Posts Tagged With: Commissioner Mike Astrue

How To Win Your Social Security Disability Claim? Simple, Find The Right Judge.

Disability Claim Denied? Find the Right Judge

Nine percent of the judges who hear appeals grant benefits 90% of the time, costing taxpayers tens of billions.

To all parties involved in a trial, the slam of a gavel should indicate that justice has been served. Unfortunately, this is often not the case with Social Security Disability (SSDI and SSI) appeals. A system designed to serve society’s vulnerable has morphed into a benefit bonanza that costs taxpayers billions of dollars more than it should. The disability trust fund will become insolvent in 2016, and Congress would be wise to begin much needed reform.

A disability applicant whose claim is rejected during the Social Security Administration’s (SSA) first two stages ( before State Disability Determination Services)  can appeal the decision to administrative-law judges (ALJ). These judges must impartially balance the claims of the applicant against the interests of taxpayers.

Over the past decade judicial impartiality has declined significantly, as many administrative-law judges uncritically approve most claims. In 2008 judges on average approved about 70% of claims before them, according to the Social Security Administration. Nine percent of judges approved more than 90% of benefit requests that landed on their desks.

Do nine out of every 10 applicants appealing denied claims need societal support? There are reasons for skepticism. The data show that judges who are generous in granting benefits are consistently generous over time—which is suspicious, since each year they should hear a random set of new cases. The more discerning judges—those who award benefits less than 90% of the time—are more unpredictable from year to year.

(Photo: Getty Images/Illustration Works)

If the judges with award rates topping 90% are removed from the data, the rate of denial increases by 2%-3% annually. That amounts to 98,000 claims from 2005-11. Assuming an average lifetime award of $250,000, taxpayers would have saved $23 billion over those six years had the worst judges left the bench. If we lower the threshold to exclude judges with award rates north of 85%, these savings increase to $41 billion.

Former Social Security Commissioner Michael Astrue, who took office in 2007, made much-needed changes. Incompetent incumbents saw their influence diluted by new judges drawn from fresh candidate lists. Judicial decisions are now randomly reviewed to ensure that the court remains impartial and fair to taxpayers. Judges were limited to hearing 1,000 cases a year (the figure has since been lowered to 700), and individuals are allowed only one disability application at a time.

Mr. Astrue’s reforms have produced good results. In 2011 judges with award rates exceeding 90% heard a mere 4% of all cases, a 63.6% decline from 2008. But Mr. Astrue’s term expired in 2013, and these changes can easily be undone, either intentionally by future administrators, or unintentionally as bad habits slip back into the system.

His program to increase accountability and judicial turnover should be made permanent. Congress should also institute 15-year term limits for judges, who currently enjoy lifetime tenure, to ensure that fresh legal minds are joining the stale judicial aristocracy. A term of a decade and a half is long enough to insulate judges and prevent undue political influence.

The system faces a huge backlog, made worse by claimants who play adjudication roulette, filing and then withdrawing appeals in hopes of drawing a generous judge. Congress can limit this gamesmanship by allowing only one application per claimant in a three-year period. Because judges must marshal more documentation for a denial than an approval, they have an incentive to grant benefits to keep the system chugging along. The agency can fix this by further limiting the number of cases each judge must decide to 500 from 700.

The system is further complicated because even if a claimant has legal counsel, the judge must advocate on the claimant’s behalf. This dual role should be ended. Most claimants—85%—now have third-party representation. These professionals should be held responsible for getting supporting materials into court expeditiously and completely so the record can be closed in a timely manner.

Even under better legal rules, judges will still face rigid and outdated guidelines for granting benefits. The framework they must follow—known as the Medical Vocational Grid (known as The Listings)—is formulaic to the point of senselessness. For instance, the bar to benefits approval is lower for someone who doesn’t speak English, on the theory that it is difficult to find a job without the language. But that English rule is also applied to claimants from Puerto Rico, where the language of business is Spanish.

