By now, unless you have been living under a rock, you have seen multiple news stories about Social Security Disability. Whether it has been the announcement that the fund will run out of reserves in a few years or the media focus on how
EASY people get award benefits, the stories pushed have been from the standpoint that too many people who can work are on the disability rolls.
What has been ignored has been the opposite side of the story. Those judges who deny everyone or almost everyone. Further, starting in January of this year, Social Security started a new, secret, policy of not informing anyone prior to walking into the hearing of which judge would be hearing the case. The reasoning they gave, is to prevent representatives from forum shopping. Really? I have done SSA law for almost 6 years now. I have NEVER been able to remove a judge from a case unless the request for hearing was dismissed (forcing the claimant to go through the process/wait again). There is no motion to change judge (like we get in the state courts). Either your client moves to another hearing location (which some do) and takes the luck of the draw there or the hearing is dismissed, the application refiled, and the person waits another round of lengthy months rolling through the process to see which judge they get again.
Neither is friendly to your client, most of my clients, when faced with a denier judge, would rather appeal a decision (which can take just as long as a new app in a prototype state) then start over.
So this new policy was to avoid judge shopping and perhaps decrease dismissals. It is much easier to dismiss a request for hearing when your told your assigned to denier judge three months or six months into the wait than it is to do so on the day of the hearing. But has it really done that?
Statistics show that approval and denial rates vary greatly from state to state, hearing office to hearing office, and judge to judge. Generally, about 56% of cases are approved nationally, but outliers within a specific hearing office can bring down that offices stats. The deny judges are difficult to work with. The ones I have faced have not been pleasant to the clients, act more like opposing counsel then judges, including acting like they are the grand watchdog or need to fix the entire system which is not their job. See a partial reasoning given by one outlier Judge Swank
“The [Social Security] Administration has often placed a greater priority on quickly processing and paying disability claims with insufficient attention being given to verifying recipient reported information and controlling program expenditures,” Swank wrote. He added that abuse of the welfare system hurts taxpayers and those who genuinely deserve help.
An ALJ’s job is to apply the rules and regulations of SSA to the case in front of them not try to balance the expenditure of what they see as inappropriately approved claim by automatically denying the cases in front of them. Many of these deny judges do not follow the law. The rely on inane conclusions to support a finding of not disabled and will either ignore any supporting evidencing or dismiss it inappropriately.
If we look just at the data state wide (data can be found at Disability Judges , it is easy to correlate. ** Please note that the formula this site uses to calculate percentages is a bit off. The calculate approval % and denial % based off the total dispositions and not decisions. This does deflate the rates some, but for the purposes of this discussion, it’s that pattern that is important. For the most part, the higher the denial rate of the hearing office the higher the dismissals. It is not a perfect but a strong pattern. For example, Tennessee with a 60% approval rate statewide has a dismissal rate of 11%, Alaska approves 28% of claims and dismisses 31% (note that 1 judge has a 32% dismissal rate and a 2 others have high dismissal rates of 20+ out of the 6 judges) , RI approves 40% dismisses 23%, Kansas approves 37% dismissals 19%.
But beyond that, what about those deny Judges that no one wants to hear their case. At the Richmond VA hearing office here is the break down by Judge, % dismissed, % approved, and % denied
|Judge Drew A. Swank||24.00%||12.00%||64.00%|
|Judge Thomas B Pender||22.00%||24.00%||54.00%|
|Judge Donna Dawson||17.00%||33.00%||50.00%|
|Judge Maria Alexander Nunez||23.00%||36.00%||41.00%|
|Judge William K Underwood||24.00%||36.00%||40.00%|
|Judge Patrick J MacLean||16.00%||39.00%||45.00%|
|Judge Kenneth Bryant||14.00%||40.00%||46.00%|
|Judge Theodore P Kennedy||17.00%||40.00%||43.00%|
|Judge Timothy C Pace||15.00%||47.00%||38.00%|
|Judge Julia D Gibbs||16.00%||47.00%||37.00%|
|Judge Christine Coughlin||15.00%||50.00%||35.00%|
|Judge William H. Hauser||12.00%||62.00%||25.00%|
Judges with lower approval rates have higher dismissal rates. But lets go even further with this set of judges. Of the data reporting 2012 numbers, Judge Swank has disposed of 264 cases. This judge dismissed 63 cases, denied 168 cases, and approved 33 cases. This judge has dismissed almost twice as many cases as approved. In comparison, Judge Dawson has disposed of 261 cases with 45 dismissals, 131 denials, and 85 approvals.
