OIG report on ALJ Productivity

[extang]

Let's see: there are 260 weekdays in a year. There are 10 federal holidays. That leaves 250. Those of us who have been employed by the federal government for more than 15 years get 26 days off. We are down to 224. Most of us are not exactly young and might reasonably be expected to have a few days of sick leave in a year. Let's say 4. We're down to 220. Even ODAR occasionally pretends to have some training, expects us to attend staff meetings, etc. Let's say a total of 5 working days goes for this kind of nonsense. We are now down to 215. There are 7.5 working hours in a day [half hour for lunch, two 15 minute breaks-- I think the average VE would say this is pretty reasonable]. That means 1612.5 hours. Divide that by 500, that is 3.225 hours per case. According to deadwood, that is about what it would take an experienced ALJ to review an unpulled file, yadda yadda yadda, and get out a fully favorable decision. So all I would have to do to meet the yearly quota is infallibly find 500 DDS determinations that are suitable for OTR decisions and write my own FFAV decisions. I DON'T EVEN NEED ANY STAFF! I have to agree with deadwood, this is a piece of cake. I do not know why I did not think of it on my own. Unfortunately, if I review 3 or 4 unpulled cases in a year that are not suitable for OTR, that might screw up the numbers. But really, what are the odds? Deadwood makes a very compelling case.
Mrjones suggests that HOCALJs get high numbers because they sign SA decisions. Gee, it sounds like they're getting easy cases assigned to themselves so they can get high numbers. Since cases are supposed to be assigned in a random rotation, this ALMOST sounds like cheating. Not, however, in the world of ODAR, at least as understood by mrjones.

[deadwood]

Nothing like a "can't do" attitude.

[doctorwho]

Feb 10, 2008 18:09:07 GMT -5 extang said:

Let's see: there are 260 weekdays in a year. There are 10 federal holidays. That leaves 250. Those of us who have been employed by the federal government for more than 15 years get 26 days off. We are down to 224. Most of us are not exactly young and might reasonably be expected to have a few days of sick leave in a year. Let's say 4. We're down to 220. Even ODAR occasionally pretends to have some training, expects us to attend staff meetings, etc. Let's say a total of 5 working days goes for this kind of nonsense. We are now down to 215. There are 7.5 working hours in a day [half hour for lunch, two 15 minute breaks-- I think the average VE would say this is pretty reasonable]. That means 1612.5 hours. Divide that by 500, that is 3.225 hours per case. According to deadwood, that is about what it would take an experienced ALJ to review an unpulled file, yadda yadda yadda, and get out a fully favorable decision. So all I would have to do to meet the yearly quota is infallibly find 500 DDS determinations that are suitable for OTR decisions and write my own FFAV decisions. I DON'T EVEN NEED ANY STAFF! I have to agree with deadwood, this is a piece of cake. I do not know why I did not think of it on my own. Unfortunately, if I review 3 or 4 unpulled cases in a year that are not suitable for OTR, that might screw up the numbers. But really, what are the odds? Deadwood makes a very compelling case.
Mrjones suggests that HOCALJs get high numbers because they sign SA decisions. Gee, it sounds like they're getting easy cases assigned to themselves so they can get high numbers. Since cases are supposed to be assigned in a random rotation, this ALMOST sounds like cheating. Not, however, in the world of ODAR, at least as understood by mrjones.

And yet, if you review the IG report, there are a number of ALJs who are not HOCALJs that *DO* meet and exceed 500 cases per year. As I am not anywhere near this system, I obviously don't know what the reality is. Hopefully, I'll one day know how reasonable or unreasonable this is. So, at some point, I may reaffirm the paragraph below, or eat some serious crow. Until then, here are my thoughts:

Even if you take out 60 days out of the work year AND take everything to a hearing, that [500 a year] would average out to about 50 hearings a month or about 13 a week. Thirteen a week is far less than any district court judge I know, AND they are responsible for drafting [yes, with the help of clerks] their own decisions -- not to mention the number of criminal matters they have to handle quickly because of speedy trial.

So far, 500 doesn't seem unreasonable to me.

[johnthornton]

Another thing to remember is that the data OPM relies on are for fiscal year 2006. It was not until early 2007 that the agency expressed its position that all judges should issue 500-700 decisions a year. I would imagine that the per judge numbers would be significantly higher if you looked at fiscal year 2007--or this year.

[morgullord]

A lot of HOCALJs burn out due to the administrative requirements they carry in addition to their own caseload. When you as HOCALJ are coming in early, staying late, getting chewed up in conference calls, responding to numerous and often contridictory requirements/demands from on high, one day you look around and see several judges in your office making the same $$$ as you but without the extra hassles. A light comes on...

