New Regulations Compromise the Independence of Disability Appeals Judges

The Trump Administration has finalized new regulations that threaten the independence of judges who decide  Social Security disability cases.  

When people initially apply for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) benefits, the Social Security Administration (SSA) approves or denies applications based on the submitted paperwork.  If an application is denied, the applicant can request a hearing before an administrative law judge (ALJs), an impartial adjudicator who is independent from the SSA.

Under the new regulations, published in the Federal Register on November 16, the SSA may substitute its own agency-appointed lawyers to hear these appeals.  This change greatly concerns disability advocates, who believe it will result in more benefit denials.

“The importance of receiving a fair hearing in which the adjudicator impartially and dispassionately applies law and policy to make an accurate and timely decision cannot be understated,” the Consortium for Citizens With Disabilities said in comments when the rule change was proposed earlier this year. “Such an adjudicator must be as independent as possible from the agency for which it is making determinations.”

The move comes on the heels of a controversial July 2018 executive order that exempted ALJs from all prior qualification requirements. ALJs, who hear cases across all federal agencies, were previously required to have seven years of legal experience and undergo a competitive test and selection procedure, administered by the Office of Personnel Management. Due to these requirements, ALJs were generally presumed to be neutral and independent of the agency whose decisions they are reviewing, thus protecting the applicants’ due process rights.

As a result of the 2018 executive order, ALJs are now merely required to have a license to practice law. Coupled with the latest regulations allowing agency lawyers to hear appeals, disability advocates say that Social Security disability applicants will be at the mercy of agency staff, who will be more likely to deny benefits.  “ALJ’s are impartial; SSA attorneys may try to deny benefits based on ideology rather than the needs of disabled workers,” former senator Tom Harkin and Max Richtman, president and CEO of the National Committee to Preserve Social Security and Medicare, write in The Hill.

The Association of Administrative Law Judges, in a statement, called the new regulations a “different and radical approach” that compromises “hard-working Americans’ need [for] fairness and reason.”

Advocates are hopeful the Biden administration will reverse the change.