Management and
Budget, Circular No. A-123, Management's Responsibility for Internal
Control (Washington: D.C.: Dec. 21, 2004).
[12] GAO found that the number of claims that were denied by the
Appeals Council and eligible for appeal to the courts increased from
fiscal years 1994 to 2004 by about 36 percent. (See app. IV, fig.12.)
We are providing information on Appeals Council decisions over a
slightly earlier period than district court data to account for the
time lag between Appeals Council and district court decisions.
[13] The courts reviewed approximately 132,000 claims over this period,
and of these claims, about 7 percent were dismissed.
[14] For example, in fiscal year 2005, ALJs issued 524,362 decisions.
[15] However, because claimants may not appear as scheduled at hearings
and SSA officials may not always be able to schedule this many cases,
ALJs on average reviewed about 35 cases per month in fiscal year 2006.
[16] Disability decisions are typically written by SSA decision-
writers, who follow ALJ instructions on supporting the conclusion and
citing pertinent evidence or testimony.
[17] Specifically in fiscal year 2005, ODAR data listed 7,244 cases as
being remanded but 4,668 reasons for remands. In fiscal year 2006, the
data listed 6,290 cases as being remanded and 5,434 reasons for
remands.
[18] For nondisability issues, OGC works in conjunction with the
appropriate component, such as the Office of Income Security Policy.
[19] SSA may also ask the original panel of circuit court judges to
rehear an issue, or ask the entire U.S. Court of Appeals to rehear an
issue(s) en banc.
[20] One way SSA interprets policies is to issue Social Security
Rulings, which may be based on case decisions made at all
administrative levels of adjudication, federal court decisions,
Commissioner's decisions, opinions of OGC, and other policy
interpretations of the law and regulations. Our analysis showed that of
SSA's 68 Social Security Rulings issued since 1990, 24 percent were
based on court decisions. About half of these rulings are related to
disability issues.
[21] Other circumstances leading to rescission of an acquiescence
ruling include a Supreme Court decision overruling or limiting a
circuit court holding that is the basis of an acquiescence ruling; a
circuit court overruling or limiting itself on an issue that was the
basis of an acquiescence ruling; or enactment of a federal law that
removes the basis for the holding in a decision of a circuit court that
was the subject of an acquiescence ruling. See 20 CFR 404.985 (e).
[22] Although Social Security Rulings do not have the force and effect
of law or regulations, they are binding on all components of SSA.
[23] See appendix IV, figure 14 for more information on caseloads by
circuit.
[24] According to our analysis, 27 of the 45 rulings relate directly to
determining whether a claimant is eligible for disability benefits. As
indicated in appendix V, more than half (15 of 27) of these
acquiescence rulings were rescinded.
[25] SSA may re-litigate the case within the same circuit when the
General Counsel of SSA, in consultation with DOJ, concurs that re-
litigation of an issue is appropriate and SSA has published a notice in
the Federal Register of its intent to re-litigate an acquiescence
ruling issue. In addition, SSA may re-litigate a case when one of the
following events occurs: an action by both Houses of Congress indicates
that an appellate court decision was decided inconsistently with
congressional intent, a statement in a majority opinion of the same
circuit indicates that a court might no longer follow its previous
decision, subsequent appellate court precedent in other circuits
supports SSA's interpretation of the Social Security Act or
regulations, or a subsequent Supreme Court decision presents a
reasonable legal basis for questioning the appellate court decision.
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Government Accountability Office, 441 G Street NW, Room 7125
Washington, D.C. 20548:
Public Affairs:
Paul Anderson, Managing Director, AndersonP1@gao.gov (202) 512-4800
U.S. Government Accountability Office, 441 G Street NW, Room 7149
Washington, D.C. 20548:
