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Post by barkley on Dec 20, 2007 8:27:42 GMT -5
After seeing several posts regarding what ALJs do, I thought I would offer from a writer’s perspective the Top Ten pieces of advice any new AL J should have. I hope others will jump in with their comments as well. In no particular order:
1. Learn the law. At training, you will learn there is a five-step sequential evaluation process, with four of the steps requiring consideration of a yes or no question, i.e. Is the claimant working at the level of substantial gainful activity? or “Can the claimant perform past relevant work?” (If the answer is yes, the claimant is not disabled. If the answer is no, you move on down to the next question.) You will also be taught about several key Rulings regarding the evaluation of other factors.. With each case, a good ALJ will ultimately be able to say “I am paying this case because the medical expert testified the claimant’s depression met the criteria of a Listing and the record supports that testimony.” Or “I am denying this case because the claimant is still working full-time.” You must understand the law in order to do that.
2. Clearly communicate your thoughts. It can be frustrating to have to write a case without knowing what the ALJ wants. We sometimes write for other offices and I have seen cases with a smiley face or frowny face and nothing more. I have seen illegible scribbles. If you have made a decision, let the writer know what it is!! In my office, we have a one-page instruction sheet that has blocks corresponding to the sequential evaluation and key Rulings, along with blocks for early review, rep payee, voc rehab, etc, all of which the judges can check, if they choose to use the form, to clearly reflect their decision. There is space for the judge to note references to key exhibits or testimony.
3. Don’t be verbose; nobody needs six pages of single spaced typewritten instructions.
4. Be prepared. Review your cases prior to the hearing, checking to see if you have questions about earnings, prior work, specific aspects of their condition. Have some hypos for the VE (vocational expert) prepared. Better yet, have your hypos written (lots of worksheets out there) so the writer will be accurate in matching the decision exactly to what the VE was asked.
5. Make decisions. I once had a HOCALJ tell me that bad cases don’t smell better if you leave them in the file cabinet. His point being, procrastination is not going to clean up a messy case. The best judges I have worked for either block time into the hearing schedule to complete the instruction worksheet between hearings or they do it at the end of the day.
6. Be judicious in ordering consultative examinations (CEs). CEs are a huge drain on resources and on time. In many parts of the country, you cannot even order the type that you need. In some cases, it is difficult to get competent ones, as experienced doctors are not willing to perform them for the money offered. If you have a case where just a little more information may make it a pay (i.e. would psychological testing establish poor reading skills or confirm a level of depression), order the CE. But never use CEs just to delay making a decision.
7. Don’t take questions personally. Keep in mind that your writing staff will want you to become a good judge and succeed. When assigned one of your cases, the writer will look at your instructions, and start going through the entire file. Since we can spend more time with the file, sometimes we see something that might have been overlooked. Sometimes we see additional earnings or note that an age category has changed since the clerk filled out the worksheet or find a one page treating physician opinion. A good writer will bring these things to your attention, often with suggestions as to how it impacts the decision, not as a comment on your abilities but because they want the decision to be correct. How you respond will effect how much effort they put into protecting you in the future.
8. Use the Senior Attorneys. Everyone needs a second pair of eyes now and then. If you are uncertain about an aspect of a case, or need some research done, let your Senior Attorneys help. Just because they don’t know how to fill out KSAs, does not mean they are incompetent as lawyers.
9. Respect your staff. Donuts don’t hurt either.
10. Network. Cultivate friendships at your training and keep track of them afterwards. Having resources to share information helps so much.
I hope this helps. Best of luck to you all.
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Post by happy on Dec 20, 2007 8:52:55 GMT -5
Great advice! I would just caution any new ALJ against thinking of anyone as "my staff." They aren't your staff and, unless major changes in HO structure are coming, they won't be your staff. However, they might consider themselves as your staff de facto IF you treat them well, which is, I think, Barkley's point. Many HO staffers, particularly writers and particularly attorney writers, are starving for ALJs to afford them some respect and value their input. Not all of them deserve it, but most of them do. And you really want the Senior Case Techs and Case Techs assigned to support your workload to be loyal to you because that can make all the difference in the world in how easily you can get your work done the way you'd really like.
