Aug 16, 2012

A Nudge?

     Social Security's Administrative Law Judges (ALJs) are denying a higher percentage of the disability claims they hear. Earlier this week I posted this excerpt from a Pittsburgh Tribune-Review article:
The Social Security Administration has moved toward more standardized decision-making, said Assistant Deputy Commissioner Jim Borland. He said the number of judges who allow nearly all claims has fallen by more than half since 2007.
“We have created new tools to focus on quality,” Borland said. “Each quarter, we train our adjudicators on the most complex, error-prone provisions of law and regulation.” ...
      That seemed to me to be something of a boast that Social Security had found a way to influence at least some ALJs to deny more claims. How would the agency accomplish this? One commenter, probably an ALJ posted this response:
I believe what you say here is true insofar as the training part. For decades, the files were assembled, i. e., organized and exhibited, and then given to the judge to review before it was scheduled. During this review, the judge would determine whether any additional medical exams should be ordered and whether the evidence was sufficient for an award on the record. 
Beginning two to three years ago, the new judges were "trained" to NOT conduct a pre-scheduling review, but rather to review the cases just shortly before the hearing.  
The general effect of this is to deprive some claimants of more thorough development of the medical record and in my opinion likely reduces the award rate.  
In addition, the most sinister program in place is called "How Am I Doing." This is a desktop program that opens to display graphs which show the case production rate of the judge in comparison to his peers. The really bad part is a graph that displays the judge's grants versus denials. 
There is no purpose for the grant/denial graph other than to herd judges to the mean. Not based on the facts of the case. I question the impartiality of judges with the introduction of this behavior modification tool. It can have no other purpose except to influence the outcome of cases based on something other than the facts of the case.
     For those of you on the inside, is this an accurate statement of what is going on? Are these good things or bad things? If there is such a thing as "How Am I Doing", would it have the effect of reducing the percentage of claims approved? Would it affect ALJs who allow a high percentage of claims more than it affects those deny a high percentage of claims?


Anonymous said...

The "How am I doing" link is the best thing ever. I like to compare what I'm doing compared to others. Does it influence my work output? To some extent. But I dont think it has much effect on decision outcomes.

Anonymous said...

How am I Doing is guess, most judges have NO IDEA how to access it.

Anonymous said...

It's called "How MI Doing," with "MI" standing for management information. I'm an attorney and haven't seen the ALJ version, but the one for writers is benign. It tracks your output by week, month, and fiscal year compared to your office, region, and ODAR-wide. If you hover over the year-to-date graph bars, it shows how many of each type of case you've written (UF, FF, PF).

I understand your worry that these processes may push people to the mean and thus make some judges pay less than they might otherwise. But what about that same effect on judges that might pay less but now pay more? While your concern is valid that on the micro--a particular ALJ may feel pressure to decide a certain claim unfavorably or favorably--I really don't give it much weight. The effect would be much more macro, making each ALJ aware of the mean and pressuring each to move towards it generally, not case by case.

Anonymous said...

With the virtual screening unit and senior atty review pulling out OTR's, I send all cases directly to scheduling now. Many reps use the hearing notice as a flag to get updated evidence to a file, so I'm reviewing an updated file. Plus I can order any missing records or a CE post hearing. It saves time with only one review instead of two.

HowMIDoing is great. In addtion disposition data, it also allows a judge to see all of his Appeals Council and remand data per case.

The commenter sounds like a judge who still pines for the days of paper files.

Anonymous said...

The pay rate for ALJs is falling in part because of the increased use of senior attorney adjudicators. If SAAs pay twenty, thirty, forty thousand cases a year, that is twenty, thirty, forty thousand fewer favorable decisions for the ALJs to issue.

In my office, the newer ALJs engage in very detailed pre-hearing reviews a week or a couple of weeks before the hearing. The ALJ who does the least review is the one who has been with SSA in various capacities for three decades plus.

How MI Doing has no real effect on the ALJs in my opinion. The judges already know who are the high and lower payers in their office. Plus, ALJ data showing total dispositions, FF, UF, and PF cases for every ALJ in the nation has been easily accessible for several years. I doubt most ALJs ever even look at their How MI Doing page.

Whether more thorough development helps or hurts is debatable. More information could make a borderline case stronger, but more information allows more opportunities to turn up evidence that contradicts the claimant's allegations or suggests greater functioning. It can work both ways. It will depend on the predisposition of the ALJ -- is he or she inclined to pay a higher number of cases or a low number of cases; does he or she look for evidence to support a pay or does he or she try to weigh the evidence and make the most "fair" outcome.

