Petition for ReHearing — Gibler v. Barnhart

Supreme Court, U.S.

(2) FILED |

JUN 27 2005 |

No. 04-1357

A se Eee

IN THE

Supreme Court of the Anited Si. es

TIMOTHY GIBLER,

Petitioner,

V.

Jo ANNE B. BARNHART,

Commissioner of the Social Security Administration,

Respondent.

Un Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR REHEARING

STEVEN BRUCE *

- PEOPLE WITH DISABILITIES

FOUNDATION

507 Polk Street, Second Floor

San Francisco, California 94102

(415) 931-3070

* Counsel of Record Attorney for Petitioner

TTR IGE ALLARD TELL IES ALONE LINE IEE NIE ET LEE ABELLA EE EAE ELLE ALLEL SELLA LLE LLL ILESLEL LLL IEEE

WILSON-EPES PRINTING Co., INC. — (202)789-0096 -— WASHINGTON, D. C. 20001

TABLE OF CONTENTS

Page

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Il. REQUEST TO TAKE JUDICIAL NOTICE... 3

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TABLE OF AUTHORITIES

CASES Page

Matthews v. Eldridge, 424 U.S. 319 (1976) ........ 5

Schweiker v. Chilicky, 487 U.S. 412, 417 (1988).. 3

UNITED STATES CODES

42 U.S.C. § 42ND) cccciencaenneies 2

42 USC. § 49346) cacao eee 3

42 U.S.C. § 439. G¥ .ccccnsueeeee eee 3

42 U.S.C. $423 A Go 2

42 U.S.C. § 423 (f), (g) Pub. L. 98-460, §§ 2, 7,

98 Stat. 1794-1796, 1803-1804 ....ccccccsseeceseeeee 3

42 US.C. $423 @8cineeeeeee 3

42 USC. $403 GRD ee 2

CONGRESSIONAL RECORDS

130 Cong. Rec. 26000, 26145-26146 (1984); see

also id., at 6621; id., at 13247 ....cccceceesteeseeees 3

IN THE

Supreme Court of the Anited States

No. 04-1357

TIMOTHY GIBLER,

Petitioner,

.

Jo ANNE B. BARNHART,

Commissioner of the Social Security Administration,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR REHEARING

I. INTRODUCTION

This case involves an individual, Timothy Gibler on social

security disability benefits since 1979 due to chronic schizo-

phrenia, who was retroactively terminated from benefit checks

and Medicare resulting in a loss of the ability to provide for

the ordinary necessities of life; e.g., food, rent, and clothing.

His check benefits and Medicare were restored, in major part,

by an Administrative Law Judge’s decision. This Petition for

Rehearing is not meant to reargue that which is in the Petition

for a Writ of Certiorari denied on June 6, 2005.

2

Il. STATEMENT OF FACTS

Congress made it clear that disability beneficiaries will

receive benefits pending appeals of the Social Security

Administration’s termination reviews in the Social Security

Disability Benefits Reform Act of 1984, 42 U.S.C. § 423 (f),

(g). These amendments came about because of numerous

abuses. The reforms were intended to resolve constitutional

due process issues so that anyone whether on Supplemental

Security Income (Title XVI of the Social Security Act) or

Social Security Insurance (Title II of the Social Security Act)’

disability benefits could continue on benefits. Only those

individuals on the Title I] program after an Administrative

Law Judge appeal decision could be charged with an over-

payment of benefits if the final outcome was not in their

favor. 42 U.S.C. § 423 (g) (2). Benefits paid Title XVI recipi-

ents are not counted as an overpayment if the outcome is not

in their favor.

The Social Security Administration does not give bene-

ficiaries check benefits and/or Medicare pending an appeal of

an initial termination decision if they label the decision a

work review as opposed to a medical review.

At the initial level the Social Security Administration has

procedures in place to process reviews wherein an individual

can receive benefits pending appeal by simply requesting

them if the review is labeled a medical review. In this case

where substantial psychiatric medical evidence” came to light

in the review, the Social Security Administration, at the initial

and reconsidered adjudication levels, refused to develop the

medical evidence as it related to Petitioner’s ability to work.*

' The program Petitioner Mr. Gibler is on.