[mrjones]

ex - in an office where the ALJs share your attitude and resent anything being settled OTR, maybe that is the real problem - there is no rotational assigning of OTRS. the 07 stats will likely reflect less of this HOCALJ inequity, since the re-institution of SA adjudication. Lastly, the idea that you have to grant everything is yours - thats not how i operate nor should anyone else - but i admit it is not an uncommon reaction when people feel crunched for numbers.

[Propmaster]

I have a few thoughts on this report.

1) OIG made no comments about reducing the 1800+ disposition ALJ to a more reasonable level. There's something wrong with that number. Even if there is no need to try to bring it down, it's folly to assume it will stay the same for years without investigating why it is that high. A difference of 800-1000 cases from that single ALJ would mean OIG should have suggested 2 additional ALJs!

2) OIG gave nice tables in the appendices for 500 and 550 minimum case dispositions. Odd how they weren't making any particular recomendations of the number of minimum dispositions, yet they failed to keep discussing 400 and 450 throughout the report.

3) Why did they keep referring to the median years of service when it had no apparent bearing on anything? It strikes me as an example of a report prepared by someone who was sure that older or younger judges were the problem, and didn't change the structure of the report when it turned out not to be the case.

4) Aside from a great big leap in logic (when quoting from the union constitution), where was the analysis of other adjudicators given performance standards? Where was the analysis of things that had been tried and either worked or didn't work in the instances of particular ALJs? The whole thing read to me like a middle school report - I have some numbers, I can make pretty charts, my conclusion is an obvious and ambiguous feel-good sentiment.

5) Why not assume each ALJ will do 1000 cases? Where was an evaluation of how much time a case SHOULD take on average? There was no significant discussion about what the ALJ actually does to dispose of a case. Without any kind of foundation for what performance standard should be reasonable (or at least an explanation for why they think everyone should be able to do 5-15% more than the average or median numbers), any numbers are mere guesses.

I don't plan to be in the low range if I get this job. I intend to work my utmost to have high numbers for many of the same reasons I want to do this job - public trust, helping people, etc., and also because I have pride in my work and I want to do my job well.

I also am very used to reviewing my own performance by numbers and statistics - looking at my office's numbers to see trends and find their source. This report was pointless - it's sole purpose or effect was to put a concrete number on the thing everyone at ODAR knows - hearing more cases means more cases have been heard.

[Propmaster]

Another thought. I decided what has been bothering me about the report.

There are two assumptions that can be made about ALJ dispositions. First, there can be an average time than any judge should take for any case. Second, the assumption can be made that there is variety in the competency and/or speed of various ALJ's.

If the former assumption is correct, any plans to increase low performing ALJs to a certain standard should be accompanied by efforts to lower the higher producing ALJs accordingly. Without allowing for variance, the higher producing judges must be cutting corners.

I assume the second (latter) assumption is being used. In such a case, there will always be ALJs above and below the average. Thus, using the average as a guide for what judges SHOULD produce, if successful, simply RAISES the average. Then, in three years, they can look at the range of 500-1000 cases, call the average 750, and say that everyone should hit that target. Over time, the result is that all judges should be performing as well as the highest performing current ALJ. That's intellectually dishonest. Faux logic and intellectual dishonesty don't sit well with me, which is why this report has kept bothering me all night.

[extang]

The thing that keeps me up is that a smart 6th grader with a calculator could have done it, and probably done a better job.

As far a a "can't do" attitude, that great SSA "can do" attitude is not a small part of what got us into this mess.

For what it's worth, last FY I was the top "producer" in my approximately 10-ALJ office. I review unpulled files [considering how overwhelmed the staff is in trying to pull e-files, it's hard to tell the difference between a pulled and unpulled file anyway]; I have done bench decisions on unpulled files; I have drafted my own FFAVs. So what?

[counselor95]

doctorwho said:

"Even if you take out 60 days out of the work year AND take everything to a hearing, that [500 a year] would average out to about 50 hearings a month or about 13 a week. Thirteen a week is far less than any district court judge I know, AND they are responsible for drafting [yes, with the help of clerks] their own decisions -- not to mention the number of criminal matters they have to handle quickly because of speedy trial.

So far, 500 doesn't seem unreasonable to me."

This is comparing apples to oranges. If there are 13 hearings a week, an hour each, count on extra time to review the file, decide whether you need a VE and a ME for physical and a ME for psychological at the hearing, prepare for the hearing, make a decision (and, hopefully, delineate all 5 sequential evaluation steps with an RFC so the decision writer is not guessing/writing the decision itself), then review the draft decision and edit it.

Remember law school, where the rule of thumb was at least 3 hours outside of class to prepare for every hour in class? Not every case takes that long, but some take much longer.

