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Apr 19, 2013

ALJ Union Sues Agency On Workload Issues

     From the Associated Press:
Judges struggling to handle a surge of disability cases sometimes award benefits they might otherwise deny in order to clear cases faster so they can meet quotas imposed by the Social Security Administration, according to a lawsuit filed by the union representing the agency's administrative law judges.

The Social Security Administration says judges should decide 500 to 700 disability cases a year. The agency calls the standard a productivity goal, but the lawsuit claims it is an illegal quota that requires judges to decide an average of more than two cases a workday.

The lawsuit says the requirement violates judges' independence, denies due process rights to applicants and further strains the finances of a disability program that is projected to run out of money in 2016. ...

The lawsuit was filed by the union Thursday in federal court in Chicago. ...
In an interview, [former Commissioner Michael] Astrue disputed the union's claims.
"What's really happening here is that the judges' union doesn't want accountability of its members and it's been trying to sell this story to the media and to the Congress and to the agency for a very long time," Astrue said. "And no one's buying it because it's not true, and no federal judge is going to buy this story, either."
"There are a very small number of malcontents who want to litigate or put political pressure on the agency rather than do their work," Astrue said.
     Am I sympathetic to this lawsuit? Yes and no.
     It's important to note that the workload pressures on Social Security's Administrative Law Judges (ALJs) are ridiculous. Expecting 500 to 700 decisions a year is way too much. My experience is that these workload norms have caused significant degradation in the quality of the hearing process at Social Security. More and more productivity has been expected of ALJs at a time when the cases themselves have become more and more time-consuming. Claimants with insurance are seeing more and more specialists and having more and more tests and medical procedures. All of these records have to be reviewed by the ALJ. Electronic medical record-keeping produces more medical records. Many of the electronic record systems essentially repeat a patient's entire medical history each time he or she visits a doctor. Anyone reviewing these records has to wade through this repetitious mess looking for what's new on each doctor visit. Social Security case files keep getting longer each year. That fact hasn't filtered through to Social Security management but it's a huge problem at ground level.
     As much as I sympathize with ALJs on their workload pressures , I've seen no evidence that ALJs have been subjected to anything more than workload norms. They can ignore these norms without fear of formal punishment unless they get to the point of extraordinarily low productivity. The norms have certainly had a dramatic effect but I've seen no evidence that there is any real enforcement mechanism behind the norms. I don't see how you're going to make the argument that there is a quota and I'm not sure that a quota will be illegal anyway. Unwise yes but illegal?
     Filing suit at this time makes no sense to me. Yes, Michael Astrue is gone. He was quite unsympathetic to ALJs, as you can tell from the quote given above -- although I thought he became less unsympathetic the longer he was Commissioner. You might think that Social Security management would now be more sympathetic to ALJs and more willing to settle this lawsuit but has the ALJ union heard of sequestration? It's a huge problem for the agency. I don't think it's realistic at this time to expect the agency to settle this on terms favorable to the ALJs.
     By the way, it's worth noting that ALJs are not all union members. Those who are union members don't always agree with what the union does. I'm sure that there is a vigorous debate going on among Social Security's ALJs right now. Whether you agree or disagree with this lawsuit, don't give blame or credit for it to all ALJs. They are a diverse group.

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  • 25 Comments:

    Anonymous Anonymous said...

    I recently had a discussion with an ALJ in my office who had a unique perspective. This person used to have a denial rate that was significantly higher than the norm (not like that dude [formally] in Richmond with all the Law Review articles, but higher than most). This ALJ is now trending more towards the average, and it is a conscious, intentional move.

    You are right that there are no formal enforcement mechanisms to make ALJs land in that 500-700 window or have a pay rate in the 55-60 range (at least after the ALJ is out of the probationary period). However, this ALJ described how pinned in he/she felt. If an ALJ decides less than 500 cases a year, he or she is scrutinized for not doing enough. If the ALJ does more than 700, red flags go up at his or her regional HQ/B-more (thanks to Mr. West Virginia).

    It is true that once out of their probationary period, ALJs really can't be "touched" by the Agency--it takes an awful lot to push a case through that ALJ board (the sole source of discipline), and it is more trouble than it's worth for anything short of serious misconduct. Actions take years and ALJs sit around out of the office, not doign work while on pay status (and counting as an active judge for his or her office that whole time for goal purposes, screwing over management and its pursuit of making the numbers) until the action's conclusion.