? Petitioner was in a hospital psychiatric lock-up ward during this re-

view. Petition for Writ of Certiorari, Appendix A, Ex. 20.

* Also see 42 U.S.C. § 421(m)(1) (December 17, 1999, effective January

1, 2001.)

3

Il. REQUEST TO TAKE JUDICIAL NOTICE

Petitioner hereby requests this Court take judicial notice of

facts referenced in Congress’ Government Accountability

Office Report No. 04-656 to Chairman, Subcommittee on

Social Security, Committee on Ways and Means, House of

Representatives of July 2004, a public record. The source of

virtually all the facts is the Social Security Administration.

(Petition for Rehearing, Appendix B, Ex. 1.)

IV. ARGUMENT

42 U.S.C. 423 §§ (e) Engaging in substantial gainful activ-

ity... ., (f) Standard of review for termination of disability

benefits ..... , and (g) Continued payment of disability

benefits during appeal . . . must be read together when inter-

preting Congress’s intent in providing for interim benefits

pending appeal of a termination adjudication at the initial

level. Pub. L. 98-460, §§ 2, 7, 98 Stat. 1794-1796, 1803-

1804, 42 U.S.C. §§ 423(f), (g). “In its final form, this leg-

islation was enacted without a single opposing vote in either

Chamber. See 130 Cong. Rec. 26000, 26145-26146 (1984);

see also id., at 6621; id., at 13247.” Schweiker vs. Chilicky,

487 U. S. 412, 417 (1988). Thus, Congress drew the line in

resolution of due process abuses at whether or not someone

would be charged with an overpayment after appeal.

Mr. Gibler’s Fifth Amendment violations as described in

his Petition for a Writ of Certiorari occur when very low level

agency representatives at local social security field offices

terminate benefits’ while conducting so called “work” re-

views. The abusive consequences of due process violations

are of a degree of severity to justify this petition as evidenced

by the Government Accountability Office (GAO) findings

that the rules low level claims representatives use are not the

same as the law and regulations used by the administrative

4

law judges.* According to the Social Security Administra-

tion’s own records, 63% of all cases in 2003 were reversed by

administrative law judges” and in 2003 it took on average 344

days to obtain a hearing.° An emergency Order to preserve

the status quo and subsequent emergency Order on the merits

in the United States Court of Appeals underscore the grave

situation in which Mr. Gibler was placed by Respondent.’

In essence, the Government Accountability O“ice found

that the Social Security Administration’s progression

eliminating these inconsistencies has resulted in the

Government Accountability Office including — federal

disability programs on its list of “high risk government

programs.” The Social Security Administration has been

unsuccessful in its partially implemented unification

initiative.”

* Government Accountability Office Report No. 04-656 to Chairman,

Subcommittee on Social Security, Committee on Ways and Means, House

of Representatives. (July 2004). Appendix B, Petition for Rehearing, Ex. 1.

The GAO’s report reveals systemic differences in adjudication of claims

at these two levels. GAO Report, pp. 11, 14, (Appendix B, Ex. 1, pp. 6a,

7a, 8a). Adjudicators follow only on an internal manual, Program Opera-

tions Manual System (POMS), whereas Administrative Law Judges rely

on law and regulation. /d., p. 14, 15. FN 18 (9a). The GAO finds the

social security administration does not identify the areas of inconsisten-

cies between these two adjudication levels. /d., pp. 23-24 (12a, 13a). The

Social Security Administration expressed concerns including that this

GAO report did not fully discuss progress the agency achieved in

reducing inconsistency between its adjudication levels. /d., p. 34, et seq.

(I4a, 15a)

“Id. p. 7 (Sa)

° Id., p. 12, FN. 14. (7a)

’ Petition for Certiorari, Appendix A, Ex. 9.

* Social Security Administration's unification process began in 1994.

