Dec 6, 2009

Walking Out Empty-Handed

From the News Journal of Delaware:
Every year, more than 1,000 people tell their stories of ailments, impairments and shortened careers to a Social Security judge in Dover, hoping to win their claim for disability benefits.

Many who walk out empty-handed share one thing in common: Judith A. Showalter, the administrative law judge who denied their claim....

In fiscal years 2005 through 2008, the most recent years for which data are available, Showalter denied 56 percent of the cases she heard, twice the national average of 28 percent, Social Security figures show.

Claimants under age 50 face even tougher odds with Showalter. From 2005 through 2008, Showalter denied 70 percent of their cases, compared to a national average of 32.5 percent, agency data show.

Showalter's record was a big reason the Dover hearing office had the eighth-highest denial rate -- 44 percent -- among 141 offices nationwide


Anonymous said...

Anytime there is a system where a person can make any decision that is desired,instead of being compel to.

Something is wrong.

Anonymous said...

The thing to check would be how many of her decisions were reversed or remanded by the Appeals Council.

Hon. Joyce Krutick Craig, (Ret.) said...

On March 28, 1989 and June 27, 1989 I testified before the House Committee on the Judiciary Subcommittee on Administrative Law and Governmental Relations. See Adjudicatory Procedures of the Department of Health and Human Services: Hearings before Subcommittee on Administrative Law and Governmental Relations of the the Committee On The Judiciary 101st Congress First Session (1989)

During those hearings then Deputy Commissioner for Programs/Social Security Administration told the Committee that the Agency does not publish ALJ reversal rates and when he learned that someone had secured this data under the Freedom of Information Act he told the Committee:
" Let me just say that as of May 1989 when I learned about this, it no longer occurs. We will not provide information about individual ALJ reversal rates." He then went on to state:
" ...I will do everything in my lawful authority legally to see that it is not kept any longer. It is not now kept, and we do into intend to keep it by individual ALJ." Testimony of Louis D. Enoff, Deputy Commissioner of Programs for the Social Security Administration Id. at p. 283.

I do not know why the Agency has changed its position. But we all must remember that ALJ's may not be ranked rated or evaluated pursuant to the Administrative Procedure Act. Publication of the data appears to be a rating and/or ranking.

That having been said, it is grossly unfair to disseminate this information on the web. Any judge's reversal/affirmation rate is affected by numerous factors, including the fact that dismissals are counted as affirmations. This necessarilly increases a judge's affirmation rate in any given time period when he/she has a large number of "no shows."

You also scare any future claimants who may come before the judge which may well affect the way the claimant testifies before that judge. And this in iteself may affect the outcome of the case.

As another poster indicated one ought to check the number of decisions upheld by the Appeals Council.

You do Judge Judith A. Showalter a great disservice with your post. Your article also fails to point out that whether or not her statistics are different from the national average, when examined alone they show she grants and denies about the same number of cases - (given the +/- error rate statisticians usually apply). This alone would show she looks at the cases and makes a fair assessment of each based upon her review, the documentary evidence, and the testimony. That 56% will drop somewhat when the dismissals are removed. So what you have is a judge who appears well balanced - about 50% favorable and about 50% denials. While claimants' attorneys would like judges to grant 100% of the cases, this is an unreasonable expectation. Not every claim filed is a) properly documented and b) merits a reversal.

I don't know Judge Showalter, and it wouldn't matter if it were a judge I know. Your posting is patently unfair.

Anonymous said...

The posting on this web site comes from a published news article. I appreciate hearing about news related to social security.

Personally, I think the real travesty is that the reversal rate is so high for most other ALJ's who just give money away, but I agree that this type of data should not be disseminated and the agency has failed in protecting the ALJ position.

Anonymous said...

I couldn't agree more. ALJ's are charged with a duty to follow the SSA regs and there are far more ALJ's who are pay happy than denial happy. Hopefully this will be looked at and addressed. ALJs need to do their jobs and stop acting as though they are accountable to no one. They are accountable to the American taxpayer and the APA will never negate that.

Frankly if this judge in Delaware is doing her job, I applaude her irrespective of the number of denial she issues. Seems to me she takes her job seriously.

Anonymous said...

Tell me did Judge Joyce and the last two Anons plan this little tour de force.

Can you be serious? ALJs who ignore the regs and pay too many cases are readily identifiable. There are not that many of them. In fact I bet when insiders read this very post (my reply that is) the name of at least two, maybe three overpayers sprang to mind.

However, the reverse is not true. There are a goodly number of ALJs who refuse to apply the regs when they would direct that a case be paid. That is why we have a host of horrible stories of very sick people who have died waiting while fighting for benefits.

However, just try to take something away from the ALJs. In another online forum they are complaining about not getting the full compliment of annual leave right out of the gate because they are not considered "executive level" employees.

How rich is that.

As for dissminating pay/denial rates my advice is don't do something in the dark of cover that you wouldn't want exposed in the light of day.

BTW, dismissals reported seperately and have for some time.

Further, the number for favorables include partiall favorables and/or stipulated cases.

Anonymous said...

I made the first comment. Here is another,if administrative law judges who deny heavily are so concerned with tax-payer money as mentioned by one poster. Why not do the honorable thing and make a motion for their salary reduced?

Tax payer money is just that...Paid by the tax-payer!

Nancy Ortiz said...