Anonymous said...

ALJ approval rates are not going down because of OTRs being granted at my ODARs. Two years ago, I could get about 50% of cases I though were good OTR candidates disposed of with OTRs. Last year was about 1 in 3; and now it is less than 1 OTR for every 10 requests I make. Pretty much a waste of time.

I have had two ALJs ask me why I didn't ask for an OTR in easy cases where the claimant would grid out, and had to respond that we did ask for OTRs several months ago. Oops.

Anonymous said...

“We have created new tools to focus on quality,” Borland said. “Each quarter, we train our adjudicators on the most complex, error-prone provisions of law and regulation.”

What Borland is talking about is video training once a quarter for all ALJs and decision-writers focusing on areas of a decision, such as evaluating medical source opinions or evaluating credibility, that are often identified as issues in AC remands or Court remands. The training is geared towards producing legally sufficient decisions (i.e., fewer remands), not paying more cases.

Anonymous said...

@ 3:19...exactly, the goal of the "training" is to help attorneys and judges draft decisions that are more likely to withstand appeal. It has nothing to do with productivity or FF v. UF. In fact, they go out of their way to make it so.

Anonymous said...

How is it at all relevant to an ALJ to know how his approval/denial rate compares to other ALJs? By sharing this information SSA only has one goal, to bring everyone to the center. This may in fact be a good thing ultimately for the program but on an individual case, which is all any particular claimant cares about (and rightfully so) it could be a very bad thing. Close calls may go against a particular claimant if the ALJ sees he/she is slightly on the high side. Therein is the problem. It becomes a way for SSA to influence the independence of the ALJs.

Anonymous said...

3:31, I strongly disagree. ALJs can be aggravated by mgmt and the people at the top, but just like you, me, the wall, and everyone else knows, ALJs are completely untouchable.

They are going to do just what they want to do, no matter how the agency pushes them. The judges that are using How MI or other metrics to get to the "center" want to be in the center. If it weren't How MI or whatever, they'd be doing it by word of mouth or looking at the bare bones Agency data on pay rates to make sure they were within a standard deviation. Similarly, the old fogeys who want to pay everyone or not pay anyone are going to continue to do so, regardless of what their peers are doing.

If you want to argue that any Agency actions are affecting the UF vs. FF of ALJs, the best argument would have to include remand rates and the quality of decision writers. Because I have definitely seen judges adjust their decisions based on how long UFs take to turn around, how a crappy writer can more easily write a FF than a UF (and not be remanded), etc.

Anonymous said...

The only thing that "influences" or tries to influence decisionmaking is the constant demand for production - to move cases out the door - which if the goal were being met, would be in cutting corners and approving as many as possible. This is the opposite of lowering the pay rate.

The darling judges of SSA are the ones who have high production numbers, which are always high payers. One judge who boasted over 2000 cases per year, paid over 90%, but he refused / refuses to use a vocational expert, so the paltry ones he denied are now coming back to the hearing offices as remands. When asked about his remand rate, he said he does not look at that. Is that being a good steward of the SS Trust Fund, or of the claimants he considers? I think not.

Anonymous said...

This site is becoming increasingly nothing but a waste of time. Its webmaster/administrator/owner is so utterly biased and subjective that the whole enterprise is reaching a point of no return. Now it's even How MI Doing a tool to deprive "needy" and "deserving" clts (of course, ALL of them) from "justice"?!

Sad? Pathetic? No. It's just hopeless.

Anonymous said...

I absolutely agree with Anonymous at 1:25pm. Not long ago, we would review cases for OTRs but now? There are no cases to review. They have already been granted by SAA or by the VSU. Once in a blue moon (1 x every couple weeks?) I may review a durational denial. The bottom line is yes, my approval rating used to be higher and now it is lower; but that's only because of the makeup of the cases I get...a lot are simply not disabled. 35,000 SAA decisions definitely have an effect.

As to the MI, it's kinda neat, I check it once every few months, but it has no effect on me one way or the other.

p.s. I do very detailed reviews of my cases...unlike the ALJs of yesteryear (appointed before 2008). More than half the ALJ corp has been hired since 2008 according to Mr. Sklar.

p.p.s. The badges (premiering Monday) will catch some of these old ALJs off guard I would imagine.