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Post by decadealj on Nov 22, 2013 13:08:33 GMT -5
When I had hearings in Rochester, the economy was a disaster. Corning, IBM and Kodak were laying-off or terminating thousands of very skilled workers, many over 50. The pay rate primarily for situational that became clinical depression, was extremely high. Why? Because the state of NY welfare and social workers, and especially in the finger-lakes region, had used SSA criteria for evaluating mental impairments to find many, many people disabled and were using state employees to assist claimants to shift from state to federal disability. And they did an incredible job because the records were developed after the DDS had denied the claims, and the situational depression had time to become clinical even after meds and treatment. I and many other ALJs strongly suspected a state "conspiracy" to overcome a disastrous state problem but you rule on the record, not your gut.
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Post by privateatty on Nov 22, 2013 14:07:04 GMT -5
When I had hearings in Rochester, the economy was a disaster. Corning, IBM and Kodak were laying-off or terminating thousands of very skilled workers, many over 50. The pay rate primarily for situational that became clinical depression, was extremely high. Why? Because the state of NY welfare and social workers, and especially in the finger-lakes region, had used SSA criteria for evaluating mental impairments to find many, many people disabled and were using state employees to assist claimants to shift from state to federal disability. And they did an incredible job because the records were developed after the DDS had denied the claims, and the situational depression had time to become clinical even after meds and treatment. I and many other ALJs strongly suspected a state "conspiracy" to overcome a disastrous state problem but you rule on the record, not your gut. Actually, not long ago NPR did a piece on the very successful efforts made by companies hired by varous States to do just what you outlined.
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Post by lurker/dibs on Nov 23, 2013 13:31:09 GMT -5
Statistically my state does have a high pay rate. However, that rate has dramatically declined over the past several years. It's amazing how the newer judges are paying less than 20%. But, I must say that economic factors def play a role in the process. When a state has one of the highest % of populations who drop out of high school, whose primary industries are physical labor, and who have a huge poverty level population, of course you are going to have a high rate of applicants. It's a vicious cycle when the grandparents and the parents have been drawing, of course the children also apply because they think they should draw a check. It's a mind set in some areas. It also seems that MR must be hereditary. I know entire neighborhoods who are drawing--none have an IQ over 60 and they keep reproducing. (At least they keep coming to see me and I keep winning them) I can clearly see a lot of issues with the system. But you can't rely on what "seems" right. You have to pay based on the record. Period. If the records show they meet the criteria, then you have to pay it. The role of the ALJ isn't to change the system or to try to change the laws and regulations or to try to make a statement to a particular faction of the population. As ALJs, one must simply apply the rules and policies that are in place. If they all did that, there wouldn't be outliers in either direction and some of the more recent grief given to the entire system wouldn't exist. Just another deposit of my two cents today.
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Post by trekker on Nov 23, 2013 16:52:36 GMT -5
Lurker and I share many of the same experiences except that I have been living in larger urban areas with a more transient population. I agree that certain developmental or intellectual impairments seem to run in families. I would go as far as saying some mental impairments seem to be more prevalent in families. My father was bipolar as is my sister. The rest of us (6 siblings) sometimes laugh that we just haven't been diagnosed. One of the barriers to individuals with mental and developmental impairments is that in a depressed economy in a community with mostly agri/manual labor jobs or as SSA says, unskilled work, employers do not have to hire from this pool of workers and can instead hire from a more educated and less impaired work force. I have seen an increase in the number of claimants with low IQ's coming into the office. In the 90's, many of these individuals did not have as hard of a time getting approved by DDS for benefits. But improvements in education access and vocational training, including an acceptance of individuals with lower IQ's into community colleges and providing them with accommodations, has resulted in fewer of them actually meeting the criteria for having an intellectual disability because their adaptive functioning has improved. But that doesn't mean employers will hire them. Finally, the era of subsidies from the government to employers who hire individuals with severe impairments is dwindling.
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Post by bowser on Nov 26, 2013 9:40:47 GMT -5
I don't understand what prevents the Agency - or Congress - from conducting an audit of claims at the hearing level, and stating that if the law were applied as intended, X% of cases at the hrg level would result in favorable decisions. And an ALJ who consistently ends up more than Y standard deviations on either side simply is not applying the law correctly. While ALJs enjoy qualified judicial independence, that independence ought not extend to interpreting or applying the law other than intended by the Act and regulations.
IMO, it is pretty obvious that neither a judge paying <10% nor a judge paying >90% are applying the law correctly. I'd probably feel comfortable narrowing that to <17.5% and >80%, but that is essentially my WAG, and certainly not based on any careful study on my part. Wouldn't be surprised if an analysis could narrow it even further. Which should be no shock or threat to the vast majority of ALJs who pay somewhere between 25-75%.
