Wall Street Journal on Social Security Disability System Review of ALJ Awards and New Surprise ALJ PolicyThursday, December 15, 2011
Are Social Security Disability Judges awarding too many or too few disability claims? According to an article on the Social Security disability system by Damian Paletta in the Wall Street Journal today, that will be the subject of an independent review of the federal disability system by the Administrative Conference of the United States focusing on the work of Social Security Administrative Law Judges (ALJ’s). A draft of the study is due August 2012, with final recommendations due November 2012.
There is certainly a need for improvement on both ends of the spectrum across the country. Earlier this year, as reported in the New York Times, a class action lawsuit was filed against five Social Security ALJ’s claiming anti-claimant bias in the Queens New York Office of Adjudication and Review. Read my affidavit that was submitted to the federal court regarding the abuses of Social Security Queens Chief Judge David Z. Nisnewitz and ALJ Seymour Fier here.
The plaintiffs in this case, Padrue v. Astrue, recently won a motion in federal court granting their request for expedited discovery. Depositions of hearing office personnel, and possibly ALJ’s in that office, should begin soon. The case is being handled on a pro bono basis by the national litigation law firm Gibson Dunn. The relief requested includes wholesale re-hearings going back years for all claimant’s denied benefits by the named ALJ’s. This is one example of bad and abusive ALJ’s contributing to the ongoing backlog of disability claims at the Social Security Administration.
On the other, equally bad, end of the spectrum is the case of West Virginia Social Security ALJ David B. Daugherty, who apparently never met a claimant who was not disabled. Unlike his brethren in Queens, New York, he was suspended for his outstandingly high allowance rate, and eventually retired. The "Queens 5" continue to hear cases. I guess granting cases is a more serious offense at Social Security than bullying and intimidating claimants, which was the M.O. for the Chief ALJ Nisnewitz in Queens. Either way, both examples of these "outlier ALJ’s"" should be quickly purged from the system. The vast majority of fair ALJ’s should not be tarnished by a few bad apples.
Finally, in what appears to be an attempt by the Social Security Administration to stop certain mega-advocacy firms from "dumping" weaker cases based upon the ALJ they draw for a particular hearing, Social Security is instituting a new policy starting 12/19/2011 where they will not tell a representative the name of the ALJ hearing a particular case until the day of the hearing. While the motivation to correct this problem is indeed commendable, it does seem that Social Security is using a rather blunt instrument to correct a cancer that is localized to easily identifiable bad advocates.
From a policy perspective, the use of "Surprise ALJ’s" will necessarily lead to more appeals – further increasing the backlog of disability claims. I would have preferred that SSA use a "surgical strike" rather than "napalm" to resolve this problem. Tough to do in a large bureaucracy, but never-the-less worth the effort. It will be interesting to see whether the new "Surprise ALJ" policy advances the quality of ALJ decision-making.