Sunday, June 19, 2011

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.

3 comments:

  1. Jeffrey Baird on FACEBOOK:
    I still can't operate your blog so I will comment here. Congress is not going in with a fair mind. They want to root out high pay rates. If an ALJ is tough, but reluctantly follows all the rules, the pay rate would be about 75%, with some dismissals. Congress will regard 75% as too high. We will hear calls to pay only the "truly disabled," which I take it does not mean 50 years old, limited to sedentary, HS education, no skills.

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  2. Reinhard Karl Meier on FACEBOOK:
    Humanity tends to be reactive rather than proactive, sadly.

    ReplyDelete
  3. Lawrence, it seems like social security benefit cases should be black and white, I didn't know that there could be some discrepancies based on specific judges. I suppose that's why it's important to get an attorney who specializes in these issues, there's just so much information to consider. Hopefully these types of issues can be clear and evident so people who need help can receive it. http://www.stephendunniganlaw.com/social-security-disability/

    ReplyDelete

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