|
Post by bartleby on Dec 5, 2013 13:44:52 GMT -5
Ladies and Gentlemen, step in a little closer as I have a tale to tell: I just received from my LAR (Union Rep) this e-mail excerpt:
Hello Judges: Attached is the new position description for SSA ALJs. As you might expect, there have been some concerns expressed. One of the concerns is under Section III which now states “under the direction and supervision of the HOCALJ”. This alone, appears to be a change of work conditions which would warrant a challenge by the Union. Overall, it not as terrible as initially believed, but appears to be another attempt to limit ALJs judicial authority. What’s your thoughts and I will pass them on?
(My Take infra)(Bartleby)
The old position description did not place ALJ's under the supervision of anyone (2007). The new one does.
I think the most important part of the position description is Section IV. SUPERVISION AND GUIDANCE, where in it states, “The incumbent is subject to the supervision and management of the Hearing Officer Chief Administrative Law Judge, Region Chief, etc… but is subordinate to the Commissioner in matters of policy and the interpretation of the law.” Part of our job is to interpret the Regulations, Rules, and laws to each case in front of us. It’s not all black and white as each case has it’s own nuances.
Section III was only about DUTIES AND RESPONSIBILITIES, so I think the terrible part that we need to worry about is under Section IV.
I personally think it should be challenged. There are many different types of HOCALJ’s and it would be easy for someone to interpret this into meaning they could micromanage everything from hearing schedules to number of hearings weekly or even daily. This is a very slippery slope and with the variances we have seen in HOCALJ’s throughout the Agency, I would be very afraid to give them Carte Blanc in this fashion. Having worked as an employee (Attorney Advisor) under the direction/supervision of the HOD and HOCALJ I speak with some experience.
This can have some dire consequences for present and future ALJ's.
|
|
|
Post by moopigsdad on Dec 5, 2013 14:10:10 GMT -5
Thank you for the information bartleby for those of us not privy to the changes in the ALJ position description. Not being in an ALJ position at present, I will not take a position on any of the changes listed. I can see your reasoning for concern and possible need for Union action based upon your post. I would love to hear how other present or past ALJs feel about these changes. Thanks again for sharing the information.
|
|
|
Post by redryder on Dec 5, 2013 14:58:42 GMT -5
If that provision regarding application of law and policy is read in conjunction with Section 404.985 of the regulations, it makes sense. The regulation itself directs how we are to apply federal case law and acquiescence rulings. This appears to be extending that policy to other instructions given regarding various issues. The one that immediately springs to mind was the policy on DAA that provided if the DAA and other impairment were so interwoven that it could not be determined what the claimant could do absent the DAA, the ALJ was to find DAA was not material. This policy was vilified by various federal courts and eventually rejected by SSA. However, while it was in force, the ALJ was expected to apply it vs. the federal court caselaw or any other interpretative source.
|
|
|
Post by decadealj on Dec 5, 2013 15:39:23 GMT -5
What is the difference now between the positions of ALJs, AAJs and hearing officers. If someone can locate it, compare this garbage with the position description of an ALJ in 1990. The agency has set in motion a process where it can dictate decisions by policy and its interpretation of the statute and regulations. Of course it could always do so via the AC but Lord am I glad I am gone and had an opportunity to serve in with the "Old Breed".
|
|
|
Post by privateatty on Dec 5, 2013 16:03:47 GMT -5
At almost every Agency the ALJ is under the direction of the Chief ALJ for assignments, office matters, etc. Judicial independence is a bright red line no one crosses--or should I say rarely do.
What I have a problem is them (SSA ODAR OGC) thinking that they are they last word on the law. Did anyone go to law school? I recognize that they don't like you putting Circuit case law in your decisions for the obvious reason that they want to think they (and I guess policy) are above case law, but this is a stretch no Art. III Court would make.