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Post by morgullord on Dec 20, 2007 9:31:40 GMT -5
I agree with barkley and happy. Keep your instructions to the point. If you are writing multi-page instructions, draft the decision yourself. I recommend you do this anyway. In particular, try your hand at drafting a few of your own unfavorable decisions, using the instructions you prepared.
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Post by extang on Dec 20, 2007 9:35:47 GMT -5
The most crucial piece of advice I would have for any new ODAR ALJ is to keep your eyes open for advertisements for ALJ positions in other agencies. Unfortunately this advice is only really helpful for those who are in the DC area or able to relocate to DC, since almost all ALJ positions in other agencies will be in the DC area.
ODAR gets upset if you leave in less than one or two years; after all, they have invested a fair amount just in training you. You probably should feel some obligation to hang around for at least a while and crank out a few cases, but after that the best thing you can do is get out.
It appears to have been the case that most agencies prefer to hire from the large pool of current ALJs [the vast majority of which are in ODAR, of course] than from the register. Maybe that will change with the new register, as both CMS and DOL are apparently interested in hiring from the register. Most of the time when hiring ALJs, agencies will be hiring one or at most two ALJs, so they would only get 3 or 6 names from OPM. CMS and DOL do have the potential to be hiring more than a couple of ALJs at a time, which may explain their willingness to hire from the register [CMS may just be desperate].
There have been some ALJs who have returned to ODAR apparently voluntarily [and not, e.g., because of RIFs in other agencies], so I guess it is possible that other agencies could be worse than ODAR . But if I were a new ALJ who was expecting to spend many years in this position, I would apply for any opening that came along. [By the way, I am not at work today. I would not spend work time posting here.]
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Post by southerner on Dec 20, 2007 10:07:49 GMT -5
Fortunately, the days of a smiley face or frown are mostly gone. I remember when I first arrived at OHA that one ALJ usually put R & D (review and discuss, or make the decision and draft accordingly).
The best thing is to be complete. If there is an RFC or modifications made on RFC, make sure reporter has it complete or in your notes. If possible, typing instructions are best. Handwriting is not always fully decipherable (mine as well).
Talk with other judges or Senior Attorneys and tap into their experience. Life can be much easier and less stressed for all involved that way.
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Post by aljsouth on Dec 20, 2007 10:38:40 GMT -5
Be willing to talk and learn from judges and staff about the job.
The judges will share their forms with you. Use what works for you. I don't agree with writing out hypotheticals in advance since testimony can easily change what you ask and I firmly believe in limiting the number of hypotheticals asked. Do write down your hypo's clearly in case the reporter screws up and write down the response of the VE.
Use VE's in adult disability cases. The grid rules are virtually nonusable if there are nonexertional limitations, and there almost always are some of these.
I have a VE testimony form. Basically I give the VEs name. Then the PRW of claimant is put into a grid with DOT and SVP. Then I have the age, education of the claimant. For the hypo's I have a big blank space where I use function by function (PLEASE DO NOT USE LIGHT, OR MEDIUM--ACTUALLY GIVE THE ABILITY TO LIFT AND CARRY, STAND AND WALK, SIT, PUSH AND PULL, ETC). Of course I also list any nonexertionals such as never climb or avoid concentrated exposure to dust, gases, chemicals, etc. There is a place about the VE's response to performance of Past Relevant Work. Then there is a grid where I put the VE's response about jobs, with DOT, SVP and the numbers of jobs in the National or regional economy. This is done while the VE is testifying so there is no delay. If the VE is speaking too quickly to get this info, stop him or her and make them go slowly. If you can't get it down then neither will the reporter.
Your hypotheticals to the VE are vital to the hearing. I was mortified recently when a judge from another region was conducting VTC in the next room and I learned from the reporter that the VE question was, "You have heard the testimony, can he work?" A completely incompetent job by the ALJ.
As I said elsewhere, write the instructions between the hearings. This was some of the best advice I ever got at training.
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Post by odarite on Dec 20, 2007 17:46:51 GMT -5
Here is the best piece of advice I heard when my class was being interviewed and selected: Do not get black robe fever. Black robe fever is that condition peculiar to judges where they begin to believe that they are special. They are not: they are very lucky. Although I consider that NOT buying a robe helps, the only preventative is to remind yourself that you are appointed not anointed, you are fallible (vis: your remands) and you do not walk on water but are a perfectly ordinary mortal being asked to do a difficult job.
