Mar 20, 2017

OIG Report On ALJ Oversight

     From a recent report by Social Security's Office of Inspector General (OIG):
A claimant can appeal an ALJ’s [Administrative Law Judge's] decision to deny or dismiss a disability case. Claimants file these appeals through a request for review to SSA’s AC [Appeals Council] in the Office of Disability Adjudication and Review (ODAR). If the AC grants a review of the case, it will issue a fully favorable, partially favorable, or unfavorable decision; or it may remand the case to an ALJ. If the AC does not grant a case review, the earlier decision remains unchanged. 
ODAR tracks the AC’s decision on every appealed case and calculates a quality performance measure for each ALJ. The decision agree rate represents the extent to which the AC concludes the ALJ decisions were supported by substantial evidence and contained no error of law or abuse of discretion justifying a remand or reversal. At the time of our review, the national agree rate goal for ALJ decisions was 85 percent. The national dismissal agree rate goal for ALJ dismissals was 72 percent, but less than 6 percent of the AC workload related to dismissals. ...

... Regarding the 11 ALJs whose decision agree rates were 65 percent or lower for 3 consecutive years, we found ODAR managers had taken action to improve the quality of their decisions. Five ALJs had undergone a focused quality review, three were scheduled for this type of review, and one had been nominated to undergo a review. Of the remaining two ALJs, one had undergone a regional quality review, and the other was scheduled for a one-on-one counseling session with the Regional Chief ALJ. A focused quality review involves an in-depth review of a sample of an ALJ’s decisions to ensure the decisions are policy compliant and legally sufficient. If managers find a pattern of error-prone cases, they offer advice on how to correct errors and determine whether the ALJ should take additional targeted training. Three of the five ALJs who underwent focused quality reviews had completed targeted training.
     Note that there is no similar system for tracking remands and reversals by the federal courts. I think some interesting patterns would be seen if that were studied.

12 comments:

Anonymous said...

The AC has greatly reduced the percentage of cases it remands/reverses in recent years. Ironic that this comes at a time when the agency tracks "agree rates" and wants an agree rate of 85%. It should also be noted that at least for a period, line ALJ's were given rotations at the AC. So the AC has incentive to rubber stamp ALJ denials in order to improve agency metrics. Makes total sense.

Anonymous said...

That "report" misses the point bigly. They are assessing only the finished product (i.e., the written decision) and not what initially comes from the ALJ to the writer (the instructions). Having been an attorney decision writer for 25 years, I have to say that more than a few ALJs haven't a clue when it comes to making decisions based upon the law and evidence. Now, I am not anti-ALJ. There are many fine ALJs at ODAR. Unfortunately, a significant percentage of judges simply do not care enough to inform themselves about the law or the issues in the case. The result? 30% of instructions I get have a major error, requiring time and effort post-hearing to fix. A great many of those errors are things one might consider fundamental, such as identification of severe impairments, specific RFC restrictions tied to certain impairments, faulty RFCs, terrible examination of the VE, etc. Sadly, however, the most common problem is missed evidence due to failure to adequately review the file prior to hearing (or at all). And it's not just new judges. Right now there are two judges in my office with over 20 years at ODAR who resolutely refuse to do their homework, and I have to "fix" nearly every single case I get from them. OIG needs to focus on that initial set of instructions if it really wants to get an accurate picture of just how bad it is.

Anonymous said...

Outlier judges interpret "qualified judicial independence" as "we can do what the hell we like no matter what the law says." In one case I had with a 56 y/o with all PRW at medium and above and a DDS RFC of light, the ALJ found that dog training work the client did in prison was PRW and gave her skills that would transfer to light work. In several cases, I've had judges literally make up their own RFC out of thin air. The CE and DDS RFC put someone at light or sedentary, and the ALJ denies at medium or light with no evidence to back it up.

Anonymous said...

2:08 is exactly right--the decisions the AC and everyone else are evaluating are the product of ALJ instructions, decision writer efforts and drafting, and finally ALJ editing.

If you want to get an idea if ALJs are following the law and policy and doing their job, you most definitely need to look at their instructions! There are so many attorneys (and to a lesser extent, paralegals) like me who are doing a big portion of the ALJ's work for issues the ALJ got wrong or simply didn't address. Now I think eBB is overkill and ALJs do not need to address every aspect of each and every possible issue on a case, but lordy, we should at least make them have clearly-articulated RFCs that line up with the impairments, some guidance on opinions, and input on at least the major other issues (PRW, SGA, etc.) at play. We don't. I still see, way too frequently, ALJ instructions that contain woefully little information.

and when a brave writer refuses to write the decision in such an instance, mgmt. is essentially powerless to do anything about it. Without fail, what ends up happening (if the issue is even pursued) is that the ALJ might give a smidgen more (but not sufficient) information and the writer just makes due, or the writer stays strong and mgmt. assigns the case to someone else to write.

I want to pull my hair out all the time over the fact that so many ALJs (dangerous to guess, but I'd have to say it's at least 20%) literally have no good understanding of the law and policy and do not care in the least to acquire it. And they're the ones making the findings and decisions! ARGGGGG

Anonymous said...

2:08 and 4:18 - I clerked for state and federal judges and worked as an attorney for an ALJ. Based on my experience, let me tell you this: it's your job to take what you are given and shape that into a legally sufficient decision. Yes, if there is a glaring error of law, you should bring that up with the judge and do your best to rectify it. Yes, it is frustrating when the instructions are lacking in one way or another. It would be nice if every product from every judge was perfect, but as a lawyer, your job entails more than just taking perfect information and plugging it into a computer-generated decision. Although I've seen quite a few writers that can't even do that. Your job - your profession - is to take what you have been given and make the most out of it. That's what every law clerk and attorney-advisor gets hired to do.