GAO Report, pp.1 -2, (Appendix B, Ex. 1, p. 3a)

5

Traditional notions of due process require continuing bene-

fits when people lose the ability to provide for the necessities

of life prior to a judicial hearing. ”

This petition asks this Court to align the Social Security

Administration’s termination procedures so that a benefici-

ary’s due process rights are not violated by a termination of

benefits before a judicial due process hearing. Although the

Social Security Administration interim benefits are afforded

pending appeals of “medical” reviews, the Social Security

Administration does not afford continuing benefits pending

appeals of “work” reviews. Congress’ passage of its 1984 re-

form measures have been abused by Respondent’s practice of

terminating essential benefits required for survival before a

judicial due process hearing.

There are no medical professionals, attorneys or judges in

or utilized by the field offices where social security “claims

representatives” make initial adjudications to terminate an

individual’s sole means of support before having an opportu-

nity for a judicial hearing. In the present case the Adminis-

trative Law Judge took medical evidence of disability into

account in reversing the lower level adjudication, as any other

administrative law judge should have done.'° The field of-

fices do not rely on law or regulation but on the Social Secu-

rity Administration’s internal rules, Program Operations Man-

ual System (30,000 pages)'' required to be followed by the

Agency’s low/first level adjudicators.

” Mathews v. Eldridge, 424 U.S. 319 (1976) applied to people with mod-

est income and was overruled by Congress by the 1984 reform amend-

ments to the Social Security Act.

10

Appendix A to Petition for Certiorari, Appendix A, Ex. 17.

'' GAO Report, p. 15. FN 18, (Appendix B, Ex. 1, p. 9a)

V. CONCLUSION

Based on the foregoing, Petitioner requests that his Petition

for Rehearing be granted. .

Respectfully submitted,

STEVEN BRUCE *

PEOPLE WITH DISABILITIES

FOUNDATION

507 Polk Street, Second Floor

San Francisco, California 94102

(415) 931-3070

* Counsel of Record Attorney for Petitioner

7

Certification of Counsel (Rule 44)

I certify that the Petition for Rehearing is presented in good

faith and not for delay. The grounds not covered heretofore

include congressional findings in a July 2004 Government

Accountability Office report (Appendix B, Ex. | of Petition

for Rehearing) that Respondent applies different rules in its

internal manual, Program Operations Manual System (POMS)

than in law and regulations used at the Social Security

Administration’s Office of Hearings and Appeals where ad-

ministrative law judges issue written decisions after hearings.

Dated: June 27, 2005

/s/

Steven Bruce

Counsel for Petitioner

APPENDIX

Appendix B-i

TABLE OF CONTENTS!

Page

Exhibit 1. Excerpts from Government Account-

ability Office, formerly General Accounting

Office, Report to the Chairman, Subcommittee

on Social Security, Committee on Ways and

Means, House of Representatives dated July

2004 by The Social Security Administration

entitled More Effort Needed to Assess Consis-

tency of Disability Decisions. GAO-04-656 ..... la

' Counsel has reviewed scanned reproductions of original documents

and certifies that to a substantial extent, they are true and correct replicas

of the original documents.

la

EXHIBIT 1

United States General Accounting Office

Report to the Chairman, Subcommittee on

Social Security, Committee on Ways

and Means, House of Representatives

SOCIAL SECURITY ADMINISTRATION

More Effort Needed to Assess Consistency

of Disability Decisions

July 2004

GAO-04-656

A

& GAO

Fn renege Reliability

[1] United States General Accounting Office

Washington, DC 20548

July 2, 2004

The Honorable E. Clay Shaw, Jr.

Chairman, Subcommittee on Social Security

Committee on Ways and Means

House of Representatives

Dear Mr. Chairman:

The Social Security Administration (SSA) is the nation’s

largest provider of income assistance to individuals with dis-

abilities, paying $91 billion in federal benefits to 11.4 million

beneficiaries with a disability and their families in 2003.'