|
|
|
Post by bowser on Dec 6, 2013 14:11:52 GMT -5
I must be missing something, but I sure don't see the issue(s) here. I do disagree with one word in the original thread: I think the most important part of the position description is Section IV. SUPERVISION AND GUIDANCE, where in it states, “The incumbent is subject to the supervision and management of the Hearing Officer Chief Administrative Law Judge, Region Chief, etc… but is subordinate to the Commissioner in matters of policy and the interpretation of the law.” Part of our job is to interpret the Regulations, Rules, and laws to each case in front of us. It’s not all black and white as each case has it’s own nuances. (bolding added) I do not believe ALJs are responsible for "interpreting" the regs/rules/laws to each case. Instead, we are responsible for "applying" those regs/rules/laws. I think it is presumptuous as all hell for an ALJ to think they are in a superior position to the Commissioner with respect to setting policy and interpreting law. You have QUALIFIED judicial independence. You don't get to make things up however you want, and you sure aren't the lord of your fiefdom, answerable to no one.
|
|
|
Post by bartleby on Dec 6, 2013 14:57:54 GMT -5
Bowser, the Commissioner is not a Judge nor an attorney, nor does he/she have any legal training. The Commissioner does not have the facts of each case in their possession and the Rules, Regulations, Hallex, POMS, and Laws are often contradictory in nature. We often have to choose between one and the other. if that isn't interpretation, I don't know what is. There is no need to have a Judge if they are all consistent and hard fast. They would stand on their own. We are hired for our legal expertise and common sense. You may not want to call it interpretation, but whatever you call it we are there to make some sense out of all of the confusion. You said, "You don't get to make things up however you want, and you sure aren't the lord of your fiefdom, answerable to no one." I don't make things up, I arrive at an educated decision based upon an understanding and application of the myriad Rules, Regulations, Hallex, POMS, and Laws we work with. As far as the second part, perhaps you haven't read the position description I was hired under. I am under no ones supervision or management. I have a lifetime career appointment and can only be removed for cause through MSPB action.
|
|
senex
New Member
Posts: 9
|
Post by senex on Dec 6, 2013 15:30:45 GMT -5
Of course, 42 USC 405 (b) (1), and the analogous provision for SSI gives the hearing authority to the Commissioner. ALJs sit merely as her delegates. Therefore, bowser is correct in commenting about presumption.
|
|
|
Post by bartleby on Dec 6, 2013 15:48:20 GMT -5
Okay, let's try this: "The Administrative Law Judge (ALJ) function was created by the Administrative Procedure Act (APA) in 1946 to ensure fairness in administrative proceedings before Federal Government agencies.
ALJs serve as independent impartial triers of fact in formal proceedings requiring a decision on the record after the opportunity for a hearing. In general, ALJs prepare for and preside at formal proceedings required by statute to be held under or in accordance with provisions of the APA, codified, in relevant part, in sections 553 through 559 of title 5, United States Code (U.S.C.). ALJs rule on preliminary motions, conduct pre-hearing conferences, issue subpoenas, conduct hearings (which may include written and/or oral testimony and cross-examination), review briefs, and prepare and issue decisions, along with written findings of fact and conclusions of law."
As the Commissioner's delegate we are responsible and authorized to do as she/he would do. Further, notice the last part of the above? "Findings of fact and conclusions of law." Once again, as the "law" we rely on is so confusing, contradictory, and inconclusive, we must determine (interpret) what part of the "law" is applicable in each individual case, as would the Commissioner if he/she were hearing the case. Why are certain people having such a hard time with this concept??
|
|
|
Post by decadealj on Dec 6, 2013 15:51:19 GMT -5
Bartleby- I suspect you have been around awhile and I don't know if bowser or senex is an ALJ or a wannabe. But 25 years ago, the Chief Judge would not tolerate this kind of rule-making malfeasance and I strongly suspect that the Commish is fianally accomplishing total control over the ALJ corps. I genuinely see no use for ALJs in the new hearing process and will no longer be affordable in the future when the Commish acts if they are no different then hearing officres. The APA went out the window long ago.
|
|
|
Post by gunner on Dec 7, 2013 2:17:27 GMT -5
Most judges aren't subject to "supervision" by anyone. Usually the only stick a chief judge has is in handing out assignments or switching people from one docket to another (depending on the court of course). This seems like a crock to me.
|
|
|
Post by prescient on Dec 7, 2013 9:03:30 GMT -5
I understand the concern is regarding the ability to interpret and apply SSA law, but I think that's really not what the agency is worried about controlling here. The bigger issue is the refusal by many ALJs to abide by agency standards of basic job requirements IE
(1) not using FIT instructions (2) not typing instructions (3) not using a VE etc When you don't do the above, there's really nothing that can be done about it, under the current system. This needs to change.