If folk believe there is an issue to be addressed, however, I don't think it sufficient to start the analysis with ALJ pay rates, assuming that some percentage of ALJs are applying the law correctly. Perhaps/probably they are. But for an analysis to be valid, care must be taken to not begin with a faulty assumption. Policy makers need to take a firm stand, stick their necks out, and express opinions as to exactly whom they expect to receive benefits under this program. My honest opinion is that very few are willing to do so. Instead, far too many folk have come to accept Social Security disability/SSI as a general welfare program. Which IMO is essentially dishonest.
I also think it problematic to assume, if too many ALJs are thought to be paying too many cases, that this can be corrected simply/primarily through adjusting ALJ behavior. Absent DAA there has been no legislation in the past 2 decades to support a tightening of pay rates. Moreover, since at least 96, regulations and rulings have increased the articulation required, which IMO encourages ALJs to issue more favorables - and encourages judicial reversal of unfavorables.
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Post by funkyodar on Nov 26, 2013 12:23:19 GMT -5
We have one of the "outliers" in our office, and it's basically a crash-course in creative writing for the attorneys/paralegals. At least the Appeals Council has started reviewing and remanding some fully favorable decisions for additional analysis. Unfortunately, those remands usually just result in the judge paying the case based on SSR 96-8p and 96-9p instead of a listing. So, nothing is really accomplished except for wasting the time of the agency and its employees. To add to this excellent observation, the new metrics for what is "successful" and what's below expectations don't help. As you insiders know and you outsiders have probably read, odar is supposedly no longer using dispositional goals. The new emphasis is on quality over quantity. So, there are new data points used to determine if judges and writers are meeting expectations. One of those is rate of agreement vs remand. This appears appropriate for judges (tho with the AC's moving standards its still questionable). But, the agency is also using this rate as it determines how well a decision writer is doing their job. They seem not to care that a dw can only write what a judge tells them to, that judges edit the decisions before going out and that writers aren't assigned cases in a fairness vacuum. If an office has one of these outlier aljs, and many of their cases get remanded, the writer goes down with the judge. And, depending on how cases are assigned in any particular office, an individual writer may get an inordinate amount of those judges cases.
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Post by hopefalj on Nov 26, 2013 12:58:09 GMT -5
We have one of the "outliers" in our office, and it's basically a crash-course in creative writing for the attorneys/paralegals. At least the Appeals Council has started reviewing and remanding some fully favorable decisions for additional analysis. Unfortunately, those remands usually just result in the judge paying the case based on SSR 96-8p and 96-9p instead of a listing. So, nothing is really accomplished except for wasting the time of the agency and its employees. To add to this excellent observation, the new metrics for what is "successful" and what's below expectations don't help. As you insiders know and you outsiders have probably read, odar is supposedly no longer using dispositional goals. The new emphasis is on quality over quantity. So, there are new data points used to determine if judges and writers are meeting expectations. One of those is rate of agreement vs remand. This appears appropriate for judges (tho with the AC's moving standards its still questionable). But, the agency is also using this rate as it determines how well a decision writer is doing their job. They seem not to care that a dw can only write what a judge tells them to, that judges edit the decisions before going out and that writers aren't assigned cases in a fairness vacuum. If an office has one of these outlier aljs, and many of their cases get remanded, the writer goes down with the judge. And, depending on how cases are assigned in any particular office, an individual writer may get an inordinate amount of those judges cases. I have this problem and get the privilege of worrying about it as things progress in the current application process.
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Post by maquereau on Nov 26, 2013 13:39:10 GMT -5
Not to start any kind of war here, but I've performed both decision writer and ALJ jobs. There is more than enough blame to go around between both groups. First, there is only so much editing an ALJ can do on a case before finally just letting it go if the ALJ expects to make the decision quota. Quite honestly, there are some people who just shouldn't be writing for a living. There are times when I have started editing a decision and then, hours later, finally realize that there is no "fixing" it and that I just need to set aside time to rewrite the decision in its entirety. And it seems as if there is no way to get such writers removed - the ones who produce consistently crappy work, so it's left to the ALJ, who often has to spend all weekend in the office, to try to make it presentable. Now, having been a decision writer, I easily recall writing decisions that had "REMAND" pretty much already written on them. I would try to let the judge know my opinion on the problematic issues, but often I was just forced to write decisions that had substantive problems that were easily appealable. And that is why, as a judge, I am very happy to hear the opinions of any of the writers about possible errors in the decision-making process. I would rather correct it here and now than to get a remand. Some judges are less interested in hearing from the decision writers on these matters, which is a shame.
