HARRELL LAW OFFICE
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Workplace Jargon: "One-Three-Five"The Social Security Administration may not try to win all of its cases, but it does keep a lid on employee bonuses
Matt Taibbi Nov 19
Every job has its own language. “Workplace Jargon” is a new feature in which employees from a variety of fields — public defenders, doctors, miners, mental health counselors, members of the military, etc. — talk about the vocabulary of their careers, and the sometimes-irrational bureaucracies that rule their work lives.
An attorney for the Social Security Administration — we’ll call him Sam — was invited to a regional management seminar.
“It was a two-day event, and most of it was meetings and discussions,” he recalls. “But in one small part of it, they showed a little video.”
The video, he recalls, showed actors in the roles of SSA managers and employees, playing out various common workplace scenarios. The concept of the video was to show managers how they might best handle tricky situations. In one section, Sam says, “they had an ‘employee’ asking how to improve his work evaluation.”
Background: most of the Administration’s 66,000 employees are graded once per fiscal year using “PACS,” or the “Performance Assessment and Communications System.” Under “Interpersonal Skills,” “Participation,” “Demonstrates Job Knowledge,” and “Achieves Business Results,” employees may receive one of three scores — a one, three or a five. As Sam explains. “A one means, ‘Does not meet expectations.’ A three means, ‘Meets expectations.’ And a five means, ‘Exceeds expectations.’” He notes that, "People mostly get threes.”
In the acronymized hell that is service in an organization as large as the SSA, one may achieve a bonus called an ROC (Recognition of Contribution) for doing well on these evaluations. Specifically, getting two fives in the same evaluation earns kudos and sometimes also a small financial reward. Meanwhile, poor performance might force superiors to attach to you the yoke of shame known as an “OPS” or “Opportunity to Perform Successfully,” a kind of improvement plan that has to be worked off to put the employee back in good standing.
Sam was watching the video with, at best, mild interest, when he saw something odd. “In one case, the question came up, ‘What do we do when an employee asks how they can get a 5?’ he recalls. “They had the actor playing the employee asking things like, ‘What can I do to improve from a 3 to a 5? How can I meet that standard?’”
Sam pauses. “And the directive was basically, don’t tell them how they can improve. Managers were told to say things like, ‘I can show you the manual that explains the ratings…’ Basically, they were hiding the ball — actively not telling employees how they could do better.”
He pauses. “I looked around. Not a single person objected. There was no pushback.”
Why not help threes become fives? Sam speculates that maybe managers are worried about litigation, i.e. “You told me I needed to do this to become a 5, and I didn’t get it.” (There have been lawsuits involving the SSA and PACS). Maybe it was a monetary issue involving bonuses, although Sam thinks that’s unlikely.
Mostly, he says, the SSA is an unwieldy, change-resistant organization that operates according to its own logic and probably always will. Incidentally, he adds, “managers talk about employees like they’re numbers. You’ll hear them say things like, ‘This guy thinks he’s a five, but he’s such a three.’”
Sam has one of the odder legal jobs in the United States, working in the biggest court system you probably never heard of.
The state of California has over 1,800 judges, and claims to be the largest judicial system in the country. The federal judiciary had 792 active judges as of this summer. In between, with a little over 1,400 judges as of this summer, is the enormous, mostly hidden court system of the SSA. Though it lags behind California both in terms of judges and dispositions, the Supreme Court in 2003 concluded that “the social security hearing system is probably the largest adjudication agency in the western world.”
The SSA’s proceedings, which mostly involve disputes over disability claims, are “administrative law courts,” making them not a true judiciary. These belong to the executive rather than the judicial branch, and both the judges and the attorneys representing the SSA are technically SSA employees.
Administrative law courts pepper a lot of big government bureaucracies, sometimes as a mechanism for resolving arbitrations or other claims involving workers. I’ve visited a few, including the NYPD’s much-maligned APU unit, an airless closet stuffed in the bowels of One Police Plaza in downtown Manhattan, where civilian complaints against police officers mostly go to die.
Sam works in a national organization teeming with hundreds of lawyers, but few of them got there on purpose. “No one grows up saying they want to be an SSA attorney,” he laughs.
A lot of his colleagues dropped out of the corporate law track, where working a million hours a week as an associate-slave for the far-off reward of a maybe-partnership quickly stops seeming worth it, the first time you notice your kids growing up without you. At the SSA, he notes, lawyers give up the dream of future riches from defending deep-pocketed corporate villains, but, “I work basically nine to five, I’ve got benefits, security, and a home life.”
