Mar 4, 2016

A Novel Idea

     Henry Aaron and Lanhee Chen have a novel idea for how to deal with the terrible hearing backlog at Social Security. Turn over the process for vetting applicants to become Administrative Law Judges (ALJ) to some other agency, perhaps the Administrative Conference of the United States (ACUS). 
     This assumes that Social Security has really been wanting to hire more ALJs for years but has been held up by the Office of Personnel Management (OPM) that persistently fails to provide the agency with an adequate number of ALJ candidates and the only solution is to take it out of OPM's hands. The first problem with this theory is that Congress recently passed legislation providing:
Notwithstanding any other provision of law, the Office of Personnel Management shall, upon request of the Commissioner of Social Security, expeditiously administer a sufficient number of competitive examinations, as determined by the Commissioner, for the purpose of identifying an adequate number of candidates to be appointed as Administrative Law Judges ... The first such examination shall take place not later than April 1, 2016 and other examinations shall take place at such time or times requested by the Commissioner ...
     Why isn't that enough? Are we already assuming that OPM will fail to do what it has been explicitly ordered to do? Wouldn't transferring this responsibility to ACUS just cause more delay as ACUS struggles to get up to speed?
     The second problem is that there is reason to question how much delay OPM has caused. If you look around the Social Security Administration there are backlogs everywhere. Has Social Security really, really wanted to hire far more ALJs only to be held up by the dastardly OPM or is the bigger part of the problem lack of budget and lack of will at Social Security? Take a look at the Appeals Council. There's a huge backlog there. OPM is no obstacle to hiring there. Why haven't they hired more?
     The third problem is that anyone who thinks that ACUS can take on this job must not know much about ACUS. ACUS arranges for studies of administrative issues and holds conferences on these issues. I'm not aware of them ever taking on any line responsibility for anything. It's hard to imagine these academics wanting to take on such a responsibility or being able to do so effectively. It would be like turning over the responsibility for running a publishing company to the English department of some university. Yes, publishers and English professors are both interested in the written word but that's about the extent of the overlap.

29 comments:

Anonymous said...

More $100,000+ annual pay aljs is not an answer.

Anonymous said...

Oh look, the 100k guy is back again.

Anonymous said...

The authors appear to be ignoring the 800# gorilla in the room, namely congress' chronic reluctance to fund the agency sufficiently to hire the people needed to reduce the backlog. Proposing that the academics at ACUS would be suited to a human resources task like vetting and hiring staff is like electing a president who doesn't know squat about laws...oops, sorry, maybe that's a bad example. Anyway, Yo, Aaron and Chen, I'm with you on wanting to reduce the backlog but follow the money if you want real answers.

Anonymous said...

It's always been about the budget. The only way to reduce the backlogs and write at least decent decisions is to increase staff. Congress won't provide funding to increase staffing, and has clearly signaled to SSA that they care more about "quality" and no more Huntingtons than reducing the backlog. Until one of those things changes the backlogs will stay the same or worse. I'm sure SSA is frustrated with OPM, but that's not the thing stopping them from hiring.

Anonymous said...

The easy solution for reducing the backlog at ODAR is to reduce the number of improper denials at the State agency level. Adjudicators at these levels are currently not tasked with getting the decision right (there is always another level of appeal if they get it wrong), they are simply tasked with getting a decision made as quickly as they can so they can move more cases, and in turn generate additional revenue for the State agency.

There has been no political pressure to look at the abuses which take place in adjudication at the State agencies or any political will to make the necessary changes. I know in my State the turn over of adjudicators is incredible and most have less than three years of experience on the job. They routinely do a poor job of developing files, which in turn leads to decisions which are based on a deficient record. If they would only take a little more time to do things right at the initial level, we could dramatically reduce the number of cases ending up at ODAR.

Anonymous said...

SSA non-adversarial disability admin hearings do not require $175K ALJs. ~That~ is the big elephant in the room. It's a big fraud being pulled on all the stakeholders, including the US taxpayers.

unlike ALJs at DOL, DOE, SEC, FERC, etc., the SSA "aljs" do not apply federal rules of evidence or procedure. They do not rule on discovery issues or hold hearings that can last for days or weeks at a time with highly complex issues being litigated. The disability hearing issues are straightforward and hearings usually last no more than an hour. It doesn't take an ALJ to process these cases. Bottomline, the SSA aljs are not doing APA level ALJ work.

