Monday, July 15, 2013

Judges Sue SSA

In April 2013, an association of Social Security Administrative Law Judges (ALJ) filed a Federal lawsuit regarding the agency's expectations of their performance. They complain that the workload in SSA disability hearings is such that each ALJ is expected to adjudicate 700 cases each year. By process of simple math, assuming four weeks of vacation annually, and another two weeks of holidays, this comes out to three decisions per workday (700 divided by about 230 work days).

Due process is what judges do. An opportunity to be heard, a meaningful opportunity, is critical to due process. As budgets shrink, and workload expands, there has been some sympathy from the Courts. In June, the Florida Supreme Court concluded that the workload of public defenders was too extreme. Due process requires meaningful interaction with counsel. Should it require less of judges?

The ALJs complain in their lawsuit that this volume is leading them to expedite their decisions. They complain that the decision volume quotas of the agency prevent them from investing the required time in their complex cases. They note that the filings for disability have increased markedly, up 30% since 2007. They also note that the volume of documentation within each filing is significant, citing an average of 500 pages each. The ALJs argue that the decision process and the high volume of required decisions may lead to more decisions of "disabled." The ALJs argue that drafting a decision in favored of the disability conclusion is more expeditious, and so the high workload, they argue, is likely driving up the determinations in favor of applicants.

The ALJs argue that their independence and discretion are limited by what they describe as quotas and what the SSA labels a "productivity goal." They also argue that applicant's due process rights may be impaired by the effects of the workload.

This situation is of interest because judicial workload is inherently difficult to measure. Within our system at the OJCC, there are a multitude of issues and tasks presented daily. What looks like a simple issue may take days to research and analyze, but a few lines of text in an order to dispose of. We do not have the luxury of the per curium affirmed, with which the appellate courts are blessed (or cursed, depending on your perspective). However, there are many OJCC decisions that amount to little more than "granted" or "denied." The simplicity of the order may not reflect the work required to make the determination though. 

This is intriguing because it is difficult to measure judicial workload. I have struggled with the subject repeatedly. The Florida OJCC has attempted to both quantify workload and to equitably distribute it. This is a challenge. A trial in our setting may entail days of live testimony and an order of a hundred pages or more. Many of us have heard similar cases. A trial may as likely be two depositions, an hour of argument and a three page order that addresses a discreet question such as whether a doctor should be authorized or a wage calculation corrected, or an MRI ordered. Each is a trial, but they are very different in terms of judicial workload. 

We have done our best to define trials. When I took the bench some years ago, I noticed that my predecessor in Pensacola heard many more trials each year than the number of final orders entered. The incongruity confused me. I later learned that he considered more events "trials" than I would. He was not alone. On that foundation, we have tried to formulate definitions. 

The definitions are consistent, if not always completely fair. Any objective measure process will have flaws. Some of the unfairness results from the definitions being relatively strict, a result in turn of those judges who in the past attempted to skew the statistics to meet their own objectives. An example is the judge who would conduct serial trials/conferences and never close the record until that final "status conference" just before the issuance of the order. This judge intended to make the final order, which issued two years after trial began, seem timely. by these multiple status conferences.

The OJCC definitions have helped. The videoteleconference process for redistributing trials has helped. In the end, however, much of judicial workload is beyond equalizing. To some extent that is due to the different processes judges engage to decide and document those decisions. Absolute parity in work load or trial volume is likely not attainable. 

At the end of the day, however, in my experience, anything approaching three trials per week, or 150 per year is a very significant workload, and likely the outer limit of what is an appropriate JCC trial load. 700 per year, or three decisions per workday is simply too many. Such a quota or "productivity goal" will not, can not, lead to reasoned and considered opinions. 

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