Last updated: 10/16/2018
Peter W.
Martin
Cornell Law School
Since the Disability Insurance (DI) program was added to Social Security in 1956, claims for Social Security benefits based on an asserted medically determinable condition causing a long-term inability to work have dominated and challenged an adjudicatory process originally designed for resolving issues of age, earnings, employment, and family relationship. Congress, through subsequent amendments, and the administering federal agency, through a long history of regulatory elaboration of the statutory standard and adjustments to the procedures for applying it, have sought to bring greater consistency, accuracy, and fairness to decisions about who qualifies for this component of Social Security. When Congress created the Supplemental Security Income program (SSI) for low-income individuals in 1972, it loaded this complementary need-tested program onto the same disability definition, the same agency, and the same adjudicatory process. That added to the disability determination puzzle a population of individuals many of whom had no past employment record to serve as a benchmark. Among others these included children and adults who had survived on sources of income of which there was no trace on the records of the IRS or Social Security Administration.
In 2018, sixty-two years on (forty-six in the case of SSI), consistent application of a coherent definition of disability across the nation and through the multiple stages of claim consideration remains an elusive goal. The administrative and judicial effort expended in adjudicating these claims is immense. Because of their volume and limited administrative and judicial capacity, the process all-to-often takes years. This guide provides a brief outline of the path along which Social Security Disability Insurance (DI) and Supplemental Security Income (SSI) benefit claims currently travel. It also describes some measures of and the principal constraints on the degree of variance in application of the statutory standards of disability that apply to them.
For the most part, non-disability Social Security and SSI claims follow the same path. The principal difference is that unlike those requiring determinations of disability they are handled completely by the Social Security Administration, with no state agency involvement.
Contents
Claims for disability benefits under both OASDI and SSI are filed with the Social Security Administration (the Agency or SSA). But while SSA personnel make the all determinations bearing on eligibility with other categories of Social Security benefits, state agencies play an important role with DI and SSI based on disability. SSA determines the dates of insured status, in the case of Social Security Disability Insurance, and eligibility by virtue of low income and resources, in the case of SSI, but the determinations concerning whether claimants meet the threshold test of disability are referred to state disability determining agencies. This unusual distributed framework, not shared by the other categories of Social Security or SSI benefits, was a critical element of the compromise that led to enactment of the DI program. And it is where large-scale variance begins. At present, nationwide, 1 in 3 disability-based claims are granted at this initial stage, but the percentages allowed by individual state agencies range widely – in fiscal year 2016 from a low around 25% to a high in excess of 50%. See Initial And Recon Allowance Rates, Social Security News, Sept. 8, 2017. The stated grounds for those determinations exhibit an even wider variance. See SSAB, Disability Chartbook Chapter 7: Variation in DDS Decision Making. No doubt, some of the difference in state "allowance rates" is a consequence of economic, environmental, and demographic conditions, but the evidence is overwhelming that different approaches to these cases are a greater factor.
In the majority of states, the first recourse for a claimant denied by the state disability determination service is to request that same agency toreconsider its determination, a process that generates a modest number of additional allowances (The current rate is 12%. See SSA, FY2016 Disability Appeals.) and a slightly narrowed range of outcomes. (In ten states, the Agency has experimented with a process that does not include this step. See POMS DI 12015.100.)
With non-disability-based claims both the initial determination and reconsidered determination are handled completely by SSA staff. Reconsideration and following steps are open not only to the claimant but also to others whose rights may be adversely affected by the Agency's determination. This would include, for example, individuals whose benefits will be reduced if the claimant's benefits are granted. Not all Agency actions or decisions directly involve benefit claims. Even those that do not may be pursued within this framework. A request for correction of an earnings record, for example, leads to an initial determination that can be taken through all the following stages. On the other hand, some Agency determinations or actions are left to Agency discretion and cannot be appealed in this way. That is the case, for example, with an Agency decision not to reopen a prior determination. At all stages of the administrative process, the Agency applies a "preponderance of the evidence" rather than the "substantial evidence" standard which operates in the event of judicial review.
