1/2010 SSA OIG report on Hearing Office Dispo Rate

[ALJD]

Thanks goes to Charle Hall's blog for bringing this up:

www.ssa.gov/oig/ADOBEPDF/A-07-10-21015.pdf

This report discusses some interesting issues related to ALJ as well as hearing office productivity. Happy reading.

[privateatty]

So Congress, now armed with this OIG report may feel they have the ammo to enact legislation to discipline ALJs and amend the APA. Cute.

SSA, the 300 lb. gorilla with 90% of all ALJs has some Judges who can't get it done. As a result there will be Judges at smaller Agencies who may in the future be subject to discipline that would be anathema (maybe in the extremis) to their judicial independence.

Wanna keep your job? Go along with the Commission on this one, Judge. BTW, this big corporation has a golf junket coming up....

[southeastalj]

I would not worry too much about an in-house report from OIG requested from a minority member of Congress focusing on only 14 underperforming ALJ's. the objective data in the report shows that ALJ productivity is increasing dramatically with the system as is. I'm not saying the report's conclusions are not troubling but, despite our fixation on the disability system, its not exactly high on Congress's radar. All Congress cares about is the overall backlog and its going down.

[ALJD]

On the plus side, none of us will ever need to keep track of our own stats again...

www.ssa.gov/appeals/DataSets/03_ALJ_Disp.html

Time to check up on your friends and colleagues?

[extang]

I have a constructive suggestion to try to reduce the backlog and generally simplify the disability program. The new standard of review for ALJ decisions should be whether they are as stupid as this IG report. The courts and the AC have a pretty tenuous grasp on substantial evidence, so they should be able to apply this new "stupidity" standard about as well as they apply the current one. It also seems eminently reasonable: these clowns, I mean agents or whatever they call themselves at OIG, presumably had weeks or months to produce this piece of s**t. By the standards articulated in the report, a single ALJ, having spent no more than an hour reviewing the records before the hearing [and I have to admit, I was especially touched by the footnote explaining why ALJs review the record before the hearings: I don't think I knew there actually was a reason why we reviewed them: I thought it was just that we were prima donnas trying to slow down the processs] and having a total of maybe two or at most three additional hours to hold a hearing, write instructions, and then edit a draft decision etc., should not be expected to produce a document less stupid than what it took a team of OIG clowns, I beg your pardon, agents or whatever [and I mean no offense to clowns] weeks or months to produce. Admittedly the measurement of sheer stupidity may be somewhat difficult, but those management geniuses at Falls Church [and hey, maybe they could get the crackerjack bozos at OIG to help them out] could figure out some way to do it; after all, they're so good at counting and measuring things.

[decadealj]

In forty years of practice, the folks who have least impressed me are people in IG and GC offices. I seriously doubt any of their practitioners could make a living anywhere else. I would put one of our AAs and SAs agaianst any three of them any day.

[southerner]

Some of us noted the numbers were a little low for some individuals, but keep in mind this is a window that is skewered. It covers numbers for October-December 2009. For those of use with fed backgrounds and beaucoup use-or-lose time, the snapshot may not be entrely accurate. I was not working inside my office since before Thanksgiving and had a 2-week travel docket, but fortunately had cases in the pipeline that the HOCALJ coud eSign and my numbers are still quite decent and expect to be above the norm for this FY again.

[stats]

Jan 22, 2010 21:15:28 GMT -5 ALJD said:

Time to check up on your friends and colleagues?

Well, since you asked for it. And don't bother trying to ban me. It's public information now and I'm leaving.

Attachments:

[1uv14]

[SSA, the 300 lb. gorilla with 90% of all ALJs has some Judges who can't get it done. As a result there will be Judges at smaller Agencies who may in the future be subject to discipline that would be anathema (maybe in the extremis) to their judicial independence.]

As one of the 14 ALJs in hot water, I would like to point out that there are regulations REQUIRING development and the effect of shoving the case out the door penalizes an ALJ for doing what s/he is sworn to do. My particular circuit even has caselaw requiring action of an ALJ when the representative is not very competent.

