Social Security's Office of Inspector General (OIG) has issued a report on Agency Actions After the Huntington Fraud Scheme. This refers to the agency's hearing office in Huntington, WV. That office has jurisdiction over the area in Kentucky where Eric Conn practiced. The report talks about efforts made to make sure there were no other such schemes. Spoiler alert, there weren't any others. They found some things going on in Ft. Lauderdale and Harrisburg that shouldn't have been going on but those were management issues, not anything criminal. In fact, the bizarrely exceptional nature of what Conn did was one of the reasons the scheme went on as long as it did. No one in management could believe that such a preposterous scheme would be attempted.
Social Security went well beyond making sure there were no other such schemes. The agency made a deliberate attempt to influence Administrative Law Judge decision. Here are some excerpts from the report concerning those efforts -- footnotes omitted:
... In our FY 2012 report, we identified the 12 ALJs who had the highest allowance rates and the 12 who had the lowest allowance rates. The majority of the staff we interviewed attributed the variance in allowance rates to ALJs’ decisional independence and discretion when interpreting the law, as well as the demographics of the populations in the hearing offices’ service areas. In a FY 2017 we found the majority of the 24 outlier ALJs who had the highest and lowest allowance rates were no longer among the outlier ALJs because they were no longer working at the Agency or their allowance rates changed. ...
In a November 2014 report, we identified 44 outlier ALJs (about 4 percent of the average number of ALJs available in the Agency) who had 700 or more dispositions and had allowance rates of 85 percent or higher in any 2 FYs between 2007 and 2013. We conducted a sample review of favorable decisions issued by the 44 ALJs and concluded they improperly allowed disability benefits in some cases. SSA took administrative action on 15 of the 44 ALJs. ...
According to SSA, “ . . . [when] identifying outlier ALJs, OHO management (at all levels) use internal [management information] MI reports to review trends in Appeals Council remand rates, hearings held per month, hearings scheduled/hearings held, anomalous rates of favorable/unfavorable dispositions, length of time in certain docket statuses, and whether there has been a focused review for policy compliance."
When OHO managers identify an outlier ALJ, local hearing office managers may address issues with the ALJ to resolve performance. At any time, the HOCALJ may request support from regional and Headquarters ALJ performance teams for guidance, including receiving support from a Triage Assessment Group. The Group meets bi-weekly to evaluate the facts of each ALJ performance situation, including relevant management information and other documentation. The Group provides guidance for the Regional Chief ALJ and HOCALJ to take action regarding an outlier ALJ. The HOCALJ may assign an ALJ a mentor, require that an ALJ take additional training, or issue directives to correct performance. If the outlier ALJ continues having performance issues, OHO'S Office of Chief ALJ considers further action in consultation with SSA's Office of General Counsel. ...
FY 2011, the Division of Quality began conducting pre-effectuation reviews of randomly selected favorable hearing decisions before SSA made any payments to claimants. ...
SSA regional office employees conduct in-line quality reviews on a sample of hearing draft decisions to ensure the draft decisions are both policy-compliant and legally sufficient before employees submit the drafts to ALJs for signature. In-line quality review findings allow managers to provide feedback to ALJs when their decision writing instructions affect, contribute to, or cause legal sufficiency, quality, or policy-compliance errors. If hearing office managers begin to see recurring errors, they may determine training is needed for some or all of the hearing office staff and ALJs on those issues. SSA developed the in-line quality review program in 2009. Initially, SSA implemented the program in a limited number of regions because of hiring restrictions. However, in FY 2014, the Agency officially launched the program nationwide. In February 2017, SSA’s Office of the Chief ALJ informed us that the regional in-line quality reviews were temporarily suspended because of other critical work. ...
One of the CARES initiatives is Updating Decision Writing Tools and Templates, which SSA developed as part of its approach to ensuring policy compliance and national consistency in the tools its employees use to make and prepare draft decisions. Another quality assurance initiative in the CARES plan the Agency-developed is the Insight program. SSA uses Insight to identify policy compliance and internal consistency errors in hearing decisions to improve the consistency and timeliness of the disability adjudication process.45 In response to our April 2019 report,46 SSA developed metrics to conduct an analysis that showed a 31-percent reduction in quality flags for decisions where employees used Insight compared to when they did not. ...
