From a report by Social Security's Office of Inspector General (OIG):
In FY [Fiscal Year] 2015, the most experienced ALJs [Administrative Law Judges] had, on average, higher allowance rates than ALJs who had fewer years’ experience. Also, on average, ALJs who had more experience had agree rates [the rate of accuracy according to Social Security management but I would submit that this number is meaningless since there is no way of validating these numbers, i.e., there is no gold standard of ALJ decisional accuracy] of about 84 percent — about 6 percent lower than the ALJs who had less than 5 years’ experience.
While I don't recall any prior studies on the issue, the increase in ALJ allowance rates with more experience is nothing new. Attorneys who represent Social Security disability claimants pay close attention to this sort of thing.It's been a matter of common knowledge among us for a long, long time. We've long speculated that this is caused by the training process for new ALJs. However, I have heard many new ALJs who had represented claimants in the past assure me that the training wasn't slanted. They were all surprised that it wasn't slanted.
Although I've presented it here, I think the "agree rate" is meaningless. You're just fooling yourself if you think there's a gold standard of disability determination. It doesn't exist. It's never existed. It's never going to exist.
I have a couple theories. I'll only share my least cynical one.
ReplyDeleteOfficially, we have a five step evaluation process. But more practically speaking, I think we actually have a three-step process. That is, the ALJ is in essence asking themselves three questions:
1) do I WANT to grant this case?
2) if so, CAN I grant this case? (Is there enough actual evidence to support a FF?)
3) If no on question 1, do I NEED to grant this case? (Would an UF withstand review?)
The rest, in my opinion, is just details.
In that paradigm, I'd say that experienced judges have more FF's statistically because they've learned a lot more options for granting cases when question#2 comes up.
The reality is, to properly deny a case, its more work for the alj in terms of making sure the denial is supportable. As Alj's get closer to retirement many (not all) simply would rather pay a case than put more than minimal effort in reviewing the case.
ReplyDeleteAgreed Charles:
ReplyDelete"We've long speculated that this is caused by the training process for new ALJs."
Exactly. The new ALJs hired about 3-4 years ago is the No. 1 reason allowance rates have fallen. Those same ALJs with more experience under their belt are actually granting more. Why? They understand the bogus training (from presumably Astrue or his chronies) was wrong.
Also, many new ALJs were former ODAR writers and I believe they were scared coming out of the box. Now, they realize the power of being an ALJ. Basically it means the SSA has little control over their decisions or allowance rates.
ALJ training is not slanted. It lasts four weeks and there are four unique instructors each week. The division of SSA that selects the training ALJs does so without regard to that ALJ's pay rate. Each instructor may have a different background -- long-time Agency employees, former SSD claimant's attorneys, former litigators, etc. Training is collegial, not didactic, and pay rate is not discussed. For proof of this, look at the SSA ALJ disposition stats. Every single one of those ALJs has been through training, and yet every one of those ALJs has a different pay rate.
ReplyDeleteNewer ALJ's are more comfortable wading into a purely digital file that has become a larger file because more claimants now have medical coverage.
ReplyDeleteThat's the file they are trained to use.
The younger ALJ's are also more likely to use the optional note taking and instruction software that is designed to prompt the ALJ to provide all the information required to draft a compliant opinion. That reduces the ticky-tacky errors that might not be significant to the correctness of the decision but are easy remand fodder for the Appeals Council.
Remember also we still have ALJ's from the era when filing for disability was a much more unusual event and as a result probably more inclined to give the benefit of the doubt to the claimant on the closer cases.
Excellent article about a great topic. I've had many hearings with new judges and they don't seem to understand the intricacies of SSA laws and how they impact the claim. I've had ALJ misstate a listing @ hearing and even not really know about specific SSRs I'm claiming that will find my client disabled i.e. SSR 85-15 for medium work requires frequent stooping, crouching, and bending - state agency gave occasional on stooping - I needed a light RFC for my client to grid. ALJ just didn't get it.
ReplyDeleteI think more experienced ALJs grant more cases because they see how the law works with the medical records and testimony from VEs.
Robert,
DeleteI don't want to get too far afield, but are you suggesting that a claimant should grid out if he can't do just one of the functions required for the full range of work at a higher exertional level? My understanding is it's not all or nothing, and the ALJ can use vocational experts in those situations.
More experience = increased aging process and more friends and family who have been through disabling conditions.
ReplyDeleteMore experienced judges are also more likely to be comfortable with granting OTRs and more likely to be comfortable with negotiating onset dates (pre or post hearing).