Those who have been turned down upon reconsideration by the state disability determination service or SSA or are in an area where that step is not required have a right to appeal within the federal agency. Such an appeal leads to a hearing before one of the 1,300 or so Administrative Law Judges (ALJs) employed by SSA. Annually 700,000 or so appeals from denied claims reach this stage. See SSA, Table 2.F8. Workload of SSA's Administrative Law Judges (ALJs), fiscal years 2012–2015, Annual Statistical Supplement, 2017. By then the vast majority of those seeking benefits are represented, in most cases by an attorney with whom they have a contingent fee agreement. See SSA, Representation at Social Security Hearings. A growing percentage of the resulting ALJ hearings – 28 % in FY 2017 – take place via video rather than a face-to-face meeting with the ALJ. See SSA, Hearings Held In-Person or Via Video Conferencing Report, FY 2017. Nationwide ALJ decisions on the record, following a hearing, yield outcomes favorable to the claimant in 46% of the cases. See SSA, FY2016 Disability Appeals. But just as with the current national rates of 33% and 12% for state agency initial determinations and reconsidered determinations that overall figure cloaks an enduring and troubling degree of variance. A few ALJs award benefits to more than 90% of the claimants coming before them. A small number find disability established in fewer than 10% of their cases. For 95% of Social Security's ALJs the rate of favorable decisions ranges between 26% and 85%. See Harold J. Krent & Scott Morris, Statistical Appendix on Achieving Greater Consistency in Social Security Disability Adjudication: An Empirical Study and Suggested Reforms, at 13-14 (2013). In all, the data suggest a powerful connection between which ALJ is assigned a claim and the likelihood of success with an appeal. Since a public record of the allowance rates of all Administrative Law Judges is maintained by the Social Security Administration, a claimant or her representative can learn the overall odds with the judge she has drawn. See SSA, ALJ Disposition Data.
In nearly all cases those desiring to challenge an ALJ's decision in court must first request review by the Social Security Administration's Appeals Council. (The Agency has experimented with elimination of the Appeals Council step in selected cases. In such a case the notice of the ALJ’s decision will state that an action for judicial review can be filed directly and, indeed, must be filed within 60 days. See 20 C.F.R. § 404.966.) They have 60 days to do so. More than one-third of those receiving an unfavorable hearing take that step. See SSA, Appeals to the AC as a Percentage of Appealable Hearing Level Dispositions. Currently, that body grants review in fewer than one in five cases. See SSA, AC Grant Review Actions as a Percentage of All AC Dispositions. However, when it grants review a remand for further proceedings or direct order of award is the likely outcome. See SSA, AC Remands as a Percentage of all AC Dispositions. The Appeals Council also has the authority, not often used, to review an ALJ's decision on its own motion, without an appeal – authority that can be exercised to upset unwarranted grants of benefits. 20 C.F.R. § 404.969. Two important features mark this stage of claims adjudication. First, Appeals Council review of an ALJ decision is not, strictly speaking, limited to the record on which that decision was based. Under limited circumstances, new evidence can be submitted as part of the appeal. See 20 C.F.R. § 404.970. In recent years 7% or so of Appeals Council remands cited such new evidence. See SSA, Top 10 Remand Reasons Cited by the AC on Remands of RRs or Own Motion Reviews. Second, judicial review is foreclosed unless a timely request for Appeals Council review has been filed and acted upon. Even when the action by the Appeals Council is seriously delayed judicial review will be denied. See, e.g., Marson v. Soc. Sec. Admin., No. 15 Civ. 2891 (PAC) (S.D.N.Y. Nov. 30, 2016). In most cases, that action is a denial of review. With an Appeals Council denial of review or, less commonly, an adverse ruling on the merits of a claim, an action seeking judicial review can be filed in federal district court.
Once a claimant has filed an application and the Agency has disposed of it, the claimant cannot secure a fresh determination of the original claim by filing a new application. This principal is often referred to as "administrative res judicata." The doctrine applies regardless of the level at which the claimant allowed the first decision to become final by failing to appeal an adverse decision. Under certain circumstances, however, the Agency may reopen a previous final decision and revise it. If it does indeed reopen the prior determination, administrative res judicata no longer applies. Courts have sometimes found a constructive or de facto reopening in an ALJ's reexamination of the merits of a previous decision. Mere consideration of evidence from a previous application, however, is generally not sufficient to warrant such a finding. An ALJ may, for example, legitimately evaluate evidence connected with a prior application in order to make a determination of its res judicata effect. However, a case may be deemed reopened if the ALJ fails to invoke res judicata and grounds a new decision, in part, on the record from the prior application.
