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Post by deltajudge on Jan 24, 2012 18:31:45 GMT -5
8-)I agree with prescient, a medical background is very helpful, but don't know how that experience plays in the selection process. I think the main benefit of trial and practice experience is interplay with the proletariat. Dealing with real people at every level. That is invaluable. First job I had out of college was with a company that made background investigations for insurance companies. I had to interview all sorts of people, everyday folks, bankers, store owners, attorneys, you name it. We also had to check out hospital claims, that meant interviewing doctors and reviewing medical records. After that I was a claim adjuster, then a defense attorney defending tort claims. Don't have to give you any details about that. Then I was a worker's comp judge, and don't have to explain the value of that experience. So I was well prepared as to medical experience when I became an ALJ with OHA. But the other experience to me, was the most important.
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Post by Buffalogal on Jan 25, 2012 6:46:16 GMT -5
At my agency, there's much more to making a record than behind-the-scenes record review. Trial lawyers are highly skilled at the art of keeping critical information out of the record and only a judge who is equally fast on his feet and knowledgeable about the process can ensure an adequate record.
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float
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Posts: 82
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Post by float on Jan 25, 2012 19:23:10 GMT -5
I have found that litigation experience is very useful in providing me with the experience to understand the difference between discovery and trial. If more ALJs were oriented towards regarding the hearing as analogous to a trial, and not just another step in eventually reaching a decision and eventually producing instructions after months in POST, and then eventually editing and finalizing a decision, throughput would be faster. At some point you simply have to call an end to development, hold the hearing and make a decision. Litigators are familiar with deadlines, and The Point at which a decision must be made. Nonlitigators, in my experience, tend to get more wrapped up in the notion of waiting for that One More Thing that will tip the scales.
I would rather work with former litigators. They seem to know when to say "stop. record is closed."
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Post by bartleby on Jan 25, 2012 19:46:09 GMT -5
Float, while heartily agreeing with you, the problem is that the record never closes. That is something the AALJ union is working on. Also, I find many people spend time trying to guess what the AC will pull out of their bag to remand with next. Further it is pounded into our heads under which of 3 or maybe 5 hats that we are to develop the record and the Agency has now decided it is better to do the development post hearing by discouraging the use of ARPR and ME's at the hearing.. I am not sure this has anything to do with using litigators, although I think it reflects that they don't utilize them in management.. As Usual, JMHO..
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Post by decadealj on Jan 25, 2012 21:51:19 GMT -5
It is not possible to develop the record because the record never closes and the agency will not honor or enforce an ALJ subpoena no matter how well justified oe documented. Accept it for what it is- make the best call with what evidence you have before you, get a decision out and stand by for additional evidence to the AC, an AC remand, a subsequent app with a DDS decision while your prior decision was pending before the AC, etc. Just move it along before delay further complicates the record. Trial experience is a necessary prerequisite for an ALJ in any agency except SSA because SSA has no clue as to what an APA hearing and due process is about. Quite frankly, I don't think SSA even requires a hearing examiner any more- I think a GS-12 adjudicator is more than an adequate decision maker and I will be be very surprised if congess believes an ALJ will continue to be a neceesary expense to the disability review process. I can't think of a more likely agency ALJ candidate for a RIF ljust as FCC and other agency ALJs became extinct.
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float
Full Member
Posts: 82
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Post by float on Jan 27, 2012 20:24:11 GMT -5
Bartleby, the best weapon we have in closing the record is make the decision and get it out the door.
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Post by yankeesfan on Jan 28, 2012 14:13:59 GMT -5
Amen to that Float. That always does the trick, at least from our end. We have no control over what happens after we make a decision.
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Post by bartleby on Jan 28, 2012 15:51:04 GMT -5
While I think I understand what you are saying, what you really mean is that making the decision finalizes our jurisdiction, it truly doesn't close the record.. Recently gave a rep two weeks for additional records. Two weeks later I issued an unfavorable decision. Rep gets it and says, Well, I had other records coming in, so do you want to re-open and consider the stuff that is attached or have me run to the AC?? I re-opened, considered her new evidence and issued a partially favorable, as of the TP statement of RFC. Unfortunately this meant the rep got paid for one month of back benefits.. I guess technically she won.. Well, at least for now, she may still go to the AC, with even newer older stuff to try to get an earlier onset date.. So, don't tell me that anything we ever do closes the record..