OHO managers began monitoring national and individual ALJ agree ratesin FY 2011 to assess the level of policy-compliant, legally sufficient decisions. However, it did not set a goal until FY 2013 when OHO management established an 85-percent quality expectation goal for decisions and a 65-percent goal for dismissals.47 The decision agree rate represents the extent to which the Appeals Council concludes the ALJ decisions were supported by substantial evidence and contained no error of law or abuse that would justify a remand or reversal. ALJs who have below average agree rates may receive additional training, mentoring, and counseling and, in some cases, may be subject to further review. ... [footnotes omitted]
I know that some of this was directed at reducing the number of technical mistakes made and that's a good thing. However, it's been obvious that the whole process has been strongly tilted towards reviewing the decisions of ALJs who approve more claims than most. ALJs who approve only very few claims have drawn little or no attention. I'm not sure that the agency has even tried hard to reduce the number of technical mistakes. To give an example, if a claimant fails to appear for the hearing (in normal times) but the attorney does, the ALJ has some options but dismissing the request for hearing isn't one of them. However, ALJs commonly do dismiss in this situation. The Appeals Council will quickly remand these cases but they shouldn't happen. The regulations are clear. How much attention has Social Security paid to preventing mistakes like this? Not much that I can tell but they've sure succeeded in convincing ALJs that something bad will happen to them if they approve too many claims.
24 comments:
I don't want to go into details, but the agency does a lot to try and prevent the sort of technical mistakes referenced in your last paragraph, including erroneous dismissals of the sort you referenced. As for why these efforts haven't worked so well, I have my thoughts, but maybe some judges will weigh in.
The agency's quality control efforts do seem almost entirely devoted to catching claims that were but should not have been approved. The quality control is woefully inadequate. I notice that almost all of the cases that get sent to quality review are approvals. It is rare to see a denial sent. The focus seems to be almost entirely on numbers, making sure not too many cases are approved and not on whether the right cases are being approved. The result is that some are being approved that should not be while many are being denied that should not be. The agency doesn't seem to care as long as the number being approved is not too high. Anyone who has reviewed many DDE forms knows that "quality" is a completely foreign concept to those folks. The entire system needs to be scrapped and rebuilt from the ground up.
@11:18 AM
Your experience does not match my own. I'd estimate the decisions I've seen pulled for quality review are roughly evenly split, or perhaps split at about the same rate as approvals and denials. And the Appeals Council is most certainly reviewing more denials than approvals.
Your comment is illuminating, though. Perhaps part of the problem lies with judges interpreting quality review as an affront to their "decisional independence" rather than actually scrutinizing and trying to learn from the feedback they receive? Or perhaps they're too busy complaining about DDE to focus on their own performance?
@11:52
11:18 here. I don't think your are "illuminated" as you think. I'm not a judge. I'm a rep. I was not talking about ALJ decisions. I was talking about DDS decisions. I just looked back through quite a few. Found many favorables sent to quality review. Didn't find a single denial sent. If I get time later, I'll try to go through and get some numbers for you.
As far as complaining about DDS - when you see the same language over and over saying that claimants with severe mental illness, including psychosis and rage, can be school bus monitors and chaperons or that there are 1 million surveillance system monitor jobs, you certainly don't get the impression anyone over there is concerned about quality.
If Social Security loosened the disability guidelines and made it much easier for people to get approved and return to work without losing benefits, would that reduce the number on disability or increase the number of people on the rolls?
I don't know the answer to solving these issues altough I agree many need to be looked at. It's just amazing how many people have all the right answers but are never in a position to do anything about it. We only have the worst or the dumbest people in authority.
@12:25 PM
@11:52 here. It seems we were discussing different topics.
