Administrative Law Judges: Proposed Social Security Rule Would Violate Law, Supreme Court Decision

The union that represents administrative law judges this week formally submitted comments opposing a proposed rule that would allow appeals judges to hear standard disability cases, arguing the proposal would defy both congressional intent and statements by the U.S. Supreme Court.

Last month, the Social Security Administration posted the proposed rule to the Federal Register, arguing that allowing agency appeals judges to take lower level cases would improve the speed at which the agency reviews whether applicants are eligible for Social Security disability benefits.

But in comments submitted Tuesday, the Association of Administrative Law Judges, which previously accused the Social Security Administration of trying to undermine the ALJs' judicial independence, argued that the rule is unneeded and potentially illegal.

Although agency officials cited the roughly 540,000 pending cases at the time that the regulation was proposed, the union said that number actually represents a historic low that is the culmination of years of effort by administrative law judges, and ignores the fact that there is no longer a backlog of cases.

“In a November 2019 internal memo, [Deputy Commissioner] Theresa Gruber confirmed that at the end of October 2019, there were only 561,616 cases pending, which was the lowest number ‘than any time in the last 15 years,’ ” the union wrote. That improvement came despite the fact that the number of full time judges has decreased by nearly 150 since May 2016.

The union also argued that by handing over administrative law judges, who are judicially independent, from the disability claims process, the Social Security Administration risks defying congressional intent. The union argued there is a legal distinction between ALJs and appeals judges, as appeals judges report to agency management.

“This merger would effectively subject the entire administrative adjudicative process under performance appraisal control by the agency,” the union wrote. “Regardless of whether additional steps are created, the claimant is denied a truly independent review within the agency and is left only with an appeal to the courts for such a review.”

The rule also seems to run counter to statements by the U.S. Supreme Court in the unanimously decided Smith v. Berryhill, a case that hinged on whether an applicant for Social Security disability benefits had filed an appeal on a timely basis. Although most of the decision revolves around other aspects of the law governing the process, Justice Sonia Sotomayor appears to have preemptively ruled that a claimant must have access to a hearing specifically before an administrative law judge as part of the process.

“We note as well that the ‘hearing’ referred to in [the statute] cannot be a hearing before the Appeals Council,” she wrote. “Congress provided for a hearing and for judicial review ‘after a hearing’ before the Appeals Council even existed . . . A primary application for benefits may not be denied without an ALJ hearing. Moreover, the claimant’s access to this first bite at the apple is indeed a matter of legislative right rather than agency grace.”

The comment period on the proposed rule will remain open until Feb. 18.