These guidelines (in The Listings) also do not give due consideration to actual labor market experience, dictating a looser approval standard for someone with only a high-school degree, even if the person has succeeded in the labor force for decades.

The framework (of The Listings) was developed in the late 1950s, for the previous generation’s workforce, and hasn’t been updated since 1978. Decades ago workers ages 50 or 55 might have been considered retiring, but this is no longer generally the case. Novel job-training programs also make it easier than ever for workers to move into new fields and make up for low levels of education, and new disability criteria would account for these changes.

These solutions would begin to deliver meaningful reform to Social Security disability awards. They can restore dignity and efficacy to a troubled system.

(BY Mark J. Warshawsky And Ross A. Marchand, March 8, 2015) 

(Mr. Warshawsky is a visiting scholar at the Mercatus Center of George Mason University and a former member of the Social Security Advisory Board from 2006 to 2012. Mr. Marchand is a first-year economics graduate student at George Mason University.)

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Social Security Program Abuses Cited In Senate Committee Report

Social Security Disability Program Abuses Cited In Senate Committee Report

Senator Tom Coburn, (R-Okla.)

A subcommittee headed by ranking minority member Sen. Tom Coburn, R-Okla., reported findings today on improving benefit award decisions for Social Securitydisability programs.Decisions by ALJs in Social Security disability appeals are riddled with errors and signs of sloppy judgment, according to the report from the Senate Homeland Security and Government Affairs subcommittee on investigations.

More than a quarter of the decisions reviewed by the committee were based on insufficient and often contradictory evidence, according to the report, a finding that is consistent with the Social Security Administration‘s own internal reviews.

“In May 2007, Commissioner Michael Astrue told Congress he would end the growing wait time for an ALJ hearing,” Coburn said. “To reduce this wait time the agency encouraged judges, where appropriate, to consider skipping hearings and write decisions ‘on the record.’

“I think you could flip a coin for anybody who came before the Social Security commission for disability and get it right just as often as the ALJs (administrative law judges) do,” Coburn said.

Coburn said he personally reviewed about 100 of the cases, drawn randomly from counties in Virginia, Alabama and Oklahoma. About 75 percent should not have been approved for benefits, Coburn said. The Oklahoma Republican is a practicing physician.

“One judge we encountered in our investigation played a big role in this effort,” Coburn said. “Between 2007 and 2009, ALJ Howard O’Bryan, from the Oklahoma City office, single-handedly decided 5,401 cases — almost all of them on the record and without a hearing. His decision rate was nearly four times faster than the average judge’s.  In terms of cost, Judge Howard O’Bryan alone awarded an estimated $1.62 billion in lifetime benefits to claimants in just three years.

“I was at first astounded that one person could decide 1,800 cases per year – especially since each case is

nearly 500 pages long.  On average, he decided five cases per day, 365 days per year. I soon learned, though, that he could move through them so quickly because the quality of his work left so much to be desired.”

Coburn said the Oklahoma judge cut and pasted electronic images of medical evidence into his findings. There were contradictory opinions and findings in the cases, so much so that the agency asked Judge O’Bryan to improve his decision writing.

“But, instead of reducing his caseload to a manageable level, the agency began shipping him cases from around the nation,” Coburn said. “He told us that at one point he was asked to do 500 cases just from Little Rock, Arkansas — an average judge’s caseload for the an entire year. When he finished those, he was sent cases from Atlanta, Houston, Greenville, Des Moines and Yakima, Washington.

One 87-year-old judge in Oklahoma City, who averaged about 1,800 disability cases per year between 2007 and 2009, approved between 90 and 100 percent of them annually.

Another judge awarded disability benefits after a hearing that lasted only three minutes.

Among the recommendations in the report is that the Social Security Administration have a representative at appeals hearings to ensure evidence indicating a claimant is not disabled is presented.

The subcommittee questioned top ALJs from the Social Security Administration’s disability office during a hearing on 13 September 2012.

(Read the full story in http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757)

The report was prepared by Republicans on the subcommittee. However, its factual findings are supported by subcommittee chairman Sen. Carl Levin, D-Mich., who did not sign on because of concerns about some of the recommendations, according to a Levin aide.