Incidentally, robes are NOT mandatory, I understand newer ALJs are more likely than ones of long vintage to wear one. Some offices are, from what I hear "robier" than others. These are informal hearings, and as long as you dress professionally so that it is clear you respect how important this is to the claimants (I cannot recommend blue jeans and a sweatshirt) you can dress as you wish
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Post by judicature on Dec 20, 2007 22:25:31 GMT -5
As a sitting state court judge of some duration, I can tell you that black robe fever does not require a robe and is generally demonstrated at all times, not just when the judge is on the bench ....
Black robe fever is an attitude of arrogance and superiority.
To me, it is proof that the individual is not worthy of the position.
Be wary of attorneys and others telling you how wonderful you are. They laugh at your jokes - not because you are any more humorous in your new position - but because they want you to be favorably disposed toward them.
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Post by odarite on Dec 21, 2007 5:53:44 GMT -5
I completely agree with judicature, and am sorry I did not make myself clearer. While it is called black robe fever, a robe is not required to contract it. Awareness is the first step to prevention.
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Post by counselor95 on Dec 21, 2007 7:03:33 GMT -5
Thanks to all for a most informative thread!
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Post by goodoleboy on Dec 21, 2007 9:56:40 GMT -5
I agree with the previous posts regarding the "black robe syndrome." Avoid arrogance at all costs. There is a need for judicial demeanor both in the hearing room and in your office but do not carry that to the point of thinking/believing that you are a monarch of some fiefdom. Robes-I have tried it both ways, with and without. One experience several years ago gave me guidance. A guard in the waiting area overheard a claimant ask his representative when she was going to get to see a judge. This was after we had just completed a hearing with me, dressed in a nice suit and white shirt with tie. You see, these claimants for the most part, may have attended many "meetings" and "hearings" since becoming disabled including DDS reviews, workers' compensation hearings, etc. The first time they get to tell their story to a judge (like they see on tv) is when they appear at our hearings and, I believe, they need to know that a real judge, as they perceive a judge, has heard them. The robe provides a validity to the process for the claimant. I do not like wearing a robe in hearings but I do it for that reason. As to the comment above about these hearings being informal, I have found that to be only a policy statement and not a truth in reality. A better description would be semi-formal. I have found a need to become more formal with regard to procedures than informal. I do this to keep control of the process. If you don't maintain a degree of formality in a hearing, you will have attorneys/reps interrupting witnesses, witnesses and reps interrupting you, long-winded argumentative questions by the reps, and a whole host of other issues that just delay the process and that may cause you to lose control. I have hearing room rules that all the reps know and follow. I am more informal with unrepresented claimants but the number of those I see anymore is down to less than 10%. Good luck to all of you. I look forward to meeting you next year at our annual conference in Portland.
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Post by odarite on Dec 21, 2007 12:33:39 GMT -5
goodoleboy is right about the need to maintain decorum, but informal in this context means to me that no-one preceeds me into the hearing room saying "all rise" (and I do not require that anyone do so, although some offer me the courtesy), we do not require strict adherence to the rules of evidence, and other similar matters. It does not mean letting the other participants take control of the situation. This can and should be managed by you without venturing into the territory of black robe fever arrogance. By the way, as once mentioned in another string, this maintenance of control in the hearing room may well be an interview topic, so brush up on how you intend to maintain it.
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Post by emphyrio on Dec 21, 2007 13:08:34 GMT -5
goodoleboy is right about the need to maintain decorum, but informal in this context means to me that no-one preceeds me into the hearing room saying "all rise" (and I do not require that anyone do so, although some offer me the courtesy), we do not require strict adherence to the rules of evidence, and other similar matters. It does not mean letting the other participants take control of the situation. This can and should be managed by you without venturing into the territory of black robe fever arrogance. By the way, as once mentioned in another string, this maintenance of control in the hearing room may well be an interview topic, so brush up on how you intend to maintain it. So how do the sitting ALJs maintain control and decorum? I've never practiced before ODAR, so I have no sense of the atmosphere during a hearing.