And yes, we need some creative, cost effective alternatives to the current system. Grandfather in the aljs currently there but don't perpetuate the fraud any further. Hire and pay people commensurate with the work, which at SSA hearings is not ALJ level work.

Unknown said...

I definitely agree it's a combination of what the above commenter's have said. Congressional will (with GOP in-charge, at least) is deny cases as fast as possible to improve so-called efficiency. In addition to the DDS being fraudulent, the ALJs overpaid for these non-adversarial flexible admin hearings, as well as the general useless of OPM coupled with high turnover. ALJs come in almost as fast as they go out, whether to WC, NLRB, or Immigration. In the last year I've seen turnover in the Bay Area judges that correlated strongly with increased denials, longer back-logs, and worse service that would shock any right-minded oversight committee.

J.P. said...

Whether the ALJs are applying the FRE is irrelevant. Immigration Judges don't apply the FRE. Neither do SEC judges. Each Administrative agency has its own nuanced evidence rules which are usually simplified. Administrative law is actually not under the Judiciary branch of government. It's under Executive. Regardless, they all work very hard and have high case volume to deal with.

J.P. said...

I haven't noticed high turnover with ALJs....it's a sweet job and everyone knows it. I've practiced for 11 years now and at least 70% of the ALJs that were there when I started are still there. The job pays very well and has a stellar retirement plan. We need more ALJs. The real problem is the fraud that Republicans in congress are playing by taking my clients payroll taxes for 30 years and promising to pay them if they become disabled, then accusing them of malingering as a justification for refusing to pay money that is owed. That's where the real fraud is.

Amishboy51 said...

Agree with 4:32. As far as I know, there's never been any pressure at DDS to apply the so-called "Process Unification" rulings, which would require adjudicators to consider (not simply check a box and insert boilerplate on a form) things like subjective symptoms and treating source opinions (as is required at ODAR). If this were required, there would be far more claims paid (correctly) at DDS and far fewer requests for hearing at ODAR, without worrying about money in the budget to hire more ALJs and staff at ODAR.

Anonymous said...

Perhaps reactivating FEDRO might help. It's still on the regulatory books. ASTRUE chose to BULK UP ODAR, which resulted in HUNTINGTON, and then when the WALL STREET JOURNAL questioned the trend of PAYING DOWN THE BACKLOG, SSA reacted by pressuring aljs not to pay cases.

Maybe it is time to give FEDRO the chance it never had. ASTRUE blew it up almost immediately after he was confirmed. The program was never fully funded to achieve its purpose: GETTING THE RIGHT DECISION AS EARLY IN THE PROCESS AS POSSIBLE.. Instead, there's a BLOATED AC at the back end.

Anonymous said...

1. Everything old is new again. Go look up Sonny Callahan in the early to mid 1990s. If you look hard enough you will see that he was jumping up and down about doing it right at the first two levels.

2. One of the results of that was the "one book" pilot. That pilot was dead before it hit the streets, but because it had already been bought and paid for the training was rolled out but the content of that training never pushed. I have good money that says that the same thing is going to happen to EBB.

3. Replacing ALJs. I have been at this over 20 years, and while I can say that I have met my share of truly horrible ALJs (and I am not one, nor do I aspire to be one in any significant sense)be careful what you wish for because their replacement could be something even more horrible, like

4. The FedRo. I have never seen such abhorrent decisions as those coming out of the FedRo, save for DDS. However, at least DDS can be forgiven because it is a factory mentality, they are penalized for paying cases and they are non-attorneys. The FedRos were trained on how to deny cases, which they became quite adept at it. They were faceless automatons.

5. My plan would be to either make the process more collaborative with outside counsel or make it truly adversarial. You can't have it both ways because it doesn't work.

Get rid of recon as it is useless.

Institute a pre-hearing process including status conferences with outside counsel and certification that the record is ready to go forward.