The Agency does NOT want to go before the MSPB or Fed cir. because they know that ALJs can provide substantive documentation on why a case takes time. This is not a guess, the Commissioner has admitted it. On a day I have to wade through only a thousand pages in the Evidentiary sections (need to look at other sections too, grasshopper) for 5 hearings, I outright celebrate. Typically the cases range from 300 to 450 pages in that section, alone. I also use Medical Experts in supplemental hearings. FIE!

I did not sign on to be a justice of the peace or a claims adjustor. I was an ALJ before this Commissioner came in with an attitude toward ALJs. Still not guessing: if you look hard enough, you can find his quotes. He is playing footsy with the politicians to set limits on ALJs and has utilized his OIG as foot soldiers to curtail prior contracts/agreements with AFGE and AALJ. If you can't see that this is being orchestrated, you haven't done your homework.

Extensive materials have been provided to OIG, stating the REGS and showing the necessity of reading the dern file. Don't bother, they are on message.

I don't think I can stomach the full 6 years under this Commissioner and I'll probably return to private practice. So don't fault me for not falling in with the goose-stepping. I took an oath to follow the regulations - and supposedly, so did he.

[fanning]

I do not think you can just say that the only people who complain are the bad ALJ's. The whole point of preserving ALJ independence under the APA is to avoid the idea of command interference from the agency that employs the ALJ. If an agency that employs an ALJ has unfettered disciplinary authority, what prevents them disciplining the ALJ for reaching the "wrong result."

[privateatty]

Jan 24, 2010 11:45:45 GMT -5 greatlakes said:

As with any employers including federal gov't, there is and will always be employees free-loading, i.e., doing the minimum, and getting away with it. Such employees always blame others to cover their lack of motivation. ALJs want judicial status while wanting employee protection through a union. Does US district court judges have a union? When management want accountability, ALJs front "judicial independence," incompetant staff and union. The majority of ALJs are hard-working and sincerely do care about oath. To them, this OIG report is no threat. To others, the three excuses outweigh the oath to serve the public. We must not forget that we are here as SERVANTS!!!

"Federal administrative law judges are not responsible to, or subject to the supervision or direction of employees or agents of the federal agency engaged in the performance of investigative or prosecution functions for the agency."

Wikipedia, "administrative law judge"

Now, why does SSA have a Union? Can I count the ways--(and I'm not even in the AALJ).

1. The Commish would no sooner respect the APA than a Union initiative.

2. That the judicial independence of the ALJ Corps is more imortant that any backlog.

3. That one size does not fit all, particularly given the demands 500 cases presents to some Judges given hard to quantify external factors.

4. That taking the time on a close case can mean the difference to sustenance and homelessness to families.

5. That taking on an aggressive administration, particularly in personnel actions can be too daunting to a single ALJ.

[1uv14]

"We must not forget that we are here as SERVANTS!!!" quote from greatlakes.

Of course ALJs are servants. We serve the law. Remember “nation of laws and not men?” An Agency must be bound by its regulations. So, if Commissioner Astrue sends out a memo directing us to ignore the third step of sequential evaluation, should we do it? I don’t think we can. It doesn’t mean he has no power over ALJs, but he’s not all powerful.

The APA itself is to prevent Agency over-reach. Now you can argue that expecting hearing review of an hour or less does not violate the APA. You may be right. However, it is certain that the Federal Courts expect more than procedural due process: notice and an opportunity to be heard. For example, the Polaski factors have now been incorporated into the Regs. I have already heard of a case remanded because the ALJ didn’t spend enough time on it. I suspect that there will be more of these in the wake of the OIG report stating Hearing Office Chief ALJs EXPECTED review of an hour or less.

Consider this:
“We will consider ALL evidence in your case record. . .” 20CFR1520(a)(3).
When a report from a medical source contains a conflict or ambiguity that must be resolved . . .”we will seek additional evidence or clarification from your medical source.” 20CFR1512(e).
If such information is not readily available or there is inability to seek clarification “we will ask you to attend one or more consultative examinations at our expense.” 20CFR404.1512(f).

