Social Security Judges Need More Accountability, Less Stink Eye and CDR Hell

Insight from Tom Nash

Almost every other type of judge in the greater Chicago area and the country has far more accountability than the Social Security Administrative Law Judges (ALJs) who decide the fate of SSDI/ SSI disability claimants – they have essentially none. You might recall, for example, how various bar associations rate judges as qualified, not qualified, highly qualified and the like. These findings lead to similar recommendations from media outlets looking to help the voting public understand what should be done. The net result is that if a given judge is incompetent, habitually late, routinely treats fellow legal professionals in a demeaning manner, treats the public with disrespect, or displays a lack of the type of common sense required of the position, the bar association and media mechanisms provide a modest level of accountability which changes behavior. Compare the Chicago Bar Association process explained here.

The majority of claims for Social Security disability benefits are denied at the initial application stage, but if your claim is denied twice, you have the right to appeal and ask for a hearing. At the hearing, an Administrative Law Judge (ALJ) (who is an employee of the Social Security Administration) will decide your fate: whether or not you will be awarded disability benefits. A winning formula for the public is when there are sharp SSA personnel (including ALJs), professional advocacy, and solid bench/bar relationships. In my dreams, the SSA would place more focus in its ALJ candidate selection on people with experience in attorney/private client relationships – recognizing the value of the confidential communications that are at the root of success there.

In our experience based on representing our clients in thousands of disability hearings over a period of 40+ years, there are good judges and not so good judges, but in too many instances, judges make decisions which defy common sense application of the law, and the real intent of the program. A large part of the latter result flows from their relatively unique lack of accountability. ALJs, who have often spent considerable effort getting themselves in an ALJ position of reliable income and generous benefits, then work in “ivory towers” where they have the luxury of being removed from the day-to-day consequences of their decisions. Let me share some details from a recent case to illustrate my point.

Our client, who we will call Steven to protect his identity, was sexually abused as a child by a parent and suffers from lifelong, chronic, complicated, severe mental illness. The lower-level bureaucracy twice denied Steven’s SSI claim, but after our hearing representation, the ALJ found Steven had medically documented hallucinations, including seeing dead bodies, delusions which include the belief that assassins are gunning for him, and disruptive flashbacks. He hears “voices” telling him to hurt himself and other people and had served nine years in prison for attempted murder flowing from the voices. We are not talking about the worried well – he had tried to hang himself while in prison. The ALJ found that Steven’s medical records show multiple psychiatric conditions, including schizoaffective disorder, bipolar disorder, personality disorder, and post-traumatic stress disorder (PTSD). He was in psychiatric hospitals until he reached the age of 18 and he has periodically lived in nursing homes in recent times.

Not surprisingly, it was easy to see Steven is and has been unable to hold a job – but I knew he could get tangled up in the bureaucracy as he already had been. The mass incarceration of the mentally ill in our society is a tragic mistake and I wanted to help Steven avoid that by getting him the very meager subsistence allowance which SSI represents.

Following his appeal hearing, the ALJ awarded disability benefits to Steven, but threw in a cavalier recommendation for a Continuing Disability Review (CDR) in 18 months, wildly speculating that, “medical improvement is expected with appropriate treatment.” If one is awarded disability benefits, Social Security always has the option to review one’s continued eligibility, in the form of periodic evaluations of a person’s disability status to determine if they still meet Social Security’s disability standards. But what the ALJ has done here with the recommendation for a CDR evaluation in 18 months reflects a goofy, harsh, and an unfortunately all-too-common schtick. Whether the ALJ is good or bad, it is quite common for them to throw in a “war on the poor” condemnation to bureaucratic paperwork and reevaluation hell. What is worse is that they do this without bearing any responsibility, and without giving a hint for the basis for their thinking; a fellow with a profile such as Steven is not going to somehow be magically restored to an ability to work 18 months from now.

Based on our experience reviewing CDR recommendations in ALJ decisions, there seems to have been little or no training for the ALJs on when to use them, or the effect they have on claimants down the line. What in the world does the ALJ think will happen when someone like Steven receives a notice in 18 months that his case is up for review? He had already been through a painstaking bureaucratic process where finding legal help was quite uncertain. After a rigorous process and a hearing, the ALJ found he met SSA’s stringent disability standards. It simply does not make sense to suggest a review of his situation less than two years later, without any justification, particularly in a case of such a complicated, serious mental illness profile. Notably, we have never seen an ALJ decision that says, “CDR not recommended – not likely to improve.” That would have been the perfect label on Steven’s case, as well as many others.

Because they are in the position of judging them, Social Security Administrative Law Judges need to have a better understanding of those who grapple with serious mental illness. They would greatly benefit from a speaker on the subject of mental illness, housing, and mass incarceration issues. Even before the COVID-19 pandemic, the number of suicides in the United States was a national tragedy. Now, it is sadly even worse. When they check the “CDR” box, does the ALJ ever think of how someone like Steven – who has a history of self-harm by way of cutting – will react to the possibility that their entire livelihood could be taken? What will happen if Steven no longer has housing which his SSI eligibility will help him obtain/maintain? Or money for transit to outpatient mental health care? People with complicated mental illness profiles like Steven often experience homelessness and lead chaotic lives, while SSA’s mail system is a disaster. What happens when someone like Steven does not receive the notice of the CDR and can’t respond? We simply do not believe that ALJs think about these important points before casting their stink eye and recommending a CDR.

I sometimes think about this in terms of investment and return on investment. Related to that is the question of what type of society we collectively want to live in, and what we are willing to do as a society to achieve that goal.

SSI is currently $794 maximum per month, plus Medicaid. Not a lot, but for many clients, it is the difference between remaining housed—and remaining in psych care—versus not. In my view, this is a minimal investment in achieving a more just society. It is a minimal ask from the taxpayers of our country, with the end being fewer people living on the streets, and fewer people living with untreated mental illness.

Now, we could decide that we are unwilling to pay this minimal cost as a society, that it is simply too much to ask. But what if anything do we gain by sweeping these issues under the rug? There is not just the cost in human suffering, but the literal cost in dollars and cents. It costs about $34,000 per year in Illinois to incarcerate a person, for example.

For that matter, how much does SSA’s administrative apparatus, including ALJ salaries, cost (protected by a union, with gold-plated health insurance, while they are largely insulated from any consequences of their work product, whether shoddy or stellar)? According to Forbes, SSI makes up just 5% of Social Security payments but takes 35% of SSA’s budget to administer. Could it be that it isn’t chronically mentally ill claimants such as Steven who need to be reviewed every 18 months? Like state/county judges, the ALJs should be subject to some level of scrutiny so that their treatment of the public and counsel, and their decisions are based on the law, facts, and common sense. For a thought experiment, imagine the outcry from the ALJs and their union if they had to justify the cost of their own salaries every 18 months the way the ALJ is so disdainfully demanding SSI receipt justification from the homeless delusional fellow, Steven.

Too often, I feel as if ALJs such as the one involved above, whose intelligence our office otherwise does respect, are acting as self-appointed stinkeye “guardians” of the treasury, rather than as the finders and triers of facts. They are making (ill-informed) personal judgments about who is deserving and who isn’t in our society, rather than just looking at and understanding the reality of the situation in front of them. They need to stop the stink eye virtue signaling shtick – and embrace accountability.