Take a look at this local TV report on Social Security's hearing office in Charlotte where it's become much harder for a disability claimant to win on appeal.
This is from an interview with Administrative Law Judge Randall Frye, who is, or recently was, the head of the Association of Administrative Law Judges (AALJ), an employee union:
[The reporter] asked Frye if there's any pressure to deny more cases, to save money.
“I don't want to suggest that it forms the basis of a decision but it is something that's out there,” he answered. “There's pressure from Congress, the administration, the peer pressure.”
27 comments:
I wouldn't be surprised if Frye suddenly gets a reassignment.
Thanks for stating outloud Judge Frye what most of us already knew.
And in other news, water is wet...
Umm you've got it backwards. The only "pressure" from management is to move cases. It's much easier and faster to pay a case than to deny it.
So wait, the union just argued to Posner (who was having none of it, lol) that the nasty, scary disposition productivity requirements compromised their independent judicial decision making authority because they were forced to pay more since FFs are more quick to get rid of, and now only a few months later the union prez (or immediate past prez) is saying ALJs are pressured to deny cases? Which is it guys?
Come on, 11:22. If you've spent anytime near an ODAR in the last 4 yrs, you'd know that there has been an appreciable drop in the amount of awards. And even the cases that are awarded are often paid with an amended onset date that eliminates much or all of the claimant's back benefits.
The OIG report recently released on payments made to representatives (1099 info) stated that there has been about a 33% drop in payment rates at hearing level over the past few years.
Again, a game of hot potato, and the ones holding the bag is the claimant and the attorney.
They need to allow claimants to do second apps again while waiting for appeals council.
Why not just let folks file infinitely many apps until their apps get in front of the right DDS examiner or ALJ? Who cares about administrative finality, SSA resources, concurrent jurisdiction (with the two venues so far removed it's months later before either knows what the other has done), or the basics of law (i.e., one claim at a time in the same process for the same issues)?
There's no pressure to deny cases. There is pressure to follow the law. This is a change for a lot of ALJ's who are now beginning to realize that their years of paying cases has not been in accordance with rules and regulations. I realize this may be difficult for some to understand, but there are lots of ALJs that don't fully understand the rules of what it means to be disabled and when they undergo training or learn new things, it results in fewer favorable decisions. This is not pressure to pay less, it is simply a course correction.
4:52, as an attorney rep for 18 years, I must take issue with your "course correction" suggestion. The rules of disability include evaluation of the capacity to perform on a regular and continuing basis, to initiate mental functions independently, to rely on subjective complaints of pain, and a whole host of subtleties that are very real when you are sick or injured, but which have faded into the adjudicative background to satisfy some sad aspect of humanity--bullying? greed? scapegoating? insistence on the myth that we are "self-sufficient"? support for privatization of public insurance programs? The lower denial rates are coming from something I don't understand. I just know my clients are dying more and are suffering more (along with their families) and there's no good reason for it that I can see. I'd rather risk paying a few frauds than continue to read the denials I'm getting these days.
@4:52. So, they're denying more cases because they're following the law? That must be why so many attorneys are having a good deal of success getting the ALJs overturned in federal court.
I have never felt any pressure to deny cases. Just the opposite - and that comes from the writers who do not want to do the work to write an unfavorable decision because it takes too long. How would Frye know - he spends 90 percent of his time on Union business, and his office has one of the worst backlogs in the country where other offices have to hold hearings for them.
I call BS on the comment of 7:26 about the writers not wanting to work on unfavorables. I've been a senior attorney for over 20 years and I can say unequivocally that I have no problem writing the gnarliest and ugliest cases you can imagine. The problem you have glossed over, Mr. 7:26, is that many ALJs (certainly most in my office) haven't the first clue about making the right decision, nevermind actually following the law. In fact, fully half those in my office couldn't tell you how many steps are in the sequential evaluation process. Comprehensible instructions? Get real. That would require one to actually review the file. I hardly ever pick up a case for writing that does not have some glaring error (commission or omission) that I have to "fix" before the case can be properly written. Most ALJs I have known in my 25-year tenure at ODAR couldn't cross-examine themselves out of a wet paper bag, so the hearing record is incomplete and virtually useless. I could go on, but what's the use? No one at SSA seems to care.
Agree with the above. After 3 decades of SSA DIB work, on both sides, I think the following would move cases through the system much more efficiently and accurately.
Removing reconsideration
Increasing the DDS examiner role with more training
Allowing new filings when the AC "review" occurs
Completely overhauling the appeals council by requiring the AC to explain the crap they produce and mandating agency reporting on AC staffing and quality.
Double down on new ALJ's training and taking the existing ALJ core (at least outliers) back into ongoing training in medical review and the regulations.
7:25, ALJs are trying to follow the law, though not necessarily succeeding. When ALJs were paying more cases they weren't necessarily following the law either. It's just that no court review took place on favorables, obviously.
