Nonacquiescence of Federal Court Decision by Social Security Confuses Me, What About You?

You have struggled with this case for years, now finally you have had a federal court render judgment in your favor adopting your interpretation of the Social Security law. Equipped with the decision, you are ready to use it as stare decisis in another case you have pending before an Administrative Law Judge (ALJ).


You try your case before the ALJ, and you submit a brief covering the subject and referencing your recent win in federal court. You wait to get the decision, knowing the ALJ will reference your case and decide the present matter in your client’s behalf. The decision arrives and the ALJ has ignored your case and decided the case against your client ignoring the exact issue the federal court had previously ruled upon. Social Security/ALJ just would not acquiescence and accept the holding of the federal court.


What is going on? Federal Court decisions are not something a person or federal agency should ignore, right?


Nonacquiescence is an administrative agency’s refusal to follow federal court decisions in subsequent cases.¹ This appears to be a product of administrative law. Administrative law is a code based system normally without any role of common law. As such, when a court enters a decision challenging what has been decided in the administrative process friction (can arise) arises between the agency and the courts.


The Social Security Administration appears to have a history of not following federal court decisions with which it disagrees. Further, the administration is/can be influenced by the current political climate.


Take for example the 1980 Congress which passed the Social Security Act of 1980. The law required review of all current disability benefit recipients² It was a product of concern over the solvency of social security disability program. The Congress set out a call for fiscal austerity. The Secretary of Health and Human Services began to review eligibility of recipients of disability benefits under the social security disability insurance program (SSDI) and the supplemental security income (SSI) program³


This set in motion an accelerated review. Social Security tightened eligibility requirements and placed a burden placed upon beneficiaries, who were receiving benefits, to prove continuing eligibility. This policy resulted in many discontinuations of benefits to a beneficiary whose mental or physical condition had not improved since their initial award of benefits.


The policies that lead to beneficiaries losing benefits lead to attorneys for beneficiaries who were losing benefits to take the issue into the Federal Court system. The federal judiciary responded to the Secretary’s action by finding them inconsistent with the Social Security Act. The Federal Courts were not pleased with a policy under which their decisions were ignored. The Secretary faced with the judicial activism in this area reacted by accepting the result in the case in which the ruling arose, but not considering the decision as a precedent for other cases, dealing with the same issue. This policy took place even though the Secretary did not appeal the court’s decision with which the Secretary objected.⁴


There has been a power struggle between Social Security and the federal court system that has been on going. Social Security wanting dominance over its area of the law and the Federal Courts who believe it is their duty to interpret the law. Over time, Social Security began to recognize federal court decision impacting the implementation of social security disability act. It never was a full acceptance of the court's decisions affecting the rules and regulation of Social Security. Social security limited some court decision only to the case in which it arose. It recognized federal court of appeals cases which it determined conflicted with its own interpretation of either a provision of the act or the agency's regulation as applicable levels of the administrative review process within a particular circuit.⁵ It does appear to accept decisions of the U.S. Supreme Court, carte blanche.


Presently Social Security’s position is set forth at 20 CFR § 416.1485 Application of circuit court law.


“The procedures which follow apply to administrative determinations or decisions on claims involving the application of circuit court law.
(a) General. We will apply a holding in a United States Court of Appeals decision that we determine conflicts with our interpretation of a provision of the Social Security Act or regulations unless the Government seeks further judicial review of that decision or we relitigate the issue presented in the decision in accordance with paragraphs (c) and (d) of this section. We will apply the holding to claims at all levels of the administrative review process within the applicable circuit unless the holding, by its nature, applies only at certain levels of adjudication.
(b) Issuance of an Acquiescence Ruling. When we determine that a United States Court of Appeals holding conflicts with our interpretation of a provision of the Social Security Act or regulations and the Government does not seek further judicial review or is unsuccessful on further review, we will issue a Social Security Acquiescence Ruling. The Acquiescence Ruling will describe the administrative case and the court decision, identify the issue(s) involved, and explain how we will apply the holding, including, as necessary, how the holding relates to other decisions within the applicable circuit…”


It is important to note that acquiescence rulings do not bear the full weight of an actual regulation or law and is only binding within the circuit where the ruling took place.(There are view few acquiescence ruling approximately 43 in number).
The ALJ that hears a case derives authority from the Commissioner of Social Security.⁶ Without a directive from the Commissioner or acquiescence ruling, the ALJ must follow the agency's rules and regulations ignoring federal court decisions to the contrary.
What causes me difficulty in understanding the acquiescence and nonaquiescence is found in 42 USC § 405(g)⁷ I am not a legal scholar, but it appears that the federal court is limited in its review of a decision of an ALJ to consider only three questions, the last of which is 'is the agency's interpretation of its regulation consistent with what Congress intended.'
If the court's decision on this third questions clarifies, changes or reverses the Commissioner's interpretation of its regulation, shouldn't the court's decision be binding on the Commissioner?
Isn't that that exactly what was envisioned as the purpose for the court from the founding of our court system; determine the meaning of the law?
It appears that if you have a strong issue, you should still follow up with an appeal into district or the circuit court of appeals. If you win at the district level, you have done one particular client a great service. If you win at the court of appeals level, you have maybe done a benefit for all similarly situated claimants in your circuit.

1A memorandum to all ALJs in the Department of Health and Human Services provides in party, “ALJs are responsible for apply the Secretary’s policies and guidelines regardless of court decision below the level of the Supreme Court.” Memorandum from Louis B. Hays, Associated Commissioner of the Office of Hearings and Appeals to all ALJs (Jan 7, 1981)

242 U.S.C. § 405 (1982)

3Johnson, Angela M. (1987) “The Social Security Administration’s Policy of Nonacquiescence”, Indiana Law Journal Vol 62, Issue 4, Article 4

4The Social Security Administration’s Policy of Nonacquiescence, supra

520 CFR §§ 404.985(a) (2012)

642 USC § 405(1) – “ Sec. 205. [42 U.S.C. 405] (a) The Commissioner of Social Security shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this title, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder. “

742 USC § 405(g) – “The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Commissioner of Social Security or a decision is rendered under subsection (b) hereof which is adverse to an individual who was a party to the hearing before the Commissioner of Social Security, because of failure of the claimant or such individual to submit proof in conformity with any regulation prescribed under subsection (a) hereof, the court shall review only the question of conformity with such regulations and the validity of such regulations.