Hmmm. ALJ's make decisions based not on the regulations but on the SS Act and the case law applying to each case. This is their job and the only real way that claimants can have their appeals heard in a purely legal arena. People in the DO/DDS's don't have this power. That makes ALJ's work different in that every case is hand-crafted.

The claims universe in the small Eastern states of Connecticut, Delaware, RI, New Hampshire and Vermont is miniscule. Such caseloads are subject to incredible skewing simply because of the small size of the sample. ALJ's in these states cannot be judged on statistics alone. A similar circumstance existed when quality statistics applied to individual DO's during the 80's and 90's produced absurd results based on a single error out of hundreds of cases processed. The error rates computed were obviously ridiculous--no way one error in 1500 cases processed can produce a 20% error rate. But, that happened.

The Hon. Joyce is right. Sam Clemons was right. There are lies, damn lies, and statistics. QED. NO

Anonymous said...

I think it is more reasonable to have the denial rate computed across the same office. These judges rotate through various hearing locations so, over a relatively short time, they would be judging same population. To have a range, as is in one office, from under 10% to over 50%denial across the same claimant base to me deserves further investigation. It may make what Judge Joyce Craig fears most actually true. I know if I had a hearing that I would prefer the under 10 percent denial judges to the over 50 percent denial judges.

Anonymous said...

The comments of Judge Craig and the others about what information they think should or shouldn't be produced are all very well, but are beside the point. The date exists in government data bases, and it was just a matter of time before it was released on a FOIA request.

This Delaware paper is the second newspaper I know of to have obtained the data and put it online (the Portland Oregonian being the first) and there may be others. Any promise by the agency not to make reports of case outcomes by judge were doomed once the agency set up a data base that included fields for the judge's name and the outcome of the case. The data was available, and as soon as someone made a FOIA request was made there was no way to keep it out of the public domain. Frankly I'm surprised that it took as long as it did.

Anonymous said...

Nancy O:

The regulations are part of the Act. In fact the regulations are very essences of the Act that the ALJs must apply. Further, there is no "binding case law" in SSA law. In the first instance the ALJ decisions have no precedential value. That means you can not rely on a previous case (even if it is the same everything) to argue that your current case should be decided the same way.

Secondly, the Circuit cases are supposedly controlling in their own Circut but every one knows that the ALJs do not have time to even pay attention to the rulings and get down right po'd if the SA's point it out to them.

You may be an expert on what happens in the FO but from this comment it is clear that you don't have any idea what goes on in the inner workings of OHA.

Judges, unlike employees at the DO, are soley responsible for the decisions in hundreds of cases. If ALJs 1 through 8 in the same office have a pay/denial rate of 60/40 and ALJ 9 has a pay/denial rate of 10/90, there is a problem. With the ALJ.

Nancy Ortiz said...

Federal case law in the controlling circuit is binding on the judges. Of course, ALJ decisions aren't binding on other ALJ's. That's obvious. But, just try to ignore Goldberg v. Kelley or Buffington v. Biner. The Supremes would love to see you try.

And, of course, Sonia Sotomayor's decisions on the SS cases she heard on the Second Circuit's appellate bench relied on case law. Earlier posts on this blog will show you what I mean about La Sonia. Read the decisions.

You will note that Sonia sent a lot of cases back to our ALJ's. Unable to reverse because no cause of affirmation shown. Gosh. Sounds like the ALJ's messed up big time. Well, Staff Attorneys, you have your work cut out for you. Get with the law. It'll do you good.

Anonymous said...

Before you applaud this judge, you need to know how her decisions affect taxpayers.
I have been ill since 2004. I was so very ill, I coudn't barely get off the couch for years and in pain so bad that even laying still was barely tolerated. On days when I was able to do some things, it was very short lived and little tolerated . It took over two years for the doctor's to figure out my illness and I ended up filing for disability. I have a doctorate degree so it's obvious that I am not looking for a paycheck, this is not a choice. We are not a ow income household and do not qualify for any assistance. When I applied for disability, the government did not obtain any of the multiple doctors who diagnosed my illness, only the doctors who couldn't figure it out and I was denied. Then I went in front of Judge Showalter. I was warned by my atty beforehand stating that there was no way I would win my case because this judge does not approve anyone.This judge yelled at my atty, was downright nasty to me and wouldn't let me answer any of her questions. She would ask a question and then cut me off when I would try to answer. Then the power went out and the hearing was ended abruptly without completion. She denied me stating that she discounted all of the top specialists in their fields who finally figured out my illness because the initial doctors could not diagnose me(nor did they try). She discounted the government's own psychiatrist's opinion which I was forced to go to. She even used a letter written to my doctor begging for a referral to the mayo clinic because I was so sick against me because I was able to write the letter. After her denial, I had to appeal which was denied after 2 years because they chose to not review the case. What? Now, I have hired an atty who states that because she denied the case,I will most likely not win an appeal. We pay into this insurance in case we become so ill that we cannot work and then god help you when you need it, you may end up with a judge like Showalter who isn't forced to view ALL of the facts and make an unbiased decision. My husband has supported me and paid all of my medical expenses all of these years and has ended up bankrupt and we have lost our family home that both of us worked our entire lives for. We live paycheck to paycheck and I can't afford the medications that my doctors prescribe nor the treatments that I need. My health insurance costs more than our rent. Why is there no accountability to these judges? Why no oversight? I am still very ill but because this judge was somehow allowed to dismiss records that don't support her decision, we have lost everything.
This system has made a person who is unable to work, worth more to their family dead than alive.