More on Judges that Vary from the Norm

The House of Representatives Subcommittee on Social Security from the Ways and Means Committee sent an inquiry to the Office of Inspector General about Administrative Law Judges that say "yes" too often.  The Committee on Ways and Means summarizes the letter as asking five basic questions:

1. Revew ALJ workloads, adherence to Agency policies and procedures, and related monitoring.
2. Provide information on those ALJs who differ very significantly from their peers in their productivity or decisional outcomes.
3. Assess what factors may account for any variances in these rates, as well as how the ALJs obtained the cases they worked and whether they held hearings. The
4. Describe and assess the use and effectiveness of management controls regarding ALJ adherence to SSA policies and procedures and any constraints, including statutory limitations, which make it difficult to ensure ALJs’ adherence to those policies and procedures.
5. Describe and assess the effectiveness of SSA’s quality review system for ALJ decisions, including reviews by the Appeals Council and the Office of Quality Performance.

Workloads are just way too high.  The agency expects 700 dispositions per year, about 500 of them merits decisions.   The math is really quite simple.  Assume an ALJ works 52 weeks per year less 14 federal holidays and 5 weeks vacation.  That puts the wok load down to 45 weeks.  At 40 hours per week, that translates to 1800 hours.  Deduct from that amount one-half hour for each non-merits disposition (dismissals for late filing, res judicata, etc.) and that leaves 1700 hours fro 500 cases.  Best case scenario, 3.4 hours to read a 300 page record, decide what experts are needed for the hearing, hold the hearing, make a decision, review the written decision, and sign off.  Compare that 3.4 hours to the 10 to 20 hours that most attorneys put into a single case and we begjn to see a slant in the system,. 

There is a wide discrepancy between ALJs in the nation, within a region, and within a single office.  The Wall Street Journal reported the numbers.  Just focusing on merits decisions, the average over the last couple years hovers around 65% favorable decisions.  The standard deviation is about 18%, meaning that 68% of judges will pay between 47% and 83% of cases that they hear.  That means that an ALJ can grant 100% of cases and still fall within 2 standard deviations from the average, but there is a whole raft of judges that pay so few cases that they are are in the 2nd or less percentile.  If Congress wants to encourage the agency to push ALJ's towards a smaller deviation standard and with a possibllity of an ALJ falling outside of 2 standard deviations from the mean by paying too many and too few cases, bring it on.  There are far too many judges paying too few than there are two many cases. 

What factors cause the wide discrepancy and what can SSA do about it?  That brings up my pet peeve:  judges that just don't follow the law.  The reason that some judges don't pay deserving cases can be as varied as the size of the ALJ corps.  But judges that are bent on denying claims will look for reasons that violate the beneficial intent of the Social Security Act, the regulations, and agency policy every day.  The damage done to deserving individuals and families in pulling the rug out from beneath society's promise to help the disabled contravenes the idea of the social compact.  Disability benefits becomes an entitlement when people lose the ability to work - substantial gainful activity under the Act. 

I look forward to an investigation into the discrepancies and variances between judges hearing cases.  The public deserves predictability in cases.  It should not be a lottery but a fair and evenhanded adjudication that does not depend on which office or which judge in the office gets assigned.  As long as cases get heard by human beings we can expect mistakes.  That is human frailty rearing its head.  But 13% to 100% is too far of a stretch to believe that bias on both sides is not at issue.

Scalia Prepares to do a 360?

The Supreme Court decided Talk America, Inc. v. Michigan Bell on June 9, 2011.  The FCC says that the telephone company has to allow competitors to connect with their system so that we can call each other.  The rule is not in the statute or regulations, it is in an explanation of the regulations.  Just a plain old application of my pet peeve, Auer  v. Robbins.  Antonin Scalia wrote the opinion of the Court in Auer announcing the rule that when an agency interprets its own regulations that the Court will defer to that interpretation unless it is plainly erroneous.

Justice Scalia did not just sign on to the decision in Talk America.  Instead, Justice Scalia wrote a separate concurring opinion that says two things:  (1) he would reach the same decision in Talk America with Auer; and (2) he is ready to reconsider whether Auer should survive.  Hold on, my neck is sore from the snap.

Justice Scalia writes now "For while  I have in the past uncritically accepted that rule, I have become increasingly doubtful of its validity."  Uncritically accepted?  That is a true understatement.  It is more accurate that Justice Scalia has championed Auer deference.  Justice Scalia contrasts Auer with Chevron deference, saying that if Congress does not like the regulations that an agency promulgates it can amend the statute, preventing a complete merger of legislative and executive government functions.  Congress has an interest is keeping power and therefore does not have an incentive to issue vague statutes.