    But this ALJ said pressures--whether it's endless emails one has to answer, discussions, crap-talking by management, and passive-aggressive reactions by management (assigning weak employees as their clerk, monkeying around with their scheduling, etc.)--are enough to make the seemingly untouchable ALJs cry uncle, and pay 55-60 percent of the 500-700 cases they decide each year.

    I am sympathetic. On the one hand the Agency says it wants ALJs to decide how they determine is correct, and that unless you're a huge outlier, it's fine. But then they go and settle a lawsuit up in NY because the office pay rate wasn't high enough. Months before, they crack down on paying too much thanks to Mr. West Virginia. So, you can't pay too much, and you can't deny too much. I really beleive the ALJs (at least all of them save for the oldtimers who just don't care at all and ignore the pressures) feel rather forced to decide 500-700 with a pay rate of 55-60 percent.

    And it's a shame.

    9:52 AM, April 19, 2013  
    Anonymous Anonymous said...

    ALJ's aren't getting much in the way of direct pressure other than an email or two each year reminding them of the goals and a desktop tool they can click on or ignore that will show whether or not they are on target to hit the goals.

    But there is indirect pressure. The desktop tool will show a graph comparing productivity compared to their office, their region and the nation.

    Stats are available everywhere to quickly see if you are within the norm in number of decisions and in allowances and denials.

    Human nature leads people to want to conform to the norms. If you deny or allow more than the median, you second guess your decision.

    Is what the agency is doing worth legal action? I don't think so but I wasn't consulted.

    There is a myth among reps that ALJ's are being pressured to deny more cases. I've experienced nothing that supports that and have never heard any ALJ claim it, but there is internal pressure each person is subject to that makes them want to comply with the norms and that pressure is becoming stronger.

    10:57 AM, April 19, 2013  
    Anonymous Anonymous said...

    In response to the comment about ALJs being pressured to deny more cases: we regularly handle hearings at multiple ODARs across several states. We also keep detailed statistics including award rates. We've noticed at least a 10% drop in pay rates at all ODARs where we have hearings. Our criteria for taking cases has not changed. We've especially noticed that newer ALJs in particular become low payers. Leads us to think that new ALJ training and agency pressure is driving the pay rates down.

    12:04 PM, April 19, 2013  
    Anonymous Anonymous said...

    As an ALJ, I don't understand the argument that production pressures lead to cases benig approved. What kind of a person, or a judge, would I be if I paid a case I didn't think was deserving of payment just becasue it was easier to pay it than to deny it? Where I see the problem with the productivity pressure is this: I work extremely long hours in order to properly prepare for cases and issue comprhensive instructions. I end up donating time to the Agency each and every pay period. I do it because I come from a background that expects professionals to stay and do the work until the work is done.

    12:43 PM, April 19, 2013  
    Anonymous Anonymous said...

    Anonymous 10:57 said, "ALJ's aren't getting much in the way of direct pressure other than an email or two each year reminding them of the goals and a desktop tool they can click on or ignore that will show whether or not they are on target to hit the goals."

    This is untrue. There are weekly reminder and direct threats regarding cases sitting in a status for too long. Some times the ALJ has no control over this. There have been letters of repremand issued to ALJ's for the "Benchmarks". The letters of reprimand mean that a person is removed from teh transfer list. This is a big deal to some. A good ALJ resigned this last year over such an incident..

    1:05 PM, April 19, 2013  
    Anonymous Anonymous said...

    Looks like the union is hoping to find a more sympathetic court in Illinois regarding the benchmarks. MSPB and US Ct of Appeals, Fed Cir, certainly were not when this issue was raised in defense of former ALJ Abrams.

    1:06 PM, April 19, 2013  
    Anonymous Anonymous said...

    To 12:04

    Maybe what you're seeing is the result of the higher percentage of SSA employees as new ALJs. I'm only speculating (about the effect--it is fact that recent ALJ classes have been increasingly filled with "insiders"), but as an ODAR attorney I can see how ODAR attorneys and OGC attorneys might be more inclined to have pay rates lower than the average, and to not be afraid of making that decision. With all that SSA experience, making and drafting or editing an unfavorable decision is surely not nearly as daunting to an insider than to a new ALJ with minimal SSA legal knowledge.