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Post by workdrone on Jan 28, 2012 19:59:14 GMT -5
While I think I understand what you are saying, what you really mean is that making the decision finalizes our jurisdiction, it truly doesn't close the record.. Recently gave a rep two weeks for additional records. Two weeks later I issued an unfavorable decision. Rep gets it and says, Well, I had other records coming in, so do you want to re-open and consider the stuff that is attached or have me run to the AC?? I re-opened, considered her new evidence and issued a partially favorable, as of the TP statement of RFC. Unfortunately this meant the rep got paid for one month of back benefits.. I guess technically she won.. Well, at least for now, she may still go to the AC, with even newer older stuff to try to get an earlier onset date.. So, don't tell me that anything we ever do closes the record.. Concur with Float & YKF Bart, You're just encouraging bad behaviors by the reps, since you now have a reputation for reopening cases amongst reps and they'll be doing this to you again in the future. Which will make your job even harder. You're right. Nothing ever closes the record, but it's really how you approach it. I never reopen for subsequent records once I have issued the decision because once I do, it encourages the reps to drag their feet. Reps are smart people, they know your style and will adopt to it. So if you allow them to get away with murder, they will happily take advantage of it. The reps usually have months to obtain the records prior to the hearing. There are a few ALJs I know that rarely leave the record open for this reason, and their line is: "Counsel, you had months to get the record. As you know, the record never really closes, so I'll consider it if you get it in before I sign the decision. If it comes in afterwards, that's what the AC is for and I'll be happy to reconsider if the decision comes back." I don't believe their remand rate is any higher than mine, which is a handful out of 500+ decisions a year. The only reason I haven't gone this route yet is because I give the reps a little slack, and that's my personal choice. So I really don't see why all the angst about the inability to "formally" close the record. If you want to keep the record open forever or reopen on a whim, that's your call, don't cry about it.
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Post by bartleby on Jan 28, 2012 22:05:25 GMT -5
I guess it kind of depends on how you define non-adverserial, huh?? Also the part about we are to develop the record.. Maybe I'm just not hardcore enough yet. Perhaps attempting to arrive at a fair decision for the claimant inspite of the rep isn't the most important thing, maybe moving decisions is more important?? I would think denying a rep two weeks to obtain additional records would be an automatic remand if they appealed same to the AC. I will have to give this more thought.. Thanks for everyones input.
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Post by northwest on Jan 29, 2012 13:38:11 GMT -5
I can understand why an ALJ would be liberal in allowing new evidence in light of SSR 11-1p, effective last July:
"If you choose to pursue your disability claim that is pending at the Appeals Council, and you submit additional evidence, the Appeals Council will first determine whether the additional evidence relates to the period on or before the date of the hearing decision. When the additional evidence is new and material and relates to the period on or before the date of the hearing decision, the Appeals Council will consider it, together with the entire record. 20 CFR 404.970(b), 416.1470(b), and 405.373.[1] The Appeals Council will review your case if it finds that the ALJ's action, findings, or conclusion is contrary to the weight of the evidence currently of record."
This opens the door to the AC considering new evidence that the representative negligently failed to timely submit, and remand to the ALJ. "New" evidence presumably could include a treating source opinion that the rep could have, but failed to, obtain prior to the hearing. The SSR, in fact, encourages sandbagging. It doesn't make any difference whether the ALJ has a reputation for being liberal in allowing late exhibits. (Of course, reps nowadays supposedly don't know who their ALJ will be, so I suppose there won't be quite as much tailoring of how they prep their cases based on the identity of the ALJ).
Remember that if the AC remands, and the decision changes, this could result in months more of pay to the rep. So it's reasonable to consider the new late evidence. It might also avoid a remand, if you consider the new evidence and articulate reasons it doesn't change the outcome.
So far I've never reopened a record after I've issued a decision. But I have staff confirm with the rep that no new evidence is forthcoming, even if their deadline for the new evidence has passed, if I have not received the evidence the rep said was on its way.
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oldschool
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Newbie FAQ Contributor
Posts: 101
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Post by oldschool on Jan 30, 2012 10:10:08 GMT -5
When I leave the record open for additional evidence I set a deadline. The reps are instructed on the record to request additional time if they feel they need it and I will consider those requests on a case by case basis. If I hear receive nothing and hear nothing from the rep within the allotted period I make the decision because my staff puts those cases in ALPO when the time has expired. If the decision is unfavorable, there is always a period of time from when the instructions are written until the decision is ready for review and sometimes reps put in initial evidence. That, of course, needs to evaluated and incorporated into the decision. Some of the better reps will send letters and tell me that the record is complete. The late submissions happen on a basis infrequently enough that I can live with. I have postponed hearings in which a ton of evidence has come in the day of or the day before the hearing, or if I am told at the hearing that a pile of evidence is coming in later.
What I don't like is when evidence covering the applicable time period is given to the Appeals Council when the rep has not requested additional time at the hearing. I'm not sure if they go digging for more evidence because they assume the decision will be unfavorable because of the amount of time that has passed, or I am being sandbagged. And I agree with Northwest that SSR 11-1p does open that door. In a perfect world, the ruling would be rewritten to exclude evidence that the rep could have or should have obtained before the decision was issued. However, I suspect that the agency does not want to create separate rules for represented vs. unrepresented claimants, and I can't blame them for that.
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Post by judicature on Jan 30, 2012 10:20:27 GMT -5
I had a case last week where the rep submitted 2,500 pages of new exhibits the day before the hearing with an ME. There were already 1,500 pages in the F section. I went ahead and took the testimony of the ME to see if a listing was met based in what was already of record. Unfortunately the case could not be resolved at the hearing.
