Calendar of Events
ALJ Statistics Make Waves
January 1, 2009
Ann Biddle, Esq., Paul M. Ryther, Esq.
ALJ Approval Rates Spreadsheet
Thanks to Chris Bowes of CeDar in New York City and Jim Murphy of Legal Services of Central New York in Cortland, advocates can readily review the case outcome statistics of their favorite Administrative Law Judges (ALJs). Chris tracked down a website set up as the result of a Freedom of Information Act request made by The Oregonian. It allows users to plug in the name of a particular ALJ from anywhere in the county and learn his or her reversal and approval rates: http://www.oregonlive.com/special/index.ssf/2008/12/social_security_database.html?app. The results cover outcomes from 2005 through 2007 and part of 2008.
Jim, Chris and others have tabulated the results for all the ALJs in New York State in an easy to read spread sheet that lists ALJs by ODARs. Jim’s spreadsheet is available on the Online Resource Center as DAP #510, and makes for fascinating reading. Rather than the straight approval/denial rates listed on the website, the spreadsheet shows the percentages based upon the total number of “on the merits” decisions. Those outcomes based on dismissals before assignment to a judge or approved after “informal remand” by the Division of Disability Determinations are listed separately. This allows for a more meaningful comparison among ALJs, since the Chief ALJs are often credited with all or many of the “ministerial” decisions. Note, however, that the various rates of dismissals (other than those following an informal remand) among ODARs may in and of themselves be indicative of problems at some ODARs that dismiss cases too frequently or cavalierly.
Most advocates will readily be able to predict the approval rates of the ALJs with whom they are most familiar, but it is interesting to have anecdotal experiences “scientifically” confirmed. It is also interesting to note the outliers - again probably no surprises for advocates who regularly practice in front of them. Nor should it be a surprise that since denials probably take longer to write than approvals, those with bottom of the barrel approval rates tend to be low producers, while those “giving away the store” - in SSA’s view - can churn out their decision more quickly.
OIG Report on ALJ Productivity
The issue of ALJ productivity was also the subject of a recent report by SSA’s Office of the Inspector General (OIG). On August 8, 2008, OIG issued a report to the Congressional Subcommittee on Social Security regarding ALJ and hearing office performance. Members of the subcommittee had specifically asked for information on factors that affect ALJ and hearing office performance (in terms of sheer numbers, as opposed to outcomes or legal sufficiency), ODAR management tools, and SSA initiatives to increase ALJ productivity.
A number of the statistics gathered by the OIG are quite interesting. For example, the average number of decisions rendered per ALJ rose from 421 in Fiscal Year (FY) 2005 to 474 in FY 2007. Most ALJs produce between 300 and 600, not necessarily the 500 – 700 figure that Commissioner Astrue has set as the goal. [An earlier audit report by the OIG in February 2008 concluded that the Commissioner can and should hold ALJs accountable for “reasonable levels” of performance. See A-07-07-17072.] Tables showing productivity rates by ODAR are included as appendices to the report.
The OIG also observed that the highest producers tended to issue the highest number of favorable decisions. The higher producing ALJs had an average favorable rate of 72 percent while the lower producing had an average favorable rate of 55 percent. This difference resulted at least in part from the higher number of OTRs (“On the Record”) decisions issued by the higher producing ALJs: 35 percent to only 11 percent issued by the lower producing group. Not surprisingly, the higher producing judges spent less time on average reviewing files, requested and scheduled more hearings, and held shorter hearings. They also spent less time editing decisions. The lower producers tended to use more experts. In fact, 21 percent of the 29 lowest producing judges interviewed used medical experts in half of their hearings. The lower producers also had more postponements.
Based on its interviews and analyses, the OIG concluded that a number of factors influence ALJ productivity, including “internalized” reasons such as motivation and work ethic. Other external factors are relevant as well, including factors relating to case development by the disability determination services (DDSs), staff levels hearing dockets, individual preferences and agency policies. [The ALJs have weighed in regarding staff support levels. In an October 30, 2008 letter to Commissioner Astrue from the Association of Administrative Law Judges (AALJ), the ALJs’ union admonished SSA for pushing for increased productivity to 500-700 decision per year without acknowledging the need for increased support staff.]
