Mr. Hamm* spent much of his life working physically strenuous jobs, like laying pipes, loading trucks, and driving a fork lift. That is, until 2010 when he was the victim of a vicious assault. The attack left Mr. Hamm with a severely broken leg and unable to work. In early 2011, Mr. Hamm applied for Social Security Disability benefits. After two long years, and erroneous denials, Mr. Hamm finally got a chance at a hearing. The delay, unfortunately, is not uncommon for disability claimants.

To best position his case, Mr. Hamm hired a private attorney to represent him. Before the start of his hearing, the Administrative Law Judge (ALJ) conducted a side conversation with Mr. Hamm’s lawyer, whom Mr. Hamm did not even get to meet prior to his hearing. The ALJ apparently convinced the attorney to counsel Mr. Hamm to withdraw his hearing request based on a lack of evidence in the record, a highly unusual request given the ALJ’s duty to develop the record (including taking testimony from the claimant himself) and his ability to order a consultative examination (an exam by a Social Security contracted physician specifically used when there is not enough evidence in the record to make a decision on disability). Confused about the significance of the ALJ’s request, Mr. Hamm followed the advice of his lawyer and his case was dismissed. After the hearing, Mr. Hamm’s attorney withdrew from the case, leaving Mr. Hamm to navigate the appeal process on his own.

Social Security hearings are supposed to be informal, fair, and non-adversarial. In theory, the role of an ALJ is to review all of the relevant evidence in the disability claim, including objective medical evidence, opinions of medical professionals, and testimony from the claimant, to determine whether the claimant would be able to work a fulltime job (8 hours a day, 5 days per week or an equivalent schedule). In practice, ALJs are scrutinized if their approval rates are deemed “outliers” for being too high or too low. This creates an incentive for ALJs to try to stay close to the average approval rate, about 42% in Fiscal Year 2019, rather than accurately decide the case before them. This perverse incentive can lead to absurd results.

Take Ms. Simpson, who suffers from lifelong mental health disorders and arthritis in multiple joints. The ALJ in her case determined that Ms. Simpson’s “activities of daily living,” like basic household chores, using public transportation, and going to church, demonstrated that she was exaggerating about her health conditions and was actually healthy enough to work. Whether partaking in these basic activities demonstrates the ability to sustain full time work is debatable as a general matter, but is particularly dubious in light of the mountain of evidence Ms. Simpson supplied regarding her chronic health issues. On appeal in the Federal District Court, Legal Aid successfully argued that the ALJ failed to take into account the modified fashion in which Ms. Simpson performed these activities, including getting help from her live-in partner, her parents, and a home health aide and using Metro Access and Medicaid Door-to-Door Transportation Services rather than traditional public transportation.

What is doubly frustrating for clients like Mr. Hamm and Ms. Simpson is that they had to wait years after their initial hearings to get anyone to take their claims seriously. After his hearing, Mr. Hamm appealed the ALJ’s dismissal to Social Security’s “Appeals Council” another layer of administrative review that can result in a new hearing (or an award of benefits) when an ALJ’s decision is not supported by “substantial evidence” or is otherwise legally erroneous. Confronted with evidence that Mr. Hamm had anything but a fair hearing, the Appeals Council denied Mr. Hamm’s claim, simply stating that it “found no reasons under [Social Security’s] rules to review the Administrative Law Judge’s decision.” This is a common refrain for Appeals Council decisions. Thankfully, the U.S. District Court for the District of Columbia disagreed:

[Social Security] describes [Mr. Hamm’s] claims as “unsubstantiated” and “unverifiable,” but of course the reason why the facts alleged by [Mr. Hamm] cannot be confirmed or denied by the record is a result of the very conduct complained about—i.e., that the ALJ, in violation of SSA regulations, directed that portions of the hearing be held off the record thereby making it impossible for [Mr. Hamm] to corroborate his own account of what occurred.

In Fiscal Year 2014 the Appeals Council reversed just 15 percent of ALJ decisions. Of those that were appealed to the Federal District Court, 45 percent were either remanded for a new hearing or an outright award of benefits.

Source: Social Security Administration, FY 2016 Congressional Justification, page 143.

While it is heartening the Federal District Courts are remanding agency errors at such a high rate, it’s unsurprising that just over 14 percent of Appeals Council decisions were actually challenged at the District Court level since FY 2010. That could be because District Court appeals take the Social Security process from an informal process, to a formal process, sometimes requiring hundreds of hours of briefing. This is a tough undertaking for an attorney, but virtually impossible for the typical disability claimant.

Mr. Kaplan’s mental health disorders are quite severe. He experiences daily hallucinations and has a hard time interacting with most people. The ALJ in Mr. Kaplan’s case agreed that he is unable to work, but the ALJ’s position was that this is only the case when Mr. Kaplan was abusing drugs or alcohol. Under Social Security’s rules, if you would not be disabled but for substance abuse you’re not entitled to benefits. In advocating for Mr. Kaplan, Legal Aid did not dispute that his history of substance abuse, but we argued that it was impossible to separate functional the impact of his substance abuse and his mental health disorders. This is especially with a diagnosis of Bipolar Disorder, as it is well documented that this disorder can cause one to abuse substances.

One of the ways judges often try to separate the impacts of substance and mental health disorders is by pointing to a period of sobriety where the claimant appeared to improve to the point of no longer being disabled. In this case, the ALJ pointed exclusively to a single time period when Mr. Kaplan was receiving inpatient competency restoration treatment at St. Elizabeth’s hospital. This approach is explicitly disallowed under Social Security’s rules, however, because it’s impossible to tell if the improvement is attributable to sobriety or a level of mental health treatment which is not realistic outside of the inpatient context. After our initial briefing before the Federal District Court, attorneys for Social Security agreed to a voluntary remand and a new hearing.

Starting with Mr. Hamm’s case, Legal Aid has undertaken a select number of Social Security appeals at the Federal District Court stage in recent years to secure these much needed benefits for our clients. So far Legal Aid has prevailed in every single one of them, and we hope to continue to use these cases to correct agency errors and establish good precedent for future Social Security cases. But broader reform is sorely needed. As we are taking the opportunity to reimagine the social safety net in a post-COVID 19 world, we should strive to ensure that no one, but especially our most vulnerable populations, have to jump through hoops to get their basic needs met.

*Names of clients changed to protect identities.