OIG report on ALJ Productivity

[johnthornton]

Hot off the presses:

www.ssa.gov/oig/ADOBEPDF/A-07-07-17072.pdf

[workdrone]

Thanks for the news! Interesting reading, especially on the agency management's comments near the end. Looks like FY 2009 ahead is going to be a busy year. Of course, whatever new standard the agency is going to implement will be useless if not upheld by the MSPB. So it will be fascinating to see how the SSA cases currently working through the MSPB system turn out.

Looks like we got some interesting times ahead.

[Pixie]

And whatever standard the agency decides to implement will be useless if the hearing offices can't get the worked up cases to the judges.

[counselor95]

Thanks for the report, JT. Anyone selected for these positions is now on notice that, in 9 months or less from the date of hiring, ALJs will be expected to sign 500 decisions a year = 10 a week average, allowing for two weeks vacation (new federal employees may take less, with only 13 days earned a year). That is not 10 hearings a week, but 10 final decisions a week, average, plus reviewing files before hearings (some of them several hundred pages in length, with much of that medical jargon), holding hearings (more than 10 a week, because some will be no shows, or continuances, or supplemental hearings), making the decisions on whether the claimant is disabled and the legal rationale why/why not, and reading/editing the writers' draft decisions. A few cases will be dismissals or quick decisions, but not most; most require preparation, thoughtful deliberation, and double-checking the legal sufficiency. And did I mention travel to remote hearing sites?

I heard an ALJ say one time that the job used to be "early retirement" -- obviously, no more. The 500 case goal is just a start -- 500 to 700 per year is already being discussed. Keep in mind, this is expected without benefit of support staff just for the ALJ -- case technicians and decision writers are expected, generally, to work/write cases for all ALJs in the office, and they answer to a supervisor who does not ask the ALJs for feedback on the support staff.

[odarite]

Pixie is right, the goals can be met only if there is adequate staff to do the support work. The agency comments to the OIG report raise that issue, but apparently OIG did not consider that point worthy of inclusion. There are definitely offices where 500 per ALJ is a pipe dream, hardly even worth making the effort for, because of the lack of staff support. That said, however, there are definitely also ALJs who do not perform up to the level that staff support would allow. The trick will be for the agency to separate those who could but won't from those who couldn't. Or, of course, get congress to provide enough money to hire not only ALJs but sufficient staff.

[morgullord]

When you get to your office, ask for unworked files and review them for on-record disposition (favorable decisions only unless the claimant waives a hearing, a rarity). Issue bench decisions when the hearing causes you to conclude that the claimant is disabled. These activities will help you meet the goal.

Write some of your own unfavoravble decisions; it's a good way for you to check the quality of your instructions.

[johnthornton]

<When you get to your office, ask for unworked files and review them for on-record disposition (favorable decisions only unless the claimant waives a hearing, a rarity). <

In my office, it is essentially impossible to meet the goal unless you review a substantial number of cases for On the Record decisions every month. Our staff works very hard but are only able to schedule so many cases for hearing. Luckily, in the states our office covers, the DDS is so stingy that it is not difficult to find cases to pay OTR. I don't know what I would do if I worked in a state with a DDS that actually followed the program.

[cybear]

Feb 9, 2008 9:41:45 GMT -5 johnthornton said:

<When you get to your office, ask for unworked files and review them for on-record disposition (favorable decisions only unless the claimant waives a hearing, a rarity). <

In my office, it is essentially impossible to meet the goal unless you review a substantial number of cases for On the Record decisions every month. Our staff works very hard but are only able to schedule so many cases for hearing. Luckily, in the states our office covers, the DDS is so stingy that it is not difficult to find cases to pay OTR. I don't know what I would do if I worked in a state with a DDS that actually followed the program.

I am not certain by what mechanism this occurred; however, the Administrator who in my state oversees DDS, has personally told me that he has been independently informed that DDS decisions in our state are correct roughly 95% of the time. DDS's initial allowance rate is roughly one in three and its reconsideration allowance rate is roughly one in ten. Contrast this with our ODAR reversal rate of greater than 60% and clearly, someone is mistaken.

[odarite]

And since they are so accurate and ODAR does reverse such a high percentage of DDS decisions, you can certainly see why they do not hold us in high regard. There is, however, something very wrong with the way quality is measured at DDS: the process encourages the culture of denial which undoubtedly exists at DDS and which is also responsible for the size of the ODAR backlog. If DDS really did pay the right claim as early in the process as possible the backlog would be substantially reduced.

To be fair, however, since many cases at ODAR are paid on a later onset date, the actual variance between DDS and ODAR decisions is not as great as it appears. The appellate culture of giving claimants almost unlimited bites at the apple is also responsible for ODAR's opportunity to pay as of a later onset date and the size of the backlog.

[happy]

Feb 9, 2008 9:41:45 GMT -5 johnthornton said:

. . . . the Administrator who in my state oversees DDS, has personally told me that he has been independently informed that DDS decisions in our state are correct roughly 95% of the time. DDS's initial allowance rate is roughly one in three and its reconsideration allowance rate is roughly one in ten. Contrast this with our ODAR reversal rate of greater than 60% and clearly, someone is mistaken.