Justice Scalia contrasts the incentive of agencies to issue vague regulations so that they can do what they please in future adjudications.  That just is not a fair reading of the Auer doctrine.  The Courts do not defer to the agency's interpretation of a vague regulation when the agency is defending agency action.  The Courts defer to the agency's interpretation of a vague regulation when either the agency is not a party to the litigation or the interpretation is not part of the litigation itself, i.e. it was published independent of the litigation.  The stretch in the concurring opinion is unwarranted.

In closing out his concurrence, Justice Scalia states the Auer deference makes the Court's job easier and lends "certainty and predictability to the administrative process."  But that really is not the point.  While we want government to function and to be both certain and predictable, we want it for our own good and not for the good of either the agency or the courts.  The public needs to know what the statute and regulations mean. Unless we want the federal government to triple its annual output of statutory-regulatory morass, there will always exist from degree of ambiguity in what Congress and the agencies say.  We, as the public, need predictability and certainty in the administrative process.

Certainty and predictability have positive results for us.  Certainty and predictability decrease litigation.  You and I would not spends hundreds of thousands of dollars on a law suit when we both know the result.  Those cases get resolved quickly if they are ever filed.  But when the result is uncertain or unpredictable, then we proceed full steam ahead with litigation spending hundreds of thousands of dollars over garden variety ambiguity.

It would certainly be a different matter if the Court were persuaded that the presence of ambiguity in the regulations were an intentional subterfuge that Justice Scalia hints at in Talk America.  That would constitute a valid basis for rolling back Auer to curb administrative excess.  It comes down to "good faith."  If the agency's interpretation constitutes a good faith policy interpretation of a regulation that is vague, then the Court should defer to that interpretation.  If the agency's interpretation of a regulation is not a fair and considered judgment, then the Court ought not defer.  But that is already the law according to the Supremes.

For whatever the signal is about, Justice Scalia's hint that he might change Auer just adds to litigation and detracts from the certainty and predictability that we need to permit an ordering of our lives.  That is good for people and good for the economy.

Keyser v. Commissioner of SSA

In this Keyser v. Commissioner of SSA, the Ninth Circuit in 2-1 decision makes the "of course" decision that an Administrative Law Judge must follow the regulations.  The question is the use of the "psychiatric review techinique."   The Social Security Act and the regulations treat the existence of a disability claim based on mental impairments differently.  Part of the Act is the requirement that SSA make decsions on mental impairments with the input of a "qualified psychiatrist or psychologist."  42 U.S.C. sec. 421(h).  As the majority observes, the regulations impose the duty to do more in the regulations. 20 C.F.R. secs. 404.1520a(e); 419.920a(e).  The Administrative Law Judge did not obey the regulations.  Seems to me like a no-brainer but Tim Wilborn had to take this case to the Court of Appeals to get relief. 

So what is this case all about and why is there a dissent?  It comes down to the fallback position in a lot of the 12,000-14,000 Social Security cases that come before the Courts every year - harmless error.  The Commissioner in defending the case and the dissent urging her colleagues to find harmless error simply misunderstand the Congressional intent behind the need to treat mental impairments with a slightly different brush than non-mental impairments. 

Whether it is historical or current bias, we expect people to "snap out of it" or "get over it."  "Pull yourself up by your own bootstraps" becomes the refrain.  But for people with depression, anxiety, and a bipolar disorder, it frequently is not that simple.  Consider for instance the evidence that bipolar disorders are caused by a chemical imbalance in the brain.  Depression can result from or cause a chemical imbalance in the brain.  The person loses the ability to snap, get over, or pull herself up.  That takes us full circle -- Congress made the decision that SSA must treat mental impairments in a more careful manner.  The Commissioner takes that one step further and requires his ALJs to consider mental impairments in the same careful manner.  Only by following the psychiatric review technique can we know that the ALJ's conclusion about the severity of the mental impairment is factually supported. 

The ALJ corps seems to have difficulty in showing its work and the agency defends that sloppiness in court.  The administrative decision in this case wants to entertain the fiction that it is OK to defend sloppy by having someone else fill in the blanks later.  That is not what the Act or the regulations require.  Honestly, is it too much to ask for the decsions to follow the law? 

Bassett v. Astrue

The Seventh Circuit Court of Appeals decided Bassett v. Astrue on May 27, 2011.  The facts are simple enough.  Bassett alleged that he was disabled in April 2005.  The Administrative Law Judge found that he became disabled in December 2007.  Losing 32 months of benefits translates for most disability recipients to around $30,000.  For someone that has lost the ability to engage in work, that is a healthy chunk of change.

