Tucker v. Astrue

Filing 4

Magistrate Judge Kenneth P. Neiman: MEMORANDUM AND ORDER to SHOW CAUSE ENTERED, cc:cl. "...The Commissioner is hereby ORDERED to show cause in writing by June 21, 2011, why some if not all of the cases subject to this order should not be remande d for further review by the Appeals Council so as to accord these claimants the administrative appellate review they would have received had the DRB process been successfully implemented. The attorneys representing the identified claimants shall, in turn, set forth in writing their individual views with regard to this show cause order no later than June 28, 2011. A hearing on this matter shall take place on July 7, 2011, at 2:00 p.m." (Healy, Bethaney)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

IN RE: THE FOLLOWING
PETITIONS FOR JUDICIAL
REVIEW VERSUS MICHAEL J.
ASTRUE, COMMISSIONER OF
THE SOCIAL SECURITY
ADMINISTRATION:
ROBERT M. PARO
SHERRY MICHON
CHRISTOPHER ZINGLE
JACK STIMPSON
LAWRENCE CREVIER
PATRICIA ANN MALEJKA
GLADYS RIVERA
MAYRA ALTAMIRANO
RICHARD M. CALHOUN
JANE IRENE BARR
LYNN ANN POPOVICH
ALBERTO GONZALEZ
OSCAR ARZOLA
WILMALIZ HUERTAS
JUAN CARLOS PEREZ
MARGARET ANN DROLLETT
BOZENA C. GIERYK

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Civil Action Nos:
10-30119-KPN
10-30152-KPN
10-30166-KPN
10-30193-KPN
10-30195-KPN
10-30205-KPN
10-30217-KPN
10-30231-KPN
10-30239-KPN
11-30031-KPN
11-30043-KPN
11-30046-KPN
11-30057-KPN
11-30064-KPN
11-30074-KPN
11-30075-KPN
11-30077-KPN

LUIS A. SANTIAGO, SR.
HEATHER MARIE GREENE
HECTOR L. REYES
ERIN L. HEMINGWAY
SUZANNE WOOD
MAUREEN O’GORMAN
DANIEL W. TUCKER
L.I.D. by her mother, LUZ
IVETTE VAZQUEZ
ROBERT EDWARD SMITH
LENORA A. BROWN

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11-30080-KPN
11-30084-KPN
11-30086-KPN
11-30096-KPN
11-30098-KPN
11-30104-KPN
11-30115-KPN