FINDINGS OF FACT:

A subcommittee headed by ranking minority member Sen. Tom Coburn, R-Okla., reported findings today on improving benefit award decisions for Social Security disability programs.

Based upon its review of the 300 disability case files, the report finds:

•Low Quality Decisions.  The investigation’s review of 300 disability case files found more than a quarter of agency decisions failed to properly address insufficient, contradictory, or incomplete evidence.  This corroborates a 2011 internal review.

• Insufficient and Contradictory Medical Evidence.  In many cases, at the initial and appellate levels of review, the state-based Disability Determination Services examiners and SSA Administrative Law Judges  issued decisions approving disability benefits without citing adequate, objective medical evidence to support the finding or at times without explaining contradictory evidence.

• Poor Hearing Practices.  There were perfunctory hearings lasting less than 10 minutes, misused testimony provided by vocational or medical experts, and a failure to elicit testimony to resolve conflicting information.

• Late Evidence.   Some case files showed disability applicants submitted medical evidence immediately before or on the day of a hearing or after the hearing’s conclusion.

• Inconsistent Use of Consultative Examinations.  In many cases, consultative examinations submitted on behalf of either SSA or a claimant were either summarily dismissed or heavily relied upon, with little to no explanation.

• Misuse of Medical Listings.  In many case files, opinions failed to demonstrate how a claimant met each of the required criteria in the SSA’s Medical Listing of Impairments to qualify under “Step Three” in the application process. Awards at Step Three are determined to be severe enough to qualify an applicant for benefits.

• Reliance on Medical-Vocational Guidelines.  The majority of disability awards reviewed by the Subcommittee  utilized SSA medical-vocational grid rules.  A recent SSA analysis found that benefit awards were made under these grid rules at a rate of 4 to 1, compared to awards made due to a claimant’s meeting a medical listing.  At times, decisions resulted from a claimant’s representative and the Administrative Law Judge negotiating an award of benefits by changing the disability onset date to the claimant’s 50th or 55th birthday.

• Outdated Job List.  Some case files showed examiners and ALJs relied on the Department of Labor’s outdated Dictionary of Occupational Titles, to identify jobs open to claimants with limited disabilities.  The last major  revision to the DOT occurred in 1977.

RECOMMENDATIONS:

The report makes the following recommendations:

• Require Government Representative at Administrative Law Judge Hearings. Including a government representative at the ALJ Level is a recommendation of the Association of Administrative Law Judges and the Social Security Advisory Board. Congress should designate funds for such a program.

• Strengthen Quality Review Process.  The review process initiated by the Quality Division of the Office of Appellate Operations should be expanded and strengthened by conducting more reviews and developing metrics to measure the quality of disability decisions, and the information made available to Congress.

• Close the Evidentiary Record. To eliminate confusion, inefficiencies, and abuses, the evidentiary record should close one week prior to a hearing, with exceptions allowed only for significant new evidence.

• Strengthen Use of Medical Listings.  Provide additional training to ALJs on the use of SSA Medical Listings, and direct ALJ decisions to identify how a claimant meets each required element of a listing, citing objective medical evidence.

• Expedite Updated Job List.  Move more quickly to ensure the Occupational Information System can serve as a usable replacement for the Dictionary of Occupational Titles to identify jobs that claimants with limited disabilities can perform in the national economy.

• Focused Training for ALJs.  The Office of Appellate Operations, Quality Division, should provide training to all ALJs regarding adequate articulation in opinions of determinations that involve obesity and drug and alcohol abuse.

• Strengthen Consultative Examinations.  Because many disability claimants do not have sufficient funds to obtain detailed medical evidence of their conditions, SSA should determine how to improve the usefulness of agency-funded Consultative Examinations, including requiring an explanation of any significant disparity.

• Reform the Medical-Vocational Guidelines.  The medical-vocational guidelines should be reviewed to determine if reforms are needed.

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