Stephen Smith on Judicial Review of Social Security Disability Determinations

Professor Stephen Smith has published “Asking Too Much: The Ninth Circuit’s Erroneous Review of Social Security Disability Determinations,” 24 Lewis & Clark L. Rev. Online 1 (2020). In Garrison v. Colvin (759 F.3d 995 (9th Cir. 2014)), the U.S. Court of Appeals for the Ninth Circuit adopted a unique and more demanding approach to judicial review of certain Social Security Administration (SSA) disability determinations, requiring that the SSA provide “clear and convincing” reasons for certain findings. In sum, Professor Smith argues that “In the SSA context, the Ninth Circuit’s heightened standard is not only wasteful in its disregard of lower court decision making, it is contrary to Congress’s wishes.” Here is the article’s abstract: “Disability determinations made by the Social Security Administration’s administrative law judges are subject to judicial review by Article III courts. By statute, these courts apply the “substantial evidence” standard of review on appeal from the agency. The substantial evidence standard is a forgiving one that defers to the findings of the agency. But the Ninth Circuit Court of Appeals has modified this standard. It now reviews certain categories of SSA findings not only for substantial evidence, but for support by “clear and convincing reasons.” This heightened standard of review is facially at odds with the statutorily mandated substantial evidence standard. It also undercuts the principle of deference given to the initial fact finder by the substantial evidence standard of review.”