A new application can, of course, be filed raising new issues. Thus, for example, a disability claimant can be denied benefits after filing one claim and granted benefits following a second. The doctrine of administrative res judicata simply forces the determination on the second application to focus on disability after the time of the first final decision. So long as the claimant still meets the insured status test and the claimant can establish that since the earlier final decision he or she became disabled the second application can lead to a fresh determination of entitlement.
Administrative res judicata can also be invoked against the Agency. It has furnished the basis for court holdings that disability claimants cannot have their benefits terminated on the basis of a fresh disability determination. The Agency is bound by its earlier final decision so that termination must be supported by evidence of a subsequent change in the claimant's medical condition.
Closely related to res judicata is the doctrine of collateral estoppel. The latter applies when there has been a prior determination under another title of the Social Security Act involving the same issue and claimant. An example would be a prior determination in connection with an SSI claim of the same issue being raised in an OASDI proceeding. Res judicata requires that the prior determination involve the same program. Collateral estoppel does not warrant dismissal of a hearing request, but simply permits an ALJ or other Agency decision-maker to accept the finding in the prior proceeding unless there are grounds for believing that it was erroneous.
The Act excludes from operation of administrative res judicata any decision on initial determination or reconsideration that was not appealed because of inadequate notice about the consequences of a failure to appeal. The provision requires that the Agency furnish clear notice of the difference between appealing and reapplying.
Prior to a change of Agency policy in 2011, a new application for disability benefits could be pursued while the appeal of a prior denial was progressing. SSR No. 11-11p reversed that position. Under the new policy "If [a claimant] want[s] to file a new disability claim under the same title and of the same type as a disability claim pending at any level of administrative review, [the claimant] will have to choose between pursuing ... administrative review rights on the pending disability claim or declining to pursue further administrative review and filing a new application."
At each stage in the administrative process the determination becomes final if a request for appeal to the next level is not filed in writing within a specified number of days. If, for example, the claimant's request for a hearing is not filed within 60 days of notice of the action being appealed, the appeal can be dismissed without a hearing. The regulations provide for Agency extension of these limits upon a showing of good cause. The regulations include examples of grounds that may be considered good cause. Social Security Ruling SSR 91-5p specifically addresses the importance of considering a claimant's mental incapacity as a ground for finding good cause.
In disability cases, the claimant may be scheduled for a medical examination at the program's expense. A failure to appear for such an examination without good cause can itself furnish grounds for a conclusion that the individual is not disabled. 20 C.F.R. § 404.1518.
Finally, when an individual has requested an administrative law judge (ALJ) hearing following a reconsideration, he or she will receive notice of that hearing's time and place. That notice is supposed to be sent at least 75 days prior to the hearing. Upon a request based on good cause the ALJ can change the time and place. The individual appealing can have an ALJ decide a case on the record, without an oral hearing. However, if an appellant or a representative simply fails to appear at a scheduled hearing that can result in a dismissal of the appeal. 20 C.F.R. § 404.957.
Within limits laid down by the regulations, the Agency can reopen a past final decision at the request of the claimant. Its decision whether or not to reopen is discretionary. Except under the most exceptional circumstances, an Agency decision not to reopen a prior decision is not subject to judicial review.
In general the request to reopen should be directed to the level within the Agency at which a decision became final. That would be the ALJ, for example, in a case where no timely appeal had been taken to the Appeals Council, but the Appeals Council in a case where one had.
The regulations also authorize the Agency to reopen a case on its own initiative under a variety of circumstances. The grounds for such a reopening grow progressively narrower with the passage of time. A reopening within the first 12 months of the initial decision can be on any ground, within 4 years (good cause), or more (certain types of errors plus a variety of new situation cases, such as another person claiming on the same account).
The relationship between a reopening initiated by the Agency and review by the Appeals Council following an administrative law judge (ALJ) decision has been the subject of considerable litigation. The issue arises when the Appeals Council does not provide notice that it will accept review of an ALJ decision within the period provided by the regulation but later asserts the right to reopen the decision.
In a year's time, over 18,000 district court actions involving Social Security and Supplemental Security Income decisions are filed, approximately one in seven appealable Social Security Appeals Council dispositions. See SSA, Appeals to Court as a Percentage of Appealable AC Dispositions. The Social Security Act itself, in 42 U.S.C. § 405(g), furnishes the framework for this judicial review. It sets out the standard of review and establishes jurisdiction. By its terms the claimant is entitled to a remand or reversal only if the agency's decision is based on an error of law or is not supported by "substantial evidence."
