Social Security Disability JudgesNeed More Scrutiny

Social Security Disability Program Abuses Cited In Senate Committee Report

by London Steverson on Friday, September 14, 2012 at 9:04pm ·

Senator Tom Coburn, (R-Okla.)

A subcommittee headed by ranking minority member Sen. Tom Coburn, R-Okla., reported findings today on improving benefit award decisions for Social Security disability programs.Decisions by ALJs in Social Security disability appeals are riddled with errors and signs of sloppy judgment, according to the report from the Senate Homeland Security and Government Affairs subcommittee on investigations.
More than a quarter of the decisions reviewed by the committee were based on insufficient and often contradictory evidence, according to the report, a finding that is consistent with the Social Security Administration's own internal reviews.
“In May 2007, Commissioner Michael Astrue told Congress he would end the growing wait time for an ALJ hearing,” Coburn said. “To reduce this wait time the agency encouraged judges, where appropriate, to consider skipping hearings and write decisions ‘on the record.’ 
"I think you could flip a coin for anybody who came before the Social Security commission for disability and get it right just as often as the ALJs (administrative law judges) do," Coburn said.
Coburn said he personally reviewed about 100 of the cases, drawn randomly from counties in Virginia, Alabama and Oklahoma. About 75 percent should not have been approved for benefits, Coburn said. The Oklahoma Republican is a practicing physician.
 “One judge we encountered in our investigation played a big role in this effort,” Coburn said. “Between 2007 and 2009, ALJ Howard O’Bryan, from the Oklahoma City office, single-handedly decided 5,401 cases — almost all of them on the record and without a hearing. His decision rate was nearly four times faster than the average judge’s.  In terms of cost, Judge Howard O’Bryan alone awarded an estimated $1.62 billion in lifetime benefits to claimants in just three years.

 “I was at first astounded that one person could decide 1,800 cases per year – especially since each case is

nearly 500 pages long.  On average, he decided five cases per day, 365 days per year. I soon learned, though, that he could move through them so quickly because the quality of his work left so much to be desired.”

Coburn said the Oklahoma judge cut and pasted electronic images of medical evidence into his findings. There were contradictory opinions and findings in the cases, so much so that the agency asked Judge O’Bryan to improve his decision writing.

“But, instead of reducing his caseload to a manageable level, the agency began shipping him cases from around the nation,” Coburn said. “He told us that at one point he was asked to do 500 cases just from Little Rock, Arkansas — an average judge’s caseload for the an entire year. When he finished those, he was sent cases from Atlanta, Houston, Greenville, Des Moines and Yakima, Washington.
One 87-year-old judge in Oklahoma City, who averaged about 1,800 disability cases per year between 2007 and 2009, approved between 90 and 100 percent of them annually.
Another judge awarded disability benefits after a hearing that lasted only three minutes.
Among the recommendations in the report is that the Social Security Administration have a representative at appeals hearings to ensure evidence indicating a claimant is not disabled is presented.
The subcommittee questioned top ALJs from the Social Security Administration's disability office during a hearing on 13 September 2012.
(Read the full story in http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757)

The report was prepared by Republicans on the subcommittee. However, its factual findings are supported by subcommittee chairman Sen. Carl Levin, D-Mich., who did not sign on because of concerns about some of the recommendations, according to a Levin aide.

FINDINGS OF FACT:
A subcommittee headed by ranking minority member Sen. Tom Coburn, R-Okla., reported findings today on improving benefit award decisions for Social Security disability programs.
Based upon its review of the 300 disability case files, the report finds:
 •Low Quality Decisions.  The investigation’s review of 300 disability case files found more than a quarter of agency decisions failed to properly address insufficient, contradictory, or incomplete evidence.  This corroborates a 2011 internal review.
• Insufficient and Contradictory Medical Evidence.  In many cases, at the initial and appellate levels of review, the state-based Disability Determination Services examiners and SSA Administrative Law Judges  issued decisions approving disability benefits without citing adequate, objective medical evidence to support the finding or at times without explaining contradictory evidence. 
 • Poor Hearing Practices.  There were perfunctory hearings lasting less than 10 minutes, misused testimony provided by vocational or medical experts, and a failure to elicit testimony to resolve conflicting information.
• Late Evidence.   Some case files showed disability applicants submitted medical evidence immediately before or on the day of a hearing or after the hearing’s conclusion. 
• Inconsistent Use of Consultative Examinations.  In many cases, consultative examinations submitted on behalf of either SSA or a claimant were either summarily dismissed or heavily relied upon, with little to no explanation.
 • Misuse of Medical Listings.  In many case files, opinions failed to demonstrate how a claimant met each of the required criteria in the SSA’s Medical Listing of Impairments to qualify under “Step Three” in the application process. Awards at Step Three are determined to be severe enough to qualify an applicant for benefits. 
• Reliance on Medical-Vocational Guidelines.  The majority of disability awards reviewed by the Subcommittee  utilized SSA medical-vocational grid rules.  A recent SSA analysis found that benefit awards were made under these grid rules at a rate of 4 to 1, compared to awards made due to a claimant’s meeting a medical listing.  At times, decisions resulted from a claimant’s representative and the Administrative Law Judge negotiating an award of benefits by changing the disability onset date to the claimant’s 50th or 55th birthday. 
• Outdated Job List.  Some case files showed examiners and ALJs relied on the Department of Labor’s outdated Dictionary of Occupational Titles, to identify jobs open to claimants with limited disabilities.  The last major  revision to the DOT occurred in 1977.

RECOMMENDATIONS:
The report makes the following recommendations: 
• Require Government Representative at Administrative Law Judge Hearings. Including a government representative at the ALJ Level is a recommendation of the Association of Administrative Law Judges and the Social Security Advisory Board. Congress should designate funds for such a program. 
• Strengthen Quality Review Process.  The review process initiated by the Quality Division of the Office of Appellate Operations should be expanded and strengthened by conducting more reviews and developing metrics to measure the quality of disability decisions, and the information made available to Congress.
• Close the Evidentiary Record. To eliminate confusion, inefficiencies, and abuses, the evidentiary record should close one week prior to a hearing, with exceptions allowed only for significant new evidence.
• Strengthen Use of Medical Listings.  Provide additional training to ALJs on the use of SSA Medical Listings, and direct ALJ decisions to identify how a claimant meets each required element of a listing, citing objective medical evidence.
 • Expedite Updated Job List.  Move more quickly to ensure the Occupational Information System can serve as a usable replacement for the Dictionary of Occupational Titles to identify jobs that claimants with limited disabilities can perform in the national economy.  
 • Focused Training for ALJs.  The Office of Appellate Operations, Quality Division, should provide training to all ALJs regarding adequate articulation in opinions of determinations that involve obesity and drug and alcohol abuse.
• Strengthen Consultative Examinations.  Because many disability claimants do not have sufficient funds to obtain detailed medical evidence of their conditions, SSA should determine how to improve the usefulness of agency-funded Consultative Examinations, including requiring an explanation of any significant disparity.
 • Reform the Medical-Vocational Guidelines.  The medical-vocational guidelines should be reviewed to determine if reforms are needed.