Social Security Judges Sue Their Commissioner Claiming Unfair Labor Practices

Social Security’s disability program is overwhelmed by so many claims that judges sometimes award benefits they might otherwise deny just to keep up with the flow of cases, according to a lawsuit filed by the judges themselves. This practice is referred to as "paying down the backlog".
(http://www.amazon.com/SocialNsecurity-ebook/dp/B006VOQIKK)

The Social Security Administration says the agency’s administrative law judges (ALJs) should decide 500 to 700 disability cases a year. The agency calls the standard a productivity goal, but a lawsuit filed by the Social Security Judges against the Commissioner and the Agency claims it is an illegal quota that requires judges to decide an average of more than two cases per workday.

                                        (Marilyn Zahm and Randy Frye)

‘‘When the goals are too high, the easy way out is to pay the case,’’ said Randall Frye, president of the Association of Administrative Law Judges (AALJ) and a judge in Charlotte, N.C. ‘‘Paying the case is a decision that might be three pages long. When you deny benefits, it’s usually a 15- or 20-page denial that takes a lot more time and effort.’’

The lawsuit raises serious questions about the integrity of the disability hearing process by the very people in charge of running it. It comes as the disability program faces serious financial problems.


Commissioner Astrue's story has not changed much, if at all, since he appeared before Congress in May 2007 and April 2008. (His statements and testimony are recorded in detail in my book, socialNsecurity, beginning at page 443. Available at  http://www.amazon.com/SocialNsecurity-ebook/dp/B006VOQIKK

 He is still blaming the judges, asking for more money, more judges, and more time to reduce the backlog. Since 2007 the number of judges has gone from 1200 to 1500 and the backlog continues to grow. And Mr. Astrue continues to make excuses.
Mr. Astrue wants to have it both ways. "I find it interesting that there is so much wringing of the hands about a judge who pays almost 100% of his cases, as if the agency didn't know about it, as if the agency wasn't complicit in it, as if the agency didn't encourage it," said Marilyn Zahm, a Social Security judge in Buffalo, NY who is an executive vice president of the Association of Administrative Law Judges (AALJ), the judges' union.
Judge Zahm had a lot more to say in an interview in October 2009. (Read the entire interview starting at page 430 in my book, socialNsecurity, available at  http://www.amazon.com/SocialNsecurity-ebook/dp/B006VOQIKK

It is a bit surprising that Judge Zahm would be so out-spoken, considering the minimum amount of work she does and the large amount of money she is paid. According to Social Security records Judge Zahm issued only 26 decisions for the 9 months between September 2010 and June 2011. At a salary of $167,000.00 per year, she earned $6,423.00 per decision. An average hearing lasts about 30 minutes; so, her hourly wage for that period was about $12,846.00. That is a nice salary for so little work.
However, Judge Zahm is only the Vice President of the AALJ. Perhaps, the President, Judge Randy Frye, sets a better example. According to Social Security records Judge Frye issued only 37 decisions for the 9 months between September 2010 and June 2011. At a salary of $167,000.00 per year, he earned $4,513.50 per decision. An average hearing lasts about 30 minutes; so, his hourly wage for that period was about $9,027.00. That is also a nice salary for so little work.
Judges Zahm and Frye are not unique. During the same period Judge Mark Anderson issued only 3 decisions; Judge JoAnn Andersen issued only 5 decisions; Judge William King held only 4 hearings and issued 1 decision. He was busy traveling between California and Hawaii to conduct the hearings.
These statistics came from an SSA report which contains raw data from SSA's Case Processing and Management System without regard to the amount of time Administrative Law Judges devote to actual adjudication. In other words, factors which would affect the number of dispositions (e.g., management and administrative responsibilities, special assignments, part-time status, union representational duties, retirements, deaths or extended leave, etc.) have not been taken into account.
Here is what Commissioner Astrue is failing to say. The 1500 SSA ALJs earn approximately $167,000 a year each. The salaries of those ALJs is $2 billion 505 million a year. That figure does not include the about $3 billion a year which pays the salaries of the ALJs support staff and Commissioner Astrue's salary and that of his support staff. Also 20% of the ALJs do not hold any hearings.
Some ALJs decide 200 cases per month without holding hearings. They award benefits in 100% of their cases, trying to "pay down the backlog" like the judge in Huntington, W.Va., who awarded benefits in every case he saw in the first six months of fiscal 2011.
A GS-9 lawyer could perform the same function at a fraction of the cost. A GS-9 lawyer earns about $40,000 a year. The cost to the taxpayer of 1500 such lawyers would be only $60 million a year. That is much less than the $2 and a half billion in salaries to 1500 ALJs. That is where the cuts should begin, not with benefits to claimants.
Just 4 years ago in the middle of the economic downturn there were 1200 ALJs. Today there are upwards to 1500 according to Michael Astrue. The backlog of cases waiting to be heard has not decreased, despite pressure from Mr. Astrue to force the ALJs to "pay down the backlog". Yet, Mr. Astrue kept hiring more judges at $167 thousand a year.
Former Commissioner Astrue could be vague in his testimony before Congress. We can be specific as to who the ALJs are and how many cases they decide each month and their reversal rates.
(See http://www.ssa.gov/appeals/DataSets/03_ALJ_Disposition_Data.html.)
A court-by-court analysis of close to two million Social Security Administration (SSA) claims has documented extensive and hard-to-explain disparities in the way the administrative law judges (ALJs) within the agency's separate hearing offices decide whether individuals will be granted or denied disability benefits.
(http://trac.syr.edu/tracreports/ssa/254/)

