Posner on Case Workloads & Making Judges Work Harder

Professor Collins has another post in his series on Judge Posner entitled Posner on Case Workloads & Making Judges Work Harder that you ought to read. In general, Posner thinks that judges don’t work hard enough. Specifically, in this post, Posner is described putting questions to a lawyer from the bench in a real case about the workload of Administrative Law Judges in the Social Security Administration.* The exchange between counsel and the judge are interesting.

I have previously written about the work of the SSA. The nearly one million case backlog is scandalous.  But I don’t think that the fault is with the ALJs. Unlike Judge Posner, I think ALJs in the Social Security system have so many cases that they can’t do their jobs very well, although most of them in my experience try hard.**

Whatever one thinks of the SSA and the dispute it has with the ALJs, Posner’s hard-headed views about the workload of judges is refreshing. Those views are worth considering, and Professor Collin’s piece gives you that opportunity. By the way, I would be very interested in hearing from those lawyers who have social security disability practices about whether they think ALJs have too many cases.


* According to Professor Collins,

The Plaintiffs were members of the Association of Administrative Law Judges (all administrative law judges). They filed a complaint contesting a Benchmarks and Directive issued by the Social Security Administration (SSA) imposing an agency-wide requirement that SSA administrative law judges (ALJ) decide 500-700 cases per year. The ALJs alleged that SSA had imposed an illegal quota on them and thus violated their right to decisional independence under the Administrative Procedures Act. The District Court granted the Defendant’s motion to dismiss on the grounds that it lacked subject matter jurisdiction.

**Remember that federal district judges review SSA appeals from denial of benefits. At least in my chambers, SSA appeals are among our least favorite line of work. See here.

H/t How Appealing.

13 responses

  1. I’ve been a claimant’s representative in social security disability cases for many years and handled thousands of appeals in front of District Courts over the years and lately it seems the number of cases going up on appeal to the Federal Courts is exploding. I’m not convinced it is due to pressure to decide more cases as was argued in the case before the Circuit. As ALJ Zahm argued in front of the Circuit (correctly I might add), it is easier for ALJ’s to simply pay cases than to issue an unfavorable decision. However, you might notice she dodged the question about if this meant there was a significant increase in favorable decisions as in fact unfavorable decisions have gone way up in recent years and I don’t think it is simply because, as she suggested, that there are more claims that are unworthy of appeal. The standard of deference to the agency is high and thus I only appeal the cases that are exceedingly persuasive on the issue of disability and the fact that I’m seeing more of these types of cases that require appeals does not coincide with ALJ Zahm’s opinion that the increase in denials is due to an increase in meritless cases. I don’t think the bad economy made these individuals have more significant medical problems. However, it does lead to beneficent employers discharging people who are disabled under the Commissioner’s Regulations but otherwise were accommodated due to their disabilities because of a better economy. Just because someone is able to work does not mean they are not disabled (as an extreme example look at individuals like Michael Fox or Stephen Hawking who are obviously disabled under the Social Security Administration’s definition of disability but continue to work – there are many less extreme examples that make up the ordinary workforce).

  2. I think part of the problem is that the poor quality of work coming from Social Security ALJs is forcing the federal courts to play the role of quality control. The Appeals Council is little more than a rubber-stamp purgatory where appeals linger for a year or more and serve merely as the final hurdle before exhaustion of administrative remedies.

    I feel like the other problem with the SSA adjudication process is that the ALJs have lifetime tenure and other privileges similar to Article III judges, but that their judicial freedom is limited by the much-rumored production quotas. The Administration needs to decide whether to treat these ALJs more like Article III judges and remove internal pressures to meet productivity requirements or acknowledge that they are merely hearing examiners and employees of the agency and not actually “judges.”

    I am appealing a lot more decisions to the District Courts where ALJs were factually flat-out wrong. The Social Security ALJs and their decision writers (another complaint for another day) never have time to do the medical research necessary to understand some of the complex issues they face. As a result, we see a lot of undisputed errors of fact that go unnoticed. For example, an ALJ in a recent case discounted my client’s credibility because of a positive drug test for amphetamine. But my client was taking medications for ADHD which included prescription amphetamines. All it would have taken was a look at the Physician’s Desk Reference or even Wikipedia to recognize the connection. The ALJ, however, never made that connection and denied the claim based on the allegation of illegal drug use.

    We are going to see a lot of pressure on the District Courts to correct these mistakes as the backlog forces Social Security and the ALJs to endorse quantity over quality.

