Jun 9, 2016

Why Is It Harder To Win With Newer ALJs?

     It's a matter of common knowledge among attorneys who represent Social Security disability claimants that it's harder to win with Administrative Law Judges (ALJs) hired in the last five years or so. 
     Theories on why this is so range from they've found some way to hire more conservative ALJs to they've found some way to train them to be more conservative to they're somehow encouraging them to deny more claims or they're  hiring agency employees who they know will deny claims. I've had doubts about each of these theories.
     Let me propose the theory that it has to do with the veterans preference and the end of the military draft. The federal government gives a heavy preference to hiring veterans. This preference has led to far higher percentage of ALJs who are military veterans than in the population of lawyers in general. This didn't matter much when the veterans being hired were mostly of the Viet Nam era as was the case until not that long ago. The draft assured that those who served during that era were not that far from being a microcosm of the male population. The draft ended as the Viet Nam war ended. Military veterans being hired now chose to serve in the military, usually as a career. This cohort is different from their Viet Nam era predecessors. On average -- and, of course, there's plenty of individual variation -- they're considerably more conservative politically and socially, making them more likely to turn a jaundiced eye to disability claims.
     That's my theory. What do you think?


Anonymous said...

Charles - I think that in part, your theory may hold some truth. However, I would posit that generational changes have more influence then veterans preference. The ALJ's being hired today tend to belong to Generation X: A generation noted for its nomadic cynicism and pragmatic approach.

Anonymous said...

What I'm curious about is how certain ODARs get stacked with outlier 15-25% granting ALJs. Cleveland now has 4 judges under 25% and an office grant rate of 32%.

Anonymous said...

I think their is something to that theory. I have a few vet ALJs in my office they are in the 50% pay range. However, one of them pays other veterans particularly frequently so that goes both ways.

I also think that the new ALJs are not fully cognizant of how untouchable they are. They haven't realized that they can pay or not despite the evidence without real consequences.

This could be anecdotal but I also see a distinction between SSD and SSI. Judges seem to be a lot more favorable to Title 2 only apps. I think they feel like these people paid into something and they should get something back. They are much more skeptical of Title 16 only because some view it as general welfare.

FYI, there are also vet pref changes possible that could have a serious effect on SSA employee's ALJ scores.


Anonymous said...

I also think it has something to do with the fact most new ALJ's are much younger and are more skeptical of claimants who are of a similar age being totally unable to work than the old guard most of whom were already past retirement age.

Anonymous said...

I believe that the new judges have swallowed the administration's kool aid. There are more judges in New York with a military baCKGROUND, JAG or other governmental agency.

Anonymous said...

I believe that there is a preference for litigation experience, and I have been subject to ALJs acting more like insurance defense attorneys and prosecutors than impartial finders of fact.

Anonymous said...

Thank you for this post.

This is the single biggest reason why payments are lower. Like your theory about veterans. Did not think of this. However here in California, most of the new ALJs were not veterans.

In the past, new ALJs would come out of the box granting high and then settle down lower based on their experience and maybe getting jaded. So what changed?

It has to be Astrue. Not sure he targeted conservative applicants for ALJs about 3-5 years ago. But something clearly in the training changed. Now a conservative could argue they just applied the law in a more strict manner. Not sure. But something changed.

It seems like the new ALJ are trained (or scared) to follow their own instincts on cases. They seem like there is pressure to deny most claims.

I prefer the old ALJs (even the low granters) because at least they follow their instincts. Also you can predict them.

Assume with a more liberal new SSA commissioner (if they ever hire one) will not train the new ALJs to deny and be more fair. We will see.

Anonymous said...

All of the above comments probably hold some truth. Clearly the ALJ hearing is becoming more adversarial, particularly with ALJs who come from litigation backgrounds. They seem to hold the view that it their job to build the case against disability as opposed to being an impartial decision maker who just considers the issues and weighs the evidence. I am seeing more new ALJs using interrogatories to MEs (but curiously not wanting to have them in the hearings to testify and be subject to cross). And newer ALJs are much more protective of even the older guard ALJs. And they automatically seek to rehabilitate any testimony that you can get that is helpful to the claimant.

I think some of this comes from the backgrounds of the individuals being selected and some of it is obviously a training thing where the administration is preparing them to conduct hearings and handle matters in such a way.

Anonymous said...

20 years ago ALJs got one hour of medical training. Am certain the training has increased. Since it is a non adversarial procedure, ALJs should be trained to approach it in that manner. But who knows in the wacky world of SSA today. I think as a group, the new ALJs may be afraid that Grandma will tell them to go home. But otherwise, I see about the same percentage of outlier denial prone ALJs across the board. While most ALJs are fair, a significant percentage of both old and new seem to have forgotten the oath they took: conducting a hearing that is fair and orderly. Anyone who appears before a tribunal should be treated respectfully, and parties must be given an opportunity to present their cases effectively. A judge or officer must ensure that discriminatory language or attitudes do not taint proceedings. A judge or officer may not decide a matter based on a communication made by one party and not shared with the other. He or she must approach each case with an open mind...

Any ALJ who denies 70 percent of their cases has broken that oath in my opinion.

Anonymous said...