|
|
|
Post by christina on Dec 7, 2013 10:31:54 GMT -5
why should an ALJ be required to use FIT or type instructions? Personally, I'd prefer if they did but I don't think agency should force them to do so, if that's the issue. Encourage, sure. using Ve's is more of an area where I can see where agency might want to do more than encourage ALJ's since not using one can affect legal sufficiency. Regarding the other matters, if a writer can't figure out what the ALJ wants, the ALJ has to prepare their own decision. Doing that a few times will make over 90 percent of the ALJ's who have unclear instructions make them more clear and this does not infringe on their independence. not saying ALJ should have to prepare a decision the first time it's arguably unclear. But if it's a repeated pattern and the ALJ is not open to constructive comments on how challenging that can be or ways to make their instructions easier to follow, then my idea, at least to me, makes more sense than micromanaging every ALJ in the country.
|
|
|
Post by Thomas fka Lance on Dec 7, 2013 14:01:22 GMT -5
Cristina, In an ideal world your idea (of making the ALJ write the decision if there is a repeated pattern of unclear instructions) seems like a great idea. If I could "vote" for it, I would! But, this is not a democracy. However, there is currently no one "responsible" for determining if the instructions are sufficiently clear, other than a general "here's the goal, ... try to do these things". Unfortunately some of the Judges take any question/comment/suggestion regarding the instructions as a personal affront/attack. (sad but true) So, if the writer cannot do it without fear of having every future draft from that Judge place in FINL status, (again, sad, but true) and the Judge clearly won't change it, how would this be accomplished? I sure wish I had the answer!
|
|
|
Post by philliesfan on Dec 7, 2013 16:28:19 GMT -5
As someone who has been both a decision writer and now an ALJ, I never had any compunction about knocking on an ALJ's door and asking about their instructions, if I didn't understand them and I never had an ALJ who wouldn't talk about them with me and try to explain what they wanted. Now as an ALJ, I have told the decision writers in my office to come talk to me if the don't understand my instructions or if they think I'm wrong. My thought is to get the right, best decision, not stroke my ego. That isn't to say that there aren't ALJs who think they are infallible, but we all make mistakes.
|
|
|
Post by christina on Dec 7, 2013 17:57:41 GMT -5
This went off on an unexpected tangent. I was not targeting ALJ decisions. The poster above me noted management wanted ALJ's to abide by agency standards such as being required to use FITS. My point was why should the ALJ's be forced to use FITS? i was coming up with a solution that I considered to be less intrusive of ALJ independence but still targeted the problem of hard to follow instructions, assuming that is an issue the agency wants to address. i agree with phillies. I want the right decision out the door too and will talk with ALJ's as needed on cases, at least to those who are open to being approached, which in my experience, has been most that I've worked with. The op was concerned about what he considered new management tactics to control the judges. Assuming that is accurate and I only say assume because I have not done the necessary leg work to look at these new proposals, i too am leery about central office getting closer to interfering with ALJ independence.
|
|
|
Post by gottabeme on Dec 7, 2013 18:09:04 GMT -5
A good writer doesn't care what format is used for the instructions are written as long as they can be understood. Scribbly, illegible handwriting is a bigger issue in our office than the format.
|
|
|
Post by gottabeme on Dec 7, 2013 18:11:14 GMT -5
and apparently this writer is more involved in the football game than grammar! LOL
|
|
|
Post by maquereau on Dec 8, 2013 11:50:42 GMT -5
Totally agree with philliesfan.
|
|
|
Post by southerner on Dec 8, 2013 21:02:21 GMT -5
I do not use and have never used FIT and see no need for that. I am the highest producer in my office and the second highest and I are both former SA's. I draft my evidence/issue summaries well before the hearing dates and review new evidence before hearings. My hearing day notes are handwritten. My door is always open to atty/paras to ask questions or discuss instructions. Re VE, I use one in each adult disability hearing. I am an adult and a professional and do not require active supervision. I know what I need to do, when to review status to move cases, and I do not anticipate much in the way of supervision under the new PD.
|
|