The report also summarizes the various initiatives that SSA has undertaken to eliminate its hearing office backlog and, in turn, increase productivity, including the hiring of new staff, new automation such as e-files and e-pulling, and the DDS Informal Remand Project. [SSA also touts its recently proposed regulations under which the agency would be responsible for setting the time and place of an ALJ hearing. The comment period on the proposed regulations, published on November 10, 2008, 73 Fed. Reg. 66564, and summarized in the November 2008 edition of the Disability Law News, closed on January 9, 2009.]
The OIG noted that while Chief ALJs can use management tools to oversee ALJ performance and SSA can take disciplinary actions against ALJs, these are not common. In fact, there were no pending actions related to performance, as opposed to conduct. The full report is available at http://www.ssa.gov/oig/ADOBEPDF/A-07-08-28094.pdf.
OIG Report on Unfair Treatment Complaints
Ironically, another recent report by the OIG emphasizes how difficult it is for claimants and/or advocates raising problems with hearing offices regarding ALJ performance. Following numerous complaints from constituents about the Dover, Delaware ODAR, Rep. Wayne T. Gilcrest (R-MD) asked that the OIG address complaints of poor customer service and improper handling of claims in the Dover ODAR. He requested that the OIG investigate complaints of 1) requests for excessive and redundant medical evidence; 2) unwarranted dismissals; 3) improper handling of terminal illness, medically critical and dire needs claims; and 4) inappropriate comments by ALJs at hearings.
The OIG, in its report issued in October 2008, entitled Customer Services Issues at the Dover Hearing Office, A-12-08-28080, ducked the substance of the complaints and focused instead on how SSA handled them. It concluded that “ODAR could have been more proactive” by providing basic information about the status of each claim, and that “SSA did not adequately track ‘Unfair Treatment Complaints’ and as a result, could not determine relevant trends, such as repeated bias complaints associated with an administrative law judge.”
Sound familiar? Advocates have frequently bemoaned the lack of a meaningful complaint process within SSA. The issue arose in the Pronti litigation challenging bias on the part of now retired ALJ Franklin T. Russell. See Pronti v. Barnhart, 339 F.Supp.2d 480 (W.D.N.Y. 2004) (Pronti I) and Pronti v. Barnhart, 441 F.Supp.2d 466 (W.D.N.Y. 2006) (Pronti II). SSA’s failure to finalize its “temporary” regulations, issued in 1991, has also been chronicled in these pages (see, e.g., the September 2006 edition of the Disability Law News), and has been the subject of various seminars and task force meetings. In fact, it was on the agenda of the most recent NOSSCR conference in October 2008, at which representatives of the Office of the Chief Administrative Law Judge (OCALJ) presented a session on its complaint procedures.
At the NOSSCR session, ODAR officials touted what are presumably their responses to some of the criticisms raised in the OIG report. The OCALJ is allegedly working on procedures to ensure that complaints are acknowledged in a timely manner. OIG found that in some cases, there was no indication that any acknowledgement had ever been sent to the complainant. It has also updated it website, clarifying where complaints should be sent, and is distributing new posters describing the complaint process to all ODARs.
ODAR has indicated to the OIG that it is “taking steps” to better track complaints. The OIG had found that ODAR had no centralized database for tracking complaints. As a result, it could not respond to the OIG on the number of complaints made, or the actions taken, nor could it identify trends in misconduct or bias among ALJs. ODAR also assured the OIG that it has established an inter-component SSA work to “updated and finalize” the complaint process regulations.
In the meantime, the statistics made available on the Oregonian website and compiled for New York advocates by Jim Murphy will undoubtedly provide further fodder for complaints of bias and/or misconduct by certain ALJs or ODARs. Let’s hope they will get someone’s attention.
Thanks to Jim, Chris and others for their hard work in collating this data in a meaningful and accessible way. Remember that if you are appearing before a visiting ALJ not listed in the New York spreadsheet, you can still “check out” your visiting ALJ’s stats on the Oregonian website.
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