Each year, about 2.5 million people file claims with SSA for

disability benefits. State agencies called Disability Deter-

mination Services (DDS) decide whether claimants meet

SSA’s definition of disability by applying SSA’s decision-

making criteria. If a DDS ultiinately decides, after an initial

determination and then a reconsideration of this decision, that

a claimant does not meet SSA’s definition for disability, the

claimant may appeal to the hearings level, where an SSA

Administrative Law Judge (ALJ) reviews the claim to decide

if the claimant should be allowed benefits. About one-third of

disability claims denied at the state level were appealed to the

hearings level; of these, SSA’s ALJs have allowed over one-

half, with annual allowance rates fluctuating between 58

percent and 72 percent since 1985. While it is appropriate that

' The figures include federal payments for the Disability Insurance and

the Supplemental Security Income programs to beneficiaries who have a

disability or are blind and their families.

a <A 8 <a — li a I a

3a

some appealed claims, such as those in which a claimant’s

impairment has worsened and prohibits work, be allowed

benefits, representatives from SSA, the Congress, and interest

groups have long been concerned that the high rate of claims

| allowed at the hearings level may indicate that decision

} makers at the two levels are interpreting and applying SSA’s

criteria differently. If this is the case, adjudicators at the two

levels may be making inconsistent decisions that result in

similar cases receiving dissimilar decisions.

Concerned about the possibility that adjudicators are making

inconsistent decisions, SSA embarked on a “process unifica-

tion” initiative in 1994 with [2] the goal of ensuring that

adjudicators at both levels consistently apply SSA’s policy

guidance and make similar decisions on similar cases. Partly

on the basis of early studies of potential causes of inconsistent

decisions, SSA included in its process unification initiative

efforts to provide consistent guidance to all adjudicators,

clarify policy, provide training, test potential process changes,

and perform a new quality review of allowances decided by

ALJs. However, SSA continues to face challenges in its

efforts to provide consistent disability decisions. These chal-

lenges, and others associated with modernizing its disability

programs, contributed to our decision to include federal dis-

ability programs on our list of high-risk government pro-

grams.” In September 2003, SSA’s Commissioner unveiled

a new proposal that laid out the vision of a long-term stra-

tegy for improving the disability decision-making process and

helping people with disabilities return to work. Several of

the changes in the new proposal are intended to improve the

accuracy, timeliness, and consistency of decisions, such as

having the DDS decision makers more fully develop and

* For additional information on the major problems facing federal dis-

ability programs and our decision to designate them as high-risk, see U.S.

General Accounting Office, High-Risk Series: An Update, GAO-03-119,

(Washington, D.C.: January 2003).

4a

document their decisions, providing for centralized quality re-

view of all decisions, and providing both adjudication levels

equal access to medical expertise.

In response to your interest in the effectiveness of SSA’s past

and future efforts to improve and assess the consistency of

decisions between levels, we evaluated these agency efforts.

Specifically, we examined (1) the status of SSA’s process

unification initiative, (2) SSA’s assessments of possible in-

consistencies in decisions between adjudication levels, and

(3) whether SSA’s new proposal incorporates changes to im-

prove consistency in decisions between adjudication levels.

To assess the extent to which SSA has implemented its

planned activities under the initiative, we evaluated agency

documentation describing SSA’s process unification efforts.

To evaluate SSA’s efforts to assess consistency in decisions

between levels, we interviewed officials from SSA’s Office

of Quality Assurance and Performance Assessment (OQA)

and reviewed summary data and reports from SSA’s quality

assurance and performance management systems, including

findings from SSA’s Disability Hearings Quality Review,

which is a quality review of DDS adjudicators’ and ALJs’

decisions and the associated case files. While we evaluated

SSA’s methods

* * * *

Sa

[7] Figure 1: SSA’s Disability Decision-Making Process and

Out-comes for Fiscal Year 2003

Source: SSA data

Notes:

The data provided by SSA did not include the number or rate

of claims appealed to the next decision step. Without this in-

formation, we cannot determine the extent to which claimants

appealed or abandoned their denied claims.

Twenty-five percent of the initial DDS determinations are

subject to an alternative process that does not include the re-

consideration step.

Under certain specified circumstances, ALJs and Appeals

Council judges can dismiss a claim. For example, an ALJ can

dismiss a claim if the claimant’s request for a hearing is not

timely and lacks a good cause for the delay.

The Appeals Council can remand a claim by returning it to an

ALJ for further proceedings and a new hearing decision.

