# Petition for ReHearing — Gibler v. Barnhart

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for ReHearing
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 1105

## Text

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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Hf. STATEMENT OF FACTS ..........ccccccccccscceceses es. 2
Il. REQUEST TO TAKE JUDICIAL NOTICE... 3
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CERTIFICATION (RULE 44) woo..cccccccccscscsccsseseseseeeee. 7
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(1)

ii
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
* * * x

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0739%3A2. Public record. Not legal advice.