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Post by bartleby on Dec 23, 2013 10:57:21 GMT -5
From the President of the AALJ union,
The latest:
THE NEW ALJ POSITION DESCRIPTION
The new position description for federal administrative law judges at SSA substantially erodes our judicial independence as it places the exercise of our APA decisional process under the supervision of the Agency. Thus, when the political party in power changes, or the Baltimore bureaucratic view of the disability adjudication process changes, great pressure will be placed on judges to conform their decisions to those views. We have already heard the current Deputy Commissioner for ODAR warn in speeches to judges that they do not want to be “outliers” (and guess who defines an outlier). Moreover, in some cases, the agency has actually targeted “outliers” for focused review. The new position description will inevitably lead to more of this abusive and unlawful behavior. Indeed, it is the very avenue that SSA will use to pressure judges to decide cases consistent with the bureaucratic policy of the day. If you research the legislative history of the Administrative Procedure Act you will discover that the conduct of agencies at the time which Congress sought to eliminate with the passage of the APA, is strikingly similar to that in which SSA now freely engages.
I had really hoped that Acting Commissioner Carolyn Colvin, who was appointed by President Obama, would step up to the plate and honor the law. On Friday afternoon, she called to advise that although she regretted that the Baltimore ODAR staff had not involved the AALJ in discussions regarding the new position description, since the new position description process was initiated under a prior administration (Astrue) she would not now intervene. I expressed my deep personal disappointment as well as the disappointment that all of the judges in the corps would feel when they learned that she rejected our requests that she not implement the new position description.
My sense from this conversation is that she does not comprehend the full extent of the damage that the new position description does to the decisional independence of all federal administrative law judges. Her legacy at SSA is now tainted forever.
Later on Friday afternoon, I received a call from Chief Judge Bice who advised, with the greatest joy, that she would issue a memo to all administrative law judges on Monday advising that the new position description would become effective on December 29. So, the very person who should be defending our decisional independence proudly authors the memo bringing you news of the demise of justice in our adjudicatory system. I suspect the memo will try to market the changes as minimal and benign, however, do not be misled. Read the old and new position descriptions and you will clearly see and understand the damage.
The AALJ is moving quickly to implement a broad plan to address this unlawful conduct. We will not be successful without the full cooperation of all judges at SSA. Judges that are not members, please join now. The AALJ needs you so that we can bring justice to this issue and to the American people. We must stand united to achieve maximum success.
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Post by funkyodar on Dec 23, 2013 11:55:42 GMT -5
Right out of law school I went to work for a class action/mass tort firm and proceeded to make millions for the partners. Three months after I made partner the firm dissolved amongst infighting and lawsuits between the senior partners.
I took my little bit of equity and started my own practice with the intent of making my own millions in mass tort. A few months later tort reform passed that killed mass tort litigation in my jurisdiction.
I turned to med mal only to see the second round of tort reform make those cases too expensive to pursue. Tried to keep afloat doing easy loan closings only to see the housing bubble burst and every lawyer out there start undercutting eachother to get what few closings there were.
Ran to odar and quckly burned out writing decisions but made senior pretty quickly. Then they started neutering the senior attorney program and turning it into just another writer position.
So, I take this latest evidence of the powers that be trying to trash judicial independence as a good sign for my chances at getting an alj gig. With my track record I am sure to get the jobif its about to be turned into nothing more than a glorified claims examiner.