@3:12
The only item on your list I agree with is removing reconsideration
Here's a better list of things that would improve efficiency and accuracy:
Revamp DDS so that the case files MUST be reviewed by a physician. No more garbage SDMs, whose "opinions" can't even be cited to in a decision
Mandate that if a rep alleges a listing, that he submit a prehearing brief with citations to the record. If no brief, then the claimant concedes that step 3 isn't met
Mandate that if there are earnings after AOD which exceed SGA, that the rep provide paystubs confirming actual dates worked and documentation from the employer if you are alleging that the employment was a sheltered workshop
Fire and replace most of the SCTs. Ever tried to read a book where all the pages have been ripped out, and then shuffled back together in absolutely no order? That's what most case files look like b/c the vast majority of SCTs are lazy vets who are barely high school educated who know it's practically impossible to get rid of them
Stop giving contracts to VHRs who refuse to even attempt to type up a meaningful hearing transcript. It irks me to no end that they have the word verbatim in their job title. You could hire college students who type 150 wpm who will do a better job than most VHRs do. If I don't have to waste time listening to the hearing, that's an hour saved right there
Stop hiring ALJs who don't have any experience with SSA as either an ODAR/OGC attorney or claimant's rep. Hiring all these bozos who have absolutely no knowledge of SSA, results in decisions that are completely at odds with SSA policy. Some pay cases that are no where near disabling, while others deny cases that are completely at odds with everything in the record.
Revamp the DOT.
Change the GRID rules by bumping each age category up by 5 years
Put a family cap on SSI $$
Case file is reviewed by a physician in vast majority of cases, SDM is fixed pilot in a minority of states. End the SDM. If a representative is not submitting a brief prior to the hearing she is not doing her job. If an ALJ can’t figure out whether the case is an allowance at step 3 he is not doing his job. Same with earnings after AOD, representative should address, if not, again it is ALJ’s job to do so. Raising the entire age categories 5 years would hurt those who are in fact a vocational allowance. Anyone who is over 50 and has applied for a job knows how hard that is, it is twice as hard with a physical and or mental impairment. Tweaking some outdated categories would be a better fix. The DOT will be replaced one day but a minority of VEs and ALJs will always find a way to ignore the regulations. SSI recipients are not the problem with SSA, the vast majority barely survive on the benefits they receive.
"Completely overhauling the appeals council by requiring the AC to explain the crap they produce and mandating agency reporting on AC staffing and quality."
Agree with this one. Word is that Sklar measured ""improvement" of ALJ decisions based on the % of AC remands - so a lower remand rate = better ALJ decisions. The expectation was that as ALJ quality goes up, the remand rate goes down. So money was funneled into the AC for quality review and feedback. Assuming the rumor is true that the AC is now denying over 85% of requests for review, does that mean ALJ decisions have improved or that the AC has just been trying to meet expectations to make the "data" show that the ALJ decisions have improved? Data is the new opiate of the people.
In non SDM states, physician review is not a review of the file, but a review of the completed RFC forms---completed and typed up by DDS personnel who are not physicians. And the so called medical/psychological experts are not experts - they probably know about as much about Social Security as the ALJs being complained of above.
6:05
You hit the nail on the head. "Data is the opium of the people." That is the problem in a nutshell.
What the Bozos in Baltimore don't understand is that "numbers" do not tell the whole or even the greater part of the story. These cases are complex and, depending on where you are located, contain voluminous records (and I do not mean VA records). The outside Bar is very sophisticated in most areas.
We need more people and not this ridiculous 4.5 per ALJ. The central writing/pulling units ARE NOT working out well, but upper management just doesn't get it.
Reps need to step up to the plate and do a detailed brief citing to the record in all their cases.
ALJs need to make decisions based on the evidence not frame the evidence to meet a desired decision.
Support staff needs to realize how important their jobs are and attorney advisers/senior attorneys need to stop acting like their job is not a damn good one that they can be proud of.
We are all to blame here.
But the bean counters, they are the biggest culprits and they are driving the bus.
Wake up people and step up to the plate or the contractors are going to be victorious and then we all suffer including the reps and claimant's because you will have a real insurance mentality in place.
After 26+ years of practice, I have never seen a worse mess. Some of the suggestions of what reps SHOULD DO are ridiculous, considering the present way ODARs/ALJs are ruling. I have turned my SSDI/SSI practice over to a younger attorney, and I'm glad that I'm nearing retirement! I will make a few predictions:
The quality of work done by reps is going to decrease rapidly. Those ALJs who want to see more work out of reps will be sorely disappointed. The ALJ "outliers" on the low side (10-20 percenters) have killed contingent fee practice. In order to stay in business, there is some critical mass of successful cases which must be reached. Also, amended onset dates for which the only reason is to cut back benefits gut fees to below the cost of overhead of maintaining an office. Those of us who extensively reviewed medical records, wrote briefs (numerous ALJs complimented me on the quality of my briefs), and met with our clients to prepare them for hearings (and did not just meet the client for the first time in the waiting room before hearings) can no longer afford to continue practicing in the same manner.
