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Outline of Arguments re: NRPM and the Appeals Council
The C has proposed to eliminate the AC. This is an outline of arguments
against that proposal. This outline does not address the role of the
Disability Review Board performing its quality-review function. It focuses
solely on the traditional role of the AC acting on claimants' requests for
review of ALJ decisions. Please review carefully this outline. You
may not agree with one or more points. You may want to correct any
mistake.
1. If the AC is eliminated, there will be no delays associated with
waiting for the AC to act on a request for review. Thus, it must be true
that eliminating the AC will decrease average worst-case processing times for
the Agency. But the Agency has a narrow view of the relevant delays.
The federal courts and the Agency are all part of the
United States
government. The NPRM merely shifts to the federal courts the
responsibility for correcting tens of thousands incorrect ALJ decisions each
year. The NPRM merely externalizes the costs of correcting ALJ errors to
the federal courts. From the perspective of claimants (and taxpayers), the
true average worst-case time for adjudication does not decrease with the NPRM.
The elimination of the AC merely outsources the responsibility for the
correction of ALJ errors.
2. The NPRM proposes to eliminate the AC without discussing years of data the
Agency obtained when it tested the elimination of the AC. That data
likely shows that there will be at least a doubling of the number of court cases
following the elimination of the AC. As a matter of respect for the
federal courts, the AC should not be eliminated. Each year, the AC grants
relief in about 20,000-25,000 cases. The AC does this with great
efficiency compared to the federal litigation. I will set forth some
illustrative amounts of time needed to correct incorrect ALJ decisions.
Combined the AC and the claimant spend roughly one day on each request for
review. Very roughly, it takes about 2-6 hours for a claimant or his or
her representative to draft arguments in support of a request for review.
Very roughly it takes an AC analyst about 4 hours to write a memo about a
request for review. It also takes an AC member about 30 minutes to approve
or reject the AC analyst's proposal. (The AC knows the exact time spent; I
do not.) In contrast, a court case typically requires a
claimant-plaintiff's attorney to spend 12 to 40 hours on each case.
Moreover, it takes a federal district judge or magistrate judge about 4 to 12
hours disposing of a typical case. Additionally, federal court litigation
requires significant expenditures of time by other personnel including employees
of the clerk of the court and a judge and magistrate judge's own staff.
Further, there is a $250 waivable filing fee to initiate a civil action.
Add to those times the time spent by the Agency's Office of General Counsel
reviewing and defending the Agency's denial of benefits. Therefore, it is
much more efficient to correct errors at the AC. The AC is at least two to
three times more efficient than the federal courts and probably three to five
times more efficient. (I am speaking roughly here.)
3. The elimination of the AC will make it more difficult for claimants to
correct erroneous ALJ denials. Currently, the AC grants relief in about
20,000-25,000 cases per year. The Agency has not suggested that the AC
erred when granting relief in those cases. Therefore, the Agency accepts
today that there are about 20,000-25,000 erroneous ALJ decisions that should be
readjudicated. With the elimination of the AC, a claimant must initiate a
civil action. There is a waivable $250 filing fee to initiate a
civil action. Further, even though a claimant in theory can represent him-
or herself in federal court, retaining an attorney is probably preferred in
virtually every court case. Even if the ALJ's mistake is glaring, a
claimant without an attorney may not know how to identify that error for the
federal district court judge or magistrate judge. In this context, the
elimination of the AC will probably allow a significant percentage of the
20,000-25,000 incorrect ALJ decisions to stand. This is not a result
consistent with the Agency's duty to pay benefits to claimants who are entitled
to such benefits. The Agency should not use procedural barriers to reduce
the payment of benefits to claimants entitled to those benefits.
4. The Agency should take great pride in the ability of the AC to catch
20,000-25,000 erroneous ALJ decisions each year before they lead to civil
actions. Doubtless, the AC could and should catch more errors.
Currently, there about 15,000 civil actions each year. Claimants receive
judicial relief in about half of those cases. Thus, if the AC performed
its appellate function with greater accuracy, it would grant review in about
5,000 more cases each year. It would be impossible for the AC to catch
every erroneous ALJ decision. Nonetheless, the AC can strive for that
result.
5. The AC has been incredibly successful over the past several years in
increasing its dispositions and reducing its backlog. While processing
times for ALJ decisions have mushroomed in many OHA ALJ offices, the AC has made
consistent progress. For several years, the Agency has been considering
eliminating the AC. During that time, the AC improved markedly its
efficiency. And the AC will certainly continue to reduce its average
processing time with the implementation of eDIB and digital recording of ALJ
hearings. The Agency should reward the AC's efforts with confidence in its
expertise and efficiency, not with its elimination.
6. Federal litigation is adversarial. In federal court, the Agency is
represented by attorneys. Administrative proceedings before the Agency are
nonadversarial. See 20 C.F.R. 404.900 (2005). By eliminating the AC,
the Agency will de facto make post-ALJ-decision proceedings adversarial.
Thus, even though the NPRM does not include an adversarial process internal of
the Agency, the NPRM replaces a significant part of the current nonadversarial
process (AC review) with an adversarial one. As a matter of policy and
fairness, this change should be rejected. Since the Agency admits today
that 20,000-25,000 ALJ decisions need readjudication each year, the Agency
should not delegate to its attorneys the responsibility to convince the federal
judiciary that those incorrect ALJ decisions should be affirmed.
7. With the elimination of the AC, the Agency will have increased costs due to
its need for more attorneys to defend its denials in transcript litigation under
42 U.S.C. 405(g). The Agency will also pay more attorney fees to claimants
and claimants' attorneys under the Equal Access to Justice Act. See 28 U.S.C.
2412(d). Additionally, claimants themselves will share more of their
deserved past-due benefits with their attorneys when they pay those attorneys
pursuant to a court order. See 42 U.S.C. 406(b). Federal litigation
is costly both to the Agency and to claimants.
The Agency should keep the AC in its current form and continue to improve its
efficiency.
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