Because of rounding, decisional outcomes may not equal 100

percents

* * * *

6a

[11] Despite SSA’s process unification efforts and related

studies to improve the consistency of decisions, recent ALJ

allowance rates—which declined after process unification

began, but started increasing in 1999-to reach 61 percent in

fiscal year 2003—still raise questions as to whether initial-

and hearingsevel decision makers are consistently applying

the agency's guidance. In addition to inconsistent application

of SSA's policy guidance, there are several other reasons why

a large number of ALJ allowances are made. For example,

some ALJ allowances should be expected because, by law,

cases can remain open throughout the hearings process, al-

lowing new evidence to be submitted that may not have been

available to the state adjudicators. Such new evidence could

show that the claimant's condition has worsened and prohib-

its work. Also, SSA’s decision-making criteria require that a

great deal of professional judgment be applied. As a result,

some allowances at the hearings level could simply reflect

the differing judgments of two adjudicators reviewing a case.

While a claimant's deteriorating health, changes in the char-

acteristics of a claim over time, and the complexity of dis-

ability decisions may help to explain some of the ALJ allow-

ances, studies have not sufficiently explained why consis-

tently over half the cases appealed to the hearings level are

allowed. Instead, studies indicate that systemic differences in

the assessment of claims at both adjudication levels are con-

tributing to the ALJ allowance rate. For example, our 1997

report noted a difference in state DDSs’ and ALJs’ views on

the claimant's functional abilities was a key factor in explain-

ing why ALJs allowed cases on appeal.

Inconsistency in decisions may create several problems. High

hearings allowance rates may create the perception that the

hearings level is applying SSA's criteria less strictly than the

initial level and create an incentive for claimants to appeal to

Ta

an ALJ for a more favorable decision.’ If deserving claim-

ants must appeal to the hearings level for benefits, this

situation increases the burden on claimants, who must wait,

on average, almost a year for a hearing decision and fre-

quently incur extra costs to pay [12] for legal representation. ™

In addition, to the extent that the ALJ allowance rates include

inappropriate allowances, SSA could be incurring unwar-

ranted program costs. Although SSA has tried to address

these problems, its inability to resolve them has contributed to

our decision to include federal disability programs on our list

of high-risk government programs.'*

Renewing its effort to address long-standing and critical prob-

lems with the disability programs, SSA’s Commissioner re-

cently announced a new proposal to improve these pro-

grams. (See app. | for an excerpt of the announcement that

describes the newly proposed decision-making process.) In

addition to proposing demonstration projects that provide

work incentives and supports to help people with disabilities

return to work, SSA has proposed significant changes to both

the process of adjudicating disability claims and the structure

and management of the agency’s quality management system

— awe

'’ An appeal adds significantly to costs associated with making a

decision. According to SSA’s Performance and Accountability Report for

fiscal year 2001, the average cost per claim for an initial DDS disability

decision was about $583, while the average cost per claim of an ALJ

decision was an estimated additional $2,157.

‘An appeal also significantly increases the time required to reach a

decision. According to SSA’s Performance and Accountability Report for

fiscal year 2003, the average number of days that claimants waited for an

initial decision was 97 days, while the number of days they waited for an

appealed decision was 344 days. However, the time a claimant waits for a

decision should not impact the amount of benefits received, as benefits are

based on the date the claimant becomes disabled.

'* U.S. General Accounting Office, Performance and Acceuntability

Series: Major Management Challenges and Program Risks: Social Secu-

rity Administration, GAO-03-117 (Washington, D.C.: January 2003).

8a

to improve the timeliness, accuracy, and consistency of the

disability decision-making process. The agency believes that

several of these changes will help to improve consistency

between DDS and ALJ decisions. For example, SSA plans to

provide more centralized end-of-line quality reviews. Accord-

ing to SSA, the proposed quality reviews should help to hold

adjudicators more accountable for their decisions and ensure

that they consistently apply SSA’s policies as well as help the

agency detect and amend those policy areas leading to in-

consistent decisions. Table 2 provides a description of SSA’s

proposed changes to improve the disability decision-making

process.

x* * * *

[14] implementing its new proposal. SSA’s implementation

of the new proposal will therefore be no earlier than October

4005. In the meantime, SSA continues to discuss the proposal

with stakeholders and plans to further refine it before imple-

mentation.