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Post by mcb on Dec 23, 2013 17:17:04 GMT -5
From the President of the AALJ union, The latest: THE NEW ALJ POSITION DESCRIPTION The new position description for federal administrative law judges at SSA substantially erodes our judicial independence as it places the exercise of our APA decisional process under the supervision of the Agency. According the CALJ our judicial independence is still protected by the APA. From an email received by the ALJ Corps today. ----------------------------------------------------------------------- Subject: Administrative Law Judge Position Description--INFORMATION Dear Judges: On November 26, 2013, the Office of Personnel Management certified the attached Administrative Law Judge Position Description, PD#2E089. This Position Description is a redescription, and it replaces PD#66622, which had become outdated since its certification twenty years ago. Effective December 29, 2013, you will be placed into PD#2E089. Shortly, you will receive an automated eOPF Notification to reflect the change. The updated Position Description reflects the business processes of the hearings operation, the great work performed by our ALJ corps, and appropriately preserves your qualified decisional independence in conformity with the Administrative Procedure Act and the Social Security Act. We are proud of the work you do on behalf of the agency, and as always, thank you for your service to the American public. Sincerely, Debbie Bice Chief Administrative Law Judge
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Post by bartleby on Dec 23, 2013 23:51:39 GMT -5
To give a short answer, liar, liar pants on fire to the management. The new PD does not contain even one mention of the APA. ALJ's have never been under the supervision and direction of anyone and all discipline had to be brought through a MSPB action. To give management evaluation authority will totally do away with any judicial independence along with the appearance of same. Our job is to offer the public recourse against actual and perceived wrongs from the Agency. If the Judge is directed, supervised, and evaluated on how happy they keep the Agency, where is the sense of independence? This maneuver is totally illegal and will be fought to the utmost. I hope all newbies and wantabees understand the seriousness of this. I will attempt to post the old and new PD's tomorrow and you can all see the BS management is capable of.
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Post by mcb on Dec 24, 2013 1:15:23 GMT -5
I would hold on to this email, though any mention of the APA has been removed from the PD, I consider this statement from the CALJ email an admission/acknowledgement that the APA has applied, and continues to apply, to SSA ALJs.
"The updated Position Description reflects the business processes of the hearings operation, the great work performed by our ALJ corps, and appropriately preserves your qualified decisional independence in conformity with the Administrative Procedure Act and the Social Security Act. We are proud of the work you do on behalf of the agency, and as always, thank you for your service to the American public."
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Post by maxlaw on Dec 24, 2013 8:34:44 GMT -5
To give a short answer, liar, liar pants on fire to the management. The new PD does not contain even one mention of the APA.[snip] To be fully accurate, the new PD retains a single reference to the APA in the preliminary remarks. The reference is conflated with a reference to Titles II and XVI of the Social Security Act. The old PD had around a half dozen references to the APA. I actually think that the new PD could be read to be benign. The real concern comes when one reads the HOCALJ PD, wherein it is made explicit that ALJs are to subject to their direct supervision. I wish the union would take the time to articulate the difficulties with the new PD in a dispassionate way, all I've seen so far is invective and threats of litigation. I'm also curious: how do PD's for ALJs in other agencies read? Are they organized in a similar way?
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Post by bartleby on Dec 24, 2013 8:39:36 GMT -5
Okay, I am going to try to post the Old Position Description, 666220:
POSITION DESCRIPTION (Please Read Instructions on the Back) 1. Agency Position No. 66622 2. Reason for Submission 3. Service 4. Employing Office Location 5. Duty Station 6. OPM Certification No. X Redescription New Hdqtrs. X Field Falls Church, VA Various
Reestablishment Other 7. Fair Labor Standards Act 8. Financial Statements Required Executive Personnel Financial Disclosure Employment and Financial Interests Explanation (Show any positions replaced) X Exempt Nonexempt X 10. Position Status 11. Position is: 12. Sensitivity 13. Competitive Level X Competitive Supervisory 1-Non- Sensitive 4-Special Sensitive Excepted (Specify in Remarks) X Non-Supvry. 2-Noncritical Sensitive X 5-Moderate Risk 14. Agency Use SES (Gen.) SES (CR) 3-Critical Sensitive 6-High Risk
15. Classified/Graded by Official Title of Position Pay Plan Occupational Code Grade Initials Date a. U.S. Office of Per- sonnel Management Administrative Law Judge (Licensing & Benefits) AL 935 3 JF 8/11/94 b. Department, Agency or Establishment c. Recommended by Supervisor or Initiating Office 16. Organizational Title of Position (if different from official title) 17. Number of allocations **V-1122 (per memo 6/16/94) 18. Department, Agency or Establishment c. Third Subdivision Social Security Administration Regional Offices a. First Subdivision d. Fourth Subdivision Office of Disability Adjudication and Review Hearings Offices
b. Second Subdivision e. Fifth Subdivision Office of the Chief Administrative Law Judge
20A. Supervisor Certification. I certify that this is an accurate statement of the major duties and responsibilities of this position and its organizational relationships, and that the position is necessary to carry out Government functions for which I am responsible. This certification is made with the knowledge that this information is to be used for statutory purposes relating to appointment and payment of public funds, and that the false or misleading statements may constitute violations of such statutes or their implementing regulations. 20B. Allocation Certification I certify that each incumbent will perform the grade controlling duties and responsibilities of this position for a substantial amount of time (i.e., 25% or more).