  3. Practitioner,

    The individuals you mention may meet the medical criteria for disability under SSA regulations, but it’s incorrect to say they are “obviously disabled under SSA’s definition of disability.” Fox and Hawking would both be Step One denials because they’re performing substantial gainful activity, which is considered before even reaching the issue of medical impairments.

    More to the point, I think there’s a valid distinction to be made between someone who is working despite medical impairments, and being newly hired as someone with significant medical impairment. The factory worker who started at 25, and developed degenerative disc disease in the lower spine, diabetes, and asthma in the 20 years he worked there might be accommodated by his employer even though he’s slower than he used to be and needs some help loading the truck at the end of shift. The same worker who needs a new job at age 45 is in different circumstances. He may not really have been capable of performing all the physical functions of the old job in a truly competitive environment, but as you say, he was accommodated, at least in small ways. As long as he’s performing substantial gainful activity, SSA doesn’t look at the medical side of the equation, because the best proof of an ability to work is actually engaging in work. Only when the person isn’t currently working does the medical and vocational assessment take place.

  4. I don’t see how we disagree. What I was saying is many people are not entitled to SSD simply because of the step one issue.

  5. I used to be a decision writer for SSA, not a practitioner, but I think 500 cases per year is too high. To apply a bit of math, 500 cases in a work year of 2,080 hours (52 weeks x 40 hrs per week) works out to 4.16 hours per case. That’s start to finish, including holding the hearing, reviewing the medical file (which often runs to 500 pages or more), writing instructions for the decision writer, and reviewing the final product. That rate also doesn’t include federal holidays, training or CLE to keep a current law license, sick leave, or any of the vacation time the judge earns as a federal civil servant. I don’t believe the average Social Security disability case can be fully and fairly adjudicated in four hours. If you want your judges to work on the high end of the standard, 700 cases a year means your margin of time shrinks to less than three hours per case.

    Yes, the judges can work overtime and not take any time off in order to get the job done, as Judge Posner seems to suggest. In my mind, however, if the only way for a job to be done properly requires working significant, regular overtime, without any time off, that’s the definition of too much work. Ms. Zahm alluded to other federal statutes not permitting ALJs to be required to work 10 hours per day; it’s short-sighted to ignore those restrictions when considering the question of judicial productivity (keeping in mind that ALJs in administrative agencies work under a very different set of employment laws than Article III judges).

    As to Judge Posner’s point more generally, I assume even he would acknowledge there has to be a point beyond which a judge cannot “work harder” and increase productivity without violating the judge’s responsibility to decide cases fairly and with due regard for the rights of the parties to be heard. The linked article indicates he drafts around 90 opinions per year (which is far short of 500, I can’t help but notice.) Would it be fair to expect him to write 200 opinions per year? Even if that meant he would have to work longer hours (or redirect some of his hours away from writing books or teaching seminars)? I don’t know where exactly to draw the line, but it seems to me that the group proposing the standard (here, SSA adopting the expectation of 500 to 700 cases per year) ought to have some burden of production of evidence to say why that expectation is reasonable, more than “This is how many cases our current staff of ALJs need to complete in order to get our backlog down.”

  6. “if the only way for a job to be done properly requires working significant, regular overtime, without any time off, that’s the definition of too much work.”

    You lack ambition. See Federalist 51, Judge Posner, et al.

  7. Nick,

    My selfish concern is that the district courts are not in a position to do the number of appeals necessary to function in the way you envision. On average, we spend far more than four hours per case reviewing SSA appeals and if the appeal numbers rise dramatically we will not have the ability to turn these cases around within a reasonable time.

    All the best.


  8. In the state system here in Alabama, some judges work too hard, some not enough. In another comment on this blog I shared some of these numbers. In my circuit, composed of 500,000 people, there are 13 circuit judges (of which 3 do purely family cases) we could all stay busy, 24/7. That coupled with e-filings has shifted the workload from the clerk’s office to mine and I find myself and fellow judges doing a lots of “paralegal” type work. Because I got tired of insulting a bright new law school graduate a clerkship at $24,000 per year (you read it right) I opted to have a full time Judicial Assistant that can gradually work her way to making into the upper $30,000 over a 25 year career. I also have a criminal Judicial Assistant. When I want to write an order on an important or interesting matter, I have to seclude myself at home or the library as there is nobody to help me.