Doing such will slow an ALJ down. An ALJ feeling the heat may be tempted to ignore these and press on to the next claimant. I’ve certainly experienced the temptation. However, the first claimant is as much entitled to due process as the second. I’m not saying that production shouldn’t be a factor. I’m saying that production shouldn’t be the major factor. Due process is. If the Commissioner believes that these Regulations are needless, then we all know what he should do.

Word has it that the typical disability award is valued at $250,000. I once heard an interview with an agency spokesperson (Mr. Gerry) who stated that 1/10 of 1% of the disabled return to the workforce. These are also serious numbers.

[lawmaker]

Jan 24, 2010 18:36:05 GMT -5 greatlakes said:

How do we justify the majority of ALJs performing over the 2.0/day v. some of the worst producing office such as Miami (FL) where it is less than 1.0/day. OIG and SSA want to find out why? and learn. ALJs as a corp must not protect the freeloaders

for the betterment of the majority. Changing times indeed require a change in attitude. Protect where needed and cut-off if it is detriment to the corp. For the most part, ALJs hear the outcry from the public, Congress, and Commissioner and are moving cases at a unprecedented rate. 500 cases are a benchmark and not a set goal in stone. AALJ union is great but must work with management to root-out "freeloaders" for the betterment of the majority. Otherwise, Congress may react to the detriment. Remember, ALJ position used to be a hearing examiner, a GS-13, attorney or sometimes political appointed non-attorney examiner, years back. Due to a complicated and long-drawn process, many federal agencies are relying more on AJs. That would be a tremendous mistake and a loss for all involved.

Millions of reasons why offices differ. Miami uses more translators than most, as a for instance. Longer hearings. Therefore fewer hearings.

[workdrone]

Jan 24, 2010 0:34:22 GMT -5 1uv14 said:

On a day I have to wade through only a thousand pages in the Evidentiary sections (need to look at other sections too, grasshopper) for 5 hearings, I outright celebrate. Typically the cases range from 300 to 450 pages in that section, alone. I also use Medical Experts in supplemental hearings. FIE!

I gotta call your BS on that one. We all know even though once in a while you may get case with a thousand pages, no one ever reads anywhere close to the entire thousand pages unless its a very close case.

DDS reports summarize the major points in the past medical records, and there are usually narrative reports from treating physicians along the way to give you a good picture of the claimant's health situation. And a large number of pages are handwritten progress notes that are just cumulative. Additionally, quite a few ALJs I know send cases with bulky, complex medical records that are 300 pages plus to a ME for review and summary.

So if you're telling me you are reading 500-1000 pages every case you do, you're either lying or incompetent. Or maybe both.

There are plenty of reasons why an ALJ might have low production numbers for a period of time. Illness, vacation, etc. might all play a role. And the use of interpreters could also slow things down a bit more. But to say that you got ultra difficult cases year after year so you can't even average two cases a day over the course of several years is either pure BS or gross incompetence.

I am all for judicial independence and I love the protections offered by the APA. In my years on the bench, I never had anyone tell me how to rule on any of my cases. I take pride in my job, and I am a firm believer that a judge has to earn the respect that comes with the title every day by being a positive example for the rest of the office. So it really irks me when I see someone piss on the flag and then wrap himself in it crying wolf.

ALJs are creatures of statute. There is no constitutional right to an ALJ hearing. What Congress giveth, it can take away. Maybe you are ready for retirement already. But try not to spoil the barrel for those of us who still have a while to go. So if you can't stand the work and service to the American people, please go ahead and retire and/or go back to private practice.

[1uv14]

Yesterday at 12:34am, 1uv14 wrote:On a day I have to wade through only a thousand pages in the Evidentiary sections (need to look at other sections too, grasshopper) for 5 hearings, I outright celebrate. Typically the cases range from 300 to 450 pages in that section, alone. I also use Medical Experts in supplemental hearings. FIE!




"I gotta call your BS on that one. We all know even though once in a while you may get case with a thousand pages, no one ever reads anywhere close to the entire thousand pages unless its a very close case." from work drone.