And if 13 cases are scheduled for hearings a week, some will not go forward or not be ready for decision after the hearing. For one thing, ALJs don't have contempt power like district court judges.

Keep in mind the expectation is not that 500 cases be heard a year, but that 500 cases be decided.

That said, I don't know if 500 annually is reasonable or unreasonable, but I know conscientious ALJs who think it is unreasonable if required with no exceptions. As for me, I second the poster above who said he/she would work hard to achieve SSA's expectation - just don't expect it to be a breeze.

[judicature]

I personally think contempt power is overrated. I have been a state court judge for many years with such power and have never had to use it. I find that reminding the players that their conduct or behavior is not helpful to me in deciding their case or that their behavior is resulting in a delay in their client's pursuit of their claim (with either admonition being made in the presence of their client) is often more than enough to bring the attorneys in line - not always, but usually.

[deadwood]

Feb 11, 2008 20:25:58 GMT -5 extang said:

For what it's worth, last FY I was the top "producer" in my approximately 10-ALJ office. I review unpulled files [considering how overwhelmed the staff is in trying to pull e-files, it's hard to tell the difference between a pulled and unpulled file anyway]; I have done bench decisions on unpulled files; I have drafted my own FFAVs. So what?

So what? By reviewing unpulled files, issuing bench decisions, and drafting your own FREVs, you are being part of the solution and not part of the problem. Every positive, time-saving contribution by an ALJ to a short-staffed office makes a HUGE difference.

[nonamouse]

I think that most people will not have to worry about the numbers too much. Yes, there is going to be pressure to produce, but honestly it is a few slow poke ALJs and a whole lot of other factors contributing to the backlog. I would not worry about being singled out as an ALJ unless I was one of those people whose office if piled full of old cases that went to hearing 6 months ago or longer. These ALJs are the ones who tend to get snotty letters from reps, congressional "interest" letters, etc asking "what the heck happened to that case you heard months ago?" Everyone in their hearing office knows who they are.

There are a few people who seem to be unwilling to make a decision based on the evidence which leads them to hold onto files for months as if the evidence will magically change. There are a couple of ALJs who I could name who have an organization deficiency the likes of which I have never before seen in my career with any practicing attorney. If any of these people were more open to suggestions and willing to learn from others, they could likely increase their productivity by a significant amount and decrease the frustration of their peers and the staff. When another ALJ must take over a docket simply to let someone catch up on extremely old cases literally piled everywhere and spilling out of every crevice in their office, well that my friends is why we end up reading things like this OIG report.

[morgullord]

Decide the case one way or another. Agonizing for weeks over whether or not the decision you will make is not the path to inner or outer peace. The staff who are fielding the calls from claimants who want to know why a decision in the case has not yet been made months after the hearing will lose respect for you.

[counselor95]

In a previous life, I found that waiting to make a decision was a sure path to spending lots of extra time on the case. If I waited, I forgot the facts and nuances, and then had to refresh my memory, not to mention having to update the case. Plus, no matter how much I wanted the "right decision" to materialize, delay did not make it so! My credo became, let's handle this case one time and avoid letting it sit on my desk or anyone else's. (Easy to say, not so easy to do, but I tried.)

[judicature]

from my experience on the bench, a hard case does not get any easier with time. It simply must be decided with the best judgment you can bring to bear - ultimately, you are paid to decide, and if you are afraid of disappointing people, then you are in the wrong business.

[advancedage]

Feb 11, 2008 12:23:18 GMT -5 Propmaster said:

Another thought. I decided what has been bothering me about the report.

There are two assumptions that can be made about ALJ dispositions. First, there can be an average time than any judge should take for any case. Second, the assumption can be made that there is variety in the competency and/or speed of various ALJ's.

If the former assumption is correct, any plans to increase low performing ALJs to a certain standard should be accompanied by efforts to lower the higher producing ALJs accordingly. Without allowing for variance, the higher producing judges must be cutting corners.

I assume the second (latter) assumption is being used. In such a case, there will always be ALJs above and below the average. Thus, using the average as a guide for what judges SHOULD produce, if successful, simply RAISES the average. Then, in three years, they can look at the range of 500-1000 cases, call the average 750, and say that everyone should hit that target. Over time, the result is that all judges should be performing as well as the highest performing current ALJ. That's intellectually dishonest. Faux logic and intellectual dishonesty don't sit well with me, which is why this report has kept bothering me all night.

I lean toward endorsing the 2/10 narrations by deadwood and yogibear. However, the above-quoted comments by propmaster deserve consideration. Certainly, Social Security disability cases are not fungible; however, over time -- say a year -- Social Security ALJs, through random case assignment, do adjudicate a sufficient variety of cases so that a "fair" average processing time range legitimately can be projected.

