CT Blue

A friend of mine sends out daily emails with links to interesting stories. A recent email sent me to this article, in which we find that Judge Richard Posner has ruled against the union of the Administrative Law Judges that decide Social Security Disability cases:

The Chicago-based 7th U.S. Circuit Court of Appeals has ruled that administrative law judges for the Social Security Administration can’t pursue a grievance against their agency.

As the National Law Journal (sub. req.) reported, Judge Richard Posner compared the ALJs to workers on “a poultry processing assembly line” in rejecting their claim that high caseloads interfere with their decisional independence.

The union for the ALJs, the Association of Administrative Law Judges, had sued SSA acting commissioner Carolyn Colvin in her official capacity over a policy setting a goal of 500 to 700 “legally sufficient judgments” per judge, per year. According to the opinion (PDF), the union contends that this is really a quota because judges are penalized for not meeting it.

Such a high caseload encourages judges to approve benefits, the union argued, because an approval can’t be appealed, and therefore the opinion doesn’t have to be “appeal proof,” as Posner phrased it. As a result, the union argued, judges are encouraged to find for applicants, and their independence is compromised.

Inasmuch as most of my legal practice consists of representing Social Security claimants, I find this interesting on a number of levels. Posner is, or at least was, considered a fairly conservative judge, but he's written a number of opinions raking ALJs over the coals for the absurd reasoning in which so many of them engage. He's written a number of opinions about boilerplate language that many of them used (and still use to some extent) when assessing a claimant's credibility. They are required to assess the claimant's credibility in every case. Naturally, in almost every case, the claimant is not to be believed, for reasons that would leave most rational people baffled. The offending boilerplate essentially consists of a statement that boils down to this: I don't believe the claimant's testimony about his or her level of functioning because the claimant's testimony was inconsistent with my ultimate decision in this case. It's a little like Alice in Wonderland, except instead of having the sentence first and the verdict afterward, it's verdict first, trial afterwards. Or, as Judge Posner would have it, circular reasoning. Posner's contempt for the intellectual laziness and obvious result oriented decision making (i.e., judges searching for a way to deny meritorious claims) pretty obviously slipped over into his decision; not so much that it colored the results, but that it led to the chicken killing analogy.

I don't know if Posner did, but he could have pointed out that the ALJ's argument doesn't seem to comport with the facts. If, in fact, the caseload of the ALJs is pressuring them to grant cases, it doesn't show up in the stats. Benefit awards have declined precipitously over the past few years. My own theory is that the decline in awards is a function of a couple of things: the 60 Minutes smear job that covered a few judges with high grant rates, but ignored the judges that deny almost everyone and the consequent pressure from the higher ups to redress the non-existent problem 60 minutes uncovered; and the retirement of reasonable judges and their replacement with judges recruited from within the system, who know what their superiors expect from them.

The judges don't write their own decisions; they have people for that. Of course, the judges can modify whatever the decision writers come up with, but some are too lazy to do much editing. Many of us suspect that when the decision writers disagree with the judge they put language in the decisions that almost guarantees a successful appeal. But often, they have no choice but to make the decisons self destroying, as it is often impossible to write a coherent denial when the evidence is massively against you. The sheer irrationality of some of the decisions is truly mind boggling. I won't bore with war stories, but I could.

So, this is one time I'm not siding with a union. The ALJs may be overworked, but it hasn't stopped them from denying meritorious claims, much less weak claims.