Articles from prior issues of The Advocate

May/June, 1996

The Top Seven Reasons Why We Don’t Need a Social Security Court
by Bob Kanner, WNYADE

OVER THE YEARS, I HAVE written a number of articles which mentioned, in passing, that NADE’s proposal to create a Social Security Court is a solution which will not solve anything. Since the earlier articles dealt with other subjects, space and time did not permit me to explain those passing comments. Below, and with apologies to David Letterman, are the top seven reasons why we don’t need a Social Security Court.

Reason #7) Location is everything--Let’s say the proposal is for a single Social Security Court which will render decisions for the entire nation. For argument’s sake, let’s say the Court will be located in Washington D.C. Now suppose you’re a Social Security claimant who lives in Boise, Idaho. Will you have to pay to send your representative to Washington to argue your case? Won't that be a severe deterrent to claimants who want to appeal their case to this court?

Reason #6) Location is everything, Part II--OK, a single location for a Social Security Court may be a deterrent for claimants who want to appeal. The only remedy would be to have multiple “Social Security Court Circuits”. But if we go down that road, what is the proposed remedy if different circuits issue conflicting opinions as sometimes happens in various Federal Court circuits? Who will arbitrate these conflicts--a second tier Social Security Court?

Reason #5) How will this Court operate?--Will claimant representatives be allowed to make oral arguments before this Court? Will SSA attorneys make arguments on behalf of the representative’s and SSA’s briefs, the facts, and the law as is currently done by the Appeals Council? If the proposal is the latter, doesn’t anyone think we have already have enough paper review of claims?

Reason #4) How will a Social Security Court prevent “unwarranted” ALJ allowances?--If I understand the proposal, the only claims that will reach a Social Security Court will be appeals of denials. Assume that claimant Smith receives an “unwarranted” allowance from ALJ Jones. Claimant Smith has no interest in appealing the decision from ALJ Jones. Claimant Smith’s case will never reach the Social Security court. Under these circumstances, how will the proposed Social Security Court impose “order” on the system and “rein in” the ALJs? In addition, since the Court will only hear appeals of denials, the Court is likely to issue rulings which will have no effect on ALJ allowances.

Reason #3) Who will oversee what the Social Security Court does?--Whether there is one central court or multiple circuits, who will “look over the shoulder” of the Court in case it goes “off the deep end”? After all, ALJs were originally created by Congress to curb abuse of discretion by administrative agencies. Now the charge is that ALJs are abusing their discretion. What happens if the Social Security Court abuses its discretion? Are we going to propose another legal structure to oversee the Social Security Court?

Reason #2) A house divided against itself cannot stand--NADE must stop sniping at ALJs. ALJs must stop sniping at NADE. The problem is not ALJs. The problem is not NADE. The problem is the system in which we all function. We cannot even pretend to have a unified national disability system when two major components of that system operate under different instructions. There must be a unification of the process. I would like to suggest that representatives of NADE sit down with representatives of ALJs to hammer out one system of rules under which we can all operate. These can be presented to Congress and SSA for consideration. If we, who work in the system, cannot come to an understanding about a unified process, then a process may be imposed on us from the outside. This may result in a “solution” to the problem which no one will want.

Reason #1) Bone Marrow Re-engineering--The number one reason why a Social Security Court is an ill-advised idea is that it runs counter to the trend towards shrinking the cost of government and re-engineering the way government functions. NADE constantly comments on ALJ “abuses”. The proposed Social Security Court solves nothing and only adds another bureaucratic/legal layer to a system which already has too many layers. A Social Security Court will also add millions of dollars to Social Security’s already overburdened budget.

The Social Security Court proposal shows that NADE has not yet absorbed the idea of re-engineering into its bone marrow. One need not necessarily endorse all or part of the current re-engineering proposals to see that the program desperately needs re-engineering. The spirit of re-engineering necessitates a profound re-thinking of things. Re-engineering means throwing out old concepts and creating new ways of doing things. The proposal to create another layer in the system to fix a problem at a lower level, no matter how well the proposal is intended, shows that, perhaps, NADE may need to re-engineer its thinking on this subject.