Not being familiar with your particular DDS, I won't call that administrator deluded outright. However, having seen DDS determinations from 10 different states, I can say that I haven't seen significant deviation in the way the medical consultants approach a case. They simply and completely ignore the credibility factors of SSR 96-7p -- which by the way was one of the primary reasons we went through the Process Unification Training in 1996 -- and, frankly, many of their decisions are wrong under our regulations.

For those of you not familiar with the program, SSR 96-7p notes that pain is highly subjective. While disability cannot be established based solely on a claimant's descriptions of his/her symptoms, we get into a credibility analysis if the claimant's impairments, as established by objective evidence, could reasonably give rise to symptoms of the alleged nature. We consider things like activities of daily living, the kind of medications taken, other measures taken to alleviate pain, consistency of complaints and medical treatment, etc.

THIS, my friends, is why ODAR reverses so many DDS decisions. The state agency medical consultants usually do not get into this kind of analysis, although some do. But keep in mind that those consultants don't get to actually observe the claimant as part of the credibility determination and ALJs do. That plays a large part, too.

That being said -- because I truly believe in our process, generally -- I have written enough decisions for ALJs to know that many allowances at the hearing level are totally and completely unsupported. That's just poor stewardship and undermines the Agency's mission.

[johnthornton]

Feb 9, 2008 19:32:50 GMT -5 happy said:

Feb 9, 2008 9:41:45 GMT -5 johnthornton said:

. . . . the Administrator who in my state oversees DDS, has personally told me that he has been independently informed that DDS decisions in our state are correct roughly 95% of the time. DDS's initial allowance rate is roughly one in three and its reconsideration allowance rate is roughly one in ten. Contrast this with our ODAR reversal rate of greater than 60% and clearly, someone is mistaken.

THIS, my friends, is why ODAR reverses so many DDS decisions. The state agency medical consultants usually do not get into this kind of analysis, although some do. But keep in mind that those consultants don't get to actually observe the claimant as part of the credibility determination and ALJs do. That plays a large part, too.

The consultants do not observe the claimant but the agency's own Consultative Examiners do. I have seen too many cases where the CE believes the claimant's statements and finds that the claimant is disabled, yet the consultant overrules the CE and says that the CE's opinion on functual capacity (and disability) is "reserved to the Commissioner."

[happy]

You got that right, JT. It happens WAY too often.

Except I gotta clarify for the non-SSAers: the physicians who perform consultative examinations aren't "the Agency's." They're practicing doctors that contract with the various DDSs to provide this service (at a truly ridiculously low fee, which is why the exams often suck).

[johnthornton]

Feb 10, 2008 0:28:44 GMT -5 happy said:

Except I gotta clarify for the non-SSAers: the physicians who perform consultative examinations aren't "the Agency's." They're practicing doctors that contract with the various DDSs to provide this service (at a truly ridiculously low fee, which is why the exams often suck).

Fair enough--CEs are technically independent. However, they are paid by the agency and obviously know which side their bread is buttered.

[extang]

The consultative examiners also have little if any training, so they do not understand much or anything about such things as the listings. Their medical source statements, if the DDS gets them to do one at all, often have no apparent connection with the narrative reports. The consultants are often right to reject the assessments by the consultative examiners , especially when there is a real longitudinal [is this an incorrect use of that word?] treatment history; seeing a claimant one time at a CE can be very misleading, just like the impression one gets at a hearing is probably often misleading; the consultative examiners often do not even get the records that the DDS gets in its often contemptible attempts at "development" of the record, and if they get them, they often do not read them [for what SSA pays, why should they? Only an exceptionally conscientious person would.] I wish I could share Happy's belief in our process, but it is at least true that it is often only at the hearing level that somebody takes at least a moderately careful look at a fairly complete version of the claimant's medical history, and after actually seeing and talking with the claimant tries to put it all together, and is forced to discuss it all in a reasonably explicit decision [most DDS decisions can be pretty accurately paraphrased as saying to the claimant "You think you're disabled. Well, we don't."]
I was thinking that this discussion had wandered away from the truly idiotic OIG report on "productivity," but it really has not. If one really tries to do this job in a minimally adequate fashion with the levels and quality of staff we have at most of our hearing offices [all the ones I am personally acquainted with, for sure [apologies for using Valleyspeak], 500 dispositions a year can only be achieved by cutting corners mercilessly or [apologies again, this time for not using a euphemism] cheating. That's why the HOCALJs' numbers are (surprisingly so to the OIG but not to the rest of us) high: they are generally the ones most willing to cheat [it is difficult to become part of management in this organization without having some significant deficiencies in such areas as professionalism and integrity] and the ones in the best position to do so.

[cybear]

Feb 10, 2008 8:50:33 GMT -5 extang said:

That's why the HOCALJs' numbers are (surprisingly so to the OIG but not to the rest of us) high: they are generally the ones most willing to cheat [it is difficult to become part of management in this organization without having some significant deficiencies in such areas as professionalism and integrity] and the ones in the best position to do so.