11-30132-KPN
11-30143-KPN
11-30144-KPN

MEMORANDUM AND ORDER TO SHOW CAUSE
May 31, 2011
NEIMAN U.S.M.J.
The court this day, in yet another appeal of a decision by the Commissioner of
the Social Security Administration denying disability benefits under the Social Security
Disability Insurance (“SSDI”) and/or the Supplemental Security Income (“SSI”)
programs, has remanded the matter for a new hearing before an administrative law
judge. See Cotley v. Astrue, Civil Action No. 10-30085-KPN. In doing so, the court
noted that the case would have been well-served had it been reviewed first by the
Decision Review Board (“DRB”), which had the authority to review the decision of the
administrative law judge. Instead, the DRB, as has been all too common, simply let the
ninety day review period expire, thereby permitting Mr. Cotley to appeal the
administrative law judge’s denial of his benefits to this court. That failure on the part of
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the DRB has caused this court to consider whether some, if not all, of the other pending
cases before it in which claimants are similarly situated, all of whom are named in the
caption above, should be remanded for further administrative appellate review. For the
reasons which follow, the court has decided to have the Commissioner show cause why
such remands would not be appropriate.
I. STANDARD ADMINISTRATIVE ADJUDICATIVE PROCESS
Under the standard system for adjudicating disability claims, a claimant who is
denied SSI or SSDI disability benefits can request a reconsideration. This process
involves a review of the claimant’s file, usually without his or her presence. If still
denied, the claimant can ask for a hearing in front of an administrative law judge. After
the hearing, the judge will issue a decision, and the claimant will receive a letter and
copy of the decision. The claimant, if still dissatisfied, can ask for a review by the Social
Security Administration’s Appeals Council. The Appeals Council can deny review of the
case, decide the case itself, or remand for further review. The Appeals Council will
review cases if the administrative law judge appears to have abused his or her
discretion, if there was an error of law, if the decision was not supported by substantial
evidence, or if there is a broad policy or procedural issue that may affect the public
interest; the Appeals Council may also review a case because it received new and
material evidence and the decision is contrary to the weight of all the evidence in the
record. If the Appeals Council rules adversely, the claimant may file suit in federal
court.
II. REGION I DECISION REVIEW BOARD
Effective August 1, 2006, a new administrative review process was introduced in
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Region I of the Social Security Administration (including Massachusetts, Connecticut,
Maine, New Hampshire, Rhode Island, and Vermont) with the ostensible goal of
improving the accuracy, consistency, and timeliness of decision-making throughout the
disability determination process. See 20 C.F.R. § 405.420; The Administrative Review
Process for Adjudicating Initial Disability Claims, 71 Fed. Reg. 16424 (March 31, 2006).
The new process arose as a result of the significant growth in the number of disability
beneficiaries in the country.1 Region I was to be a testing ground for a gradual roll-out
across the country. As described below, one of the main reasons for its gradual
implementation was a concern about the possible increase in the number of cases that
would be appealed to the federal courts.
The new system, labeled the Disability Service Improvement (hereinafter “DSI”)
process, contained some significant changes to the standard administrative review
process described above, primarily the eventual elimination of the Appeals Council
(save for reviews of administrative law judges’ decisions that involved non-disability
claims and issues) and the creation of the DRB. See 20 C.F.R. §§ 405.401-450. The
DRB was to be comprised of administrative law judges and administrative appeal
judges appointed by the Commissioner of Social Security.2

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"In January 2005, nearly eight million disabled workers and their dependents
received [disability] benefits, double the number of beneficiaries in 1985," and "[n]early
six million disabled adults and children received SSI disability payments, more than
double the number in 1985.” 71 Fed. Reg. at 16424. Also, in 2005, Social Security
Administration administrative law judges processed approximately 500,000 hearings.
Id.
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Other changes included implementing a new electronic disability system,
establishing a new, integrated, and more comprehensive quality system, enhancing
management information, updating medical and vocational policy, strengthening the
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The DRB’s standard of review reflected that of the Appeals Council, namely, the
application of a substantial evidence standard to questions of fact. A major difference
between the DRB and the Appeals Council, however, was a claimant’s inability to
appeal an administrative law judge’s decision to the DRB, as could be done with the
Appeals Council. Rather, the DRB itself was to have the discretion to select a claim for
review. If a claim was selected, the claimant was to be notified at the same time he or
she received the administrative law judge’s decision. Although the manner of selection
was not made clear by the implementing regulations, the DRB was authorized to review
both allowances and denials. In any event, the claimant was to be told that, if the DRB
did not act within ninety days, the decision of the administrative law judge would
become final. If the DRB itself issued a decision, however, that would become the final
decision of the Commissioner. The notice from the DRB would also instruct a claimant,
if dissatisfied, how to seek judicial review.
III. EFFECT ON THE DISTRICT OF MASSACHUSETTS
Since the implementation of this DRB system, the number of appeals filed in the
Western Division of the District of Massachusetts has increased dramatically. In
calendar year 2007, there were approximately seventeen Social Security cases (with
code 863 or 864 on the civil cover sheet); this compares to twenty in the previous
calendar year. This total increased to twenty-three in 2008, to forty-nine in 2009, and to
seventy-two in 2010. These numbers represent an increase of such cases as a
percentage of all civil cases filed in this division from 8% in 2007, to 10% in 2008, to

