From the Post & Courier of Charleston, SC:
Sick and injured workers face a brutal game of chance when they apply for federal disability benefits: their odds hinge as much on the judge they are assigned as on the facts of their case. ...
Draw one particular Charleston-area judge and the odds of winning benefits will be worse than almost anywhere else. That judge, Tammy Georgian, was the second-toughest in the country in the 2019 fiscal year, approving only 12 percent of her cases. ...
If you saw Judge Jim Scott [of the same office] in 2018, you had an 87 percent chance of winning. ...
I can tell you there’s no way an ALJ can get to a 12% reversal rate honestly. You have to be guided almost completely by your personal political and social beliefs rather than the law and the facts.
There’s only so much the agency can do about brutal Administrative Law Judges such as Tammy Georgian. The thing is that Georgian is the Chief Administrative Law Judge in the North Charleston Office. They can’t easily fire aberrant ALJs but they don’t have to make them the Chief ALJ for a hearing office.
30 comments:
If I was a rep in Fayetteville or Wilmington, I would decline video hearings every time, because those get assigned to the Charleston hearing office.
If you average the high and low judge it sounds about right.
12% is just vindictive. More than that would be approvals simply based on an increase in age from the time it was decided at DDS or past relevant work no longer being past relevant. To get to 12% you need to go out of your way to find a mechanism to specifically deny the claim. But SSA isn't concerned about the outlier low paying ALJs, just the ones they feel pay too many claims.
Hang on.
If the Judge is HOCALJ taking all of the office's untimely filings to determine if good cause exists for being late to file for a hearing after reconsideration wouldn't be unusual.
A HOCALJ is only expected to do about 300 decisions and taking on the untimely filings is an easy way to get your workload numbers up.
It is very easy to deny virtually every untimely that comes your way. Now most ALJs will go ahead and allow many untimely's to go forward because the lateness is understandable (people with depression often struggle to complete tasks, people applying for disability are housing insecure and move frequently) but you could deny every single one before you and not get many remanded.
12% approval and 87% approval certainly appear out of line but I would like to know if the HOCALJ is padding numbers with dismissals before concluding the judge is completely out of line.
@9:58
Reversal rate does not refer to reversal by the AC or court, it refers to reversal of the state agency, meaning Georgian only renders a fully favorable decision 12 percent of the time, reversing the state agency's prior denials. As to whether Georgian is just dismissing a lot of untimely filings, not really. I think you are right that that is contributing to the low rate, but still her approved/reversal rate is low.
https://www.disabilityjudges.com/state/south-carolina/charleston-sc/tammy-georgian
@ 9:58AM. SO we don't have to speculate, here are the ALJ's #s for FY 2019.
Total dispositions= 431
Total Decisions = 300 (so we assume 131 dismissals)
Awards= 35 (27 fully fav & 8 partially fav)
Denials=265
So the 12% figure (its actually 11.67%) is of the actual decisions made and would not include any dismissals for untimely filing or dismissals for claimant's withdrawing their request for a hearing.
The explanation provided by 9:58 may account for a few percentage points, but not many. I have dealt with two other judges who were at 17% and 18%. Yes, there is something vindictive there. I had an AC remand in front of one of these. The issue was that he had previously ruled she could do her previous work which was composite military job. She could do one component of the job but not the other. The VE was bending over backwards to help us because it was so obvious this lady couldn't do that work, or anything else. Of course, the judge issued another denial.
Looking at these variations, it is obvious that the process is way too arbitrary and capricious to be constitutional. Unfortunately, no one has been motivated, as far as I know, to really pursue this. If someone who had the resources did, I'm pretty confident the system would be found to be unconstitutional. I mean, come on, 87% to 12%. This system is based on so many vague regulations/policies/etc. I mean what does "moderate" really mean? The regulations and policies leave way to much discretion to the decisionmakers, as proven by the disparity in the numbers. Honestly, they need to scrap the whole thing and start over.
