Judges vary sharply on disability approval

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July 14, 2002, 5:34PM

Judges vary sharply on disability approval

Social Security rulings concern lawmakers

By ALAN BERNSTEIN and DAN FELDSTEIN

Copyright 2002 Houston Chronicle

grants disability benefits to 69 percent of the sick or injured

people whose cases he handles as a Social Security administrative law judge

in the Houston area.

But the chance of getting monthly payment is almost upside-down for those

whose cases land in front of another experienced Social Security judge,

Philip Kline. He says yes 37 percent of the time.

In theory, the odds of winning should not vary sharply from judge to judge.

With each randomly assigned an average of 300 cases a year, these 17 local

judges interpret the same laws, share the same staff and preside in the same

closed-to-the-public hearing rooms.

In truth, it matters a great deal. Results from the last seven years,

compiled by the Houston Chronicle after a protracted struggle to get data

from the Social Security Administration, show no consistency. The four

newest judges, for example, are granting disability benefits up to 80

percent of the time, more than twice as often as Kline.

It's an unfair kind of government roulette, in the opinion of local

congressmen and people with disability claims who were told by the Chronicle

about the newly uncovered range of allowance rates.

" It rings a very serious fire bell that the Social Security justice system

is not treating all of the applicants equally or consistently, " said U.S.

Rep. Culberson, R-Houston. " And that is a recipe for disaster under our

American system of law. "

Donna Brown, 58, was a department store executive in Houston for 15 years.

She stopped working in 1998 after developing a rare progressive liver

disease and was rejected for disability benefits in 2000 by Judge

Norman, who has a relatively low allowance rate here. She recently filed a

new claim.

" I may draw (the same judge) again. That is something you have no control

over, " she said. " There is obviously some inadequacy in the system. "

Judge Willy, a local representative of the Association of

Administrative Law Judges, said government policy keeps him and the other

local judges from commenting on the rates and individual cases such as

Brown's. Other local judges did not respond to messages from the Chronicle.

To Judge Dugan of Charlotte, N.C., vice president of the national

judges association, the statistics do not necessarily show unfairness.

He said most judges don't know their own allowance rates, in part because

the Social Security Administration will not provide the information to them.

In any case, he said, judges should not worry about it.

" To say I want a judge that is going to give me a certain percentage would

be backward, " he said. " In the final analysis, what you want from a judge is

that he or she brings their best judgment to bear on the evidence of each

case. "

Seven years of cases may not be a reliable sample of each judge's rates,

Dugan said, because each handles less than 10 percent of the total cases,

and each case has a unique set of facts.

True or not, no one really knew how wide was the disparity of results among

local judges -- or whether there even was significant disparity -- until

now. For the last 19 years, the Social Security Administration has kept

secret the individual allowance rates of its judges, according to officials.

But in response to a series of requests by the Houston Chronicle under the

federal Freedom of Information Act, the agency recently was compelled to

release records on the 34,402 cases decided in the Houston area since 1995.

Houston has been a hot spot for controversy over the federal disability

insurance program. Social Security Commissioner Jo Anne Barnhart, who

approved the unusual release of information to the Chronicle, conducted a

public hearing here in May.

After collecting complaints about the judges from disability applicants, she

said the stories of frustration and disappointment were not what Congress

and the vast majority of agency employees intended. She promised

improvement.

Barnhart's agency, which hires the administrative law judges for life, said

it had no explanation for their widely different rates of approval.

Thousands of former wage earners in Texas apply for disability benefits

every year.

They seek benefits that average about $750 per month, which are drawn from a

pool of payroll tax money.

Thousands more apply for Supplemental Security Income as disabled poor,

earning less than $2,849 a month for a couple with two children, for

example.

A third category includes children and surviving spouses of the disabled.

The federal government defines disability as the inability to do substantial

work because of a medically proven physical or mental ailment that can lead

to death or can be expected to last at least a year.

The most common cases involve back injuries, spinal disease and clinical

depression.

In Texas, the first step in the process is an application that goes to the

Texas Rehabilitation Commission, which makes a decision based on medical

information. Its approval rate has risen since 2000, when it was the lowest

in the nation at 31 percent.

Those who are denied, such as Brown, can then appeal to a Social Security

judge in their local area.

Nine of the 17 judges are based in Bellaire, and some include among their

varied case loads the disability claims of prisoners. These claims are

largely disallowed, which could make the allowance rates of these judges

significantly lower than their eight counterparts who work downtown, one

judge said privately.

Judges based in downtown Houston get cases from those who live in eastern

portions of the Houston metropolitan area. The Bellaire judges get the rest.

But the geographical difference does not appear to influence the results.

The Bellaire office, for instance, includes and Kline, the

experienced judges with the highest and lowest rates. Other judges based

there also are near the top and bottom of the scale.

As a group, the Houston-area judges have in past years posted low allowance

rates compared with the rest of the state and the nation. The current

average across Texas and the nation is 58 percent.

U.S. Rep. Gene Green, D-Houston, whose district is one of the poorest in the

area, has asked the U.S. General Accounting Office to find out whether

decisions by Social Security judges show bias against racial minorities, as

alleged by a former judge's staffer. The information obtained by the

Chronicle does not show the names or racial identities of local people who

filed claims.

However, Green said the gap in allowance rates by each judge is troubling by

itself, and casts doubt on the fairness and integrity of the disability

program.

" If we are having that kind of disparity ... it's just wrong, " he said.

Green and Culberson said they want to work with U.S. Rep. Brady, R-The

Woodlands, a member of the House Social Security Subcommittee, to make sure

the judges have clear and uniform guidelines that make the decisions less of

a result of any judge's personal outlook. Brady is concerned about the

allowance rate information and will investigate, a spokesman said Friday.

Lacking the kind of statistics calculated by the Chronicle, national experts

nevertheless have said for years that the disability laws are out of date

and that people who file disability claims face a wide variety of odds,

depending on the judge.

Sue Heflin, president of the National Association of Disability Examiners,

told Congress last year that applying Social Security rules to newly

identified diseases that affect people in different ways, such as chronic

fatigue syndrome and other auto-immune diseases, means judges must take

subjective approaches more often.

" Assessing these subjective complaints necessarily has added to the growing

belief that there is a general lack of consistency in what the public

believes should be a uniform national program, " she said.

Kline was identified by the Chronicle last year as the local judge who,

according to lawyers who handle the most cases, was most likely to have the

lowest allowance rates -- an opinion now supported by the statistics. Last

month, Pipefitters Local Union 211, some members of which have sought

disability payments, picketed Kline's house with signs saying he was unfair

to the disabled.

Kline did not respond to the pickets, union members said. He also has not

responded to letters, phone calls and other messages from the Chronicle.

Public disclosure of each judge's allowance rates might put pressure on

judges at both ends of the scale to moderate their rates, said Shor,

executive director of the National Organization of Social Security

Claimants' Representatives.

" If you know where the middle is, " she said, " maybe you figure that is a

good spot to be in. "

http://www.chron.com/cs/CDA/printstory.hts/front/1493688