ability to address policy issues, and implementing new work opportunity initiatives. 71
Fed. Reg. at 16424.
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20% in 2009, and to 28% in 2010. This trend has gone unabated in the current
calendar year as well.
The situation in the Western Division has been particularly acute when compared
to the other two divisions in this District. While the yearly number of comparable cases
has also increased in both the Eastern and Central Divisions from 2007 through 2010
(from 48 to 79 in the Eastern Division and from 11 to 18 in the Central Division), the
percentage of civil filings represented by such disability cases in these two divisions
during this same time period -- increasing from 2% to 7% in the Eastern Division and
from 3% to 11% in the Central Division -- comes nowhere near the percentage increase
in the Western Division.3
The cause of this significant growth in Social Security disability filings is unclear.
A recent news article in the Washington Post suggested that claims for disability
benefits had grown in recent years as “the result of baby boomer retirements and high
unemployment,” noting that the Social Security Administration had received 10 million
new claims in 2009, up from 8.2 million in 2004. See Lisa Rein, Claims for Social
Security Benefits on the Rise, WASHINGTON POST, March 28, 2011, available at
http://www.washingtonpost.com/politics/claims-for-social-security-benefits-on-the-rise/2
011/03/28/AFTPNgrB_story.html (last visited May 27, 2011). And, of course, there may
be other factors which have affected the Western Division in particular, e.g., the nature
and skills of the Social Security bar and the “reversal rate” of administrative law judges

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The court acknowledges and appreciates the role of the Commissioner in
deciding after his own review, through counsel, that a number of cases filed in this
Division should be remanded without further intervention by the court.
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situated in this division, i.e., the percentage of appeals approved by an administrative
law judge. See THE NEWS JOURNAL, Shut Out of Social Security, available at
http://php.delawareonline.com/federal/alj.php (last visited May 27, 2011). Yet whatever
other factors may be at play, there is little doubt that the new DRB process has played a
significant and, in the court’s view, troubling role.
The evident purpose of the DRB plan was to give claimants a “final decision”
much sooner than was previously the case and, thereby, speed up the administrative
process. In this vein, the Washington Post article cited above noted that by August 9,
2008, an administrative appeal took an average of 532 days to resolve but, with the
hiring of new administrative law judges and support staff, the process had sped up,
reducing the time to 390 days. What has actually happened, however, is that many
more cases, often with less merit, are being filed in this court; thus, even though
“selected” for review by the DRB, practically all of the cases presently before this court
have not been reviewed by the DRB. Of the thirty-one cases presently pending before
the undersigned (some of which are also awaiting consents or declinations pursuant to
28 U.S.C. § 636(c)), only one, for some reason, appears to be an appeal from the
Appeals Council. (See Civil Action No. 10-30097-KPN.) Of the thirty cases arising out
of the DRB process, three (Civil Action Nos. 11-30007-KPN, 11-30021-KPN, and 113041-KPN) appear to reflect specific affirmations by the DRB of the administrative law
judges’ decisions. The remaining twenty-seven cases, all of which are subject to this
order, appear to have arrived at this forum after the DRB failed to act within its ninetyday review period, although this particular process can not yet be confirmed with regard

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to some of the more recently filed cases.4
In short, most of the claimants with cases presently pending before this court are
routinely receiving notices which simply say that “[t]he Decision Review Board did not
complete its review of your claim during the time allowed” and “[t]herefore, the
Administrative Law Judge’s decision has become the final decision of the Social
Security Administration.” In contrast, a claimant who appeals, unsuccessfully, to the
Appeals Council at least has the appeal acknowledged, even if found to lack merit.
Absent such a finding by the DRB, claimants, in the court’s opinion, often have little
choice but to seek at least one further appeal.
IV. RECOGNITION OF THE PROBLEM
It was not as if the problem of increased filings in the federal courts was not
predicted or unknown to the Social Security Administration. At the time it published the
DRB regulations in 2006, the Social Security Administration recognized “that there are
many who are deeply concerned that elimination of the Appeals Council and the right to
appeal, which we provide in this rule, may have a debilitating effect on claimants and
result in an increased burden on the federal courts.” 71 Fed. Reg. at 16438. The Social
Security Administration also noted at the time that, “[a]lthough some commentators
agreed that the Appeals Council should be eliminated, many opposed the proposal,
believing that the Appeals Council provides a reasoned, timely, and consistent response