In establishing the framework for judicial review of benefit determinations, the Social Security Act also circumscribes it, specifically precluding judicial review under other federal statutes, limiting review to final agency decisions based on a hearing, and requiring that the action be filed in a federal district court within 60 days after notice of the final decision. While courts may interpret the time limit with some flexibility, particularly in terms of when it begins to run, compliance with the limit is normally strictly enforced. However, in Bowen v. City of New York, 476 U.S. 467 (1986), the Supreme Court held that the 60-day limit is not jurisdictional. Consequently, under proper circumstances a federal district court may hold that the period's running is tolled on equitable grounds. The Supreme Court held that a case for tolling exists when claimants do not know of an internal Agency policy that violates their rights. Subsequent decisions suggest that although the case for tolling is strongest in cases involving government misconduct. See, e.g., Vernon v. Heckler, 811 F.2d 1274 (9th Cir. 1887). In some circuits, at least, that is not required. See, e.g., Torres v. Barnhart, 417 F.3d 276 (2d Cir. 2005); Canales v. Sullivan, 936 F.2d 755 (2d Cir. 1991).
Since only final decisions of the Social Security Administration "made after a hearing to which ... [the claimant] was a party" are subject to judicial review, numerous agency actions and failures to act are not. For example, a remand decision by the Appeals Council exercising its authority to review an ALJ decision on its own motion is not reviewable. The same is true of the agency's discretionary decision not to accept an untimely hearing request or reopen an earlier application. See Califano v. Sanders, 430 U.S. 99 (1977); Matlock v. Sullivan, 908 F.2d 492 (9th Cir.1990). But see Boley v. Colvin, 761 F.3d 803 (7th Cir. 2014); Dexter v. Colvin, 731 F.3d 977 (9th Cir. 2013).
All publications of the Social Security Administration are linked directly to the Agency's site.
Links of citations to provisions of the U.S. Code and regulations codified in C.F.R., together with those to Supreme Court and Court of Appeals decisions, employ the Read It Online or RIO service of the Cornell Legal Information Institute. They, thereby, present users with a choice among legal information providers. Choices include the comprehensive fee-based services, Westlaw and Lexis, and a number of free options. To see how this works follow one or more of the following linked references:
In varying ways and to varying degrees the services to which the links provide access include tools for checking on the currency of the cited section or case. (Has the cited section been amended or the cited decision overruled or questioned since this guide was written?) They also provide the best means for retrieving directly relevant decisions of the U.S. District Courts. The “precedential” decisions of the U.S. Courts of Appeals represent only a slim portion of Social Security case law. Following key regulations or appellate decisions into and through Lexis and Westlaw, on the one hand, or Google Scholar, on the other, can lead you to district court decisions that have interpreted them.
This is the fifth electronic format in which the materials integrated here have appeared. The work was first launched in 1991 on LEXIS where it lived awkwardly and for only a short time. (At that point LEXIS lacked hypertext capability and delivered all content through small screen-fulls of character-based monochrome display.) That company's decision not to proceed with its original plan of placing the treatise and its accompanying library of primary law materials on CD-ROM, prompted their migration to the Thomson Corporation's Clark Boardman Callaghan division, which released "Social Security Plus" in 1994. Thomson's acquisition of the West Publishing Company in 1997 brought "Social Security Plus" and a competing West CD-ROM into uncomfortable proximity. Rather than allow their merger, the author brought the compilation to the open Web, as part of the Legal Information Institute's online collection. It lived there for a decade, evolving as the legal resources on the open Web expanded. In 2012, it morphed into a wiki format. The closure of the wikispaces.com site in 2018 prompted the latest conversion.
This segmented form (a series of topical guides) is offered in hopes that some or all of the guides will provide a useful base on which others can build, update, and improve. Note the licensing terms below.
© Peter W. Martin, 2018. This work is licensed under the Creative Commons Attribution-ShareAlike 3.0 License. To view a copy of this license, visit https://creativecommons.org/licenses/by-sa/4.0/. As noted above the author not only authorizes redistribution, reuse, revision, and adaptation of this material (with attribution, please) but encourages it.