SSA Has Partially Implemented Its

Process Unification Initiative

SSA has partially implemented its process unification in*tia-

tive. Although the agency initially made improvements in its

policies and training intended to improve the consistency of

decisions between adjudication levels, it has not continued to

actively pursue these efforts. As part of the initiative, the

agency also implemented a review of ALJs’ allowance de-

cisions to identify additional ways to improve training and

policies, but no new changes were made as a result of find-

ings from the review. Finally, the agency also began two tests

of process changes to help improve the consistency of de-

cisions, but one ongoing test with design problems is not

likely to lead to any conclusive results and the other test has

been abandoned. |

9a

SSA Made Early Progress Improving Policies and Training,

but Has Not Actively Pursued These Efferts

While SSA initially made progress carrying out efforts to im-

prove policies and training to better ensure the consistency of

decisions, the agency has not continued to actively pursue

these efforts. SSA quickly accomplished most of its planned

efforts to clarify policy guidance. In 1996, SSA issued nine

process unification rulings to clarify policy areas it found to

be contributing to inconsistent decisions. For example, one

ruling provided all adjudicators with guidance on how to

weigh and document their evaluation of the treating physi-

cian’s opinions when making a disability decision.'° SSA

successfully went through the regulatory process several years

later and published three new regulations to strengthen its

process unification rulings, but was unable to agree on a

fourth regulation regarding the weight to be given to the treat-

ing physician’s opinion when evaluating a claim.'’

SSA planned to develop a single presentation of policy guid-

ance to replace the different sources used by each level, but

has since abandoned full implementation of these plans in

favor of a more limited approach. DDS [15] adjudicators

cunemly follow a detailed set of policy and procedural guide-

lines,'* whereas ALJs rely directly on statutes, regulations,

and rulings for guidance in making disability decisions. To

help ensure that inconsistent guidance was not contributing to

'° Social Security Ruling 96-2: Policy interpretation Ruling Titles II

and XVI: Giving Controlling Weight to Treating Source Medical Opin-

po effective July 2, 1996.

” Since SSA rulings are binding only on SSA adjudicators and do not

have to be followed by the courts, SSA planned to strengthen the impact

of several rulings by creating regulations that would be followed by the

courts.

'* These guidelines—called the Program Operations Manual System

(POMS)—contain, within an estimated 30,000 pages, interpretations of

relevant statutes, regulations, and rulings and procedural information.

10a

inconsistent DDS and ALJ decisions, SSA began issuing

guidance in the same wording to all adjudicators in 1996. Al-

though SSA had also planned to address differences in policy

guidance issued before 1996 and to eventually combine ex-

isting adjudication policy documents into a single document,

it ultimately decided not to take these additional steps.

According to SSA, further efforts to unify the policy guidance

used by both levels would be a massive undertaking and not

worth the cost because the guidance issued since 1996 had

already addressed important policy areas that were leading to

inconsistent decisions. While some stakeholder groups repre-

senting adjudicators tended to agree with SSA's position, the

Social Security Advisory Board and other groups still believe

the agency should take additional steps to provide a unified

policy guide to all adjudicators. Instead of creating one policy

manual for all adjudicators, SSA told us that it plans to

undertake a comprehensive effort to evaluate and improve its

disability policies to make them less susceptible to differing

interpretations and to ensure they are up to date. A more com-

prehensive approach could address key weaknesses in SSA’s

disability program that we previously highlighted in our per-

formance and accountability series, and thereby help to mod-

ernize federal disability programs to better meet the needs of

Americans with disabilities.