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Post by JudgeRatty on Nov 26, 2013 13:41:34 GMT -5
We have one of the "outliers" in our office, and it's basically a crash-course in creative writing for the attorneys/paralegals. At least the Appeals Council has started reviewing and remanding some fully favorable decisions for additional analysis. Unfortunately, those remands usually just result in the judge paying the case based on SSR 96-8p and 96-9p instead of a listing. So, nothing is really accomplished except for wasting the time of the agency and its employees. To add to this excellent observation, the new metrics for what is "successful" and what's below expectations don't help. As you insiders know and you outsiders have probably read, odar is supposedly no longer using dispositional goals. The new emphasis is on quality over quantity. So, there are new data points used to determine if judges and writers are meeting expectations. One of those is rate of agreement vs remand. This appears appropriate for judges (tho with the AC's moving standards its still questionable). But, the agency is also using this rate as it determines how well a decision writer is doing their job. They seem not to care that a dw can only write what a judge tells them to, that judges edit the decisions before going out and that writers aren't assigned cases in a fairness vacuum. If an office has one of these outlier aljs, and many of their cases get remanded, the writer goes down with the judge. And, depending on how cases are assigned in any particular office, an individual writer may get an inordinate amount of those judges cases. I was told was that when there is a quality review of a writer's case, it is selected from EDIT (the classification after the writer finishes for the ALJ to review for those outsiders who do not know the different codes) and not after it is completed and signed. Now with that said, there is no way to signal to the reviewer that the ALJ instructed (in an email not in the instructions or elsewhere in the record) to edit out portions of the standard language inserted into all decisions (the FIT format), or that he wanted other particular language that is not typical of the other ALJs. Plus, as you point out Funky, some writers routinely write for specific judges .... even though they are supposed to be shuffled out evenly amongst all writers both attorney and non-attorney alike. Yep, many issues with the agreement rate. Not to mention that agreement rate is based upon decisions actually appealed. If a writer and/or judge are particularly good and write well supported steel trap decisions, and the rep does not appeal, that is not taken into account anywhere in the numbers.
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Post by funkyodar on Nov 26, 2013 13:58:19 GMT -5
Not to start any kind of war here, but I've performed both decision writer and ALJ jobs. There is more than enough blame to go around between both groups. First, there is only so much editing an ALJ can do on a case before finally just letting it go if the ALJ expects to make the decision quota. Quite honestly, there are some people who just shouldn't be writing for a living. There are times when I have started editing a decision and then, hours later, finally realize that there is no "fixing" it and that I just need to set aside time to rewrite the decision in its entirety. And it seems as if there is no way to get such writers removed - the ones who produce consistently crappy work, so it's left to the ALJ, who often has to spend all weekend in the office, to try to make it presentable. Now, having been a decision writer, I easily recall writing decisions that had "REMAND" pretty much already written on them. I would try to let the judge know my opinion on the problematic issues, but often I was just forced to write decisions that had substantive problems that were easily appealable. And that is why, as a judge, I am very happy to hear the opinions of any of the writers about possible errors in the decision-making process. I would rather correct it here and now than to get a remand. Some judges are less interested in hearing from the decision writers on these matters, which is a shame. I completely agree maq. There are def some dw that shouldn't be writing for a living. And if there was some way to rate them on their skill alone, I'd be all for it. Perhaps the quality review process sratty mentioned (pulling cases to review prior to alj edits and signing) may work. But to rate dw based on how often the AC agrees with cases they wrote is ludicrous. if an alj is doing their job, they decide the case, determine the impairments, rfc, listings and instruct the writer on all of that. what's more, they conduct the hearing. if a case is remanded based on any of that, its not the writers fault. Don't get me wrong. I have great respect for how hard aljs work and I know theydon't have time with each case to essentially rewrite during editing. dw that force that should def be called out. But if there is an alj that, hypothetically of course, doesn't believe children can have ODD a just need better parenting and thus never ever finds that to be an impairment....well, when that gets remanded again and again, how can it be on the writer? lets compound that by saying that alj is in a certain group and cases are assigned by group to dw. thus the dw in that judges group may be great, but thanks to the judge their remand rates are higher than others in the office.
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Post by redryder on Nov 26, 2013 14:31:25 GMT -5
Sratty: There is a way to signal the reviewer about those additional instructions. If you receive instructions in an email or orally, you need to create a memorial of these. In the DGS menu under decisions is a blank document entitled "ALJ NOTES." If you are getting these additional instructions, you can copy the email into that blank and file it into the private folder of the file. And even go so far as to make a note in the case docs that these are supplemental instructions. As for oral instructions, send an email to the ALJ to confirm your understanding of what is desired and again put a copy of it in the private folder. It will take a few extra minutes but it may be worth the effort.