Now if your in another part of Virginia in the Roanoke office you get a different picture.
|Judge Benjamin R McMillion||9.00%||48.00%||43.00%|
|Judge Ethan A Chase||10.00%||49.00%||41.00%|
|Judge Thomas W Erwin||11.00%||61.00%||28.00%|
|Judge Robert S Habermann||12.00%||71.00%||17.00%|
|Judge Geraldine H Page||13.00%||51.00%||37.00%|
|Judge Joseph T Scruton||13.00%||56.00%||32.00%|
|Judge Jennifer M Horne||17.00%||52.00%||30.00%|
|Judge Steven A De Monbreum||19.00%||49.00%||32.00%|
|Judge Jeffrey J Schueler||19.00%||50.00%||31.00%|
|Judge Melvin G Olmscheid||24.00%||41.00%||36.00%|
The percentage of cases dismissed drops drastically between Richmond (38% approval rate) and Roanoke (55% approval rate). You will also note that not a single judge is below a 40% approval.
So what does this mean? Does this mean that people in Roanoke are far more disabled than people in Richmond? That somehow Judge Swank and the Richmond ODAR arrange it so that he only hears the “bad” cases and Roanoke and Judge Haberman only hear the “good” cases? NO. If the reports are to be believed that Judges who approve everyone are allowing bad claims, then it is also true that Judges who deny everyone are denying legitimate claims. And it’s not limited to Virginia. But these really low denier judges seem to be clustered together for some reason. Of the 55 judges who approve 29% or less of their decisions, 89% (49 of them) are in an office with another judge who denies 29% or less. In some offices, you may have 3 or more of these judges.
Of course attorneys and claimants want to avoid these judges. The reports on many of them is that they are harsh, lack compassion, and leave the claimant feeling like they never got a fair shake at proving their case. I have heard clients describe these type of hearings as unfair, useless (because the judge had decided the case prior to the hearing) , that the judge treated them like a liar from the get go etc.. Why would any attorney wish to traumatize their already fragile client unless we absolutely have to.
But implementing a secret judge policy does not solve the problem. We can still dismiss when we walk into the hearing. It just makes the claimant’s case drag out even longer. All in the name of getting a fair hearing. Further, half way (and 4 months with the policy) through this year dismissals on these denier judges are not down overall from 2011. Some are up, some have remained constant, a few have dropped. The average dismissal rate for the 10 ALJ’s who deny 81%+ (only counting ALJ’s who have 50+ decisions in a single office) of their decisions is 24.6% (ranging from 9%-41% dismissals). Compared to last year, the lowest 10 ALJs (with 50+ decisions) had an average dismissal rate of 19.7% (ranging from 4% -26%. Pointing to a specific Judge Rodriguez in the Dallas North office had a dismissal rate of 22% in 2010, 16% in 2011 and 38% in 2012 (approval rates for the same years 9%, 5%, 5%). Judge Suttles Houston-Bissonnet dismissal rates 16%, 0%, 25% (approval rates 22%, 13%, 13%). ALJ Soddy, also Houston-Bissonnet has 9% in 2011 and 21% in 2012 (approval rates 22%, 15%).
If the goal is to reduce/stop dismissals of these low judges, the stats say it’s not working. There is some noise that the policy is to prevent dismissals the day of hearing or close to hearing of judges at the National Hearing Centers doing video hearings. When looking at the dismissal rates, there is some fluctuation. Some went up a few % points, some went down, some stayed the same. I will also point out that the dismissal percentages at the national hearing centers are not out of line with regular ODARs. The vast majority of judges have dismissal percentages in the teens.
We won’t know if this policy will really reduce dismissals until we see more data, but right now the numbers do not support that it has had any change in behavior of attorneys and their clients choosing to dismiss a hearing request to avoid a judge. Without the desired effect, it is nothing but a policy to handicap attorneys from building their cases towards that particular’s judge quirks. Which means the judges that like particular things (like the judge I had today who wants to see a print out from the pharmacy on all medications filled from the onset date to present, which I have never had a judge ask for before) do not always get them.
For more discussion on some of these issues see