Jul 5, 2013

Not Buying It

     Jay Barnes isn't buying the claims that Social Security is pressuring its Administrative Law Judges to approve disability claims.


Anonymous said...

It's the same thing over and over. He found "sources" that supported his view of the program - awesome. If you read the footnotes and fine print you can see how the first report he listed may not be accurate. That is the case with ANY statistical study. Numbers can be skewed by either side to support their arguments. Waste of time.

Anonymous said...

Viewing a problem from multiple angles is never a waste of time. Response and action, without thought, based on dogma and single source information is the waste of time, and responsible for countless waste as uniformed individuals influence decisions founded on only the information that support ideas private agendas.

Anonymous said...

There is nothing in that article to suggest that Mr. Barnes has any particular authority or credibility on the subject.

Anonymous said...

No ALJ ever stated that Social Security is directly pressuring them to award benefits. The assertion is that the Agency's overzealous push for production can push some ALJs to award benefits in some cases because, as the argument goes, it is easier to pay a case than to deny it since the instructions do not need to be as detailed and their is little to no chance of Appeals Council review and no chance of district court review.

In addition, the decrease in ALJ pay rates is attributable to the Judge Daugherty/West Virginia fiasco. The Agency had no concern over high pay rates until that whole mess became public. Until then, Judge Daugherty and others with high pay rates and high disposition rates were Agency models of efficiency and public service.

The real issue is not pay rates, but how much time high-producing ALJs devote (or not) to reviewing the evidence and whether they speed their hearings and the process up to increase their production, which is all the Agency cares about. If an ALJ does not fully review their files, it is likely certain claimants will be found disabled when they are not, and it is equally likely certain claimants will be found not disabled, when they are.

In offices where the files tend to be large, the Agency's production goal is unreachable without skimping on file review, holding quick hearings, working sixty or more hours per week, and/or side-stepping procedural requirements such as supplemental hearings or waiting for additional evidence to be submitted.

At the recent hearing, Mr. Sklar, an Agency manager, stated that the production goals are not out-of-reach because many reach them and many say it is not difficult to do so. First, Mr. Sklar is not a judge and never was a judge, so his opinion is based solely on what others tell him, not on personal experience. Second, just because many meet the goal, does not mean that it is a proper goal. Many, if not all, do so only because they believe they must do so, and they will take almost any step to do so. Indeed, while according to Mr. Sklar many stated they have no problem meeting the goal, they did not say they read all of the evidence in the file. Senator Coburn, who has looked into the process, also testified, and unequivocally stated assuming the average file is 600 pages long, doing 500-700 dispositions per year (pay or no pay) was "impossible." He is correct.

Anonymous said...

DDS does it, without the decsion maker having a "staff".

Anonymous said...

Sklar's mission seems to be to ensure that all ALJs conform to an expected ratio of allowances vs denials. Does this mean that any ALJ who deviates from the norm by allowing too many or denying too many will be subject to extra scrutiny and taken behind the woodshed? Seriously, the entire process needs to be abandoned, thereby making Sklar's job and the ALJs' jobs redundant. Doctors, not lawyers, should be deciding whether individuals have the physical and/or mental capacity to work or not.

Anonymous said...

That article isn't viewing it from multiple angles which is precisely my point. This is polarizing issue. Rarely do you find any reports that document the benefits AND shortcomings of the programs. That's what I was referring to as the waste of time.

Anonymous said...

I just find it funny how anonymous 3:45 essentially says that Sklar, never being a judge, has only personal opinion and is parrotting back what others tell him, (diminishing the value of any opinion he may have) while moments later supporting Mr Coburns positions on what a judge can do. Mr Coburn, last viewed, has never been a judge either, and is actually less connected to what ODAR does than Sklar. Yet anonymous seemingly puts more weight to Coburn's equally "never been one, just parrotting what I've been told" views. Not being too blind in finding something to denigrate the views you don't like :)

Anonymous said...

When DDS looks at the cases, they have minimal records. When an ALJ looks at the cases, they are much, much larger. In addition, similar to ALJs, DDS physicians have complained that their production quotas do not allow them to fully review their files in a professional manner.

Disability is a legal decision, not a medical decision. Medical evidence and opinions play a significant part, but so do lay, third-party statements, the claimant's subjective complaints, and vocational expert opinions. So, physicians are not the proper professionals to make a legal determination.

Also, I don't want to speak for the former poster, but I think the point he was making about Sklar's statements is that his opinion is of limited value because he has no personal knowledge and, as an Agency manager, has an agenda to push; Senator Coburn, on the other hand, is an impartial third-party who is investigating the process to try to figure out the mess that Astrue and Company made of ODAR, which has never been a particularly functional organization. Where else would you have non-attorneys, who have little understanding of the law and legal procedures, managing an office of attorneys and judges.

If anyone really thinks 500-700dispositions is appropriate, they should try reading 500 books of 600page length and write book reports on each of them, and see how far they get.

Anonymous said...

Anyone who states with a straight face that Sklar can't be listened to because he is pushing an Agenda while touting Coburn as an impartial third party about social security .. well, of course he has no Agenda that he is pushing. Nope, none at all. http://www.rawstory.com/rs/2012/12/09/coburn-medicare-and-social-security-are-things-we-dont-absolutely-need/

Anonymous said...

I do not know anything about Mr. Sklar or a judge's pay rate, but it seems like a matter of common sense and common experience that a judge cannot read 600 page files, hold meaningful hearings, prepare writing instructions, and edit decision drafts in 500-700 cases. Whether the judge grants or denies the case, they must be shooting from the hip, which is something the public might expect from a mindless beaurocrat, but not an ethical lawyer and judge.