I truly hate to see dissention between judges and writers. No, the answer is not to have judges supervise writers. If an ALJ has never been a writer, the objectivity of any opinion regarding the legal sufficiency of the decision is suspect in many instances. Nor is every judge cut out to be a manager. I would suggest that the answer is a collaborative relationship between the two, but I understand there are offices where discussion between judges and writers is discouraged. And that is a shame.
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Post by JudgeRatty on Nov 26, 2013 15:29:10 GMT -5
Sratty: There is a way to signal the reviewer about those additional instructions. If you receive instructions in an email or orally, you need to create a memorial of these. In the DGS menu under decisions is a blank document entitled "ALJ NOTES." If you are getting these additional instructions, you can copy the email into that blank and file it into the private folder of the file. And even go so far as to make a note in the case docs that these are supplemental instructions. As for oral instructions, send an email to the ALJ to confirm your understanding of what is desired and again put a copy of it in the private folder. It will take a few extra minutes but it may be worth the effort. I truly hate to see dissention between judges and writers. No, the answer is not to have judges supervise writers. If an ALJ has never been a writer, the objectivity of any opinion regarding the legal sufficiency of the decision is suspect in many instances. Nor is every judge cut out to be a manager. I would suggest that the answer is a collaborative relationship between the two, but I understand there are offices where discussion between judges and writers is discouraged. And that is a shame. And I want to be clear here: My comments are by FAR NOT indicative of our ALJ corps as a whole. We have fantastic judges for the most part, who are willing to collaborate and listen if we find something that they might have missed etc. This is only a select few "outliers" that have specific out of the ordinary instructions. But...if an individual (me really) is specifically writing for a select group over and over due to their requests, this is a concern when there is a quality review process in place. Thanks for the tip on the ALJ notes. These "emails" usually come in the form of an email to the entire group i.e. all decision writers, as to the specific unusual writing requests. Knowing I can merely copy/paste the standard email into the private section along with the other instructions in the event of a review for quality, I am covered. This is a great tip. We all want to do well, and produce a good product, legally sufficient decisions. I am by far not a complainer and love my job. I merely bring attention to these issues in the interest of fairness for all. Thanks again!
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Post by privateatty on Nov 26, 2013 16:55:19 GMT -5
Sratty: There is a way to signal the reviewer about those additional instructions. If you receive instructions in an email or orally, you need to create a memorial of these. In the DGS menu under decisions is a blank document entitled "ALJ NOTES." If you are getting these additional instructions, you can copy the email into that blank and file it into the private folder of the file. And even go so far as to make a note in the case docs that these are supplemental instructions. As for oral instructions, send an email to the ALJ to confirm your understanding of what is desired and again put a copy of it in the private folder. It will take a few extra minutes but it may be worth the effort. I truly hate to see dissention between judges and writers. No, the answer is not to have judges supervise writers. If an ALJ has never been a writer, the objectivity of any opinion regarding the legal sufficiency of the decision is suspect in many instances. Nor is every judge cut out to be a manager. I would suggest that the answer is a collaborative relationship between the two, but I understand there are offices where discussion between judges and writers is discouraged. And that is a shame. Man, I've seen some crazy comments about SSA in the last six years, but this one is at the top of the list. "...discussion between writers and judges is discouraged." Judges are lawyers first and are ALJs only by some skill, luck and circumstance. And why do they call you attorney advisors if you can't advise? The HOCALJ who runs that office should be sacked. Lookit, this is a tough job y'all do. I couldn't work in it. You have to demonstrate true judicial demeanor in deciding some of your cases--child molesters, drug addicts, etc. But that doesn't mean that you forget where you came from and who you are. If a lawyer comes to you and essentially says "Judge, you got it wrong", well, there is only one answer: "thank you". Being a jerk about it is bad Karma and we all know the laws therein.
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Post by privateatty on Nov 27, 2013 8:50:19 GMT -5
"...line judges are not supposed to approach the writers...". And why does it have to be seen in the context of management/rank & file? What ever happened to professional collegiality? You are lawyers first. I guess I will never get it because I am not part of ODAR.
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Post by mcb on Nov 27, 2013 10:47:18 GMT -5
There are plenty of exchanges, in both directions, between writers and ALJs in our office without management involvement. And that was the culture at my prior ODAR.
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Post by papresqr on Nov 27, 2013 12:53:08 GMT -5
We were a new office, with all new writers with the exception of one who transferred in. We were told that any communications with the ALJs (work related, that is) had to go through either our supervisors or the senior attorney. However, we basically ignored that and have been freely communicating without issue ever since.
Sent from my SCH-I535 using proboards
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Post by privateatty on Nov 28, 2013 11:17:37 GMT -5
Those that are there know better than those who are not.
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