    Think about the new ALJ without significant SSA experience--the majority of newer ALJs until very recently. I use my own experience and remember how difficult it was at first to simply draft good decisions. Imagine how difficult a task it is to (unless one is very haughty and does not recognize or appreciate this difficulty) decide, edit/draft an unfavorable decision that is anywhere close to legally sufficient when all you have in the way of SSA legal knowledge came in a few weeks of training at HQ.

    Just guessing. Is your data detailed enough to see trends regarding prior SSA employee new ALJs vs. outsider new ALJs?

    3:54 PM, April 19, 2013  
    Anonymous Anonymous said...

    While there is the trend to conformity, I think people are getting distracted with approving too many or denying too few. The real view should focus on giving the claimant the right decision and a real hearing.

    The number of remands I have seen from the AC lately has increased substantially. On one remand from Tuesday that did result in a favorable decision, the ALJ did not even address the only new piece of medical evidence the attorney submitted in his first decision.

    Yes, I despise the number of people who are awarded benefits where most of the documentation just shows them being "depressed," but if you force the public to go through a an impersonal appeal process that some employees are unable to even describe, at least give them a little respect and hear them out.

    5:59 PM, April 19, 2013  
    Anonymous Anonymous said...

    An ALJ with more than two decades of experience told me that the problem with ALJs is that too many of them believe they are on the Supreme Court.

    11:56 PM, April 19, 2013  
    Anonymous Anonymous said...

    Ugh. This is not going to end well.

    I wouldn't be surprised if Congress just decides to fire all the ALJs and replace them with GS-13 hearing officers.

    7:34 AM, April 20, 2013  
    Anonymous Anonymous said...

    Boo Hoo Boo Hoo What about the 800 rep that gets pressure for spending too much time on calls and not taking enough calls and starts getting people on and off to take more calls, but not really helping people. So terrible when the high and mighty get treated like the rest of us.

    2:28 PM, April 20, 2013  
    Anonymous Anonymous said...

    There are other points about the lawsuit that merit thought here. One is that members of the union were not consulted about filing this lawsuit. In fact,most of us learned about it from AP. The union takes my money and files this kind of lawsuit without consulting members or even informing them?

    Second, the timing is terrible. Partly, as Charles points out, because of sequestration. But even more basic is that Astrue imposed these quotas five years ago!!! Waiting this long suggests acquiescence. A lot of the older judges who could make 300 good decisions a year but not 500 are now gone. I would venture a guess the bulk of the ALJ corpse produces close to 500 cases per year now.

    And the premise that we pay more now to meet quotas? It was entirely valid three or four years ago. It no longer is. Pay rates are lower now that I've ever seen in nearly 20 years.

    4:11 PM, April 20, 2013  
    Anonymous Anonymous said...

    Oh, my word!! I said "ALJ corpse!" No metaphor intended.

    4:14 PM, April 20, 2013  
    Anonymous Anonymous said...

    As a DDS examiner at the front end of the adjudication stream, I don't see those as unreasonable numbers. At my DDS adjudicators are currently being assigned (and expected to clear) around 650 claims a year. This is actually down from more than a decade ago when I was assigned 824 claims in one year (and cleared 843). The level of documentation and "analysis" with eCAT is now higher than before. We also receive much less support than before, i.e. adjudicators draft the RFC/MRFC for a MD/PhD who signs while also under pressure to produce a certain number of claims an hour. My DDS has a "fast track" unit that creams off the "easy" listing level allowances, meaning the rest of the adjudicators are slogging through more complex claims.

    4:33 PM, April 20, 2013  
    Anonymous Anonymous said...