The ALJ found that Bassett could perform "light" work in 2005 but by the end of 2007 he had gotten worse and could perform only "sedentary" work.  Bassett turned 55 in December 2007.  The ALJ picked Bassett's birthday as the date that his ability to perform work changed from light to sedentary.  Because Social Security disability considers age, Bassett wins at 55 whether he could perform light or sedentary other unskilled work, only.  If Bassett were under 55 and limited to sedentary unskilled work, he wins disability benefits.  The United States District Court for the Central District of Illinois decided that the ALJ had made a mistake in picking Bassett's 55th birthday as the date that he could no longer perform light work but was limited to sedentary work.  Bassett won the court case.  Implicit in the decision of the District Court is the decision that no reasonable person would have picked Bassett's birthday as the change date because substantial evidence did not support that date.  In an abrupt about face, the District Court found that the ALJ and the attorneys defending the ALJ decision were substantially justified in making that determination, denying Bassett the right to recover his attorney fees from the government for forcing him to take such a silly ALJ decision to court.

 For most garden variety cases, taking a case like this to the Court of Appeals is a waste of time.  The Equal Access to Justice Act, signed into law by President Reagan, permits people and organizations within financial boundaries to recover attorney fees when the government either brings an action or defends an action without "substantial justification."  It originally paid for attorney fees at $70 per hour plus an optional COLA.  The reimbursement or payment rate is now $125 per hour plus COLA.  The COLA brings the rate up to around $175 per hour.  So let's assume that an attorney is pretty good and worth $300 per hour in Central Illinois.  The cost of taking up an appeal to the Circuit costs either the attorney on a contingency fee basis (Social Security disability cases are required to be contingency fee by law) or the client paying hourly $125 per hour. Taking 60 hours to research, write, and organize such an appeal is cheap.  Taking the case up on appeal will cost $7000 minimum in uncompensated time.  In my experience, most District Court cases for EAJA purposes are worth less than $6000, the case was not worth taking up.  Every once in a while, attorneys need to make an exception and take one of these bad boys out of the pile and appeal.  That is a "loss leader."  I will entertain the doubt that this was an intentional foray into making a point rather than a good business decision for the client or the attorney.

Since I gave the attorney the benefit of the doubt, I will similarly give the ALJ and the attorneys defending the ALJ the benefit of the doubt.  I assume that the ALJ had good reasons for believing that Bassett could perform light work at 52 years of age and therefore not disabled.  I further assume that by the time that Bassett turned 55, the evidence was clear that he was limited to sedentary work and disabled.  Because there is no mention of trauma in the Court's decision, I finally assume that Bassett had a slow progression of his problems that ate away at his ability to exert himself during the 32 months.

Giving the ALJ and the government lawyers every benefit of the doubt, the decision violated agency policy and commonsense.  Social Security Ruling 83-20 tells the ALJ to consult a medical expert to establish the onset date of disability in cases just like this one.  By picking Bassett's birthday, the ALJ violated agency policy.  This is not an articulation problem, it is a violation of the way that SSA interprets the law.  The ALJ doesn't get to interpret the law; the Commissioner gets to interpret the law.  Because the ALJ violated the ruling, the Seventh Circuit encouraged reckless and wanton decision-making by ALJs that ignore agency interpretation of the statute and regulations.

The ALJ also violated commonsense.  Certainly a birthday can be emotionally challenging as time marches on and the warranty card on our bodies falls further out of date.  But to find that this is the date that Bassett fell off the physical ability cliff is silly.  It is like an ALJ picking the date that a doctor took an x-ray for a longstanding chronic condition as the date that disability began.  This is also the kind of case where the ALJ should have engaged in the Solomonic decision to cut the baby in half.  The closer that Bassett got to age 55, the more lenient the ALJ should have looked at the evidence because that is exactly what the statute, regulations, and policy demand the ALJ to do.  Finally, it is just plain a slap in the claimant's face to pick his birthday as the onset date of disability when the deterioration was ongoing.

An ALJ has an obligation to pay every dime of benefits owed.  An ALJ has an obligation to deny every dime of benefits not owed.  When an ALJ asks whether he/she can legally and reasonably pay benefits in cases, people like Bassett get reasonable and trustworthy decisions early.  When an ALJ asks for every angle to deny cases, we get shoddy decisions like the administrative decision in this case.  A dumb decision by the ALJ and a tragic mistake by the Courts not to tell the ALJ and the attorneys that defend those decisions in court that this kind of frivolous decisions will not only get sent back for a re-do but also find the government paying at least part of the attorney fees incurred to correct the egregious error.