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May 17, 2012

An Outlier

     Social Security Administrative Law Judge Drew Swank was mentioned here recently because of a law review article he wrote. He's now drawing attention for the decisions he issues on disability claims. From the Virginia Lawyers Weekly:
[Swank] has one of the highest denial rates in the country. Swank rejects nearly eight of every 10 claims for disability benefits, according to a computer analysis of his rulings.
Attorneys and claimants who’ve had cases before Swank say he is unfair....
“All I’ve ever wanted is for him to do this right,” said Bruce Billman, a Richmond-area attorney who represents people seeking assistance under the Social Security Disability Insurance program.
“If he wants to turn people down, at least do it on the proper evidence, using the proper witnesses, and give us a chance.”
Billman is a former president of the National Organization of Social Security Claimants’ Representatives. He has filed several complaints with the Social Security Administration, accusing Swank of failing to provide due process. ...

It’s not just statistics that have raised concerns among parties who’ve gone before Swank.
Attorneys and claimants accuse Swank of disregarding or excluding the findings of their physicians and vocational experts. ...
Billman, who has practiced disability law for more than 30 years, has filed more than 400 pages of complaints against Swank with the Social Security Administration’s chief administrative law judge in Falls Church. The documents describe what Billman sees as numerous instances of unfairness toward his clients.
However, no action has been taken against Swank.
“He is untouchable,” Billman said. “And every time you file a complaint and nothing gets done, it just reinforces that with him. There’s no system in place to protect you from somebody like this.”
Billman said he complained about Swank in 2008. Until that point, the judge had denied about half of his cases, Billman said. Since the complaint, he said, Swank has denied about 90 percent of his cases. ...
Over several weeks while researching this article, the reporters asked to interview Swank and emailed him questions. Swank said that he wants to defend his record but that he has not received permission from the Social Security Administration to talk to the media.
“The policy originates with the chief judge’s office in Fairfax, VA,” Swank wrote in an email.
      Interestingly, Swank has an article forthcoming in another law journal whose title strongly suggests that he believes that Social Security has a lax approach to misconduct by those who represent Social Security claimants. People who live in glass houses ...

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  • 17 Comments:

    Anonymous Anonymous said...

    His overall point is correct -- we simply pay way too many people who are capable of working. I have to issue at all with his denial rate.

    That said, I'm not a big fan of his refusal to use VEs. I'd be a little more comfortable at trying to avoid the grids if I at least had a VE to support my findings.

    9:09 AM, May 17, 2012  
    Anonymous Anonymous said...

    "Attorneys and claimants accuse Swank of disregarding or excluding the findings of their physicians and vocational experts."

    The findings of VEs hired by a representative would be automatically suspect. Moreover, the findings/opinions of many physicians are not worth the paper they are written on as quite often the doctor just repeats what his patient has told him without providing any rationale or objective medical basis for the opinion.

    The fact that an ALJ is skeptical of medical or vocational opinions purchased by a representative is not evidence of bias or impropriety. Now, if an ALJ refuses to ever give great weight to a favorable treating doctor opinion, even if the medical supports it, then there is a serious problem. With respect to ALJ Swank, there is insufficient evidence to know where he falls.

    9:34 AM, May 17, 2012  
    Anonymous Anonymous said...

    Just because Billman has filed 400 pages of complaints does not mean there is any merit to the complaints.

    There is an attorney in my part of the country that likes to file bias complaints against new ALJs in an effort to intimidate them. He also likes to file bias complaints against ALJs that have lower pay rates (i.e., pay rates in the 40s instead of the 60s or 70s). But his bias complaints are pure BS. My favorite bias complaint from him is when he accused the ALJ of being biased against black people and said the black community was in an uproar because his client had been denied. However, not only was the black community unaware of the ALJ decision and therefore not in an uproar, but the claimant was WHITE and lived in a small town that had a negligible black population. The claimant was so upset when she found out what her attorney had done that she actually called the ODAR office and apologized, stating she had nothing to do with the complaint.

    9:41 AM, May 17, 2012  
    Blogger Nobbins said...

    Anon 9:41, your unrelated, annecdotal evidence has totally swayed me. I know believe that Swank has been providing every claimant with proper due process and that Social Security is handling this matter in an expeditios and satisfactory matter.

    11:00 AM, May 17, 2012  
    Anonymous Anonymous said...

    Anyone ever heard of the concept of "judicial independence"?

    11:34 AM, May 17, 2012  
    Anonymous Anonymous said...

