(This is the sixth post in this series about the independence of administrative law judge who will preside over your Social Security disability appeal.)
In our previous posts on this subject, we discussed how the Social Security Administration’s targeting of administrative law judges it feltwere approving too many disability claims is against the law.
Congressman Darrell E. Issa (R CA) has been at the forefront of Congressional attacks on the SSA Disability Insurance program. Part of Issa’s war on the disabled,not unexpectedly, is to renew the attack on the independence of Social Security’s administrative law judges. Last year, Issa launched one of his favorite weapons, George W. Bush appointee, SSA Inspector General Patrick P. O’Carroll, Jr. Although appointed in 2004, O’Carroll has a virtually lifetime appointment to this office and is a self-proclaimed crusader against fraud and abuse, particularly where Republican congressmen ask him to find it.
Before we get to O’Carroll’s report, we need some context. The notion of “outlier” administrative law judges has crept into the conversation about judicial independence. The term refers to administrative law judges whose percentage of awards is outside of the statisticalherd, but in one direction only. Most judges fall statistically into a roughly 40-60 percentrange of favorable decisions compared to the total number of cases they have decided. There are some who award less than 40% of their cases and some who award more than 60%. SSA is unconcerned with judges who award 15% of cases decided – even if statistically that means claims are being denied by these judges where a great majority of judges would find the claimant to be disabled on the same facts. Justice may well be denied in those cases, but SSA saves money, so all is well.
Only those who approve “too many” claims receive the pejorative label of outlier.
Inspector General O’Carroll wrote to Congressman Issa on November 14, 2014, acknowledging that Issa had “asked my office to identify administrative law judges (ALJ) who had issued 700 or more dispositions and who had allowance rates of 85 percent or higher in any 2 fiscal years since 2007. You requested that we review a statistically significant, random sample of these cases to determine whether the ALJs processed the cases in a manner consistent with the Social Security Administration’s (SSA) policies and procedures. You also were interested in the level of SSA monitoring of the ALJ outlier group, including subsequent actions taken with outlier ALJs based on this monitoring.”
O’Carroll selected 44 individual judges of a total of over one thousand judges in the agency for this investigation. Finding what he termed “quality issues” in a sampling of their cases, he asked SSA to review them. Unsurprisingly – very few litigants on the losing end of a case will ever agree that their judge did a great job – SSA disagreed with how well the cases were decided.
The inspector general then proceeded to make outlandishly amateurish speculations on the waste and abuse he uncovered. But at least he had the discretion to not call out judges by name, giving a passing nod to the Constitution and the Administrative Procedure Act when he noted that “while the Agency may have some flexibility in addressing workload issues, it cannot take actions that would infringe on an ALJ’s qualified decisional independence.”
Congressman Issa, however, has never been particularly noteworthy for his discretion. We will discuss his report next.