SSA requires that ALJs issue 500-700 decisions per year. That entails reviewing 500-700 files, holding hearings in 90+ percent of those cases, reviewing any evidence that was submitted after the hearing, issuing instructions, and editing the decisions of attorneys who may be much less capable than the two of you perhaps deem yourselves to be. An attorney has to write ONE decision per day, usually based on rationales that have been spelled out by the ALJ in eBB or FIT. And many cannot even average that amount. So next time you spend 3 hours drafting a favorable decision and have the remainder of the day to surf the web, maybe walk down the hall and try to educate the ALJ you feel doesn't "understand the law and policy." But don't complain about having to do the job that you're paid to do.

Anonymous said...

Question that has been asked before by the US Congress during a congressional heating few years ago. Most hearings are based on Medical Records to substantiate the severity criteria. What medical education or experience do the ALJ have to make that determination. They are, from medical education point, lay persons. Complex medical decisions which are difficult for experienced clinicians are made by these "non medical" judges. Making and breaking someone's claim appears irrational and callous. Is anyone at SSA concerned about it. Certainly Sen Rubio, Mulvaney and others need to pay attention to this little details. A fraction of ALJs use Medical Experts during hearings. How then these judges make decision on medical records that may be spread out over thousands pages of medical records? The king has NO clothes folks?

Anonymous said...

2:08 here. 5:18, it is my job to write a "legally defensible" decision. It is not my job to fix the judge's eff-ups, especially when those are the result of laziness, or of daily malfeasance in office. It is certainly not my job (and I'm not paid to) do the judge's job for him, which happens far too often.

Your second paragraph summarized nicely what it is the ALJs are paid to do...and if they do that (i.e., reviewing 500-700 files, as well as post-hearing evidence, etc.) I've go no problem whatsoever. But ALJs also absolutely must actually look at the evidence pre-hearing (so many do not). They absolutely must inform themselves about SSA law and regulations and how those apply to what they're doing (good luck with that). You might be surprised to learn that more than a few ALJs don't even know how to formulate a valid RFC, much less how to cross-examine a VE. Precisely how can the ALJ know what questions to ask at the hearing when he knows virtually nothing about what's in the file? Yeah...that's malfeasance.

Again, I'm not out to tar and feather the majority of ALJs in ODAR. It's the bad apples who gum up the works, and, sadly, there are way more bad apples than anyone wants to acknowledge.

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Anonymous said...

5:38

What you say is cool and all, except the Act, regs, and policy say the ALJ is the ONLY one who should be making these determinations, findings, etc. I am happy to play real lawyer and advise ALJs--I talk shop all the time to the ones who bother to delve into the law at all--but I resent with every fiber of my being that I do a huge portion of their (and only their!) job for them, while they collect the $180k and I get barely half that.

It is not my place to say whether a job is PRW--that's a finding reserved to the ALJ. Again, I'm happy to help figure it out, but like, the ALJ should at least be up on the issue and coming to the table (putting something in their instructions) with something indicating they at least were aware of the issue and had some ideas. I am sick and tired of doing their jobs for them.

It's one thing for an attorney to help an ALJ through issues, it's an entirely different thing for the ALJ to not even identify major issues THEY ARE CHARGED WITH DECIDING and for the attorney or non-attorney writer to have to figure it out and make the finding himself.

But you keep patting yourself on the back and making like you're more of a lawyer or something for doing this for them, rather than being a chump who does the work of someone making twice their salary for them ;)

Anonymous said...

@8:44/2:08 and 4:20-

I shared your frustrations when I wrote and agree with the issues you've raised (and interestingly, I wrote in one of the listed offices back in the day). Not only did I get to wrestle with bizarre or inexplicable decisions on a regular basis (Step 4 denial on a person with $356 of total earnings in the prior 15 years?), but I got to write UAFFs in cases where post-hearing CEs were not proffered or supplemental hearings were not held on proffered post-hearing CEs or other evidence. When these issues were raised, I was told to write around them. Okay...

But if you are in the process of applying for or waiting on the register to become an ALJ, just wait until you get it. Not only do you get to review the files, hold the hearings, and make the decisions, you also get to keep doing your job as an attorney-advisor by fixing inadequate or insufficient drafts and, likely, doing the SCT responsibilities as well due to inadequate workup. Yes, the money is far better, but in terms of job frustration, moving down the hall to the bigger office doesn't lessen it. In a lot of ways, it significantly increases it.

Anonymous said...

6:52

I don't know that I want the job of ALJ, it is really tough and I get that. We all have tons of work to do here in ODAR field land, so sure, we aren't always doing 100% detail and we make mistakes. I totally sympathize with ALJs' 2.4 dispos per day or whatever the mark is, I do. But what I am talking about is the sort of thing you mentioned in your post--complete and utter lack of knowledge of the law and policy, flagrant contravention of it, and pure laziness.

We notice the judges that never review files beforehand--it's obvious because they come to SAAs or mgmt. at the last second before the hearing to talk about some issue. We notice the judges that can't bring themselves to make a decision and send most all their cases out for post-hearing CEs and then adopt the CE's findings as their RFC. We see the ALJs who, right when their ALPO or EDIT is about to be so seriously delinquent they might face a loss of telework (or rather, a memo that says if you don't move most of the offending cases within 15 days you might!), clear those cases out and magically have a lot more FFs than usual.

I get it, I really do. But there's a difference between a person moving too fast making mistakes/cutting corners here and there and complete pieces of crap. And we have way too many of the latter.

Anonymous said...

Quite frankly so many ALJ's are so lazy and incompetent that I don't understand why ODAR just does not get rid of the ALJ jobs and replace them with attorney/hearing officers. The ALJ"s are overpaid for the work they do. Way too many don't do their jobs. IT's a very, very sad situation.