A search of her name yields a bunch of results from federal court where the court is remanding the cases. The only good thing about low paying ALJs like this one is that it's pretty easy to get a remand because, as you note, their decisions are rarely based off the evidence or law. As a result, they don't hold up well when subjected to scrutiny. Still a shame that you have to go that far in a case and put the claimant through all that and the passage of time, but the appeal brief practically writes itself.
There's a Colorado Springs ALJ approving only 9% of cases (hundreds adjudicated.) Despicable.
@11:22, Yes the appeals do write themselves.
Unfortunately some of those with aggressive cancers or lifelong depression resulting in suicide after receiving vindictive denials, often filled with vague insults against their character, are not always around to read them.
I've never appeared in front of ALJ Georgian but I've appealed quite a few of her decisions. They are often poorly crafted, have more that a whiff of anti-claimant bias, and are meat and drink to the appellate attorney. It's all very well getting her decision overturned but the claimant has to go back in front of her for a second bout, with the statistical probability of getting denied yet again - unless you can make a successful showing of bias under SSR 13-1p. The Appeals Council is a lottery also and no guarantee of success.
ALJ Georgian was a Cleveland judge before becoming HOCALJ in Charleston. She was no better in Cleveland. She was alleged to have said to a VE in private that "unless they come in in a gurney, I'm denying."
Here is one of her remands:
The ALJ never acknowledged an increase in Plaintiff's PTSD rating by the VA based on medical findings of the VA physicians. The ALJ also appeared to question the veracity of Plaintiff's PTSD diagnosis by finding it "worth noting that while claimant did deploy overseas, he admitted that he `never witnessed the killing or death of another' and he never `shot at anyone'." [R. 24.] The Court finds these conclusions by the ALJ to be not only disturbing, but finds them to be an inappropriate attempt to make medical conclusions particularly in light of findings by VA physicians supporting this diagnosis.
https://www.leagle.com/decision/infdco20170512854
5:13 - someone needs to find a way to get that VE to repeat that under oath.
This is why the system is flawed. It allows an ALJ to make any decisions they want and most Federal Courts are rubber stampers. If the preponderance of the evidence supports the claimant, the case should be approved. The current system allows an ALJ to deny if they can find one peg to hang their hat on. If they can't find one, they just make one up!! I think we need a "jury" of 3-5 potential "job placers," eho represent real potential employers. Let them decide if they think a person can perform a full-time job and sustain it. All accommodations must be provided, including the schedule the claimant would need. Employers are required to give at least a 3-6 month commitment to making it "work." In other words, they can't just bail, because "We were wrong" after a couple of weeks. After 3 months, the employers have to decide if there is any chance the employee will ever be able to perform the job. At 6 months, they have to decide to keep the employee, for at least 2 years. If they bail at 3 months, claimant automatically gets SSDI. If they bail at 6 months, employee gets another hearing with unemployment until the hearing.
Since you're silent on it, I can only assume you believe you can get to 87% reversals honestly? That article isn't entirely accurate or simply exaggerates with respect to a number of things, and again, there is only one side of the story presented with regard to the cases discussed.
Oh, I know, I know... the 10% approvers are infinitely worse than the 90% approvers! They're denying rightful claims, causing homelessness, and, in some cases, causing death! I won't argue against the pain and suffering of individuals entitled to benefits that have to go through the process with a low approver, but I also recognize the damage the 99% approver does.
Own motion reviews of favorables by the AC, the QRs at region, the much more strict review of OTRs, the discouragement of bench decisions, the elimination of the senior attorney program, oversight hearings with bumbling judges incoherently rambling to justify their award rate, etc. are all a result of those kind old judges and SAAs that decided everything on credibility or awarded T2 benefits to everyone because "it's their money."
If you think that awarding benefits to claimants that aren't entitled to them has little consequence beyond draining the trust fund quickly, then you're being very shortsighted. If you believe the agency cracked down in 2012 and "directed" judges to deny more, then you have no one but the high awarders to blame. The Daugherty scandal wasn't the only thing that drew drew congress's attention.