Not only are the new ALJs more likely to be "deniers," they also tend to hold longer-than-needed hearings. The older ALJs, even the ones who aren't necessarily more liberal, tend to get to the point during their hearings. Absent some unusual issue, most hearings should really take no more than 20-30 minutes. I mean how many questions can you ask a person to explain why they can't work? But these new ALJs, for the most part, hold excruciatingly long hearings and ask dozens of irrelevant questions. It's like they're afraid to deviate off the script that they were taught during their "how-to-deny-a-case" class.

Anonymous said...


LOL. It's always fun to sit through VE hypos for a full range of every single exertional level. I'm amazed they were able to find jobs!

TruthBtold said...

@4:58. I sure hope you aren't an attorney rep. If you think anything good can be accomplished in a 20-30 minute hearing, particularly involving a mental impairment, you are obviously missing something. Only pay cases can be handled in that short of a period. You can't make a strong record for appeal in such a short amount of time.

Anonymous said...

I think it is a generational thing and I view it from the perspective of a long time insider.

Some of the younger Judges are really full of themselves.

The older Judges, say the those that earned their law degrees in the late 1950s and early 1960s were also full of themselves but in a more chivalrous manner. They clearly felt they were entitled but they had great manners and were kind where it mattered, although they also tended to deny more.

Those that got their degrees in the late 1960s into the early 1980s were much more laid back all the way around and a lot more easy to write for. I think they (those that are left) are a lot more claimant friendly than those of the generations before or after them.

A lot of these new Judges have not been attorneys that long and are full of themselves like the 1950-60 bunch but there is no sense of noblesse oblige towards any of the office staff, no respect for the writers who save their a$$ every day and no respect for management. Plus they wear much more of an adversarial hat than I have ever seen before and are quite frank in their disdain for outside counsel. They are just very rude. Now not all of them, but that is the general flavor of the bunch.

I don't think it is a Veteran thing so much as it is a generational thing.

Anonymous said...

Hiring ALJs where this will not be their last job was brilliant. They hire yes men who see promotions going to other high deniers. Want out? Want a promotion? Want a transfer? Time to start denying cases then.

Anonymous said...

I agree with the theory as it applies to non-draft, post Vietnam Vets - that demographic is very conservative, which is ironic because didn't most of them serve in peacetime and never see actual combat? Also agree it's a generational divide- , younger aljs are Reagan era products who have been socialized to believe that the government is the problem, not the solution.

Anonymous said...

@TruthBtold: I am an attorney rep who has exclusively handled Social Security disability hearings for over 20 yrs. I do believe that you need no more than 20-30 minutes to create a strong record, especially if all the treating records are in the file along with a prehearing brief. Part of being an experienced rep is knowing what the particular ALJ you are in front of is looking for and where along the sequential analysis your claim should be awarded. ALJs appreciate brevity and you're only hurting the claim if you're just asking questions to hear yourself speak. Get directly to the point - these cases aren't normally that complicated, even with a mental impairment.

Anonymous said...

One problem with the theory.
If you know the ALJ's in my office they politically range from not really convinced Obama isn't a Muslim commie to how can they nominate a conservative like Hillary.
My observation has been the more politically conservative an ALJ is the higher their pay rate while politically liberal call a very tight strike zone.
But here is where your theory works. Equity isn't a major concept under the uniform code of military justice as it is in civil law. You either fit exactly or you don't fit at all is exactly the sort of mindset you'd expect from someone with a military law background.
Quite a few newer judges have regulatory law backgrounds doing environmental, utility, tax, and workers comp issues again fields where do equity is not a major concept.

TruthBtold said...

@9:23AM I too have been doing cases successfully for over 20 years and cannot agree with your view. Perhaps it's just a difference in styles. I had two hearing today and both had very specific step 5 issues but they both took a hour a piece. Both will be approved. I couldn't conceive of doing either of these cases in less time unless the ALJ would have indicated at the outset his intention to pay them.

But if your method works for you, I am not here to criticize.

Anonymous said...

@Anonymous 12:15 PM

You must be in some strange office(s). I've practiced in 25 different states, been through dozens of ODARS and, regardless of generation, race, gender, or other demographic -- the politically conservative ALJs deny more cases than the politically liberal ALJs. Hands down. That's why you see, for instance, even Vets getting denied in Texas, Oklahoma, and Arkansas (what I like to call the triangle of denial) whereas claimants before ALJs in NorCal and NY, for instance, show much higher grant rates.

My primary region is the Bay Area in CA and even the bad ALJs (i.e. the conservative Democrats or socially liberal Republicans) here pay above 50% on repped cases. That includes the newer ALJs like Gill, Alis, O'Connor, Krolikowski, etc.

Anonymous said...

Anon 12:15. You may be right about personal politics coming into play of ALJs. However there are exceptions.

There was an ALJ in Arizona named James Lawwill (which is a great last name for a judge). He literally stayed on the bench until he died in his late 80s or 90s. We called him the "candyman" because he granted like 70-80 percent of his cases.

I learned after his death he was the most politically conservative person in the Tucson ODAR. Go figure.

Anonymous said...

Why go after vets? Soldiers and veterans are pulled from the same populace as civilians. And the popular culture in America, starting with Reagan's "welfare queen", and getting much much worse from there, has considered anyone on government benefits to be looking for a handout.

Social Security retirement has reached sacred cow status. If Congress thought they could feasibly do it, they'd happily kill the entire Disability/SSI programs.