Success of disability claims may depend on the judge

By Alex Branch

abranch@star-telegram.com

At a hearing for a Social Security disability claim, what matters more: the circumstances or the judge?

One study released this week suggested that the chances of a claim being granted is too often determined by which judge is assigned rather than the facts of the claim.

A national, court-by-court analysis reported wide disparities in the percentage of claims granted by administrative law judges, with some judges within the same hearing office approving 90 percent of claims and others approving less than 15 percent, according to the Transactional Records Access Clearinghouse at Syracuse University.

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.

Social Security Administration officials, however, called the study "unsupported grandstanding."

"Federal law gives administrative law judges substantial decisional independence in making their decisions, so variations between judges are a predictable consequence of congressional decisions," officials said in a statement.

Administrative law judges decide disability claims in regional hearing offices. Because cases are assigned to judges randomly, each judge should see a similar mix of cases. The approval rates should also be roughly the same, the organization said.

Instead, the study found many disparities. At the north Dallas office, one judge granted 90 percent of claims, another judge 7 percent, the greatest disparity nationally, according to the report.

At the downtown Dallas office, one judge granted 81 percent of claims, another judge 14 percent.

At the Fort Worth office, one judge granted 68 percent of claims, another judge 34 percent.

The findings did not seem to surprise several Dallas-Fort Worth attorneys who handle disability cases.

"It's fair to say that each judge has his or her own way of approaching disability cases and certain disability issues," attorney Jason A. Zendeh Del, whose firm has offices in Fort Worth and Plano, wrote in an e-mail.

'Likes and dislikes'

Attorney Warren Gould, who handled disability cases in Dallas-Fort Worth for 30 years, agreed that a judge's personal "likes and dislikes" have a bearing on the outcomes but said the same goes for all types of court hearings.

"Sure, there are some judges you would prefer to be before and some you'd prefer not to be before," he said. "Sometimes you feel like you have a really good case, except the judge didn't grant it. Sometimes you think you don't have much of a shot, then it's granted."

So-called pain cases tend to draw the most varying rulings, he said. Degrees of pain are difficult to prove -- they don't show up on X-rays. What one judge considers disabling pain, the next judge will decide, "Gosh, there is no reason why this person can't work," he said.

Wide discrepancies in approval ratings probably shouldn't exist, he said.

"The law is the law," he said. "It's the interpretation of the law that is the problem."

Ethel Zelenske, director of the National Organization of Social Security Claimants Government Affairs Office, said that some of the wide discrepancies are cause for concern but that the organization believes the hearings are fair overall. Administrative judges have to follow policies and procedures but under the Administrative Procedure Act have "decisional independence," she said.

"You have human beings deciding cases," she said.

Alex Branch,

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