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New recommendations by Penn Law’s Jonah Gelbach untangle the process of social security disability litigation in the federal courts

January 23, 2017

Penn Law professor Jonah Gelbach and David Marcus of the University of Arizona combined legal research with quantitative analysis to produce a comprehensive set of recommendations on social security disability litigation in the federal courts.

When people are denied disability benefits after exhausting their appeal options through the Social Security Administration (SSA), their chances of winning an appeal can vary widely based on the federal district court that has jurisdiction.

Nearly 20,000 people who sought and failed to obtain disability benefits from the Social Security Administration (SSA) appealed the agency’s decision to a federal court in 2015. But claimants’ experiences in the federal courts differ significantly. For example, in Brooklyn, New York, 70 percent of claimants won their appeal and had their cases remanded, while in Little Rock, Arkansas, that number was only 20 percent.

To better understand the varying remand rates among federal districts, how litigation of these appeals works from district to district, and why — on average — claimants prevail so often when they appeal to the federal courts, Penn Law professor Jonah Gelbach and David Marcus of the University of Arizona combined legal research with quantitative analysis to produce a comprehensive set of recommendations on social security disability litigation in the federal courts.

These recommendations were issued on December 23 by the Administrative Conference of the United States, an independent federal agency dedicated to improving the administrative process through research and nonpartisan advice and recommendations.

Gelbach is an economist and legal scholar, and his research explores civil procedure, statutory interpretation, law and economics, event study methodology, applied statistical methodology, and applied microeconomics.

The SSA supplied Gelbach and Marcus with “a substantial amount of data containing information on outcomes of disability appeals in the federal courts,” they write in their description of their research methodology. In addition, they relied on docket report information drawn from PACER — Public Access to Court Electronic Records — and approximately 150 interviews with people involved in disability claims adjudication, including federal judges, law clerks, administrative law judges (ALJs), agency officials and staff, claimant representatives, and Department of Justice personnel.

“Federal judges adjudicate many fewer social security cases than the more than 500,000 decisions that administrative law judges render annually,” Gelbach and Marcus write.

In comparison to ALJs, the caseload of the federal judiciary may be modest, they note, but the federal judiciary exercises an outsized influence on disability claims adjudication through case law and remands. Social Security cases contribute seven percent of filings in federal courts nationwide.

The current disability claims adjudication process faces multiple challenges, Gelbach and Marcus explain. ALJs face heavy workloads, leading to immense backlogs, as do lawyers for the SSA, one of whom described his caseload as “crushing.” Compounding the problem, procedural rules vary greatly from district to district — and sometimes from judge to judge — for social security cases.

In their analysis, Gelbach and Marcus offer a number of recommendations for the SSA to improve the disability claims adjudication process.

They advocate for Congress to give the Social Security Administration independent litigating authority, which it currently lacks. The SSA must work through the Justice Department to represent itself in federal court, it cannot decide on its own to appeal an adverse district court decision, and it must enter an appearance through a U.S. Attorney’s Office.

They also recommend that Congress enact legislation to clarify the U.S. Supreme Court’s authority to promulgate procedural rules for social security litigation, the Judicial Conference authorize the appointment of a social security rules committee, and the Supreme Court approve the rules drafted by that committee.

“The case for a single, national set of rules for social security litigation is strong,” Gelbach and Marcus write. “The substance of these cases differs very little from one part of the country to the next. They emerge from a single, national administrative process, one that produces the same sort of record for review everywhere.”

Once a social security rules advisory committee is in place, the authors recommend a number of rules to unify and streamline the process, including requiring that parties exchange merits briefs instead of motions and appropriate deadlines and page limits.

They also suggest initiatives to improve communication among the SSA, claimant representatives, and the judiciary, along with efforts to educate the judiciary about the claims adjudication process.

And while the authors do not advocate for the creation of a specialized court for social security appeals, they do recommend that the Appeals Council issue opinions in cases that involve uncertain or inconsistent interpretations of regulations in order to reduce variation from circuit to circuit.

Finally, Gelbach and Marcus note, while it is difficult to say what impact any of their particular reform suggestions would have, one recommendation stands out above others.

“We nonetheless believe that only a dramatic reduction in ALJ caseloads could permit significant, across-the-board improvements in decision-making quality sufficient to cause the federal court remand rate to plummet sharply,” Gelbach and Marcus write. “To avoid a spike in the backlog of claims, the size of the ALJ corps would have to increase. Ultimately, this may be the most important reform of all.”