20a1. Typed Name and Title of Immediate Supervisor Jose A. Anglada, Chief Administrative Law Judge 20b. Typed Name and Title of Delegated Authorizing Official for Non-Supervisory GS-14 and Below (Required) Signature: /S/ Date 8/3/94 20a2 Typed name of higher level management concurrence (Optional if 20a1 is signed) Daniel Skoler, Associate Commissioner Signature Date Signature /s/ Date 8/3/94 21. Classification/Job Grading Certification. I certify that this position has been classified/graded as required by Title 5, U. S. Code, in conformance with standards published by the Office of Personnel Management or, if no published standards apply directly, consistently with the most applicable published standards. 21a. Typed Name and Title of Official Taking Action 21b. Typed Name and Title of Delegated Authorizing Official for GS-15/SES
John Flannery, Office of Personnel Management Signature Date Signature Date
/S/ 8/11/94 22. The standards, and information on their application, are available in the personnel office. Position Classification Standards Used in Classifying/Grading Position:
23. Remarks Amended: 09-25-07 Position Sensitivity changed per Michael Joseph 6-16-09 The revised addendum to this position description which includes detailed administrative and managerial responsibilities of the Hearing Office Chief Administrative Law Judge (HOCALJ) is hereby approved. 24. Description of Major Duties and Responsibilities (See Attached)
That was the heading, this is the guts of it:
STANDARD POSITION DESCRIPTION ADMINISTRATIVE LAW JUDGE (LICENSING AND BENEFITS) AL-935-3-#66622 Amended: 09-25-07
I. INTRODUCTION
Administrative Law Judges within the Social Security Administration (SSA), Office of Disability Adjudication and Review (ODAR), are located throughout ten geographically dispersed SSA regions, encompassing the entire United States and Puerto Rico. Administrative Law Judge offices are established in approximately 142 offices throughout the nation.
Under the direct delegation from the Commissioner of SSA, and in the manner prescribed by the Administrative Procedure Act, the Administrative Law Judge holds hearings and makes and issues decisions on appeals from determinations made in the course of administration of Titles II and XVI of the Social Security Act. The basic types of cases are: (a) appeals by disability benefits under Title II; (b) appeals under Title II involving entitlement of individuals to old age and survivors’ benefits; and (c) appeals by individuals involving eligibility for supplemental security income (Title XVI) based on being aged, blind or disabled and meeting the needs test. Since cases are assigned on a rotation basis, each Administrative Law Judge handles all types of cases regardless of the degree of difficulty or complexity of the issues.
Administrative Law Judges’ decisions are final decisions of the Commissioner unless subsequently reviewed as provided in the regulations. They either affirm, modify, or reverse any previous determinations and are issued and forwarded directly to the parties in the Administrative Law Judge’s own name.
II. DUTIES AND RESPONSIBILITIES
Under the provisions of Titles II and XVI of the Social Security Act and applicable Federal, State, and foreign laws, and in conformity with the Administrative Procedure Act, and with full and complete individual independence of action and decision, and without review, the Administrative Law Judge has full responsibility and authority to hold hearings and issue decisions as stated under the above Titles and (1) dismiss or allow requests for hearings and rule on requests for extensions; (2) identify problems and issues to be resolved; (3) analyze all previously developed evidence and appraise previous licensing, regulatory, and adjudicative processes by the administrative agency; (4) determine whether there are other parties with adverse interest to be joined in the case; (5) issue subpoenas and rule on petitions to revoke subpoenas; (6) correlate and resolve conflicting evidence; (7) hear testimony and rule on all motions, petitions, or exceptions involving questions of law, procedure, and the admissibility of evidence; (8) hold prehearing conferences with the appellant and/or his counsel and the government representative; (9) make all evidence of record available to the parties and inform them of any evidence or expert testimony required in connection with a material point or issue; (10) administer oaths and affirmations; (11) govern the conduct of the parties at the hearing, and in general regulate the entire course of the proceedings; (12) control the examination and cross-examination of witnesses; (13) introduce into the record documentary and other evidence deemed necessary for the completion or full development of the record; (14) hear oral argument, and receive and consider briefs that are submitted; (15) appraise the credibility of witnesses, and resolve conflicts in lay and expert evidence; (16) consider and dispose of proposed findings of fact and conclusions of law submitted by the claimants or government representatives; (17)make findings of fact on each issue, giving the reasons therefore and render conclusions of law as sole Trier of fact and law; (18) fully consider all the evidence of record and issue decisions within the requirements of the Administrative Procedure Act, which decisions are completely independent and final, signed only by him, and published to parties in interest without prior review; and (19) entertain petitions for attorneys fees and issue orders designating the amount of fee permitted.