    Nobbins, don't be an idiot. I did not say that ALJ Swank provided every claimant with proper due process. I do not know ALJ Swank and cannot comment on the quality of his work. He may well be one of the worst ALJs employed by SSA or he may be a decent ALJ who is being unfairly attacked by representatives who are unhappy because he will not pay their marginal cases.

    The segment that Charles copied from VA Lawyers Weekly implies that because an attorney has filed 400 pages of complaints against ALJ Swank that the ALJ must be a horrible judge that mistreats everyone. I was pointing out that the number or size of the complaints is not a valid indicator of the veracity of the complaints as there are representatives who file complaints as a harassment tactic.

    Without knowing the details of the complaints and the details of the hearings/decisions that prompted the complaints, none of us reading the blog or the VA Lawyer article has any idea if there is any truth to the complaints (unless the reader has actually appeared before ALJ Swank).

    11:43 AM, May 17, 2012  
    Anonymous Anonymous said...

    I never realized how many snippy, uptight conservatives read and commented on this blog, which is, I have to say, pretty darn liberal...

    12:01 PM, May 17, 2012  
    Anonymous Anonymous said...

    I wonder if receiving government salary wasn't an issue would they(employees)be conservative in their decisions?

    12:47 PM, May 17, 2012  
    Anonymous Anonymous said...

    While the blog posts are rather liberal, Mr. Hall does manage to find a lot of interesting information regarding SSA.

    1:09 PM, May 17, 2012  
    Anonymous Anonymous said...

    The conservatives tend to be SSA'ers. I leave the irony in that to others.

    1:50 PM, May 17, 2012  
    Anonymous Anonymous said...

    The reason most "SSA'ers" are "conservative" is pretty simple. They see the rampant waste and abuse in the SS system on a daily basis. Dealing with exaggerated claims of functional limitations on a daily basis, child SSI and the attitude of entitlement displayed by claimants on a daily basis makes it hard not to be "conservative."

    2:34 PM, May 17, 2012  
    Anonymous Anonymous said...

    What genuinely struck me about this article was how it documented the remarkable amount of damage that that a bad ALJ can do.

    Much attention has been focused on the public monetary cost of "super granter" ALJs. This article put a spotlight on the flip-side of the problem: the terrible impact that "super deniers" can have. It reminded us that when ALJs improperly deny claims that should have been approved, they can destroy lives. What an awesome responsibility. I hope that ALJs treat it with the gravity it deserves.

    I've never met Swank so I can't say whether he's the sort to let personal beliefs or prejudices override his duty to decide claims justly and fairly. I hope for his sake, and those of the claimants who appear before him, that he is not.

    2:58 PM, May 17, 2012  
    Anonymous Anonymous said...

    You cannot state for sure someone is prejudiced just because he/she denies more claims than most other ALJs. You can for sure say he is an outlier and there are outlier ALJs that approve tons of cases. Each ALJ has their own judicial perspective. The law leaves room for interpretation and perhaps Swank really believes that most claimants before him are able to work. As an SSA employee in the field office, I certain feel that most claimants can work. I attribute their inability to work more to poverty and lack of education more than to a disabling condition. The percentage of people on disability has risen dramatically in recent decades, even as the economy moves further and further away from manual labor jobs. Seems to me that Swank is doing his duty to try to close the floodgates a little bit.

    5:42 PM, May 17, 2012  
    Anonymous Anonymous said...

    Anon 5:42

    I suppose the problems with "trying to close the floodgates" is when it spills into over-zealousness. I am frankly worried about ALJs who come to the job with an agenda other than correctly applying the rules. An excessively low, or high approval rate, can raise issues of whether the ALJ is letting that personal agenda supplant their duty to correctly apply the rules.

    I read Swanks' writing, looked at his stats, and read the article. In my opinion, his article shows he has an agenda for going after people who he believes are gaming the system. By itself, that is not a bad thing.

    However, If the people in the article are believed, he has stepped over the line in doing so, turning his hearings into adversarial inquisitions in which credible evidence of disability is ignored in favor of pursuing that agenda. If that's so, even if he means well, then he is doing more harm than good in his work

    8:07 AM, May 18, 2012  
    Anonymous Anonymous said...

    Having read various other sources besides the quoted article, one of the problems that is alleged with Judge Swank's decisions is that he often refuses to use a VE where there are clear non-exertional limitations.

    9:16 AM, May 18, 2012  
    Anonymous Anonymous said...

    Depending on the non-exertional limitations, he might be able to use the Social Security Rulings and be safe.

    9:36 AM, May 18, 2012  
    Anonymous Anonymous said...

    As one of the authors of the article, i can assure the above poster that Vocational Experts are not hired by representatives. They are hired by the courts.

    9:08 PM, May 18, 2012  

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