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Post by onepingonly on Jan 30, 2012 22:22:21 GMT -5
I had a case last week where the rep submitted 2,500 pages of new exhibits the day before the hearing with an ME. There were already 1,500 pages in the F section. I went ahead and took the testimony of the ME to see if a listing was met based in what was already of record. Unfortunately the case could not be resolved at the hearing. In such situations, I ask the rep if he or she has carefully read the entire submission, whether there are any duplications, and whether the entire submission is relevant. If the answers are wrong, I won't entertain the submission at all. I also have the rep explain the lateness of the submission: sometimes there is a legitimate reason. Then I may, as warranted, direct the rep to submit a brief that accounts for any duplications, explains the relevance of the exhibit, page by page if need be, and states how each exhibit supports the claim. I never extend the time for submissions without a deadline. The record may never close, but eventually a decision must be issued, and since the AC will consider any new evidence, the chance of harm is mitigated.
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Post by bartleby on Jan 31, 2012 6:59:36 GMT -5
You must practice in a different world than I do. I have been told I can "request" a brief, but not "require" a brief. I would think "directing" a rep to provide a detailed brief would be "requiring" one.. It must be nice to be all powerful.. Heck, I bet you even have subpoena powers..
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Post by mcb on Jan 31, 2012 10:28:25 GMT -5
It must be nice to be all powerful.. Heck, I bet you even have subpoena powers.. At a minimum can create your own set of regs. ;D
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Post by arkstfan on Jan 31, 2012 10:49:48 GMT -5
As noted, the record never closes.
You can set deadlines but that doesn't mean you have anything to back it up other than issuing a decision and hoping the AC or DC don't think the late evidence is relevant to the period adjudicated.
This thread seems to be drifting inevitably into the "who makes better judges" stream and it is not helpful to the mission of this board for people who have experience X to spend time declaring it is better than experience Y and vice versa. It is no more productive than the never-ending "insider" vs. "outsider" thing.
Experience is important but I think what experience often reveals is less about the skills acquired and more about the personality of the applicant. By mid-career, hopefully people have settled into positions that fit their personality. Yet that isn't even true, many in the profession settle into positions they despise because it can be hard to shift gears into something they like better.
An ALJ working for SSA has to be generally curious about the people sitting in front of them. You have to be able to digest a large amount of information in a short amount of time. On average you will get about an hour to completely read a file.
You are reading each file with the following in mind: 1. Does the record support a finding that the listings presume disability. 2. Does the record plus work history support a finding that the Grid rules or special vocational rules support a finding of disability. 3. Do the records support the claimant's alleged limitations.
It goes deeper than that but those are the big three and in most cases the first doesn't apply unless there are significant records since the state agency last looked at the file.
This a terrible job for a person who cannot take a lot of information and form it into an opinion of the person's condition in a very short amount of time and be open-minded enough to shift that opinion when you encounter the claimant or new evidence.
This is a terrible job for a person who wants dead certainty. There are always lingering threads that will make you question a decision and you do not have the time and the agency lacks the resources to always do one more test or one more exam.
Empathy is good because it helps you understand the individual's situation. Sympathy can be bad because there are a lot of people in bad circumstances who could use a hand but the program isn't for them unless they fit the limits of the program.
I'm an oddity. I had a broad level of experience of different types of cases from long drawn out expert battles that took a week or more to hear to assembly in the lower level courts and some administrative experience. Private practice, state agency, state agency chief counsel, and almost two years in SSA. I can't point to any one experience I had and say I could do the job just as well without it.
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Post by onepingonly on Jan 31, 2012 17:05:48 GMT -5
An ALJ working for SSA has to be generally curious about the people sitting in front of them. You have to be able to digest a large amount of information in a short amount of time. On average you will get about an hour to completely read a file. You are reading each file with the following in mind: 1. Does the record support a finding that the listings presume disability. 2. Does the record plus work history support a finding that the Grid rules or special vocational rules support a finding of disability. 3. Do the records support the claimant's alleged limitations. It goes deeper than that but those are the big three and in most cases the first doesn't apply unless there are significant records since the state agency last looked at the file. This a terrible job for a person who cannot take a lot of information and form it into an opinion of the person's condition in a very short amount of time and be open-minded enough to shift that opinion when you encounter the claimant or new evidence. This is a terrible job for a person who wants dead certainty. There are always lingering threads that will make you question a decision and you do not have the time and the agency lacks the resources to always do one more test or one more exam. Empathy is good because it helps you understand the individual's situation. Sympathy can be bad because there are a lot of people in bad circumstances who could use a hand but the program isn't for them unless they fit the limits of the program. I'm an oddity. I had a broad level of experience of different types of cases from long drawn out expert battles that took a week or more to hear to assembly in the lower level courts and some administrative experience. Private practice, state agency, state agency chief counsel, and almost two years in SSA. I can't point to any one experience I had and say I could do the job just as well without it. Yes. Well put.
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Post by workdrone on Jan 31, 2012 18:32:05 GMT -5
Insightful comments snipped for brevity Touche! I couldn't agree more. Some of the most unhappy ALJs I have ran across fall under the categories you described. Two thumbs up for a very well written and insightful post.
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Post by SPN Lifer on Apr 13, 2018 15:47:34 GMT -5
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