The job of an SSA lawyer, generally, is to present the government’s side of a disability claim. When claimants appear before SSA judges, the hearings are closed to the public, a fitting metaphor given the similarly out-of-sight disabled population. The CDC says one in four adults in America lives with some kind of disability, and the SSA is currently paying disability benefits to 8.2 million workers, plus another 13.2 million receiving SSI disability benefits, making about 21.4 million people overall receiving some kind of federal disability benefit. Depending on what metric one uses to count America’s employed equals roughly 16% of the workforce. Those millions of beneficiaries are receiving an average of about $1,260 apiece monthly, working out to about a $10 billion monthly payout, and over $100 billion a year.
That doesn’t sniff the military’s base annual payout of $732 billion, but it’s a big enough number, and the SSA court system exists, in theory, to keep the number manageable. A private insurance company might simply deny all claims and force applicants to climb a bureaucratic Everest to get every dime. The SSA, thank God, does not do that, but its thinking on this issue isn’t exactly clear, either.
One main reason is that the agency has a lot of eyeballs on it. It is perennially in the middle of a tug-of-war, between mostly Republican members of congress who watch its payouts like hawks in search of fraud — why worry about unnecessary jet fighter contracts when you can kick ordinary people off the disability rolls? — and Democrats who push it to resolve its case backlog to make sure as many claimants as possible get paid. Somewhere in the middle is a reality, where a great many people are genuinely disabled and need help, but there are also fraudulent claims the taxpayer should be protected from having to pay.
The SSA officials who manage the legal staff are mostly incentivized to clear cases one way or another, as opposed to worrying primarily about winning. Spend too much time fighting cases, and a manager might see the Washington Post write a scathing headline about how 10,000 people died waiting for benefits. For a long time, it was rare enough to hear about an SSA office focusing on winning its cases that when one tried, it attracted academic notice.
In one study conducted by Penn Law, researchers talked about how SSA attorneys in the District of Maryland reacted after 2008, when claimants won 70% of their cases in actual judicial proceedings (i.e. not before Administrative Law Judges). “To reduce this rate,” the researchers wrote, “an OGC lawyer formed a team of colleagues to focus on District of Maryland litigation.” The lawyers “met frequently to strategize” and settled on groundbreaking new techniques, like: “if an argument about a particular issue proved persuasive to one judge, the team would then use this argument when the issue next arose.” As a result of this new “focus,” attorneys in that district reduced their loss rate from 70% to just under forty percent in two years.
As for the judges, even a quick glance at the case disposition list shows that just as in the regular civil judiciary, some are “deniers” and some are “awarders”:
If you think this is because some judges are sympathetic to workers and others are not, you might be right, but you also might not be. According to Sam, because of the peculiarities of the system, it “takes about 2-3 times longer to write a decision denying benefits than it does approving benefits.”
This might be because there are few appeals of decisions to award benefits, so judges don’t have to spend as much time making sure their decisions are airtight. Thus a heavy “awarder” might be a friend of the people, or he or she might just be lazy.
In one example that made headlines, the SSA in 2010 lauded a series of judges for clearing cases. One Atlanta-based judge was hailed for disposing of 867 cases in three months, while just behind him was an Oklahoma City-based judge named Howard O’Bryan, Jr., who disposed of 348 cases in that same time period. This somehow drew the attention of Oklahoma Senator Tom Coburn, who launched a study and denounced the Oklahoma judge for approving about 90% of claims. Within a few years after being called out, the judge began denying more than twice as many claims as he approved.
All of which speaks to the SSA being one of the odder court systems in the world. An army of lawyers represents a single client, the United States government, that seems largely disinterested in winning, at times seeming more content to pay over a hundred billion dollars a year in claims than to give out gold stars in employee evaluations.
Depending on your point of view, this may not be a bad thing, especially if the agency is focusing on actually processing claims over contesting them. Though the agency still struggles for a variety of absurd reasons (including a failure to update documentation it needs to judge cases) to clear its massive backlog, it has done better in recent years at reducing the size of its case mountain. Whether you're a one, a three, or a five, "it's a weird place," Sam laughs.
I reached out to the SSA about its training video, and it hasn’t commented.