The only way to stay in business will be do take cases, but not work them conscientiously (as the mills do) in the hope that a sufficient number will "hit" and be paying cases without too much work. Forget briefs, extensive reviews of all medical records, and interviewing clients pre-hearing--the hourly overhead for doing these things is becoming greater than the gross fees received.
Thus, there will be many more claimants who will be unable to obtain reasonable representation. Some ALJs in our area gripe about their work with unrepresented claimants--it'll get worse, unless the "mills" uncritically accept any and all cases coming to them and provide their minimal standard of representation.
Perhaps non-attorney reps will survive, if they are able to operate on a shoestring without maintaining office staff, office computer networks, professional libraries/online sources, continuing education, and other items that inflate attorney overhead.
Any litigator worth his/her salt quickly learns what level of evidence will be necessary for a successful case. For a most of my practice, I was able to reasonably predict what incoming cases might be successful--there were always a few ALJs at the both extremes, but one could look at the evidence in a strong case and figure that it might have a 90% chance of a successful outcome with most ALJs. NO MORE! Consistency in the SSDI/SSI system is a joke! I now tell clients that THE biggest factor in their case will NOT be the medical evidence, but will be which ALJ ends up with the case. With some ALJs, I cannot discern any pattern to their decisions with respect to medical evidence--the only consideration seems to be a consciousness on their part of their percentages of favorable decisions that must have some type of ramifications for their careers.
These predictions courtesy of the Social Security curmudgeon.
Curmudgeon: I feel your pain. I've exclusively practiced SSD law for 20 yrs. While we're not Binder-sized, we are a high volume, multi-state firm. There is a balance between being a "mill" and not being able to pay to overhead. I think successful SSD attorneys need to know how to quickly adapt. Our entire practice, from marketing to hearing coverage, looks much different now than it looked 10 or even 5 yrs ago. I do believe, however, that our clients still receive good service. It's still possible to run a profitable SSD practice - it's just more difficult now to do so and those that just jumped on the bandwagon at the high water mark 5 yrs ago are now jumping off.
Agree with both posts above.
Would like to correct ANON 9:06 July 26. Statements are dropped here as facts some times when they are not.
I worked with DDS medical consultants for over 20 years and not only are they experts, they know far more than the average ME or ALJ. There are exceptional MEs and ALJs, but they are, well the exception.
DDS Medical consultants have more impact and knowledge and the reason is simple. SSA demands initial and ongoing training for their examiners and their medical staff. This includes psychologist and speech language therapists. Additionally, medical consultants do not simply sign an RFC, they meet or equal listing, determine consultative exams, used to contact attending physicians and still play a key role in the final determination. Most are required to review the whole file. They are the majority, not SDM. While many do sloppy work depending on bias and motivation, the majority are far more knowledgeable about the medical listings and rulings.
Nice to hear from a fairly seasoned ALJ like Frye. I have seen that most deniers come from the new ALJs who came out in the last 3-5 years.
Frye's approval rate has steadily been going down since granting about 72 percent in 2011 and now sits around 48-50 percent. My experience is the experienced ALJs really do not care and will do what they have always been doing. But looks like at least one ALJ feels the pressure.
Do agree that FFDs should be easier to push through than UFDs. The writers have to work harder on the UFDs. So really the life of an ALJ would be a lot easier with more FFDs.
11:31 is dead on. Out of the 25 or so ALJs I have had occasion to deal with personally on decisions, four or five were extremely knowledgeable of the law. 10 of the remaining 20 or so knew enough to perk up if the earnings record had more than a few grand in a year or to ask the VE another question or two (some of the time) if the claimant was 50 or older. The last 10 were/are just like 11:31 said: they couldn't even walk you through the five steps of the sequential evaluation with the most basic description of each step.
When I saw issues with their often abysmal instructions and went to talk it through (read: tell them how to fix their problems while making it seem like it was their idea), it was almost always the case that they didn't know the first thing about some extremely common issues. For example, I would bet at least half our ALJs couldn't give a (correct) basic description of the requirements for an unsuccessful work attempt without getting an attorney to brief them on it a few moments before delivering their answer. It's a widely known secret, and it's embarrassing, maddening, and frustrating to no end. These folks should be among the most knowledgeable of the law, since, you know, they are the ones making legal determinations based on it, but not very many of them are.
Frye is whack. He wrote an opinion piece on 1/19/14 where he said he was not allowed to order tests that prove credibility. The test hes referring to is the MMMI. I took it. I was deemed credible and not faking bad or faking good. The stupid alj on my case refused to consider that medical record. He lied saying he would take more evidence but when he found out it was evidence to prove my credibility he refused to consider it.
Second SSA says in their rules an alj cannot order MMMIs because no written test can fully guarantee credibility. Apparently Frye is at odds with SSA. Lastly.....aljs peer pressure each other into denying cases? Thats criminal!
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