Either I was unclear or you just knocked the crap out of a strawman. What I said was 1000 medical pages for 5 hearings was cause for celebration (1000 divided by 5 = 200 per case). Secondly, I envy you your DDS. All DDSs are not equal, and Heaven help those in the prototype states. See my post on required reading. I find plenty of evidence of drug-seeking in ER notes many may not read. You may not like what I say, but I am saying I attempt to follow the Regs to the hilt. It doesn't make me a bad person.

[barkley]

Jan 25, 2010 9:49:26 GMT -5 @patriotsfan said:

I have no doubt that there are bad apples, but isn't it equally likely that some ALJs are not properly reviewing cases, but are merely pushing the sausage through the grinder at an acceptable rate, without any real review. Aren't those ALjs really the lazy or incompetent ones?

I am not a spokesman for SSA and I am not a math major either, but looks like at least one judge is averaging over 150 cases a month for the three month period reported. Assuming that judge worked 160 hours a month (40 hours a week, 4 weeks a month and no accounting for use or lose or holidays). That means ONE HOUR per case - pre-hearing review, hearing, instructions, editting.

IMHO, if the powers that be have determined that a judge can reasonably do 500 - 700 cases, and maintain some semblence of individual consideration of cases, they should police those who churn more than 900 as hard as they police those who process less than 300.

I don't see how capping a docket, i.e., stating we won't schedule more than 75 cases per month, is a violation of the APA.

Just two cents.

[Orly]

Jan 25, 2010 17:11:33 GMT -5 barkley said:

IMHO, if the powers that be have determined that a judge can reasonably do 500 - 700 cases, and maintain some semblence of individual consideration of cases, they should police those who churn more than 900 as hard as they police those who process less than 300.

I don't see how capping a docket, i.e., stating we won't schedule more than 75 cases per month, is a violation of the APA.

For what it's worth, Chief Judge Christaudo specifically said at the new ALJ training last August that the 700 case number was intended to let ALJs know they're not expected to produce more than that. So I think he's aware of the issue you raised.

I set a cap on my weekly hearings and no one at my office has a problem with it, since my annual disposition will easily exceed 500 based on the number of hearings I authorized to be set. Hope this clarifies things a little.

[nonamouse]

When I see what seems to be an excessively high number of dispositions I think a couple of things, lots of OTRs which require very little time compared to a case that goes to hearing and the ALJ is likely doing an awful lot of fully favorable cases even from those going to hearing. Some people are very efficient in their file review, screening of raw files for OTRs, overall time management, use of technology and management of the actual hearings. These people can go over 700 while not compromising quality, but IMO these ALJs are not the majority of those going over 700 per year and definitely not when it is far above 700. I personally wrote for both types of "high producers" before I became an ALJ. It was annoying as an attorney making far less money to end up finding all types of game changing evidence that made the very minimal decisional instructions totally ridiculous. However, the ALJ who actually read his/her files and gave good instructions got no more recognition or praise than the one who basically dumped his/her job onto the GS-9 through GS-13s who had to do all of the ALJ's job except sitting in the hearing. I got instructions as minimal as a hand drawn happy or sad face with no hearing notes taken in prep or during the hearing by the ALJ. Thankfully, that lazy *** was not in my office and we only had to help write for him once. The numbers definitely did not tell the whole story on how he did the job.

[Orly]

Jan 25, 2010 21:45:20 GMT -5 nonamouse said:

When I see what seems to be an excessively high number of dispositions I think a couple of things, lots of OTRs which require very little time compared to a case that goes to hearing and the ALJ is likely doing an awful lot of fully favorable cases even from those going to hearing.

That is the one thing I wish the data set had - # of OTRs out of the total dispos. This would clarify things even more.

[valkyrie]

Jan 26, 2010 6:22:36 GMT -5 Orly said:

Jan 25, 2010 21:45:20 GMT -5 nonamouse said:

When I see what seems to be an excessively high number of dispositions I think a couple of things, lots of OTRs which require very little time compared to a case that goes to hearing and the ALJ is likely doing an awful lot of fully favorable cases even from those going to hearing.

That is the one thing I wish the data set had - # of OTRs out of the total dispos. This would clarify things even more.

# of dismissals would help too.