    I suspect that the 500-700 goal was not derived with any thoughtful or scientific calculus, but is just a number that sounds and looks good. Whether you get there depends on a lot of things - the size/complexity of the file, issues in the case, the number and quality of the staff that works with the judge to get the cases properly worked up, scheduled, heard, and written, and the managers who ensure that everyone is doing their part. That said, having a goal is preferable to no goals at all. It's only a quota if the ALJ has given in to the numbers game, rubber stamping decisions and viewing the decisions as widgets rather then their personal written work product.
    The union could do better than advocating for the government rep who'll ask all the questions at the hearing, relegating the ALJ to a hearing referee, while another attorney or a claimant's rep writes the decisions for them (hire enough govt reps and make them all hearing examiners replacing ALJs, brilliant). The union could do something about the ALJs who have retired on the job, make their own public policy and refuse to follow the law, and treat claimants like they're cheats and criminals for seeking benefits, because these ALJs truly undermine the corps and public confidence. Lawsuits like this show that some ALJs care more about the agency's "control" over them than their duty to be public servants who timely examine the evidence, give a fair/courteous hearing to each claimant, and make findings of fact that are directed by the law and the evidence.

    9:05 PM, April 20, 2013  
    Anonymous Anonymous said...

    anon 2:28 on 4/20 said it best. "So terrible when the high and mighty get treated like the rest of us"

    this whole discussion calls to mind that timeless teaching: "to whom much is given, much will be expected"

    They ought to introduce a little home training into that ALJ class - my momma always said you can't have your cake and eat it too.

    Those ALJs are paid better and given more flexibility than anyone in the agency. They're spoiled rotten and need to remember who they work for.

    11:11 PM, April 20, 2013  
    Anonymous Anonymous said...

    Maybe the ALJ's are just given production recommendations, but I bet the decision writers are given quotas. As someone who reviews ALJ decisions at the AC, I rarely see a decision that correctly applies SSA rules and provides an accurate review of the medical evidence. I assume the main reason is that writing 500 decisions in a year is infeasible and forces decision writers to take ridiculous shortcuts.

    Oh, and at the AC the analysts have production quotas that are challenging to meet for those who actually review the cases thoroughly. The production requirements lead to the AC being biased in favor of denying review. It can be much faster to deny review than to write a remand order or a favorable AC decision. You would not believe the post hoc rationalizations that analysts will come up with (and appeals officers will accept!) just to avoid writing a remand order.

    11:34 PM, April 20, 2013  
    Anonymous Anonymous said...

    In mo office we get emails weekly, daily and sometimes hourly to move 'em, move 'em, move 'em. The continual harassment is at least counter productive because we have to stop actual productive worka nd reply. Typically we are told to move a particular case or write a report (to be sent to Region HQ) detailing why we can't move it.

    Writers are under tremendous pressure too. The result of that pressure is that we get some pretty bad decisions , which we must edit. This takes up time, time which we should be usint to evaluate cases and make decision.

    Case technicians are harassed frequently and as a result, the quality of their work has fallen dramatically. This increases the amount of time required for the ALJ to review and understand the case.

    The whole thing is a vicious circle in which increased pressure on one group casues more pressure on the others. The quality of our work has fallen to, in my opinion, unacceptable levels.

    I hope the suit will cause a lessening in the pressure described above, at least to the extent that we can do our work reasonably well.

    9:38 AM, April 21, 2013  
    Anonymous Anonymous said...

    Once again, the work that the SSA ALJs do is a far cry from the complex cases that ALJs decide at other federal agencies. The SSA ALJ position description should be reevaluated. It is essentially a claims examiner job. A majority of attorneys who now work as SSA ALJs would never be hired for positions as ALJs in other federal agencies, and thus, SSA is more or less stuck with them, but the position should be phased out and replaced by a federal claims examiner position at a lower pay scale.

    12:18 PM, April 21, 2013  
    Anonymous Anonymous said...

    The idea to replace ALJs with claims examiners is ridiculous, and obviously suggested by someone with little, if any, understanding of the legal complexities. Using a claims examiner would most likely increase production, but would result in many indefensible denials, which would end up clogging the federal court. Likewise, many cases would likely be paid improperly. When speed is the primary focus, quality necessarily suffers. The individual claimants and the general public deserve better than that.

    3:46 PM, April 21, 2013  
    Anonymous Anonymous said...

    Many current SSA ALJs would likely not be hired as ALJs at other agencies not because the work at SSA is simple. It is because other agencies hearings are contested and, thus, they prefer ALJs with litigation experience. The former commissioner, who was ONLY interested in production, thought he'd get more production from ALJs who were former Agency decision writers. Thus, he convinced OPM to decrease the importance of litigation experience, to allow SSA decision writers to become ALJs. Whether that was wise can be debated; but unfortunately, many decision writers have little litigation experience. Again, it is not because SSA ALJ work is not complex or because SSA ALJs, who are former decision writers, are not competent, it's because most do not have the legal experience other agencies want.

