Examining the Reconsideration Level, Part 1: Trust at the Reconsideration Level—Challenges and Solut
This is Part 1 of the series Examining the Reconsideration Level. Read Part 2: Quality at the Reconsideration Level—Challenges and Solutions and Part 3: Quantity at the Reconsideration Level—Temporary hiring Based on Production Needs.
The Social Security Administration (SSA) deserves credit for relentlessly trying to improve the adjudication process. Over the years, the reconsideration level of the adjudicative process has been reevaluated on numerous occasions. As a Social Security Disability representative, I view this pursuit as of high importance for improving advocacy solutions for Social Security Disability claimants.
Often, the reconsideration level appears as a seemingly unnecessary level of review between the initial Disability Determination Services (DDS) result and the Administrative Law Judge’s (ALJ) decision. Regarding national Social Security Disability claims, reconsideration level determinations are reversed by ALJs about 50% of the time on a nationwide average! Moreover, the reconsideration level’s determination is frequently appealed, raising concern over the public’s trust in an SSD adjudicator’s and SSD consultant’s ability to make legally defensible determinations. So are we to continue with the reconsideration level as it stands, or should we modify it, possibly even remove it?
Certainly, the life of the reconsideration level review, along with any hope of improving the adjudicative process, partially depends on the credibility of SSD adjudicators and SSD consultants to make the right decision. This will be discussed further here, while the quality and efficiency of reconsideration level adjudicators are discussed in Part 2 and Part 3.
As a former reconsideration and hearing level adjudicator, my perspective has allowed me to form a few solutions to improve the credibility of reconsideration level adjudication, subsequently improving the adjudication process overall.
The Social Security Administration needs to increase trust and credibility in the reconsideration level review, but how?
First, the SSA needs to reward Social Security Disability adjudicators with low reversal rates while also holding them accountable for high reversal rates; certainly this means providing them with a fully developed record to adjudicate.
The current high reversal rates aren’t due to a lack of tracking and knowledge. Typically, reconsideration level adjudicators and consultants receive the same amount of training and Administrative Law Judges—both groups of adjudicators are given eight week of disability law training. Indeed, they are highly knowledgeable. Unfortunately, SSD adjudicators and consultants are often given a pass on their reversal rates. To counter this, the credibility of reconsideration SSD adjudicators and consultants could be improved based on a system of rewards dependent on reversal rates. Rewarding them for a low reversal rate can work to improve SSD adjudicators and consultants’ credibility. Reversal rates are objective criteria that can be fairly used to reward or hold an SSD adjudicator accountable. A low reversal rate means an Administrative Law Judge upheld the reconsideration level determination, revealing the adjudicator or consultant provided a legally defensible determination early on in the process. Surely, there should be a reward for accurate, efficient adjudication.
What happens with the reconsideration level adjudicator or consultant who has a high reversal rate?
A high reversal rate shows ALJs frequently overturn the SSD adjudicator or consultant/s decision. The adjudicator and consultant with such a record should be held accountable because it reveals inefficient and inaccurate adjudication on their part, reducing the public’s trust in the entire process. Currently, the time a disability claimant waits for a decision between the reconsideration level determination and the ALJ decision can last about two years; when the ALJ decides they have been found disabled, it’s a bittersweet win, knowing that decision should have been made at the reconsideration level a long time ago. This understandably lowers public trust in the process.
What if the SSD adjudicator or consultant with a high reversal rate argues they put forth their best effort with the evidence available on the record?
By all means, they are able to argue this, often with a validity—this weakness in the system is regularly emphasized in the ALJ decision. When discussing initial and reconsideration level determinations (DDEs), as an Office of Hearings Operations (OHO)/hearing level adjudicator and writer, I reflected on the decision that the reconsideration level adjudicator or consultant truly did not have all the available evidence at the time of the determination. (This is the hearing level adjudicator’s way of being fair to the reconsideration level adjudicator or consultant for an underdeveloped record.)
However, the situation is different when there was a more fully developed record at the reconsideration level, because such a record adds credibility to the adjudication process. With this in mind, the Social Security Administration could reward or hold reconsideration level adjudicators and consultants accountable with a clear conscience, knowing the determination and subsequent reversal rate is based on a more fully developed record. This approach leaves no room for excuses from SSD adjudicators and consultants. Thus, a more fully developed record not only helps SSD adjudicators and consultants make the best decision early on in the process but also reduces appeals, improving the process and increasing public trust.
What is considered a “more fully developed record”?
Based on Social Security Administration policy, SSR 18-1p: “A fully developed record is one that documents medical evidence covering at least twelve (12) months preceding the month of date of filing, alleged onset date, date last insured, month ending the 7-year period when a claimant/widow(er) must establish disability, or when claimant attained age 22 under Title 11.”
Overall, rewards and accountability that are based on a more fully developed record at the reconsideration level will build public trust in the process, reduce appeals, and improve the adjudication process.
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