An individual's chances are actually a dual wheel of destiny. Not only is the judge important, but what VE is drawn is equally important. The same hypothetical posed to two different VEs by the same judge can result in two completely different outcomes. If a judge is results oriented rather than RFC oriented, then they can always manipulate the RFC to get VE testimony they need to achieve their desired result (both the 12% payer and the 87% payer). If the judge is RFC driven, then the VE is critical because the maximum a person can do is the key to their determination in a step 4/5.
As an example, some VEs identify light occupations when an individual can lift/carry 20/10 but only stand/walk 2 hours per day. Others identify that as a sedentary profile. So if you're aged 50-54, this distinction may be very critical to the outcome of your case.
Another example would be the classification of PRW. One says it's a composite of a light job and a medium job, the other says it's one light job that was just actually performed at the medium level. That can be a key distinction for a person at any age level at step 4.
@6:48
There are safeguards in place to catch an improper award, most obvious being the CDR process. As to an improper denial, claimants tend to die within 5 years or so, so I find it reasonably more harmful to improperly deny versus improperly award.
In any event, if SSA were to say they were going to review the top 10 and bottom 10 judges every year by award rate, I would fully support that.
As to the damage of high awarding judges being a cause of the agency directing judges to deny more, the perception caused it and that perception is a result of ignorant politicians and public figures complaining that back pain and anxiety shouldn't be disabling. I doubt that perception would change, even if there were no high awarding judges, as that perception is based on the system, not actual behavior by any judge in particular.
The CDR process will not correct for improper or inadequate decisions whether made by ALJ or DDS. If there was nothing wrong with them when allowed they will be continued forever.
Usually the untimely filings are split among the ALJs. I'm not sure if the 12 percent includes dismissals so a more accurate picture would be looking at the total number of pay cases versus the UFs without counting dismissals.
The CDR process is also quite flawed, it allows for someone to continue payments while a determination is pending for up to 3 years. We just had a child today who wants to have an AC appeal on a CDR hearing cessation with medical conditions of Asthma and food allergies. Hasn't had any emergency visits or doctor visits in the past two years, yet they continue to appeal and request payment continuation. That 17k-ish that was issued will likely be waived as well. That adds up.
SSD hearings are not episodes of "Shark Tank". 1466 ALJs times juries of 3-5 employers would cost more than all the golf vacations the President is expected to take during his 16 years in the White House.
6:15 PM I am not suggesting the government pays them, at least not directly. You give limited tax breaks for hiring people, but not enough for "make-work." What I am really saying is that VE's would give a much different "assessment" on a claimant's ability to work if they really had to stand behind their "decisions" financially. Of course this would never happen, because 95% would be seen as unemployable. I merely mentioned what SOME of my accommodations would be for a temp service... hoping maybe I could work a WEEK. It was for a job the ALJ claimed I could do. I was pretty sure I wouldn't be able to, not even in a "good" week. The temp agency sent me a "don't call us, we'll call you (never)" message within 40 minutes. Two others only offered jobs that the ALJ had ruled that I couldn't do. I didn't accept them because I knew I wouldn't be able to do them, not even for a week!
Tim, what's the incentive for the person filing to try to work those 3 or 6 months? If they were really going to work, they probably would just do it and not file for disability. If they are disabled or are trying to get paid with a questionable case, no point in trying to work all that hard is there?
Sorry, I know we are all supposed to be up in arms and attacking the system over this. Of course in a human system there will be some outliers. That being said my local ODAR functions pretty darn well. The ALJ's have some range between them but a solid core of moderates that call them fairly well. Pretty good character to all of them also. For the most part I think they want to do the right thing by the book most of the time. Twenty years of practice at this ODAR and it has been steady and well led for the entire time.
The first poster is spot on. Now I always request in-person hearings for my clients in the Fayetteville or Wilmington servicing areas, because many video hearings are shunted to CH. According to disabilityjudges.com, the CH approval rate is 33%, and Fayetteville is 50%. (And the CH figures are even lower now, because the figures were skewed by the highest payer who is no longer conducting hearings.) So it's closer to a 20% better chance overall of getting a favorable decision, and that's a huge difference.