The Administrative Law Judge may also take other action not inconsistent with the Administrative Procedure Act such as perfecting a record or presiding at hearings and issuing decisions in matters remanded by the Federal courts.
The incumbent may be assigned to act as Hearing Office Chief Administrative Law Judge of a hearing office under general direction of the Deputy Commissioner, Chief Administrative Law Judge and Regional Chief Administrative Law Judge. As such, the incumbent would be responsible for the management of the hearing office to which assigned, as well as for holding hearings and making and issuing decisions on appeals pursuant to the Social Security Act, as amended. Such assignment, however, would be accomplished only with the approval of the incumbent, and would be subject to the duties, responsibilities and authorities set forth in the amendment for the Hearing Office Chief Administrative Law Judge.
III. SUPERVISION AND GUIDANCE
The Social Security and Administrative Procedure Acts prohibit substantive review and supervision of the Administrative Law Judge in the performance of his/her quasi-judicial functions of holding hearings and issuing decisions. His/Her decisions may not be reviewed before publication and after publication only by the Appeals Council in certain prescribed circumstances. He/She is subject only to such administrative supervision as may be required in the course of general office management. His/Her decision take into account all applicable Federal, State, and foreign laws, statutes, regulations, rulings, and decisions of the Federal courts.
IV. SPECIAL KNOWLEDGE AND ABILITIES REQUIRED
The Administrative Law Judge must have expert knowledge of judicial practice; exceptional professional attainment; a capacity for analysis and articulation; the ability to balance important and conflicting considerations; a proven ability to assure a fair hearing; and be able to discharge effectively the responsibilities placed upon him for bringing all matters coming before him to a prompt and just final decision. Inherent demands of the job include such characteristics as tact, poise, firmness, impartiality, diplomacy, originality, imagination, initiative, professional bearing, the ability to control the emotionalism of opposing counsel, claimants, witnesses, or other individuals whose conduct may threaten the orderly conduct of the proceedings; and he must posses the ability to meet novel and taxing legal problems. The Administrative Law Judge is required to appraise the issues promptly and thoroughly before any testimony is adduced. If the pleadings are insufficient, the Administrative Law Judge must have the necessary legal ability to take any and all action required to clarify the issues. With the issues defined, he will exercise initiative in obtaining stipulations of fact. Since, unlike a judge, an Administrative Law Judge has no contempt powers, poise and diplomacy in meeting delicate situations are essential.
The Administrative Law Judge must obtain a clear and concise record, containing all relevant facts, while excluding all immaterial matters, the incumbent must use judgment and initiative in the calling of expert or other witnesses and in requesting either the government representative or the appellants’ counsel for evidence on any medical, and economic factors involved is necessary in order that the Administrative Law Judge may develop a complete record of the hearing.
In the disability program under Title II, the Administrative Law Judge must decide cases involving a wide variety of physical and mental impairments, and the effect such impairments have on the ability of an individual to work. To reach informed judgments in these cases, the Administrative Law Judge must possess a knowledge of the medical, psychological, and vocational factors involved in each case. The Administrative Law Judge called upon to perform in this program must develop a background in the medicolegal field not normally inherent in other legal positions in the Government service.
In old age and survivors’ benefit cases, the Administrative Law Judge is required to have extensive knowledge of State, Federal and foreign laws dealing with difficult and complex questions in such fields as conflicts of law, domestic relations, descent and distribution, employer-employee relations, contracts, trusts, partnerships, corporations, accounting, and related subjects. For example, in the Social Security Act there are a number of express references to the Internal Revenue Code, the Immigration and Naturalization Act, the Agricultural Marketing Act, and other laws. In the Internal Revenue field alone, the Administrative Law Judge is required to have the necessary expertise to make finding on such matters as adjusted gross and net income; evasion and avoidance of taxes; whether there exists a bona fide corporation or partnership; and the reasonableness of salaries paid to corporate officers. The Administrative Law Judge is not bound in such cases by findings of the Treasure Department or other Government agencies.
