The 11 Percent ALJ

The publication of the ALJ database has been on my mind over the New Year's holiday weekend. It has been a unique opportunity for us Social Security disability lawyers to compare our impressions of the ALJs we see against an objective standard.

For example, I learned that a judge whom I consider to be a tough judge had the same claim allowance rate as a judge from another state whom I considered to be a more claimant-friendly judge. I am still thinking about that.

As I explored the database, I was shocked to learn that there were Social Security administrative law judges with approval rates as low as 11%. {update: This was in 2007, which is the most recent year for which complete statistics are available.}

I am very troubled by that statistic. Somewhere there is a judge, deciding hundreds of Social Security claims a year, who made fully or partially favorable decisions in just 11 claims out of a hundred. 11 out of 100! Meanwhile, the overwhelming majority of this judge's colleagues have claim approval rates somewhere well north of 50%.

So I have been thinking: what sort of a person grants just 11 claims out of a hundred? 

Now, this is not Page Six. I am not going to name names. But I wanted to learn more about how a person gets to a place where only 11 claims out of 100 are granted. Because this is completely contrary to my entire experience with Social Security disability hearings with our administrative law judges here in New England.

I searched online, and found a comment this judge posted on a public website just four months ago, in September of 2008. In response to a short news story regarding the backlog of Social Security disability claims, the 11 Percent ALJ wrote:

I am a Marine combat veteran of Vietnam and I have been a lawyer for more than 23 years. I have represented clients ranging from small corporations to an elected official facing removal for poor decisions, to indigent parents whose children were removed by state authorities, to families torn by a divorce, to auto accident victims and injured workers seeking workers compensation benefits, to criminal defendants. In none of these arenas have I seen more abuse of the legal process than in my last 4 years as a Social Security disability judge. It is a rather classical example of a well-intentioned government program to assist the weakest members of our society transformed into a cash-cow for the avaricious among us. Occasionally - but rarely - do I see a claimant with an entirely fraudulent claim. The clear majority of the claimants who appear before me do have some physical or mental impairment. The real issue is whether that person can meet the definition of "disability" which was intentionally set very high by Congress to provide income to only those whose injuries/illnesses are very debilitating. Unfortunately, that very high bar is approached with deception and falsification in many cases. Some doctors go overboard on diagnoses and treatment because they sense the "pot of gold" in having a fairly young patient (on Medicare for many years to come) with a reliable source of payment for constant treatment. Lawyers and other non-attorney representative can receive fees as a percentage of the back benefits awarded to a claimant. Once a claimant has a legal representative, one can actually track how the alleged impairments become much worse, with new impairments and symptoms added as the case matures. A judge with some experience can almost recite verbatim the same story we hear from virtually EVERY claimant, suggesting they have received training from the national organization of the claimant's attorneys. The government is complicit in this boondoggle, because the Social Security Administration actually publishes lists of symptoms for various impairments in the form of rules for judges to follow. Is it any wonder we hear those lists of symptoms at almost every hearing? For 15 of the past 16 years congress has funded the Social Security disability program at amounts below the amount requested by the president. In the past few years, the growing backlog has been discovered by the mainstream media and suddenly there is a major push to eliminate the backlog. Not a moment too soon, as we are seeing the advance wave of the "baby boomer" generation, those who claim early disability to avoid waiting for their statutory retirement age to come up. Judge Haberman was correct, and Commissioner Astrue was not completely candid in his statement that he doesn't tell judges which way to decide a case. SSA places enormous pressure on the judges to eliminate the backlog by granting benefits to as many claimants as possible. Certainly not by direct means, but by many, many indirect means. Because a judge who denies a claim must provide an extensive explanation for the reasons (and nearly every claimant alleges the symptoms embodied in the published SSA rules) a denial Decision is much more complicated and time-consuming to write, taking 2 to 3 times as long as Decison granting benefits. Yet at one point, Mr. Astrue was threatening job action against any judge who did not meet an arbitrary number of dispositions per year. Mr. Astrue has been a lawyer for a long time; he must certainly be aware that the congress created administrative judges in the Social Security Act and in the Administrative Procedures Act. In those laws, congress specifically forbid administrative agencies (such as SSA) from taking any action against administrative judges on the grounds of their decisons or acts of judicial discretion in managing cases. Just as the framers of the U.S. Constitution divided political powers into three branches to prevent the "political passions of the day" from taking this government down unwise paths, the congress created a form of "separation of powers" between the government agencies and their own administrative judges. Mr. Astrue knows that, but because of the political pressure on him to eliminate the backlog, he is blaming everything on the administrative judges, and deliberately attempting to circumvent the controls congress emplaced for exactly such political circumstances as these at present. Unfortunately, as in most political controversies, Truth is the first casualty. Mr. Astrue speaks loudly and often about the judge who "hasn't held a hearing in X years" or about the "judges who dispose of 40 cases per year." Unfortunately, Mr. Astrue refuses to identify those persons (purportedly because of "privacy issues") and there may be valid reasons for such situations. For example, judges who are appointed to management positons in this agency are stil counted as "judges" even though they may do few -if any - hearings. Judges who are union officials may be involved in extensive litigation against the agency (enforcing the intent of congress against agency behavior) and may spend relatively time disposing of disability cases. We can only speculate because Mr. Astrue will not provide the necessary information to back up his accusations. Finally, some truth may be discovered by congress itself. The General Accountability Office (an investigative agency of congress) was tasked to look into the performance of the SS disability program. The conclusion was that there were some judges who were less productive, but that it is impossible to tell why, because the cases vary to the extreme in the number of issues which must be considered and decided by the judge. An extremely difficult case would naturally take much longer than a relatively routine case. The one GAO finding Mr. Astrud doesn't want the public to hear about is that the GAO found the chief reason for the backlog is agency mismanagement "for decades" and that the SSA is still using business practices which were discredited as ineffective "years ago." That may be the real reason Mr. Astrue wishes to place the blame on the administrative judges.

What sort of a person grants just 11 claims out of a hundred?

Question answered.

Comments

[Bob Kraft]

Thank you for exposing this conduct Gordon. We have tough judges in our jurisdiction, but this is just overwhelmingly mean-spirited. How sad that the luck of the draw in getting an ALJ can cause such life-changing tragedy for the truly disabled.

Keep fighting the good fight.

Bob Kraft
http://www.kraftlaw.com

[Norman R. James]

Just discovered your site. Excellent articles! Thanks.