10:47 PM Well, one argument often made is that claimants "are just desperate, because they can't get a decent job. The Washington Post has had several making this argument, especially the 30-ish year old from Alabama. On the other hand, most denials, many reluctant doctors, and much of the public criticism/opposition is based upon the thought of, "Well there must be SOMETHING you can do?" If this argument was true, more trial work periods would be more successful. I am sure many claimants and those on disability could do SOMETHING...For awhile...Sustain productivity at a competitive level at full time? Without too many absences?
As for not having the "incentive" to do well... I am sure most "sceptics" would claim, "They just didn't try HARD ENOUGH." I have tried HUNDREDS of times (when I was much younger, much less disabled) to dunk a basketball, or even touch the rim. I KNOW I CAN'T. I suppose, if they REALLY WANTED TO, Kevin Durant and Klay Thompson COULD play right now! Whether they could do it at a competitive level...Oh, your knee hurts? Well, you could beat LeBron if you REALLY WANTED TO. Naturally, there will always be someone trying to game the system. How would that be different than now?
My real point is that the RFCs and "hypotheticals" are designed to give the ALJ the ability to decide ANY case they way THEY WANT TO. There is NO ACOUNTABILTY for being WRONG!!! This is true for 99% payers (all 3? of them) and all 9% payers. The AC and certain circuits are rubber stampers! They could find error in most cases, if they wanted to. In the circuit I am in, several judges have remanded less than 5 cases each in the last 10 years. The circuit has remanded only a handful in the past 5 years. At least with my "proposal," the employers would have to do a cost/benefit analysis. I thimk it would give a more honest assessment about a person's ability to work.
Having said that, it will NEVER be considered for at least 3 reasons:
1. SSA wouldn't give up the power to others
2. Approval rates would probably be 75-80%
3. Possible Higher approval rates would be rejected by Congress.
Tim -- your proposal is myopic. It requires "potential employers" to keep jobs open and available on an ongoing basis in case SSA has a claimant a few months (or even years) down the road that might fit the requirements so they can claim some middling tax credit. In the mean time, they have work needs that are not being addressed, which is also costing the business money likely in proportion to or exceeding any tax credit that would/could be claimed. No sane, rational employer is going to do this.
More to the point, though, the issue for SSA at Step 5 isn't whether there is a job opening at the time of the decision that a claimant can perform, which is what you appear to want the decision to be based upon. It's whether the claimant can perform work that exists in significant numbers in the national economy despite his/her impairment-related symptoms and limitations. Note the word exists--not open and available. Whether a claimant can find a particular job is not the Agency's problem. SSA is not vocational rehab.
10:31 AM Once again, you miss my entire point. My point is, that the ASSESSMENT on whether someone COULD do a particular job and SUSTAIN it at a competitive level would be much more conservative (not in a political sense) if an employer is making the assessment, rather than an ALJ looking for an excuse to deny. So, if the claimant had one doctor who agreed with the claimants complaints, an employer would be much more inclined to listen to that doctor, even if three other doctors had suggested a less restrictive RFC. On the other hand, some ALJs will have 3 agreeing with claimant, but one is "more pessimistic," and the ALJ will find the more pessimistic as more "supported." Instead of appearing to find the truth, the ALJs often only seem concerned with justifying their denials.
I have now had two hearing decisions: one denial and one approval. My limitations, medical diagnoses, treatments, evidence, etc. were virtually identical for both ALJs. However, when you read the decisions, it sounds like they are describing two completely different people. As if I am Trump and the two ALJs are Adam Schiff and Devin Nunes!
@10:31 -- you have a point that the decision process might be improved by having "employability" better informing the process. However, if potential employers were making the decisions, every trouble maker would become technically disabled. :) The employer would not want to take any risk, so their bias would be heavily toward "they are disabled", so they wouldn't have to pay or deal with them, but instead just dump the burden on the "rest of us." For example, if an employer knew that you had ever received a "personality disorder" diagnosis would they EVER hire you? probably not, even though it might have been transient, and mild at the time, or even by a provider that was "shooting in the dark".
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