Extang,

I'm on the outside looking in at ODAR. Therefore, I have no first-hand knowledge with which to confirm or to dispute your observation; however, might not the fact that there are so many HOCALJ slots open at any given time just as easily support the proposition that it's difficult to find many, if any, HOCALJs who are willing to cook the books?

[deadwood]

Feb 10, 2008 8:50:33 GMT -5 extang said:

I was thinking that this discussion had wandered away from the truly idiotic OIG report on "productivity," but it really has not. If one really tries to do this job in a minimally adequate fashion with the levels and quality of staff we have at most of our hearing offices [all the ones I am personally acquainted with, for sure [apologies for using Valleyspeak], 500 dispositions a year can only be achieved by cutting corners mercilessly or [apologies again, this time for not using a euphemism] cheating. That's why the HOCALJs' numbers are (surprisingly so to the OIG but not to the rest of us) high: they are generally the ones most willing to cheat [it is difficult to become part of management in this organization without having some significant deficiencies in such areas as professionalism and integrity] and the ones in the best position to do so.

Without passing judgment on the OIG report, and regardless of staffing ratios, ALJs can achieve the 500 dispo goal by reviewing raw files for potential OTRs. I cannot begin to tell you how many times I've heard an ALJ refuse to review a raw file because if the file hasn't been fully pulled, how can it be reviewed? An ALJ with a few years of experience should be able to review a raw file (including checking the DLI on Title IIs and runing an earnings query to check for SGA) and, when applicable, write a fully-favorable decision in 2 - 3 hours max. Also, with the invent of e-files, all the raw files that you could ever need are right on your desk waiting to be reviewed. If an ALJ wants to issue 500 dispos per year, the opportunity to do so is there. It's really not that difficult.

Regarding your comment on HOCALJs being the most willing to cheat, do you have any personal knowledge of a HOCALJ cheating? If so, what have you done about it? I've worked with several and have never known any to cheat. Does it happen? Maybe, but your extremely, overly broad comment is unfair to the HOCALJs who bust their collective butts day after day to make sure that the work keeps moving.

[mrjones]

extang - the OIG reports exceptioanlly high numbers for HOCALJs because they sign and get credit for attorney-recommended favorable OTR cases - not because they or anyone else "cheats." As others have said, the OTRs definitely help bump up production, whether an individual's or an office.

[yogibear]

Some of the best and most productive ALJs I know have no problems reviewing raw files and then utilizing the skills and experience of the senior attorneys to negotiate, complete and finalize any open issues. While I'd probably be smited for saying this, I'm saying it anyway. Using the attorneys to their full potential would eliminate the need for giving Sen. Attorneys adjudicatory authority and would easily result in 15 or more favorables per senior attorney credited directly to the ALJs. This does not include the one the ALJs would identify on their own as OTR favorable without working up files or the bench decisions. Senior attorneys could also be tapped to work with the ALJs more closely to identify another 15% -20% of cases that need one or two issues resolved at hearing for bench decisions. In my humble opinion, if the ALJs had right hand men or women attorneys to assist them, their productivity could soar and they wouldn't be working in a vacuum. I know my statements are radical by ODAR standards, but the most productive ALJs I see are the one that cultivate those relationships with capable Attorneys on their own and work within the office culture to get these results.

[counselor95]

YB,
As for using senior attorneys, I'd second that but expand to using AAs as well. Yes, productivity could improve with ALJs working with a team dedicated to their cases; a case technician and decision writer for that ALJ, with AA/SA input as needed, would have pride in the work and continuing knowledge of the cases as they move through the pipeline, and could expedite development and shorten decision writing time. I bet claimants' representatives would like to have an AA contact about their cases; that could help speed their cooperation in furnishing additional info on wages, medical, etc. And AA/SA as contacts would insulate the ALJs from ex parte communications.

I realize shortages of support staff factor into this but, to the extent this is possible, it could provide significant increases in productivity.

[mrjones]

yogi and counselor - I don't think SSA is going to adopt the old unit system anytime soon - it doesn't give an office the flexibility it needs to handle the heavy caseload. and thanks, yogi, for voting to give away my signatory authority as SA - I only had to wait 10 years to get it back and - poof - gone again! I can only speak for myself, but having written over 550 decisions last year and in 2006, the year of the OiG study, and 70% denials (which take an average of 8 hours, nationally, to complete), I think I have been utilized to my "full potential" - I have been the "right hand" man so long I am getting carpal tunnel. If it takes an hour to review a case and an hour to hold an average hearing, I don't think 550 cases is an unreasonbable goal, and delegating work is not the best answer. The best manner in which you ALJs-to-be can contribute is by taking 30 minutes to sit down and write legible, sensible decision writing instructions. After 6 months or so, when you are comfortable reviewing your own docket in advance of the hearings, then start reviewing raw files, too. First, know your job well, and in time you'll be able to put out much more than 550 cases. If you are in an office where productivity is absent, then put out your own bench decisions and distinguish yourself that way.