                                                             (Carolyn Colvin)
The lawsuit was filed by the AALJ and three judges on April 18, 2013 in Federal District Court in Chicago. It names the agency and Acting Social Security Commissioner Carolyn Colvin as defendants. Colvin took over in February after Commissioner Michael Astrue’s six-year term expired.

 In an interview, Former Commissioner Michael  Astrue disputed the union’s claims.

                                                          (Michael Astrue)
Social Security’s disability program is overwhelmed by so many claims that judges sometimes award benefits they might otherwise deny just to keep up with the flow of cases, according to a lawsuit filed by the judges themselves. This practice is referred to as "paying down the backlog".

"What’s really happening here is that the judges’ union doesn’t want accountability of its members and it’s been trying to sell this story to the media and to the Congress and to the agency for a very long time,’’ Astrue said. ‘‘And no one’s buying it because it’s not true, and no federal judge is going to buy this story, either.’’

‘‘There are a very small number of malcontents who want to litigate or put political pressure on the agency rather than do their work,’’ Astrue said.

The union represents 1,400 administrative law judges. Its lawsuit describes a disability system in crisis.

About 3.2 million people applied for disability benefits last year, a 25 percent increase from a decade before. Claims have increased in part because of aging baby boomers. As people get older, they become more prone to disabilities.

Disability claims also typically increase when the economy sours. Some people who manage to work despite their disabilities get laid off and apply for benefits, while others apply out of economic desperation.

When people apply for Social Security disability benefits, their cases are initially reviewed by the State Disability Determination Service (DDS), which reject most claims. If your claim is rejected, you can appeal to an ALJ. But the hearing process takes an average of 373 days — a little more than a year — according to agency statistics.

Astrue said the average processing time for a hearing peaked at 542 days shortly after he took over the agency. He said public outcry over the "backlog" led him to adopt productivity (that is, assign quotas) standards in 2007, which helped reduce the wait time (that is, forced ALJs to "pay down the backlog").

The hearing process, which is closed to the public, is different from a civil lawsuit or a criminal trial. There is no lawyer for the government. Instead, judges are expected to be impartial decision-makers while protecting the interest of taxpayers and ensuring that applicants get fair hearings. Most applicants have legal representation by the time their claim results in a hearing.

Social Security Disability hearings are not trials. They are more in the nature of fact finding inquiries. They are presided over by an administrative law judge (ALJ), who is trained in the law. At a hearing only one side of the case is present and represented by an attorney or a paralegal. That is the claimant’s side.

If only one side of a controversy is present for the hearing, then why does the claimant need to have a judge presiding? When the Government wants to win a case, Congress designs a system that provides it with an advantage. In Immigration Hearings, the Government is represented by an attorney. When the Government is a party to a hearing before the Supreme Court, it is represented by the Solicitor General. In any other federal judicial forum where the Government has an interest, the Attorney General will ensure that the Government is adequately represented.

In Social Security Disability hearings the Government is not represented. The Government is not even present. That is probably because the system was designed to give the claimant an advantage. The case is the claimant’s case, to win or to lose. A judge is not needed to collect the medical records and listen to testimony that is not really cross-examined. The presiding officer is forced to accept the claimant’s testimony, no matter how farfetched it may be. The only evidence available to impeach the testimony of the witnesses is the evidence that the claimant provides. This could hardly be considered cross-examination.

 

 See (http://www.amazon.com/SocialNsecurity-ebook/dp/B006VOQIKK)

Frye said he has never awarded benefits just to clear a case faster, and he couldn’t name any judges who have.

‘‘It’s hard for anyone to say a judge is willingly deciding cases incorrectly just to meet the quota,’’ Frye said. ‘‘What they have told us is they are not reviewing all of the evidence, they are not developing the case as they should, and from that I think you can clearly see that the case may not be or could not be correctly decided.’’

The lawsuit says case quotas violate judges’ independence and deny due process rights to applicants.

‘‘Some ALJs respond by tending to grant more claims,’’ the lawsuit says. ‘‘For other ALJs, the quota impedes their ability to render carefully reasoned, impartial decisions based on a fully developed factual record.’’

The lawsuit alleges that ALJs are expected to meet their quotas, regardless of how complicated their cases are, even though many case files exceed 500 pages. ALJs have been disciplined for missing the quota, including receiving formal reprimands and facing removal proceedings, according to the lawsuit.

Nearly 11 million disabled workers, spouses and children get Social Security disability benefits. That’s up from 7.6 million a decade ago. The average monthly benefit for a disabled worker is $1,130.

In 2011, Social Security disability paid about $129 billion in benefits.
(AP)