A couple of recent reader comments, both anonymous, are worth moving up to a more prominent place (I have reversed the order in which they were posted.):
Here is the latest TRAC Report which discusses disparities among ALJs within offices.*surprised that Charles Hall failed to find and post this link.
Thanks to the reader for pointing this out. I had not seen it.
No one knows better than a practicing Social Security attorney that there can be dramatic differences between Administrative Law Judges (ALJs). My response, however, is basically "Yeah, so what's your alternative? If ALJs didn't exist, you'd have to invent them to give the system any credibility at all. You can't get rid of ALJs and there's no practical way of controlling the disparities between them." But the next anonymous poster put it much better:
Having been a trial attorney for many years with many jury trials on the books, I am somewhat perplexed by the belief that judges should all fit in a certain statistical range. Juries operate with specific instructions just as judges act with specific rules and regulations but are human beings just like MOST jurors. We cannot expect human beings with past life experiences to act/react the same. Jurors do not see evidence the same way and neither will judges. A statistical bell curve will always exist as long as humans are making decisions. Maybe things would be better if we just fed all the information into a computer in the DOs [District Offices] and out would pop a decision like the take-a-number system used in the lobbies for interview times. The current system works better than anything else that could be devised to provide due process. The problem areas are very insignificant in the grand scheme and there are ways to address those areas without demeaning the entire process.
It would be interesting to see what percentage of denials for each judge went on to win at appeals council. I would be willing to bet that the judges with the lowest award rates have a higher percentage of denials that get turned into awards when they go to the council. Many of the people on the councils could probably name from memory which ALJs they over-rule more than others. They see firsthand the disparity and can help rectify it. Unfortunately, some of those people who are denied give up after their hearing and don't get the benefits they deserve. And the increase in time between hearing and appeals council award can be quite long and take a toll on a claimant.
ReplyDeleteWell said. While it is crucial to judicial independence, the ALJs cannot be independent from the laws and regulations which govern their adjudication of these I would find it hard to believe that an ALJ who regularly had reveral rates 15 to 20 percent below the national (or perhaps regional?) average rmakingeveral rates isn't making legal errors on a regular basis.
ReplyDeleteYou realize the only reason the national average is as high as it is, is because there are so many judges that pay 80% or more, skewing the numbers upwards. There are relatively few ALJs with "abnormally low" pay rates.
ReplyDeleteThe TRAC report identifies 317 ALJs with an 80% or higher pay rate (with 92 judges paying 90% or more) compared to only 7 ALJs who pay less than 20% and only 94 ALJs who pay less than 40%. Of the 1594 ALJs who are listed in the TRAC Report, 1500 ALJs pay at least 4 out of every 10 cases they hear, with over 300 of that group paying 80% or more.
Especially with the wait time between the request for hearing and the hearing approaching only a year (meaning there is less time for new medical problems to arise or existing problems to worsen or people to reach magical ages where they are presumptively disabled because of their age, not because of any actual inability to work), the pay rate ought to be relatively low. The ALJs paying twenty, thirty, or forty percent are much closer to reality than the judges paying seventy, eighty, or ninety percent.
While the AC should probably take a closer look at more cases where review is requested, many cases are remanded because of articulation problems, not because the decision was clearly or even likely incorrect.
Furthermore, if the AC is really doing its job, it would have to review a much higher percentage of favorable decisions; if this was done properly, you would see a lot of favorable decisions being remanded, both because the decisions were not justified in the first place and because the decision was poorly written and no meaningful review can be done.
Claimants and claimant's representatives should be careful how much they agitate against a system that is heavily skewed in their favor.
two thoughts on the trial attorney's points, both of which make my point that the current system is flawed:
ReplyDelete1) this is not an adversarial system, so his trial-based view is not entirely applicable. this is supposedly a non-adversarial system (i know, it doesnt actually work that way) and the claimant, rep, and ALJ are supposed to help each other develop the record to come to a "proper" decision.
2) bell curves are expected in any system, but the size and shape of the bell curve matter here. the size of the disparities seen in this system cannot be explained by natural human variance. we can prove this statistically if necessary (std deviations, etc.).
bottom line, this is an administrative process, based on rules and regulations, that is supposed to yield consistent, expected results. instead, a significant amount of aljs on both sides of the curve are screwing up this process and the disparity itself should be seen as an embarrassment.
You might think that 40,000 - 50,000 senior attorney cases paid might have something to do with the stats
ReplyDeleteWith our 18% ALJ, the Appeals Council will not touch the claim. But each and every claim is remanded from District Court.
ReplyDelete