Wednesday, July 13, 2011

High Paid Social Security Judges Cost Taxpayers $2 Billion A Year

Social Security Administration Commissioner Michael Astrue said judges (Administrative Law Judges, ALJs) in his agency who award disability benefits more than 85% of the time cost taxpayers roughly $1 billion a year. (See )That is not true. If he is referring to Social Security Disability Insured (SSDI) Benefits, the claimants have paid into a fund that insures them against disability. Those benefits do not come from the General Fund. They are not taxpayers' money. Also, ALJs do not award $1 Billion a year in Supplemental Security Income (SSI) benefits. SSI is welfare and does come from taxpayer's funds.

Conversely, ALJs who do not pay legitimate benefits to claimants who qualify for benefits are not saving the taxpayers any money. Commissioner Astrue also said judges who deny benefits in 80% or more of their cases end up saving taxpayers $200 million each year. That is not true either.

Though he said that he wasn't suggesting that was a practice he condoned, he is trying to have his cake and eat it too.

Commissioner Astrue's testimony has not changed much, if at all, since he appeared before Congress in May 2007 and April 2008. (His statements and testimony are recorded in detail in my book, socialNsecurity, beginning at page 443. Available at He is still blaming the judges, asking for more money, more judges, and more time to reduce the backlog. Since 2007 the number of judges has gone from 1200 to 1500 and the backlog continues to grow. And Mr. Astrue continues to make excuses.

Mr. Astrue wants to have it both ways. "I find it interesting that there is so much wringing of the hands about a judge who pays almost 100% of his cases, as if the agency didn't know about it, as if the agency wasn't complicit in it, as if the agency didn't encourage it," said Marilyn Zahm, a Social Security judge in Buffalo who is an executive vice president of the Association of Administrative Law Judges (AALJ), the judges' union.
Judge Zahm had a lot more to say in an interview in October 2009. (Read the entire interview starting at page 430 in my book, socialNsecurity, available at or

It is a bit surprising that Judge Zahm would be so out-spoken, considering the minimum amount of work she does and the astranomical amount of money she is paid. According to Social Security records Judge Zahm issued only 26 decisions for the 9 months between September 2010 and June 2011. At a salary of $167,000.00 per year, she earned $6,423.00 per decision. An average hearing lasts about 30 minutes; so, her hourly wage for that period was about $12,846.00. That is a nice salary for so little work.

However, Judge Zahm is only the Vice President of the AALJ. Perhaps, the President, Judge Randy Frye, sets a better example. According to Social Security records Judge Frye issued only 37 decisions for the 9 months between September 2010 and June 2011. At a salary of $167,000.00 per year, he earned $4,513.50 per decision. An average hearing lasts about 30 minutes; so, his hourly wage for that period was about $9,027.00. That is also a nice salary for so little work.

Judges Zahm and Frye are not unique. During the same period Judge Mark Anderson issued only 3 decisions; Judge JoAnn Andersen issued only 5 decisions; Judge William King held only 4 hearings and issued 1 decision. He was busy traveling between California and Hawaii to conduct the hearings.

These statistics came from an SSA report which contains raw data from SSA's Case Processing and Management System without regard to the amount of time Administrative Law Judges devote to actual adjudication. In other words, factors which would affect the number of dispositions (e.g., management and administrative responsibilities, special assignments, part-time status, union representational duties, retirements, deaths or extended leave, etc.) have not been taken into account.

Here is what Commissioner Astrue is failing to say. The 1500 SSA ALJs earn approximately $167,000 a year each. The salaries of those ALJs is $2 billion 505 million a year. That figure does not include the about $3 billion a year which pays the salaries of the ALJs support staff and Commissioner Astrue's salary and that of his support staff. Also 20% of the ALJs do not hold any hearings.

Some ALJs decide 200 cases per month without holding hearings. They award benefits in 100% of their cases, trying to "pay down the backlog" like the judge in Huntington, W.Va., who awarded benefits in every case he saw in the first six months of fiscal 2011.

A GS-9 lawyer could perform the same function at a fraction of the cost. A GS-9 lawyer earns about $40,000 a year. The cost to the taxpayer of 1500 such lawyers would be only $60 million a year. That is much less than the $2 and a half billion in salaries to 1500 ALJs. That is where the cuts should begin, not with benefits to claimants.

Just 4 years ago in the middle of the economic downturn there were 1200 ALJs. Today there are upwards to 1500 according to Commissioner Astrue. The backlog of cases waiting to be heard has not decreased, despite pressure from Mr. Astrue to force the ALJs to "pay down the backlog". Yet, Mr. Astrue keeps hiring more judges at $167 thousand a year. It appears that Commissioner Astrue is trying to lower the unemployment rate by hiring more judges while President Obama is having difficulty creating jobs for mainstream America.

Commissioner Astrue can be vague in his testimony before Congress. We can be specific as to who the ALJs are and how many cases they decide each month and their reversal rates. See

A court-by-court analysis of close to two million Social Security Administration (SSA) claims has documented extensive and hard-to-explain disparities in the way the administrative law judges (ALJs) within the agency's separate hearing offices decide whether individuals will be granted or denied disability benefits.

The organization analyzed about 2 million claims heard between fiscal 2006 and fiscal 2011, the report says.

"Even within the individual offices there is not a clear consensus among the judges about which claims should be awarded versus which should be denied," the report says.

( It is no secret that approval and denial rates vary from one administrative law judge to another in the Social Security Administration (SSA). Not too long ago there was commotion involving an administrative law judge who had a recent approval rate of nearly 100 percent. There are, however, situations in which an administrative law judge leans towards the other end of the spectrum with extremely high denial rates, as is the case with one administrative law judge hearing Social Security Disability cases in Richmond, Virginia. Drew A. Swank, an administrative law judge who works for the SSA and hears claims in Richmond, Virginia, heard more than 1,100 disability cases last year alone. According to recent reports, the ALJ denied nearly 80 percent of the cases he heard. That does not, however, mean that he awarded benefits in 20 percent of the cases heard. In fact, in all 1,100+ cases that Drew A. Swank heard, only 6 percent of them received a fully favorable decision for the disability applicant. According to individuals who have had to encounter hearings with Administrative Law Judge Swank, the ALJ is anything but fair. Some have reported that he refuses to allow vocational experts to testify in support of the disability applicants while others say he ignores the rules of the SSA hearing guidelines entirely. Apparently Judge Swank is “distrustful” of disability applicants, hence his high denial rating, and seems to think he is above the laws of the SSA. The question is, why has there been no investigation into Swank’s approval ratios when the SSA is quick to investigate any ALJ who seems to have approval ratios that are too high? The SSA must realize that judges who lean too far on either side of the disability hearing fence are a detriment to the SSA and must be dealt with equally. Just because denials do not result in the payment of unnecessary disability benefits does not make it okay to deny benefits to applicants who rightfully deserve them. If the SSA is to treat all applicants fairly and ensure that all administrative law judges adhere to the SSA’s rules and guidelines, then the SSA should be just as quick to investigate why Judge Swank is denying so many disability claims as they would be if he were to be deciding an unusually high number of cases in favor of disability applicants. It is situations such as these that lead many people to believe that the Social Security system is biased against applicants and that the agency makes it harder for applicants who rightfully deserve disability benefits to get the benefits they are entitled to. In order to send a different message, ALJs such as Judge Swank should be dealt with appropriately, just as the judges who award “too many” benefits are.