Early on, SSA also provided extensive cross-training of DDS

and ALJ adjudicators, although the scope of its efforts has

since diminished. To help all adjudicators understand how to

appropriately apply process unification rulings, SSA provided

extensive and mandatory training in 1996 and 1997 to 15,000

disability adjudicators (including DDS examiners, physicians,

ALJs, and quality assurance staff). The training was provided

to adjudicators at all levels of the process in three of the most

complex disability areas—assessment of symptoms, treatment

of expert opinions, and assessment of claimants’ remaining

capacity to work (i.e., residual functional capacity). While

this training was intended to be ongoing, SSA’s training ef-

lla

forts have diminished significantly since 1997. Stakeholder

groups representing DDS adjudicators told us that SSA’s

training does not

* * * *

[23] both levels are making more consistent decisions. Al-

though the 1994 report of findings from the initial biennial

case review included the results of a special probe in which

ALJs reviewed 165 DDS reconsideration denial decisions, the

sample was not representative,-and therefore results could not -

serve as a baseline for developing trend information. In 2003,

SSA began another probe, in which ALJs reviewed 400 DDS

reconsideration denial determinations, but the agency does

not plan to release its findings until summer 2004.

Although SSA has limited information on how ALJs view

DDS decisions, other information collected by the agency

suggests that consistency of decision making at the initial

level might not be improving. For example, OQA reviewers

routinely assess the accuracy and supportability of DDS de-

cisions. A recent SSA study of these data shows that the

accuracy of DDS denial decisions—those decisions most

likely to be appealed to the hearings level—has declined by 4

percentage points over a 1- year period.*° Another review of

DDS decisions by OQA reviewers also suggests a lack of

improvement at the initial level. Specifically, the extent to

which quality reviewers found that DDS reconsideration de-

nials appealed to the hearings level were supported declined

from 71 percent in fiscal year 1993-94 to 68 percent in fiscal

year 1999-2000.

*© See the Social Security Administration, Office of Quality Assurance

and Performance Assessment, Quality Assurance Group I Initial Denial

Accuracy Report: August-October 2002, july 2003.

12a

SSA’s Assessments Have Not Identified the

Areas and Causes of Possible Inconsistency in

Decisions between Adjudication Levels

Despite some efforts to assess inconsistency in decisions,

shortcomings in SSA’s analyses also limit its ability to iden-

tify areas and causes of possible inconsistency. Most notably,

over the last 10 years, SSA has not updated its prior analyses

of information from its initial biennial case review that helped

identify problem areas. In addition, SSA has not improved on

its case review and analysis by ensuring that reviewers assess

all relevant case evidence used to make decisions, or per-

formed more sophisticated analysis to identify the areas and

causes of inconsistency in decisions. Other efforts—including

the review of ALJ allowances and a probe of DDS reconsid-

eration denials—have yet to yield useful information.

In 1994, for its initial biennial case review report, the agency

took its first step in identifying areas of possible inconsis-

tency by identifying two characteristics about the claimants

and their cases over which initial-level [24] reviewers tended

to disagree with ALJs. Specifically, the 1994 report con-

cluded that teams of reviewing medical consultants and

disability examiners sometimes viewed cases involving men-

tal impairments differently than the reviewing ALJs. In addi-

tion, these two sets of reviewers tended to have different

views on the severity of claimants’ impairments and their

resulting capacity to work. According to the official responsi-

ble for overseeing the review, the findings in this initial report

provided important support for SSA’s process unification

efforts as well as the agency’s efforts to redesign the disabil-

ity claims process.

SSA continues to conduct the biennial case reviews; however,

the agency has not continued to analyze and identify areas

that are viewed differently by different adjudication levels.

Specifically, SSA no longer identifies the particular case

characteristics over which reviewers from the two levels tend

l3a

to disagree. As a result, SSA does not know whether previ-

ously identified problem areas are still present. Moreover,

SSA no longer publishes any information from the medical

consultant and disability examiner biennial case reviews, even

though it has performed some limited analysis of the support-

ability of decisions made by adjudicators. By not continuing

to publish its analysis and findings, the agency makes it

difficult to ensure the reliability of its methods and results,

and leaves stakeholders outside the agency, including dis-

ability groups, without a means for understanding SSA’s

assessment efforts and progress in improving the consistency

of decisions. The SSA office conducting the study has told us

that, because of downsizing and competing priorities, it has

no current plans to further analyze and publish these data.