Internally, there needs to be a return to a more traditional legal team model with an ALJ as the lead, with the proviso that there is immediate redress for abusive/hostile ALJs and the team members would have some type of input on which ALJ they worked with; 1 Senior Attorney to direct the team on behalf of the ALJs strategy, to write the most difficult cases, do any pre-hearing conferences and to mentor; 2 Attorney Advisers and 1 Paralegal to do the bulk of the drafting; and two clerks to handle pre, post and scheduling.

However, this will never happen because:

1. ALJs see a turf war with the attorneys

2. Many of the attorneys have considerable distain for the ALJs

3. Some, not all, of the paralegals can barely do the job

4. A considerable amount of the clerical support hate everyone else in the process

5. What would management have to do?

Anonymous said...

What does FEDRO stand for?

Anonymous said...

Federal Reviewing Officer

Tim said...

11:57 AM Your comments suggest that you think SSA should be set up with the goal of TRULY determining who IS disabled. The EVIDENCE suggests that SSA is currently set up largely to determine who can PROVE it (often beyond a reasonable doubt instead of preponderence of the evidence), often over the objections of "EXPERTS" THEY pay for, including those who have never seen the claimant. So, really the claimants fate may lay upon how good of record keepers their doctors are and how sympathetic the ALJ is. Is this where we really want to be?

Anonymous said...

11:57 here. Yes, SSA should be set up to really determine who is disabled. Not manufacturing (experts)to prove otherwise or ignoring (don't get me started) evidence that clearly indicates that the claimant is never going to work again. I don't think everyone who appeals is disabled, but I don't think that only 40% are either. SSA needs to develop a system that is fair and not a crap shoot depending on what ALJ the claimant gets. If SSA cannot administer a fair non-adversarial program, then it needs to be made a true adversarial system. Otherwise the claimant's are in a no win situation because the Agency games the system and there is no true and proper redress in a non-adversarial system when it is gamed.

Anonymous said...

@6:49

I agree with most of your ideas in principle. However, I don't think making the system adversarial would work. In my opinion, adversarial systems would impose unacceptably high costs and require too much of claimants.

Remember we are talking about a cohort of claimants who are mostly impoverished. A significant percentage of them have mental disabilities that likely make it difficult for them to understand the rules and processes that apply to their claims. How would they fare representing themselves in a more adversarial system where SSA had an attorney zealously advocating against them? Even with the challenges in the current system, I predict they would fare worse in an adversarial system.

Making the system adversarial would tend to increase costs for those representing disability claimants. Discovery in an adversarial system, if done properly, is not cheap and it can be time consuming. Considering the limited potential rewards for representatives in a system that caps fees it would make representing claimants much less economically viable. Ironically, the adversarial system would need more representatives, but fewer representatives would be able to afford to represent claimants.

Finally, it would increase costs for the SSA. More staff would need to be hired. Existing staff would have more work to do on each claim. Congress is already reluctant to adequately fund SSA and that shows no signs of changing. Likely result: the backlog would bloat even further. Some of those (not saying you) who want an adversarial system are those who want the system to melt down.

Tim said...

I have suggested that people have been convicted of murder on far less evidence than there is in my medical files (denied twice, requested OTR...). I now have an actual example: Teresa Kotomski of Ashtabula, Ohio, was convicted of murder and sentenced 15 years to life in 2015 by a judge (no jury) for poising her husband, Raymond, in 2009. According to Dateline, there was no evidence to support the state's claim. He was poisoned with antifreeze, which had his prints on it, not hers. The defense claimed it was a suicide because she was going to leave him. The "expert" for the state admitted on the stand that his estimated time of poisoning could be off, depending on how much antifreeze Mr. Kotomski ingested. If more than his "estimate," then he could have been poisoned later. If later, then she had an alibi. But, alas, somehow, the judge found her not guilty of poisoning him, but guilty of murder! Try writing that decision!

ZJE said...

@Tim,

That story is some of the best macabre humor I've read in a while! And too true -- the standard for disability with some judges is well beyond "a reasonable doubt." Just goes to show that even though we supposedly don't have to deal with Federal Rules of Evidence, we're nonetheless litigating cases that require some of the highest legal standards in the nation, the regulations be damned.

Tim said...