I have never had a denial reviewed. I have had a high denier's approval reviewed before, however. Some of the high deniers are total jokes from any administrative fairness standpoint and will engage in any contortion they can to deny a claimant unfairly. I'm glad there's not that many of them. They should get hit just like the "outlier" approvers do.
If you do 700 cases a year, and pay a shedload on the record, you are not doing your job.
Let's do the math --
Let's say an ALJ is an overachiever, and averages working 10 hours per day. After holidays and vacations, let's say they work 240 days in a calendar year. That's 2,400 hours worked total.
If a Judge issues 700 decisions, that averages to 3.4 hours per decision. That includes reviewing the case file prior to the hearing, holding the hearing, writing up the instructions, and then reviewing and editing the decision after it comes back from the writer. Anything unusual that requires special attention, such as post-hearing CEs, interrogatories, or supplemental hearings, is also included in that 3.4 hour average. Also, time spent on all the hearings for dismissed cases, which the judge has to get through to get to 700 cases where a decision can be issued, is also included in that 3.4 hour average.
That's not a lot of time. And that's assuming the ALJ is working extra hours and days than they have to. That 3.4 hour average could be less, as low as 2.6 hours.
If I was in upper management in the agency, I'd want to review such a judge's decisions to ensure that they are giving each case its due diligence. Both the claimants and the taxpayers deserve nothing less.
Thankfully, there are only 3 ALJs in the country who are on pace to exceed 700 dispositions on the year, and only 1 of them has an egregiously high pay rate (Congrats Reps in Sacramento). And only 15 ALJs are on pace to surpass 600.
If you are approving less than 20% of cases over time, you are applying a clear and convincing evidentiary standard, not a preponderance.
However, it's been obvious that the whole process has been strongly tilted towards reviewing the decisions of ALJs who approve more claims than most.
Paranoid much. OHO manager here. I have NEVER heard any discussion of any attempt to review high paying ALJs. All quality review is applied equally to all ALJs. Like any system attempting to apply rules uniformly, we will always review the outliers (take a look at a bell curve and remember your statistics classes). Any 3+ STD from the mean is doing something that others are not.
@8:06 AM
Sure, it's a difficult job. But it's not rocket science, and production is not that difficult to maintain so long as you work in a goal-oriented manner, manage your time well, set your ego aside, and prepare for the hearing so that you don't waste inordinate amounts asking irrelevant questions. Is it as easy as slinging burgers at a McDonald's? Of course not. But that's why you're paid one of the highest salaries in the entire government.
ALJ allowance rates are almost all under 45%, much less than 8 years ago. That number is too consistent across the board to be random. SSA has clearly gotten the message to ALJs that they are looking at the numbers, not the quality of their decisions. The ALJs are therefore not adjudicating claims based on the merits, but rather on their own personal standing within the agency and under the threat of being labeled an "outlier" subject to "reeducation." This is not justice, it is banal bureaucratic evil.
Wonder how many cases a LTD decision maker makes in a year?
@11:47 If the ALJs are not handling claim based on merit then they are being unethical and should be fired.
What's an acceptable approval or denial rate? Obviously everyone who applies thinks there disbled. I would also assume reps believe their clients are always disabled otherwise, why take it?
So, what is an acceptable rate of allowance or diability since it cannot be 100% in either direction.
@8:23
Bingo. Say you have a guy that is status post three lumbar surgeries and still has a bulging disc. The treating neurosurgeon says 20 pounds is the lifting restriction, a treating primary says 20 pounds, pain management says 20 pounds, and the 5 minute consultative examiner says everything was normal. The RFC is now 50 pounds. Any ALJ that says 50 pounds is not following the law and should be ashamed.
Don't the ALJs have a welcome screen that shows them where they are v national averages every time they open their computer? If so, wouldn't that screen either assume that all cases have the same facts or be intended to serve as some kind of front of mind data?
When you are docketed with a judge on the same day with four cases, time after time, you see the rhythm of: approval, denial, approval, denial (or vice versa) regardless of the merits.
