The Role of the Administrative Law Judge in the Ever Increasing Social Security Back-Log

This is a unique time for the Social Security Administration because after nearly a decade of hiring freezes, the Administration opened its doors to administrative law judge applicants.

Unlike Federal Article III judges who are appointed by the President and obtain their authority from the US Constitution, administrative law judges draw their powers and independence from the Administrative Procedure Act. Though they too have life tenure, administrative law judges must have specific qualifications and their appointment is merit-based. However, it is often said that ALJs are difficult to manage since they are totally exempt from any performance evaluations and they can only be removed for cause with high proof requirements. There are federal ALJs assigned to 31 agencies, but the Social Security Administration employs the most judges.

Perhaps because it had been so long since this large employer had accepted applications, after only 3 days of the openings being announced, 1250 qualified individuals applied for the position of Social Security's Administrative Law Judge. This is huge news in and of itself because as the Social Security disability back-log has steadily grown over the years, causing longer wait times for claimants, the number of judges hired by this Administration had not increased.

Current judges found themselves faced with an overwhelming volume of cases to hear. Each judge is only physically capable of hearing a certain number of cases per day, and therefore the ever-increasing number of claimants and limited number of judges significantly added to the backlog.

In hopes to decrease the backlog, over the last couple of years the Administration introduced video-teleconference hearings, which allow judges from states with smaller backlogs to preside over hearings on video to assist hearing offices that are further behind. Despite the technology, the backlog continues to overwhelm the current staff in virtually all hearing offices nationwide. The solution seemed to be simple, hire more judges and get more cases heard. However, there are many administrative law judges that feel this is not the solution because more judges will need more support staff in order to truly produce the expected results.

Another recommended solution to the back-log has been to make the ALJ's pay be performance-based. Their salaries would increase only if they decided more cases. Despite the popularity of this position, that type of restriction on the pay of an ALJ is prohibited by the Administrative Procedure Act. Also, this approach sets the responsibility for getting cases through the system solely on the shoulders of the judges, and it neglects to see the large role that support staff plays in the productivity of the hearing office.

Social Security ALJ Tela Gatewood of Oklahoma City has said, "If you divide the total number of cases by the number of judges available, it is a heavy caseload, but staff are key to getting the cases into shape to be heard, and staffing has not kept pace with the caseload."

Not only has the ratio of staff to ALJ failed to make sense as a response to the increasing backlog, it has progressively gotten worse. In 2001, the ratio was 5.4 staff members per every ALJ and in 2007 it was 4 staff members to an ALJ. Often it is overlooked how vital staff is to the productivity of the hearing office. Staff is needed to schedule hearings, get medical evidence together, to schedule experts for the hearing, to organize the file and to help get a decision written. Without the support staff to make these things happen, little progress can be made.