Judges pressured to deny disability appeals, one judge tells the AJC

12:00 a.m. Thursday, Dec. 21, 2017 Nation & World
Administrative law judges are facing pressure from the Social Security Administration, based in Woodlawn, Md., to deny more appeals of disability claims from injured or incapacitated American workers, the national president of the Association of Administrative Law Judges says. AP Photo / Patrick Semansky

Last week, I wrote about Acworth resident Mary Ann Statler and her devastating, ruinous trek through the Social Security disability process.

Statler is one of more than 1 million Americans who wait an average of nearly two years to get a ruling on their disability claim. In the meantime, many of these workers face terrible financial and medical hardships. Some literally die waiting.

The column prompted response from people intimately familiar and utterly frustrated by the backlog, including some lawyers who make their living at it.

“The toll is a human toll,” said Jonathan Ginsberg, an Atlanta attorney who devotes a lot of his practice to disability claims. “It’s very, very frustrating.”

The choke point in the process occurs when an applicant appeals a denied claim to an administrative law judge. That process is so backed up that applicants wait an average of 23 months to get a hearing in the agency’s downtown Atlanta office.

To add insult to the injury, Ginsberg said once one of his clients gets a hearing scheduled, the outcome can largely depend on who gets the case. Some judges approve a vast percentage of their cases, while others deny an equally large number.

Lawyers use public data to keep track of these trends and they are disturbing.

The administrative law judges in the agency’s downtown Atlanta office approve an average of 47 percent of the claims they hear, but that figure hides an incredible deviation among the judges. On the high end, one judge approves 74 percent of claims before him, while at the low end another approves just 19 percent.

There are similar ranges among judges in Marietta, Macon and Savannah and around the nation.

“The judges have a hard job. They don’t have a lot of support staff,” Ginsberg said. “But how can there be that much variance?”

The Atlanta Journal-Constitution
A judge took so long to rule on Mary Ann Statler’s disability appeal that she ran out of money and lost her Acworth home to foreclosure. HYOSUB SHIN / HSHIN@AJC.COM

‘A crisis’

I put the question to Judge Marilyn Zahm, national president of the Association of Administrative Law Judges, who said there are a lot of factors that feed into the gulf in approval rates for judges. Chief among them is the subjective nature of the claims, she said.

“Pain is a hard thing to measure. It’s subjective by its very nature,” she said. “In addition, we have experts, vocational and medical experts, who oftentimes don’t agree with each other.” Like with any other court, judges are individuals who negotiate the subjectivity built into the system to arrive at their own conclusions, she said.

Zahm said the agrees with critics that the system is a disaster. But she said it is a disaster perpetrated by poor management at the top.

“The agency staff does not act like this is a crisis,” she said. “It is a crisis.”

A dwindling workforce combined with pressure from the agency to deny more disability cases is feeding the backlog, she said.

In fiscal 2010, administrative law judges approved 62 percent of disability claims and denied 25 percent. The rest of the cases were dismissed for various reasons, including from people who abandoned their claims after months or years of delay. By fiscal 2016, approvals had dropped to 46 percent while denials increased to 35 percent.

No other link in the disability claims process saw anything like this kind of change.

Zahm said there is definite pressure from the agency to get judges to find against workers. And that pressure grew enormously following a highly public scandal in 2011 when authorities began investigating West Virginia Judge David Daugherty for accepting cash bribes for favorable rulings in 3,100 cases brought by disability lawyer Eric Conn.

Earlier this year, Daugherty pleaded guilty for his role in the operation and was sentenced to four years in prison. Conn  fled the country but recently was captured in Honduras and has been returned to the U.S. for sentencing.

The Atlanta Journal-Constitution
Disability appeals take an average of 23 months to be decided and there is a national backlog of 1 million cases. Appeal outcomes show wide disparities among individual judges.

Backlog ‘unconscionable’

That scheme obligated the federal government for more than $550 million in questionable benefits. It also underscored a distrust many already have in a system they suspect is rife with fraud.

Zahm said the scandal has had an “enormous” impact on the disability system. “Up until that point, the agency pushed judges to pay cases” and clear the backlog, she said. That was true in Daugherty’s court, despite complaints from within the Huntington, W.V., office that the judge was funneling cases to his court that had been assigned to other judges.

“They turned a blind eye because so many cases were being adjudicated and going out the door,” she said. “That’s all they cared about.”

When the scandal went public, Social Security overcompensated, she said. Decisions that had been decided administratively now had to have a full hearing, she said.

At the same time, judges have been struggling with clerical staffing cuts that have only further slowed the process. Zahm said she used to have a clerk specifically assigned to her cases and accountable to her. Now with smaller staffs, Zahm said clerks are assigned cases in a pool arrangement instead of through a judge.

“I’ll look up (a case) on the chart and see who the person is, put some notation in the file and hope it gets done,” she said. “You never know who is going to be doing it. It’s the most insane system you could ever imagine.”

Add to this mix an aging and increasingly unhealthy workforce and you’ve got a recipe for a 1 million case backlog, which Zahm called “unconscionable.”

A solution ignored

In her role as president of the judge’s association, Zahm said she has offered a streamlined way to process paperwork for cases where a worker’s disability claim is found “fully favorable.” These are non-controversial cases where a judge has already decided in favor of the worker, and there are tens of thousands of these cases, she said.

“I even had someone draft the (decision) templates for them,” she said.

But, so far, there has been no response. Instead, judges continue to plod through these cases, documenting medical ailments unrelated to the worker’s disability, she said.

“You are wasting everyone’s time and resources by dwelling on non-important elements in a fully favorable (claim),” she said.

On the other side are people who have worked and paid into the system and now are left in limbo. Ginsberg, the Atlanta attorney, said he has to turn clients away based on the new realities. Mental health claims or claims from workers under 50 are harder to get through the system than an older, physically injured worker, he said.

While judges are taking the brunt of the criticism, Zahm said pressure needs to be put on top level administrators and Congress to fix the problem and fund a solution.

“The American people deserve good public service and it can be made to work properly,” she said. “People have paid into this. They deserve better.”

The Atlanta Journal-Constitution
Marilyn Zahm, president of the Association of Administrative Law Judges, says the backlog of disability appeals has been aggravated by poor management.
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