    3:59 PM, April 21, 2013  
    Anonymous Mary B. McKee said...

    Regardless of your view of unions or what you make of the merits of the suit, look at the list of federal agencies that use ALJs. Our business--that sometimes requires that we look into the fading eyes of diabetic people whose toes are falling off, or parents whose adult children are "high-functioning," and tell them that they don't have a solid case, at least not until things get much worse--is hard and sad and wearing. Let's not forget that. We aren't social workers or case workers, we're lawyers and judges who can't help but compare our day and our salaries to other lawyers and judges. And the ALJs don't have the "luxury" of turning claimants away, and trying not to think about them anymore. Signed -Still just a lawyer because not strong enough to be a judge.

    5:31 PM, April 21, 2013  
    Anonymous Anonymous said...

    Again, most lawyers outside of SSA agree that the issues addressed by SSA ALJs are relatively uncomplicated, and in no way comparable to the complexity of issues addressed by ALJs in other federal agencies. The only people who are going to pretend that SSA disability cases are legally complex are those who have a financial interest in maintaining the status quo. The people benefiting most by the current system are SSA ALJs.

    9:02 PM, April 21, 2013  
    Anonymous Anonymous said...

    I have been with SSA for over 15 years and learn something new everyday. I dare say there is no other ALJ as complicated as SSA. You not only are a Judge, you are an advocate for the client and defender of the trust fund and it helps if you are a doctor with an expertise in all specialties. Then you have to know how to apply that medical expertise to the Regulations. Further, you need to be able to read people and arrive at their credibility and then be able to explain all of this in a substantially, sufficient legal manner. Just because Rep's do little to nothing, doesn't mean the ALJ doesn't.. For $6,000.00, you can't get a brief out of a Rep? Wow, and yet you expect 12-15 decisions a week from your ALJ averaging 10-20 pages?? SSA ALJ's are overworked and underloved.

    10:48 PM, April 21, 2013  
    Anonymous Anonymous said...

    The problem is that no one knows what game we are playing or what the rules are. . . . .For example, ALJs are hired under the APA, and the ALJ position description mirrors a number of important provisions of the APA.

    SSA all but denies that the APA exists. The APA is never mentioned at new ALJ training, and most new ALJs are not given a copy of either the APA or their PD when they are hired.

    Instead, ALJs are told that they are just "regular" employees - well, except for filing public financial disclosures, being among those who have to come in (w/o pay) when others are furloughed, and under going thorough back ground checks, etc etc. They are told they must follow agency "policy" and then directed to the HALLEX and POMS or memorandums or tips, which are not notice and comment statements of policy. They are sent emails several times per week about their "numbers" and their work statistics are posted on the internet and sent around in emails about once per week to all staff in the office.

    No one spoils ALJs anymore. they are barely respected at all. And anytime they stand up for their right/duty to protect the constitutional rights of others, they are called lazy or arrogant.

    So what's the answer? If SSA does not want APA ALJs they should not hire APA ALJs. As has been suggested, the law could be changed and ALJs removed from the process. If this is the decision, at least the person adjudicating the case would know where they stand. They would know they are not APA ALJs and hopefully have some idea of what is actually expected of them.

    However, if ALJs remain part of the SSA system, everyone needs to figure out what rules apply and everyone needs to play by them. There can be no more training that is more akin to an ex-parte indoctrination on unpublished policy or thinly veiled quotas enforced by accusing ALJs of being unethical. They should not be told their "goal" is to issue 500-700 cases per year and receive emails telling them the schedule 15 cases per week (even for weeks they are on leave those 15 cases are expected - they must be scheduled some other time to make up for taking use or lose leave). 15 cases per week adds up to 770 cases per year - and if you don't schedule that many, you will hear about it.

    IMHO - SSA should either use ALJs as they are supposed to be used under the APA (which means affording them all the rights and responsibilities that go hand in hand with the job) or get rid of them. I welcome whatever change is coming and I hope to continue my career in public service without feeling like I'm working in a widget factory in the 1890s.

    12:15 AM, April 22, 2013  

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