    Over the past five years, this circuit (13th) has had an average of 4,000 felony cases filed and disposed of each year (about 900 per judge) and about the same number of civil cases filed and disposed of. The number of jury trials (civil and criminal) has averaged about 165 per year. Of course, we are the court that gets everything eventually: criminal appeals from municipalities, worker’s comp. cases, unemployment comp. appeals, teacher tenure appeals, Probate court appeals, driver’s license appeals, supervision of the nearly constant grand jury, all equitable matter which are non family.

    But in some of our rural circuits (where there is always a minimum of two circuit judges) there are plenty which try an average of 8 or less jury trials per year (that is half of what I try personally). One of these circuits had an average of 100 felony case filings per year for the last five years and 130 civil filings. But they did manage to try 11 jury trials in 2013 and 7 in 2012.

    Not to be outdone, it is my understanding that the U.S. District Court for the Southern District of Alabama tried a total of 5 jury trials in 2013 and that is with 3 active U.S. District Judges, 1 Senior U.S. District Judge, and 3 Magistrate Judges. Our U.S. District Judges each have two law clerks (making 3x what we pay ours) plus a secretary. Additionally there are career law clerks.I think a new Federal Building is on the drawing board. My late best friend on our bench said, if he had a set up like the U.S. District Court did, he would only have to work two days a week. So, maybe Judge Posner is right.

    It is our fault in the state system for not reassigning these judgeships to keep up changing demographics. Our state constitution allows our Supreme Court to re-assign these judgeships when they become vacant under a demographic formula.

    After way too much writing, my judgment is this. We do way to much “paper pushing” and not nearly enough case trying.The civil lawyers bombard us with motions either because they can’t or won’t get along and we are stuck in the middle of it.

    I would jump off a bridge if all I did was handle Social Security cases. But the same is true if all I did was worker’s comp. cases. We had two Social Security judges here get into a fist fight about 15 years ago.The model is broken. At a time when our workplace is safer than it has ever been (and unemployment is probably at record highs) we have near record number of Social Security disability claims. Nearly half of the felons I deal with pay their court cost with a Social Security Disability check. The answer is not more judges or more efficient judges. The answer is for the economy to create more jobs, and more decent jobs so those who are down and out won’t file disability claims as their last resort.

  9. I have done Social Security disability claims for the past 24 years. Recently I have also done an increasing number of federal appeals because of the higher denial rate.

    The judge’s question was about the ALJ workload. There is certainly merit in the argument that a 500 case quota might be unworkable. But as other lawyers have said here, I have found an enormous variability in the work ethic of the ALJs. Just a look at the Social Security website which tracks the number of cases heard and decided for each ALJ illustrates the differences.

    I appreciate the judge’s comments on what it’s like to decide SS cases at his level. That process is rather opaque to the lawyers involved – at least the plaintiffs’ lawyers.

    Most of the claimants I know are genuinely disabled. That is, unless they are working for a friend or relative who accommodates their medical problems, they cannot compete in the workforce. If that is no longer the definition of disability, then there should be a system of vocational rehabilitation that actually works to reconnect folks with actual jobs they can actually do. The problem is the gap. Social Security rules pretend that a 48 year person who barely has a high school education, with a bad back, can go and get a desk job. That is such a ridiculous idea that I have a hard time explaining it to my clients.

  10. Beatrice,

    You raise a good point. There is disability and then there is social security disability. Very different.

    All the best.


  11. As a current decision writer with the Agency, I think the ALJs case load is too high. The problem is with the judges themselves. There are some who can, and do operate and exceed the minimum case load. There are others however, who cannot seem to understand the medical evidence, or even the Agency’s own regulations, even after being in the position for a decade or longer. Their lack of “knowledge” bogs down the system tremendously. Their errors cause remands from the Appeals Council, which causes more cases to be heard, delaying hearings for those who actually are disabled. Some judges create their own catch 22 backlog by their own actions. Some are extreme grammar nazis, who will send a case back to the writer for an aberrant comma, or a disagreement with the writer regarding proper grammar or syntax. If they would make the correction themselves, it would speed the process along, allowing them to have more hearings, instead of getting into an email pissing contest with the writers. These judges want a perfect decision. What they fail to realize is the writers have a quota to fill as well, and we cannot spend extra time stroking the judges egos to make a 100% perfect decision (if that can actually exist). One cause of these issues in general is that the Agency does not select the ALJs. OPM does the selection of who is qualified to be an ALJ. A law degree and seven years experience (ALJ requirements) does not necessarily make an effective ALJ. Some of the worst judges I have interacted with did not have a background in social security disability, while some of the better ones worked their way up in the agency.

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