Lisa Rein at the Washington Post has written an article on how frequently Social Security loses when denied disability claimants appeal their cases to federal court. Here are a few snippets:
- In the last two fiscal years, federal judges considering appeals for denied benefits found fault with almost 6 in every 10 cases and sent them back to administrative law judges at Social Security for new hearings — the highest rate of rejections in years, agency statistics show. ... The scathing opinions have come from district and appellate court judges across the political spectrum, from conservatives appointed by President Ronald Reagan to liberal appointees of President Barack Obama.
- The high rate of rejections for cases handled by administrative law judges and the attorneys who write their decisions is driven by stringent monthly quotas set by Social Security officials and growing pressure to deny more cases, according to current and former officials, audits and attorneys who represent the disabled. The agency’s policies have been reshaped to give less deference to the expertise of doctors who, in some cases, have treated claimants for years, and its policies routinely depart from federal appellate court rulings. ... Social Security has stacked the cards against the approximately 2 million people each year who apply for help when they can no longer work.
- Social Security has also tilted the scales in recent years away from key medical evidence, critics say, in another sign of the shift toward granting fewer claims. While administrative law judges once based much of their decision on evidence from primary care doctors or psychiatrists who best understood their patients’ medical issues, that policy changed in 2017. Now judges are free to disregard the opinions of these treating physicians and rely heavily instead on contracted doctors who examine claimants for as little as 15 minute.
- Less weight is given to certain musculoskeletal conditions, for example. IQ tests that show mental impairments do not automatically grant benefits.
Our ALJs aren't exactly the best and the brightest.
ReplyDeleteThis is what happens when the massive amount of bean counters employed by SSA management focus strictly on quantity and not quality. Part of this is exacerbated by lack of employees to process the workloads. Less employees and less employees are taking on more and more work, it’s an impossible workload to balance with the needed accuracy for cases.
ReplyDeleteHomeless population says what? A lot of the mental health cases (especially severe mental illness with few advocates around), just give up and live in their car or on the streets. My local news station just did a 2 week segment on homelessness in my state. Denials from SSA came up a lot. I'm not talking "Mr. Man that doesn't want to work", they tracked down the most seriously ill, both mentally and physically. It's a sad situation.
ReplyDeleteThis is going to take a true culture change at SSA to fix.
ReplyDeleteSorry to say it, but the agency's current leadership just ain't up to the task.
We need real leadership with experience in government or running a large organization, not a social worker and a lobbyist.
Bingo. And OHO needs a seasoned lawyer with real experience managing a team of lawyers and real experience with administrative law. Not the watered-down poor-man’s version of administrative law that the agency’s ALJs and AAJs are practicing. This habit of promoting clueless insiders who’s brains have been warped by decades of working within SSA’s broke-ass systems needs to come to a full stop if this ship is ever to be righted.
DeleteThe article also mentioned the fact that files are much bigger now, meaning that ALJs have much more to contend with to keep up with their case quotas. This causes them to miss things and cut corners.
ReplyDeleteWe used to routinely go through medical records and remove irrelevant and redundant pages before submitting. We could easily parse a 300 page hospital admission record to under 100 pages. We knew what was relevant and what the ALJ needed to see. We weren't trying to hide anything - just trying to make the process smoother for everyone involved.
But now, the "you must submit everything" regulations are in place which could potentially levy serious penalties against us for continuing that practice. Now, when a huge stack of medical records come in, we just automatically send it all in. It's created less work for us, but more work for the ALJs and decision writers. Just more sand to get thrown in the gears...
It's a big leap from SSA ALJ to USDC Judge. USDC Judges have huge dockets with diverse and far more complicated issues than an SSA ALJ will ever see. I wonder if they know that SSA ALJs make nearly as much as they do and some hold hearings without even glancing at the record and rely on decision writers to draft the decisions that the USDC eventually reviews. I wonder if they know that even after the ALJ David Daugherty/Eric Conn fraud, there is STILL no formal system in place to randomly assign cases to ALJs. The USDC assigns cases randomly and that's without having been the subject of a $600 million fraudulent scheme. How can SSA not learn from that?
ReplyDeleteWhat is the point you’re trying to make? District judges tend to have much more impressive qualifications and undergo a much more rigorous vetting process. And their pay (which starts above the highest ALJ rate) reflects that. Also, they’re generally able to recruit clerks with more impressive qualifications than SSA’s attorneys, and those clerks have far more time to spend with each case/decision. And lets not even get into the disparity in the quality of briefing each receives from the attorneys before them.
DeleteSo you all think that these judges are researching the law, weighing the briefs, making the decisions, and then writing the opinions in these cases? How quaint.