Why doesn't Congress simply have some of their aides shadow some high and low producers, or time the judges when they review a couple of cases (and calculate whether their review time would allow for actually disposing of 500-700 cases), ask to see their review notes, and question them on their knowledge of the case afterwards. I suspect the high producing judge's review time would mysteriously slow down and/or their knowledge of the case files would be superficial.

Any physician will tell you, and Senator Coburn is a physician, that files of that size cannot be read and understood in such a short time. While speed is good, accuracy is better. These judges are dealing with people's lives and the public's tax dollars, and they deserve the time and respect to do their jobs properly.

Anonymous said...

I don't know if the average file is 500-600 pages or not, but whatever the number, no one actually reads every page.

I looked at three cases I have for hearing tomorrow. One is 281 pages, of which 118 are medical records, the rest being things like the application, prior determinations, notices regarding hearings, earnings records and Detailed earnings report and so on.

The next is 315 of which 104 are medical records and the remainder the same stuff as above.

The last is a mammoth 1077 pages of which 920 are medical records. Of course, those records do not all have to read either. They include six different hospitalizations where the hospital sent the entire file, of over 100 pages each, including nurses notes, blood tests, EKG strips, etc. where all that really needs to be read closely are the discharge summary of two or three pages each and a quick look at any operative note or consultant evaluation, a couple of pages each.

So enough of this nonsense about how hard it is for a poor judge to review all of these files. For an experienced Judge, an hour or two is more than enough in even a complicated case and in some, much less.

Hear five cases in a morning, three days a week, as many Judges do, add in a handful of dismissals and OTR's and 50 cases a month is not only doable, even if you deny half of them, but downright easy.

And yes, I have seen it from both sides as a Staff Attorney that wrote around 4000 decisions in just over ten years and as a private attorney that has represented over 8,000 claimants in over twenty years.

Anonymous said...

And for Coburn

He had someone, of unknown experience and expertise, review about 80 cases that were approved and then claims that 25% of them were not sufficiently documented to justify approval. Not necessarily wrong, just not documented enough to satisfy his unknown reviewers.

How many cases that were denied did he have reviewed. NONE. Is it just possible that some of those denials may not have been sufficiently evaluated either? We'll never know since he would never bother to find out.

HIs entire approach, looking at only one side of the process and finding flaws on that side, (debatable ones at that) and ignoring the other side just establishes his propaganda credentials and not his honesty

Anonymous said...

I am an ALJ and the average file in my office contains over 500 pages of medical records, that is, the F file. I know of other offices where the files are roughly the same size as ours, and I know of many others where the files are much smaller. So, what might be reasonable in one office may not be so in another.

I completely disagree with the post from another ALJ and former decision writer about the time needed to read the file, and agree with the earlier posts (and Sen. Coburn) about the time needed. While lab charts do not need to be read closely, nurse's notes do, and the vast majority of the record does - not just discharge summaries. In addition, many of the records are hand written and are difficult and time-consuming to read. As the earlier post suggested, however, many do not take the trouble.

If an ALJ relies primarily on the admission and discharge summaries they miss much. Other sections of the file are also critical, that is, the portion with function reports, symptom reports, etc.

As several earlier posts state, an ALJ who does not read all of that material is not doing a thorough job. Any half-decent judge and half-decent attorney will be fully familiar with the file, not partially familiar with the file.

The post that suggested the work habits of the high and low producers should be observed is a good idea, and would expose many of the high producers (at least in offices with large files) to be anything but thorough.

Unlike the recent post, I am tired of the ALJ's (mostly newer ALJs who are former decision writers), who through their years as high producing decision writers for SSA either forgot, if they ever knew, what being an attorney and a judge really requires, forgot what doing a thorough job requires, and do their high numbers only by doing half-baked jobs. If I were a claimant, I'd be sick to learn if my case was assigned to one of them.

Anonymous said...

Sorry, still not buying it.

What ultimately is an ALJ trying to do. An ALJ is trying to fairly and accurately assess RFC which is largely based on determining what medical conditions a person probably has and, more importantly, how those conditions actually impact function. That last largely is determined by credibility.

An ALJ isnot a doctor. Reading nurses notes are something a doctor would do, but there is no need for an ALJ to do that, unless the ALJ is primarily focused on impeachment of testimony by finding some odd comment. Yes, large law firms employ armies of young associates to do just that, but then there would be a series of depositions of the nurses and doctors and numerous experts and trials with those same witnesses, with attorneys on both sides and every case would take weeks to try and the number of judges needed would exceed the entire budget of the SSA for Administration.

This is not a new problem. The Supreme Court recognized it in Richardson v. Perales in the 60's when the entire yearly case load was around 20,000 cases.

Face it. SSA adjudication is meatball surgery. Get em in, get it done. Is it perfect, of course not. But in the real world we learn at some point that we can only do the best we can do.

In the words of Gary Gilmore "Lets do it"

Anonymous said...

Apparently ALJ's don't look at sustatial work as part of their process either. I get a good number of ALJ decisions back here in the field that say no SGA was performed after onset, but upon verification of said wages, SGA exists. Then we're told, oh well, the ALJ's decision is final.

Has one case where the guy appealed the ALJ's onset after we put it in pay and had verified SGA wages. The AC gave it another ALJ who completely reversed it to a denial due to those SGA wages resulting in about a $30,000.00 overpayment - way to go!

Looks like there are some ALJ's who don't look attach of anything. Just like here in the field, some of those "high producing" CR's produce a high amount of garbage.

No one is perfect as stated above, that is true. But you can't keep missing the basic stuff just to move a case.