How much Fraud, Waste and Abuse is there in the Social Security Administration (Part five) – The War on ALJ’s begins.

In 2015, it was an easy thing for Republican Congressmen and Senators to generalize the fact of one bribe-taking administrative law judge into the political claim that hundreds of judges were wrongfully deciding cases. 

The facts: The judging of legal cases by its nature requires the grant of discretion to the adjudicator when applying facts to law. Different people can look at the same facts and decide what the law requires with different results. Decisional disparities are a function of the judicial concept, where humans are in charge. An example of how this works is criminal sentencing, where wildly different sentences are imposed by different judges for the same offenses. 

So it is with ALJs who decide disability claims. Data collected in the wake of the Eric Conn investigation revealed that the disparity in ALJ decisions in disability cases was stark. The data showed that, when presented with the same theoretical set of 100 claims submitted on the same evidence, some judges would award as few as  20 of the claims. At the other end of the spectrum were judges who would award 80 of the cases presented to them. 

If this disparity is deemed troubling, a data-driven approach would most logically attempt to bring the extremes to the middle of the adjudication spectrum. The midpoint of the established range would be 50 awards out of 100 claims. A data-driven remedy would mean both extremes, logically, would have to change. 

Data-driven logic lost out to waste fraud abuse politics. In its effort to appease Congress, SSA leadership set up what eerily reminded one of a Communist re-education camp. But only for the high-paying judges. The retraining was punitive in nature, resulting from personnel actions by supervisors against the offending subordinates. Ironically, the high paying judges tended to be the most experienced judges in the judicial corps. They were basically forced into retirement in a purging of expertise from the agency. Conversely, those judges who were at the other extreme, the “twenty-percenters” as they are derisively known, are with us to this day unremorseful and unreconstructed.

It is the nature of civil servants, valuable though they may be, to find protection by moving to the center of the herd. The Social Security administrative law judges got the message and fell in line. Except, of course, for the twenty percenters. They got a different message.