Erin Andrews awarded $55 million. The "evidence" against Marriott seemed, well, thin. More like speculation, like the Kotomski case I mentioned, above. Deflategate also hinges almost entirely on speculation (or rather, a leap of faith). I wonder how much leaps of faith, or lack thereof plays into all these decisions? Your fate depends upon whether you get a Mulder (I want to believe!) or a skeptic (The pharisees who challenged Jesus; that refused to believe: oh, come on! Show us another "miracle". Was that guy REALLY blind from birth, or just faking it all these years!).

Anonymous said...

The comment about the "abhorrent decisions" by the "faceless automatons" of FedRo is ironic because aren't ninety percent of the Fedros now issuing decisions as ALJs and AAJs?

In fact, would the Appeals Council ever have grown to its current bloated condition if Astrue hadn't dumped the Fedros there after quashing Barnhart's baby and deciding instead to take a more "efficient" route to getting the backlog down, which seems to have resulted in situations like Huntington?

People at SSA have such conveniently short memories.


Anonymous said...

Astrue didn't cause Huntington. Prior to Astrue, a number of ALJs across the country were paying high numbers of cases (1,000+ per year). TPTB didn't just look the other way, but fostered a culture at ODAR (then OHA) which encouraged paying OTRs, the more, the better.

Anonymous said...

"Hearing Officers"??? I've been practicing SSDI/SSI disability for 26 years. For child SSI cases and cessation cases at the reconsideration level, I have taken at least hundreds of cases before HOs. HOs have NEVER GRANTED BENEFITS IN A SINGLE CASE! However, I have won at least 90% of those cases at the ODAR level! I screen cases carefully, and I don't take many of those types of cases. Some colleagues at Legal Services tell me that they've actually won a few of these cases--amazing! HOs are so brainwashed or pressured by the Agency, that no one would get benefits if they were turned loose to replace ALJs, and the entire disability program could be terminated. Salaries of HOs should be saved and applied to useful work.

Anonymous said...

ALJ's are held to uphold the Regulations and Dicta of the Agency. An impairment and limitations MUST be documented and supported by the evidence, not by testimony alone. Look at Fibro, look at what the SSR requires for diagnosis. For the record to say "history of fibromyalgia" is not in fact a diagnosis. That is truly subjective and not supported. The first 4 steps of the analysis require the claimant to carry the burden of proof. So few do. Where in the records are the limitations? The rep says, "the claimant must elevate their legs above their chest level for 2 hours at a time at least 3 times a day." Where is that in the records? The other day, the rep said the claimant had 3 nebulizers and 4 inhalers and had to use them all 3-4 times a day. Consequently, the claimant would need to take time away from work 3-4 times a day to set up her nebulizers and administer a treatment. I asked where that was in the medical records. He said he couldn't find it, but the claimant had testified to it (under his leading questions). I asked her if she had a prescription for them and she said yes. I said how many times a day does it say you are to do it. She said, "As needed.." That certainly doesn't sound like an Rx for 3-4 times a day for 3 nebulizers. I asked the rep to find this info in the records and send me a brief with same. He agreed... Sorry, no brief came in..

Anonymous said...

Astrue didn't cause Huntington? Was t there a Senate report in 2013 that said he was creative and enthusiastic about dealing with low producers, but looked the other way for high producers.

Tim said...

12:30 PM You sound like the skeptics (paharisees) I mentioned above. In fact, you really make my entire point! Doctors make their records for their use and getting them to put what the claimant needs in their records is harder than pulling teeth. You see a problem with the records, try to get it changed, end up making another pointless appointment (he's already told you he CAN'T do anything for you), hoping to get the right info in the records. Does it work? No! So, you see a different specialist... and hope you don't get accused of doctor shopping!

Anonymous said...

FOR THE PAST 8 YEARS the agency has been trying to hire ALJs. The docket has been empty. OPM JUST RELEASED an announcement this week for the test to qualify to become an ALJ. The funds to hire more ALJs were around in the Astrue era, as well as a clear agency budgeting priority to reduce the ODAR backlog, but OPM dragged their feet. With authority to hire but no judges, the hires got shifted elsewhere.

Now OPM is finally moving six years too late in an election year in which we most likely will be unable to hire many judges due to budget constraints. Particularly because the budget outlook for NEXT year is already all over the map. Depending on which way Congress and the POTUS flip in November, we could be looking at anything from a budget windfall to furloughs.

Sorry, but this one isn't the agencies fault.

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