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As best this court can determine, the thirty-nine presently pending Social
Security and SSI cases before District Judge Michael A. Ponsor show a similar pattern.
Only two appear to be appeals from the Appeals Council itself. Of the remaining thirtyseven arising out of the DRB process, all but six appear to have been filed after the
DRB failed to review the case within its ninety-day review period.
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to claimants and intercepts a large number of claims that would not withstand district
court review.” Id. “Still other commentators,” the Social Security Administration added,
”noted that eliminating the claimant’s right to request [administrative] review would
increase the likelihood that erroneous administrative law judge decisions would not be
reviewed, because the claimant’s representative would be unable to alert the DRB to
subtle problems with the administrative law judge’s decision that may be overlooked in a
screening process.” Id. The Social Security Administration also acknowledged in
particular that the Administrative Office of the United States Courts expressed concerns
that “the shift of the Appeals Council’s functions to the DRB would have an adverse
effect on the Federal Court System and would result in an increase in the number of
cases appealed to the Federal courts.” Id. at 16439.5
As the growing number of cases filed in this District indicates, the concerns
voiced by the Administrative Office of the United States Court and by others have been
borne out. In this regard, the September 27, 2005 testimony of District Judge Harold D.
McKibben, chair of the Judicial Conference Committee on Federal-State Jurisdiction,
before the House Ways and Means Subcommittee on Social Security, was prescient.
See Social Security Disability Determination Process Improvements: Hearing Before the