ReplyDeleteAccording to the article, 235K cases come into ALJ level. 54K get appealed to AC, of which 12% get remanded. 21K go to federal court, of which 58% get remanded. So, that’s about 18,600 cases remanded a year, or 8% of the overall 235K cases coming in. That 8% has been fairly constant over the years. So, I get why the bean counters see this as an acceptable margin of error. Doesn’t make for good optics as illustrated by this article, but I don’t see this causing any executives to be shaking in their boots or to be thinking about significant change.
ReplyDeleteIt’s also why they’re fine with ALJs taking on 600 cases a year and they’re fine with ALJs issuing what the courts see as subpar decisions. I don’t see that changing any time soon unless there’s a significant uptick in that 8%.
Social Security has also tilted the scales in recent years away from key medical evidence, critics say, in another sign of the shift toward granting fewer claims. While administrative law judges once based much of their decision on evidence from primary care doctors or psychiatrists who best understood their patients’ medical issues, that policy changed in 2017. Now judges are free to disregard the opinions of these treating physicians and rely heavily instead on contracted doctors who examine claimants for as little as 15 minute.
ReplyDeleteThis is misleading/false. Judges were always free to "disregard" opinions of treating physicians.
Correct me if I am wrong, but arent a lot of ALJs former reps?
ReplyDelete6:21 AM, May 26, 2023 says: So, that’s about 18,600 cases remanded a year, or 8% of the overall 235K cases coming in.
ReplyDeleteBut 18,600 remands out of the 92,000 denials is over 20%. That's not acceptable.
And that’s giving them the benefit of the AC’s illusory review. Everyone in OHO knows the AC just shoots for a 15% remand quota and lets the rest through. And anyone who’s done any district court work can tell you that getting a decision past the AC is in no way indicative of legal sufficiency.
Delete10:08, some ALJs used to be reps, but more (especially of the newer hires) came from other roles at SSA. And of course there are some people who come with different experience altogether--I knew an ALJ who'd been doing state unemployment hearings before coming to SSA (seemed like very good preparation to me) and some who didn't care about disability benefits at all but saw it as a pathway to becoming an ALJ at a different federal agency.
ReplyDeleteDiscounting key medical evidence is routinely done in Ohio. Even the management dismisses the evidence submitted for their own employees when they request a small schedule change to accomodate their disability! This was decided last year and the two managers involved are still employed at OOD! From Coomer v Opportunities for Ohioans:
ReplyDeleteClinkscale testified that the reason he denied Plaintiff's request was because he did not believe the paperwork submitted by Plaintiff's medical providers or her explanation for why she needed the schedule change was sufficient to support the request. Clinkscale also testified that he believed he was more qualified to determine what reasonable accommodation would help Plaintiff at work. Clinkscale never contacted Plaintiff's medical providers regarding the request even though he did not understand the reason for the requested schedule change.
@10:22
ReplyDeleteSure, and that's with the vast disparity between the ALJ's intended standard (preponderance) versus judicial review far lower standard (substantial evidence). A ton of those 235K should have still been awarded by the ALJ in the first instance, they just are not egregious enough to require a remand.
10:08
ReplyDeleteI guess it depends on what you mean by "a lot". There are some to be sure but not that many private attorneys choose to become ALJs. The pay isn't as good and the work environment now for ALJ is horrible.
nd then you have another group of ALJs with no agency or subject matter experience The larger number of ALJs are former staff attorney decision writers. It's a pay bump and freedom from having to write decisions at all and not having to deal with ALJs that have no clue as to how to understand the medical evidence and apply SS law.
And then you have probably the majority of sitting ALJs with no SS experience, possible other Government experience, but no subject matter experience. Some put in the effort to learn the law and can make good ALJs. Unfortunately, some do not when they find out how difficult the job can be if they try to do it right.
The work environment is only terrible for ALJs who give a s**t about doing the job, and they quickly leave in horror for greener pastures or retirement. The ones left routinely rave about how incredibly good the job is. It’s one of the only jobs in the world where you can collect nearly $200,000 jobs a year and never have to face consequences for doing it do poorly that not even half of your work is legally defensible.
DeleteSome RIDICULOUS assertions.
ReplyDeleteI don't know about other districts but here none of the district judges would know what the hell to do with a Social Security appeal because they and their "impressive resumes" don't get soiled touching them.
The cases go to the magistrates who mostly would have been a coin flip at best to have made it through the old competitive hiring process and don't know diddly about the law.
At least a quarter of the remands are deficient and contrary to law and policy. They boil down to eh I don't care, they seem sympathetic and should be paid.
Well qualified jurists don't send back a case because the claimant developed a debilitating impairment two years after the date last insured and scold the ALJ for not considering the impairment when it hadn't been diagnosed at DLI and no records document symptoms suggestive of the impairment existing at DLI.