Conn was a "useful" person for SSA. Sure, they were "embarrassed" by him and Daugherty. But, then they used Huntington to take down the high payers and intimidate the others, while doing nothing to the low payers. Were Daugherty and others paying people who probably shouldn't have qualified? Yes. But, many others who are CLEARLY not capable of sustaining a full time job are being denied. Especially if they are under 50. I have read quite a few (75-100) Federal Court and Appeals Court Decisions (mostly in a particular Circuit) and the result is disturbing. Basically, if the ALJ can find ANYTHING to hang a denial on, the FC and AC will rubber stamp it!
Since I first applied for SSDI, several social workers in different groups told me, "SSA always denies you the first time." When I asked, "You mean DDS?" They then said, "The first hearing." I don't know if there is any truth in this, but it seems to be the perception here. It would be one thing if it took 4-5 months for the process to play out. In my first attempt, it took two and a half years! My second application took another two and a half years. Then, they didn't pay for a year of that time. It's difficult to see that the reason for this to screw people as much as they can! By the time I was payed, it had been six years since I had a worked a full month. It was 8 years since I had worked more than a total of 6 months in a year. This was due ONLY to ability to work, not issues with employment.
I believe the hypotheticals and often the jobs listed have no basis in reality. Kind of like the hypothetical lever and fulcrum that would allow you to "lift the earth."
Eric Conn was the fall guy. Nothing happened to Grover Arnett. Just saying.
Sincerely,
An Insider
"Since I first applied for SSDI, several social workers in different groups told me, "SSA always denies you the first time." When I asked, "You mean DDS?" They then said, "The first hearing." I don't know if there is any truth in this, but it seems to be the perception here."
You don't know if that true? There's about a 45% allowance rate from ALJs. It's over 55% if you subtract dismissals. Even in the most liberal of exaggerations or metaphor it's untrue. It's more accurate to say no one gets denied than no one gets approved (which, as you know, is complete garbage).
5:25 PM Mark Twain...Three types of lies...lies, damn lies and statistics. I was referring to PERCEPTION. I know the stats. "When you are docketed with a judge on the same day with four cases, time after time, you see the rhythm of: approval, denial, approval, denial (or vice versa) regardless of the merits." That is PERCEPTION. Based upon someone's EXPERIENCE. Sure, the people who are quickly approved don't come in to foid banks, etc. applying for other aid. That might skew the perception. But, what they perceive is that people who can't work are being denied, only later to be approved. That is also my experience. Did I get worse after my denial? NO. I was just as unable to work when I was denied as I was when approved.
SSDI/SSI have been under fire from Senator Cotton, Rand Paul, etc. Senator Rubio said in 2017 about the "Return to Work Act of 2017" bill, "This legislation represents a long overdue reform that takes care of working Americans and saves our social safety net for the truly disabled." Clearly, Rubio and others are under the PERCEPTION that there are people on SSDI/SSI that COULD work. What is that perception based upon? Maybe it is based on information from 20 years ago and reinforced by Huntington. My PERCEPTION is that people who care about the numbers seem to care ONLY about the numbers. So, you deny anyone you think you can JUSTIFY, regardless of the merits...particularly if they are under 50. Certain conditions are easier to deny than others, just to the nature and lack of medical abilty to verify. This leads to discrimination based on the disability. And the PERCEPTION of that disability by doctors, ALJs, etc.
What is the basis of these PERCEPTIONS. Most are based upon stories they have read, the statistics, etc. Meaning, it is not something they have EXPERIENCED. My PERCEPTION is based upon my EXPERIENCE. That, and the comments some have made, cases I have read, etc. Systemically, I think SSA and Congress ONLY cares about the numbers. Democrats have DONE NOTHING to since Huntington to help. My PERCEPTION is they just don't give a damn about how that effects people like me!
The OHO/quality control is incapable of catching a claim that results in a favorable decision to a woman whose only “severe impairment” is urinay incontinence. I could go on and on!
Will never happen
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