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A law review article published soon after the implementation of the DRB
system, although generally supportive, also acknowledged that the change “may result
in unnecessary appeals to federal district court, or more distressingly, may lead to many
[administrative law judge] decisions not being reviewed at all where the claimant lacks
the means to proceed to court.” Frank S. Bloch, Jeffrey S. Lubbers & Paul R. Verkuil,
The Social Security Administration’s New Disability Adjudication Rules: A Significant
and Promising Reform, 92 CORNELL L. REV. 235, 239 (2007). See also Robert E. Rains,
A Response to Bloch, Lubbers & Verkuil’s The Social Security Administration’s New
Disability Adjudication Rules: A Cause for Optimism . . . and Concern, 92 CORNELL L.
REV. 249, 252 (2007).
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Subcomm. on Human Resources and the Subcomm. on Social Security of the H.
Comm. on Ways and Means, 109th Cong., 2005 WL 2376204 (F.D.C.H.) (2005)
(statement of Hon. Howard D. McKibben, Chair, Judicial Conf. Comm.), Judge
McKibben testified that the elimination of the Appeals Council and the creation of the
Decision Review Board might actually result “in more costs and further delays for
claimants because it merely shifts the time for considering such claims from the
administrative process to the courts” and “could also greatly expand the number of
appeals to the federal courts.” Id. In addition, relying on information provided by the
Social Security Administration itself (concerning the number of requests for review by
the Appeals Council, together with percentages of outright reversals and remands
without the need for further review by the federal courts), Judge McKibben testified that
“the Appeals Council appears to provide a helpful screening function.” Id. “While the
judiciary recognizes that several factors might explain why the remainder of the
claimants choose not to seek review in federal court,” Judge McKibben continued, “the
existence of a right to seek administrative appellate review appears to result in a large
majority of claimants not seeking judicial review following receipt of the Appeals Council
final decision.” Id. In short, it is one thing for an administrative body (in the form of the
Appeals Council) to rule on the merits; it is quite another for an administrative body (in
the form of the DRB) to do nothing other than pass on further review to the federal
courts.
Despite the various concerns voiced by Judge McKibben and others, the Social
Security Administration predicted that the DRB would “perform more effectively than the
Appeals Council and provide better relief for claimants, in that we can identify the most
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error-prone claims.” 71 Fed. Reg. at 16438. Even more expansively, the Social
Security Administration posited that “[n]either the Social Security Act nor due process
requires further opportunities for administrative review” beyond the administrative law
judge level. Id. Nonetheless, the Social Security Administration decided to implement a
“gradual rollout to minimize the impact on the judiciary.” Id. It also chose to begin the
new process in Region I, which it described as “one of the smallest regions.” Id.
Finally, the Social Security Administration promised that the DRB would “monitor
administrative law judge decisions in order to identify trends or developments that we
need to address.” Id. at 16440.
V. ELIMINATION OF THE DRB
The Social Security Administration’s confidence in the DRB process appears to
have quickly faded. In late 2008, as a matter of “major importance,” it proposed the
elimination of the DRB portion of its previously enacted regulations. See Regulatory
Practices as part of its Regulatory Plan, 73 Fed. Reg. 71280, 71285 (November 24,
2008). However, it was not until a year later, that it published a notice of proposed rules
eliminating the DSI process and returning Region I to the rules used to adjudicate
disability claims in the rest of the country. See Reestablishing Uniform National
Disability Adjudication Provisions, 74 Fed. Reg. 63688 (December 4, 2009). It took
nearly another year and a half for the Social Security Administration to publish final
rules eliminating the DRB effective June 13, 2011. See 76 Fed. Reg. 24802 (May 3,
2011).
The Social Security Administration explained this recent change as follows:
[t]he DRB has not functioned as we originally intended; its
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workload has grown quickly and become overwhelming. We
had intended to use an automatic predictive model to select the
most error-prone cases for DRB review. However, because we
were unable to implement this prediction model, the DRB
processed 100% of the unfavorable and partially favorable
decisions, requiring significantly more resources than we had
anticipated.
Id. at 24803. It is not entirely clear what is meant by the assertion that the DRB
“processed” 100% of the unfavorable and partially favorable decisions of administrative
law judges; the fact that the DRB, as described, appears to have let the ninety-day
review period expire in the vast majority of cases hardly amounts to any “process”
whatsoever. In any event, the new regulations provide that the Social Security
Administration intends to “transfer all cases pending before the DRB to the Appeals
Council” and treat those cases as if the claimants had requested Appeals Council
review of the hearing decision. Id. Moreover, in order to allay concerns about longer
processing times at the Appeals Council, the Social Security Administration agreed to
“put the transferred cases at the front of the Appeals Council queue.” Id. at 24804.
These regulatory changes will likely be welcomed by claimants whose cases are
presently subject to DRB review.
VI. EXHAUSTION OF REMEDIES AND JUDICIAL ECONOMY
The recent regulatory changes, however, do not assist the scores of cases filed
in this court with inadequate DRB review in the two and one-half years since the Social
Security Administration decided that the DRB should be eliminated. The DRB appears
to have been a mere chimera of procedural fairness, a poor substitute for the Appeals
Council, and a plan fatal in its design in that it all but eliminated the ability of the Social
Security Administration to properly review cases. As a result, in the court’s view, the
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DRB process is the primary reason for the significantly increased volume of SSDI and
SSI disability cases filed here in the last several years and presently pending.
The problems created by the failure of the DRB to provide adequate review
stands at the crossroads of the doctrines of exhaustion of remedies and judicial
economy. As then Circuit Judge Stephen Breyer explained in Ezratty v. Commonwealth
of Puerto Rico, the exhaustion doctrine serves important interests:
It allows the agency to develop a factual record, to apply its
expertise to a problem, to exercise its discretion, and to correct
its own mistakes, all before a court will intervene. Insofar as
specialized administrative understanding is important, the
doctrine thereby promotes accurate results, not only at the
agency level, but also by allowing more informed judicial
review. By limiting judicial interruption of agency proceedings,
the doctrine can encourage expeditious decision making.
Insofar as Congress has provided that an agency will decide a
matter in the first instance, to apply the doctrine normally
furthers specific Congressional intent. And, as a general
matter, the doctrine promotes a sensible division of tasks
between the agency and the court: litigants are discouraged
from weakening the position of the agency by flouting its
processes, while court resources are reserved for dealing
primarily with those matters which could not be resolved
administratively. Thus, the doctrine serves interests of
accuracy, efficiency, agency autonomy and judicial economy.
648 F.2d 770, 774-75 (1st Cir. 1981) (citing K. DAVIS, ADMINISTRATIVE LAW TREATISE
§ 20.01 et seq. (1958 ed. & Supp. 1965 & Administrative Law of the Seventies); LOUIS L.
JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 424-458 (1965); Fuchs,
Prerequisites to Judicial Review of Administrative Agency Action, 51 IND. L. J. 819,
859-69 (1976)).
To be sure, Ezratty concerned the Education for All Handicapped Children Act of
1975, 20 U.S.C. § 1401 et. seq., not the SSDI and SSI disability programs under the