ReplyDeleteIts not just a question of agreeing to different onset dates or "girding out" or the like. Experienced (competent) Judges recognize this is not a perfect system and to move cases you need to make decisions without "perfect" evidence one way or the other.
ReplyDeleteIf a Judge thinks a person is disabled, they need to just make that decision. Less experienced Judges tend to say things at hearings like "I would like to pay this but I don't want to be overruled by the Appeals Council (or have to justify this decision to the decision writer).
My answer is "You're the Judge". Make you're decision and if someone else doesn't like it, that's on them. The number of Own Motion reviews by the AC is exceedingly small. Apparently, arguing with decision writers complaining about not liking the decision is now a frequent problem. Hey, I was a decision writer and, yes, I wold raise issues with a Judge, but in the end, it was the Judge's decision and it was on me to write it, regardless of what I thought. And, ultimately, as far as I know, an ALJ still has the authority to write the decision themselves.
I've been an ALJ trainer for over a decade. The idea that new judges are taught in training how to deny cases is an outright untruth. Hasn't happened, never happened. The main reason for the lower pay rates in newer judges is Huntington, plain and simple. Congressional review, multiple hearings with high payers dragged in front of congress, multiple hearing process reports from Senator Coburn and others, when you think the powers that be are looking constantly over your shoulder regarding paying cases you tend to be more conservative.
ReplyDeleteCare to share those training materials?
Delete1:33 - exactly right. I was hired "B.H." (2010),and the tenor of the training was such that we were told a hearing was a "compassionate conversation" with the claimant. When I got to my office, OTRs, bench decisions, and SA reviews were all encouraged. I would be more than surprised if any of those have been the case "A.H.".
ReplyDeleteThat being said, you will find that many ALJs hired 2010 - 2012 initially had much higher pay rates for the first year or two of service (I come to this conclusion not only based on my experience, but by following ALJ stats in the disabilityjudges site). I can't speak for others as to why that is, but in my case it was simply a matter of getting better at file review.
The agree rate is going to track the allowance rates in most cases. If you pay more, there is just less to appeal. Own motion review is very rare. I agree it is a meaningless number.
ReplyDeleteAnd experiences ALJs pay more bc it is impossible to do the numbers required for this job and do a decently fair job if your pay rates is less than 65-70%. The workload, in most offices, wears you down after a few years. The more you pay, the more manageable the job is, by and large.
"i.e. SSR 85-15 for medium work requires frequent stooping, crouching, and bending - state agency gave occasional on stooping - I needed a light RFC for my client to grid. ALJ just didn't get it"
ReplyDeleteIt's likely the ALJ didn't get it, but it's also possible that the ALJ got the argument and rejected it because SSR 85-15 doesn't require someone placed at medium with occasional stooping to be automatically placed at the light or lower level. Instead, it simply says you'd better not directly apply the medium grid rules to find someone not disabled because it would "substantially affect the more strenuous portion of the [medium, heavy, and very heavy] occupational base."
I hear arguments like this all the time that try to use the SSRs to mean something they don't. Simply because I don't accept the faulty premise that SSR 85-15 requires me to put someone with occasional stooping at the light level doesn't mean I don't get it. If someone can tell me how much stooping is required of a sandwich maker, hand packager, laundry worker II, etc., that would be great. If you don't feel like looking up those medium, SVP 2 jobs, it's none, none, and occasional.
I think a lot of the reasons for why more experienced judges have higher favorable rates are valid and explain some or most of it. Another thing that I've personally seen in my years of work is that more experience doesn't necessarily equate with more program knowledge or a better application of the law. There are multiple judges hired in the 80s or early 90s that I have come across in three different offices that have asked things like, "What is SGA and why won't it let me pay the case? What is an MQGE case? Why can't I use transferable skills for someone I've limited to unskilled work?" Those are very basic things that any judge with any level of experience should know, and it's not just high payers that ask those questions. It's also some of the never payers.
I'm curious to see how I approach things in 5, 10, or 15 years and to what extent I'll change how I view the application of the law to these cases.
Anon 1:33
ReplyDelete"I've been an ALJ trainer for over a decade. The idea that new judges are taught in training how to deny cases is an outright untruth."
I appreciate your experience. But have you ever wondered if the types of ALJs hired has something to do with it. Astrue hired people who were more inclined to deny (e.g. more conservative).
Also, the listings are getting more and more constrictive. So the new ALJs are trained on these new tight listings. Now, you can argue the newer ALJs are more properly trained. Maybe true.
But what I love about older ALJs is predictability. There are horrible older ALJs but we can predict them. Also, we know the SSA will not tell them how to judge. That is the main reason older ALJs grant more if they were reasonable in the beginning.