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Post by morgullord on Dec 21, 2007 13:20:10 GMT -5
Treat the claimants with courtesy and respect. Do the same with the witnesses and experts. Talk to more experienced judges about the representatives. By and large the representatives will treat you with respect because they realize that pointlessly aggravating you may result in filing a request for review with the appeals council. While it is easy to say "I would never turn down a claimant because of his representative", we are nevertheless all human and it could happen. Follow the sequential evaluation process and the hearing will be orderly.
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Post by anotheroldtimer on Dec 21, 2007 14:42:59 GMT -5
One of the best judges I know gives this advice to each new classs that he teaches.
Judge the disability, not the claimant.
You will see many claimants who will not be the most sterling characters. You get everything from alcoholics to child molesters. Your job is not to judge the claimant. Many judges I know believe that the claimant must not only be disabled, but must also "deserve" disability. This is not the test. You will be sorely tested in your endeavor to fairly apply the law. But sometimes even a sorry @#$#@%%$ is disabled.
On the other hand, you will see many individuals who are quite nice people who have had terrible things happen to them and are in a hard way financially. Your heart goes out to them. However, they do not meet the definition of disability. Those cases are just as hard.
And that's the truth, folks.
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Post by deltajudge on Dec 21, 2007 16:11:57 GMT -5
::)I was an ALJ for 30 years, and never wore a robe. When I first started, no one did. Then sometimes in the late 80s or early 90s it started. When a bunch of the new ALJs started strolling into the hearings all robed up, a lot of the old reps kinda snickered to themselves. Us old ALJs just let them do their thing, who cares. We were not of the judicial branch of government, but the administrative, hence our title, Administrative Law Judges. I took that to heart. One poster mentioned that the robe added another layer to the appeal process, somehow adding a different slant to the process. I don't think so. The claimant's for the most part are scared to death, and the robe is not going to give them any comfort, represented or not. I think an individual ALJ who wears a robe is doing so for his own vanity.
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Post by Pixie on Dec 21, 2007 16:58:28 GMT -5
There are several different ways to look at this issue--which by now is really a non issue. I'm not taking a position, but just throwing out another way to look at it.
In looking at it from the Claimant's perspective, he has already been turned down twice by a faceless bureaucrat who issued a cursory opinion that didn't discuss the real problems that he faces on a day to day basis. He has now waited two years for a hearing. He wants to know that a judge who will give him a fair hearing and decision is going to hear his case, and not another bureaucrat. Bureaucrats wear suits. Judges wear robes. Just another perspective to consider. Pix.
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Post by chris on Dec 21, 2007 17:09:15 GMT -5
Most claimants want their case reviewed carefully and seriously by a judge. Some claimants do not understand that a judge has heard their case if the judge is dressed like their tax preparer. So yes, it does help some people if the judge wears a robe.
Having said that, if I ever get an offer, you will not be seeing me in a robe.
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Post by aljsouth on Dec 21, 2007 17:09:56 GMT -5
::)I was an ALJ for 30 years, and never wore a robe. When I first started, no one did. Then sometimes in the late 80s or early 90s it started. When a bunch of the new ALJs started strolling into the hearings all robed up, a lot of the old reps kinda snickered to themselves. Us old ALJs just let them do their thing, who cares. We were not of the judicial branch of government, but the administrative, hence our title, Administrative Law Judges. I took that to heart. One poster mentioned that the robe added another layer to the appeal process, somehow adding a different slant to the process. I don't think so. The claimant's for the most part are scared to death, and the robe is not going to give them any comfort, represented or not. I think an individual ALJ who wears a robe is doing so for his own vanity. Going to disagree with you. It adds another quality to the hearing not otherwise present. I saw the same thing happen to state circuit judges. When I first started most wore suits. Within 5 years almost all did, and the state S.C. made wearing robes mandatory. Too many studies supported the use. I was on a state law enforcement board once. I learned that the officer's best aid is not a gun, but a uniform. There is something deep in the human mind that recognizes symbols. The black robe is a powerful symbol. I encourage new judges to obtain a judicial robe. But don't buy the expensive ones people will try to sell you at training. Ask your mentor. Most sites have places that sell choir robes and rent graduation robes. Most of the local state judges will buy their robes there and they are cheaper than those sold at training.
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Post by chris on Dec 21, 2007 17:13:51 GMT -5
Vey good points aljsouth, as always. But I just have a hard time imagining myself wearing a robe. Part of it is a determination not to succumb to the judicial arrogance that infects many judges.
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