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Social Security Act. Ezratty, however, did involve an agency, the Puerto Rico
Department of Education, which itself “prevented administrative remedies from being
exhausted.” Ezratty, 648 F.2d at 775. That appears to be the situation here as well. In
particular, the agency in Ezratty had refused plaintiffs’ request for further agency action
and had “provide[d] no justification for refusing plaintiffs the procedures to which the
statute and regulations entitled them.” Id. In such circumstances, Judge Breyer
indicated, the court would normally “refuse to return the case to the agency. To send
the case back,” he continued, “would seem unfair to the plaintiffs and might seem to
condone the agency's violations of the law's procedural requirements.” Id.
Nevertheless, the court upheld the trial court’s dismissal of the case because,
presumably, the agency was prepared to make the administrative remedies available to
the plaintiffs. Id.
There are features of the Ezratty case which are distinguishable from the cases
at bar. Nonetheless, Judge Breyer’s analysis provides important guidance. First,
exhaustion is not merely the responsibility of a claimant; an administrative agency has
an equally important obligation to ensure that procedural remedies are indeed made
available to exhaust. Here, for the reasons described, the court is not convinced that
the Social Security Administration fulfilled its appellate administrative obligations.
Second, Ezratty speaks to the division of tasks between administrative agencies and
the courts; only where agencies properly fulfill their functions can courts best resolve
any lingering disputes. Here, too, the court believes that the federal courts have had
their judicial role compromised by the Social Security Administration’s failure to ensure
that an administrative appellate panel was available to properly screen cases. Finally,
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Ezratty is important to the extent it demonstrates how an administrative agency can
remedy its mistakes in individual cases by according proper administrative processes.
See also Portela-Gonzalez v. Sec’y of the Navy, 109 F.3d 74, 79 (1st Cir. 1997)
(“[i]nsisting on exhaustion forces parties to take administrative proceedings seriously,
allows administrative agencies an opportunity to correct their own errors, and potentially
avoids the need for judicial involvement altogether.”).
CONCLUSION
The Commissioner is hereby ORDERED to show cause in writing by June 21,
2011, why some if not all of the cases subject to this order should not be remanded for
further review by the Appeals Council so as to accord these claimants the administrative
appellate review they would have received had the DRB process been successfully
implemented. The attorneys representing the identified claimants shall, in turn, set forth
in writing their individual views with regard to this show cause order no later than June
28, 2011. A hearing on this matter shall take place on July 7, 2011, at 2:00 p.m.
IT IS SO ORDERED.
DATED: May 31, 2011
/s/ Kenneth P. Neiman
KENNETH P. NEIMAN
U.S. Magistrate Judge

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