Further, in its ongoing biennial case reviews, SSA does not

make full use of available case information that would be

useful in identifying areas and causes of inconsistency. Spe-

cifically, medical consultants and disability reviewers do not

listen to tapes of the hearings and therefore do not review the

entire case as presented to the original ALJ. Although review-

ing medical consultants and disability examiners read the

ALJs’ explanations for their original decisions, which should

include the most important factors behind the ALJs’ deci-

sions, the reviewers do not evaluate the oral evidence inde-

pendently. An SSA official with whom we spoke indicated

that some evidence entered by witnesses at the hearing might

not be accompanied by other hard copy sources of the same

information. Therefore, reviewers would not consider infor-

mation potentially relevant to the ALJ’s decision that could

be used to identify areas and causes of inconsistency.

* * * *

14a

[34] factors that might be contributing either appropriately or

inappropriately to allowance decisions.

3. Expand the biennial case review by requiring disability

examiners and medical consultants to review the hearing

tapes to ensure that reviewers have the complete case

before them (including the types and sources of testimo-

nial evidence provided during the hearings) when

evaluating the ALJs’ decisions.

4. Have adjudicators and reviewers from each level study

cases in depth to help pinpoint the causes of inconsis-

tency, once potential areas of inconsistency between lev-

els are identified.

5. Publish the methods and findings of all analyses, to keep

internal and external stakeholders aware of the agency’s

efforts to assess consistency and demonstrate improve-

ment over time.

6. Use the information from these improved analyses to

develop a more focused and effective strategy for en-

suring uniform application of SSA’s guidance and to im-

prove the consistency of decisions. To accomplish this,

SSA should clarify guidance for making disability deci-

sions and develop mandatory training for adjudicators on

issues identified as contributing to inconsistency.

Agency Comments and Our Evaluation

We provided a draft of this report to SSA for comment. SSA

expressed several reservations about the recommendations,

findings, and conclusions of our report. Primarily, SSA took

issue with: (1) our characterization of the agency’s progress

over the past several years in analyzing and reducing the

inconsistency of decisions, (2) our recommendation that the

agency incorporate multivariate analysis into its assessments,

and (3) our finding that the agency has not acted on the re-

sults of its reviews of decisions. SSA indicated that it would

15a

reevaluate our recommendations as the design of its Commis-

sioner’s new approach to disability decision making evolves.

However, the agency did agree to pilot one recommenda-

tion—that quality reviewers assess hearing tapes when evalu-

ating the ALJs’ decisions—as part of a quality review.

One of SSA’s main concerns was that our report did not fully

discuss the progress SSA had achieved in analyzing and re-

ducing the inconsistency in decision making between adjudi-

cation levels. For example, SSA commented that our report

dismissed the 21-percentage point increase in the quality re-

viewers’ support rate of ALJ decisions, conducted as part of

[35] SSA’s biennial case reviews over the last 10 years. SSA

also pointed to findings from its ALJ peer reviews as addi-

tional evidence that the quality and consistency of SSA’s

decisions had improved. In addition, SSA asserted that its

comparison of the relative proportion of allowances at the

DDS and ALJ levels, along with high accuracy rates,

indicated that adjudicators were making the right decisions

sooner in the process—a goal of both process unification and

the Commissioner’s new disability approach. Although our

report incorporates results from the analyses cited by SSA,

our conclusion about the improvement in consistency be-

tween levels is not as optimistic as SSA’s because of weak-

nesses in SSA’s assessments. As we reported, SSA’s analysis

of the quality reviewers’ assessment of ALJ cases has been

limited for 10 years to calculating ALJ support rates. SSA

has not used available data to determine the potential areas of

inconsistency between levels or the extent to which changes

in the ALJ support rate is related to improvements in consis-

tency of decisions between adjudication levels. SSA’s assess-

ment also jacks a reliable method for determining whether

DDS decisions are more consistent with ALJ decisions, for

example, by having ALJs regularly review a statistical sample

of DDS decisions. Lastly, as we pointed out, changes in the

proportion of overall allowances made by the DDS and ALJ

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