Some cases will have perhaps as few as 50 pages of evidence (rarely). Others, more typically, will have 300 to 500 pages. Still others (less often, but not rarely) will have 900 to 1300 pages. (These latter often are federal court remanded cases that have been pending review at various levels for many years.)

In this context, Commissioner Astrue's suggested range of 500 to 700 case dispositions per ALJ per year is absolutely legitimate. If, after 2 years on the job -- and assuming a properly staffed office -- a "fully available" ALJ is not producing at least an average of 500 dispositions per year, then that ALJ is (1) incompetent in some critical area -- such a computer use or knowledge of the law, or (2) lazy/recalcitrant, or (3) needs to be given education on docket and case management, or computer use, or the law, or any combination of these.

However, propmaster's additional concern that the target "average" will be subject to perpetual increase is truly a legitimate concern. Even if an ALJ were to do nothing but hold hearings and decide cases, (without raising a finger to a keyboard to write a decision) it takes human time to review files, analyze the information, and "make" the decision. Because of this human element, there comes a point at which computer technology and additional staff cannot further extend production.

My belief is that case dispositions in the range of 650 to 750 define that point. Obviously, others believe that point is much lower, and some believe it is higher. Those ALJs who are producing 1700+ decisions cannot possibly be producing legally defensible decisions. But that's my opinion, and I have staked out the 650 to 750 ground. An ALJ who has staked out the 200 yearly disposition ground would say the same of my ground. Because of this tension, and because the Association of ALJs has traditionally balked at establishing minimally acceptable performance guidelines for ALJs, ultimately, ALJs are going to have this ground staked for them. The stakes will not be driven at the lower end of the spectrum.

[johnthornton]

What is unspoken is that pressure to decide more cases inevitably becomes pressure to *pay* cases. This occurs most of the time at the margins. For example, you have a close case that might benefit from additional development. Maybe a consultative exam or maybe medical expert testimony. This will delay a decision several months. On the other hand, if you accept the testimony as credible and look the other way at any holes in the record, the case can be paid immediately and result in an additional decision in your stack. Sooner or later, the cases in the margin start to add up and result in the payment of significant funds to people who might not meet the disability definition.

Nothing in the OIG report addresses the additional cost to the fund caused by pressure to make judges decide 700 cases a year.

[odarite]

The problem from where I sit is at least threefold:
1. There has long been a prejudice against ALJs (explored further in another thread) by the operations side. This has all the hallmarks of the long-established "it's all the ALJ's fault" school of thought in the agency.
2. It completely ignors staffing. If I have enough support to feed me 40-50 cases per month to review, and either pay on the record or take to hearing, and then have enough writing support to write enough cases, I can do 500 cases per year. If I don't, I can't except by that infamous and well publicized if not well documented technique of "paying down the backlog".
3. It ignors the systems problems that get worse as we dispose of more of the paper cases and have a greater percentage of electronic cases. Recently we had a couple of weeks where the system was so slow judges who had paper cases to work on did, and those who didn't stared at the wall (or at least their computer monitor daring it to show them something useful). As to staff, they were having a heck of a time closing cases, especially but not exclusively electronic cases because of these system issues.

I am not saying there are not ALJs who are asleep at the switch, as we know there are. But the only way to make sure that the agency is not shooting the nearest highly paid target is to put the resources at the ALJ's disposal to get the cases out, then if they fail to do so it is legitimately their fault. Otherwise, they are making it up.

[counselor95]

Feb 12, 2008 7:09:26 GMT -5 judicature said:

I personally think contempt power is overrated. I have been a state court judge for many years with such power and have never had to use it. I find that reminding the players that their conduct or behavior is not helpful to me in deciding their case or that their behavior is resulting in a delay in their client's pursuit of their claim (with either admonition being made in the presence of their client) is often more than enough to bring the attorneys in line - not always, but usually.

Thanks for the insight, Judicature -- very good points. Should I be so lucky as to get an offer, I'll remember!

I wasn't thinking of the attorneys' conduct needing censure, but of the power to compel attendance. Some claimant representatives cause postponements or otherwise delay hearings, for no particularly good reason, throwing a monkey wrench into an ALJ's schedule.

And even the contempt power would not help other situations, e.g., where potentially unfavorable evidence is inordinately delayed, such as work information.

The examples I have in mind are cases in which the attorneys could come to the hearing, but choose not to; or could furnish the work information, but delay instead. These situations don't happen all the time, but they do occur. Just as some criminal defense attorneys believe delay favors the defendant, some plaintiffs' attorneys think delay favors their clients (or their own fees). From the ODAR perspective, the more times the cases must be handled, the less time to actually be productive.

I'm sure no plaintiffs' attorneys on our board would ever do any of this! ;D