Attorney Charles Hall published an interesting post on his very informative Social Security News blog. The post, entitled “Inconsistency Between ALJs” discussed a report by a Houston television station that revealed a tremendous difference in the percentages of favorable and unfavorable decisions issued by judges in the downtown Houston Office of Hearings & Appeals. Favorable decision rates ranged between 68% down to 7%.

I have noticed this inconsistency in hearing offices where I practice. Most of the judges I have appeared before are patient, considerate and willing to consider the claimant’s testimony. I have also been before one or two who are rude, condescending and give the claimant’s testimony very little consideration.

The real inconsistency, in my view, arises from the way various judges analyze the evidence. Some judges have no interest whatsoever in listening to the claimant – they are looking for medical diagnostic test results, lab test results and vocational conclusions by treating doctors.

I distinctly remember a case where my client was involved in a serious auto accident in January, but did not get an MRI until October. MRI tests are expensive and her doctor wanted to try conservative treatment like physical therapy and medications. The MRI showed disc herniations at several levels as well as other degenerative changes that were clearly consistent with her allegations of pain. There had been no other accidents and there was no question in my mind that this lady’s pain and limitation of motion arose in January, when she had her accident.

The judge, however, would not concede that my client’s back problems started in January. The October MRI report was the first objective proof of injury and he refused to grant the case with a January onset date. Instead, we were given the choice of amending our onset date to the October date of the MRI or face the risk of a partially favorable or even unfavorable decision. He also let us know that a fully favorable decision with the amended onset would be issued within a week, but any other type of decision might take several months because of the backlog.

My client did not want to wait nor did she want to risk her claim for benefits. By amending the onset, she gave up over $7,000 in past due benefits.

Had we drawn another judge, this never would have happened. But that is what a claimant faces – the draw of the judge is a huge factor in what is likely to happen.

It would seem to me that SSA would want more consistency but there is little qualitative review of administrative law judges. To my knowledge SSA has never surveyed the claimant’s bar about the judges and that is a shame because I suspect that most ALJs want to do a good job and many would be open to improving their performance.