The increasing interest by the courts in the interrelated medical and vocational factors has made it necessary to utilize oral testimony of vocational and medical experts, most of whom are eminent authorities in their respective fields. He is the sole person charged with evaluating the credibility of witnesses in making a judgment on the evidence developed at the hearing. The Administrative Law Judge is required to have the skillful and comprehensive interrogation of expert witnesses. He/She must be able to analyze and summarize in decisional format complex facts and laws clearly and concisely, and to create a dignified and objective atmosphere at the hearing.
In Supplemental Security Income cases the Administrative Law Judge is required to have extensive knowledge of income, resources, living arrangement, relationships, citizenship, residency, institutionalization, etc. The Administrative Law Judge must be able to determine what is income and what income is chargeable; what a resource is and whether it is chargeable; whether an individual is a citizen or an alien admitted for permanent residency and where an individual has his/her permanent residency and the applicable chargeable amounts for living arrangement in that geographic area.
The New position description: The guts of it:
Administrative Law Judge (Licensing and Benefits) AL-935-03 PD# 2E089
I. ORGANIZATIONAL LOCATION OF POSITION
This position is located in a hearing office or hearing center under the Office of the Regional Chief Administrative Law Judge or the National Hearing Center, Office of the Chief Administrative Law Judge, Office of Disability Adjudication and Review (ODAR), Social Security Administration (SSA), which are located throughout ten geographically dispersed regions, encompassing the United States and Puerto Rico. II. FUNCTIONS
Under a direct delegation from the Commissioner of Social Security, and pursuant to agency regulations implementing the Social Security Act, as amended (Act), the incumbent has authority to hold hearings and make and issue decisions on appeals from determinations made in the course of administration of titles II, VIII, and XVI of the Act in conformity with the Administrative Procedure Act. The types of case heard include: (1) appeals involving old age, survivors, and disability benefits under title II of the Act; (2) appeals involving special veteran’s benefits under title VIII of the Act; and (3) appeals involving supplemental security income under title XVI of the Act. The incumbent may handle any of these types of cases, regardless of the degree of difficulty or complexity of the issues.
III. DUTIES AND RESPONSIBILITIES
Under the direction and supervision of the Hearing Office Chief Administrative Law Judge or the Hearing Center Chief Administrative Law Judge, the incumbent holds hearings and makes and issues decisions on appeals from determinations on claims filed under titles II, VIII, and XVI of the Act. Specific duties and responsibilities include but are not limited to: Page 2
A. Investigating the facts of each claim and developing the arguments both for and against granting benefits. Generally, the incumbent holds non-adversarial hearings on the record, and issues decisions based on all the evidence presented. The incumbent derives authority from the Commissioner of Social Security and has, under section 205(b) of the Act, the authority to find facts and to conduct hearings in accordance with the agency’s regulations, rulings, policy statements, and other interpretations of the law. Under agency regulations that implement titles II, VIII, and XVI of the Act, the incumbent holds hearings and issues timely and legally sufficient decisions and may: (1) dismiss a request for hearing and rule on a request for an extension of time; (2) identify issues to be resolved; (3) analyze the evidence; (4) determine whether there are other parties to be joined in the case; (5) issue subpoenas and rule on petitions to revoke subpoenas; (6) consider and resolve conflicting evidence; (7) hear testimony and rule on all motions, petitions, or exceptions involving questions of law, procedure, and the admissibility of evidence; (8) hold pre-hearing conferences with the claimant, representative, or both; (9) make the evidence of record available to the parties and inform them of any evidence or expert testimony required in connection with the hearing; (10) administer oaths and affirmations; (11) govern the conduct of the parties at the hearing, and in general regulate the course of the hearing; (12) control the examination and cross-examination of witnesses; (13) introduce into the record documentary and other evidence deemed necessary for the completion or full development of the record; (14) hear oral argument, and receive and consider briefs that are submitted; (15) evaluate the credibility of witnesses, and resolve conflicts in lay and expert evidence; (16) consider and dispose of proposed findings of fact and conclusions of law submitted by the claimant; (17) make findings of fact in accordance with the Act, the agency’s regulations, rulings, and policy on each issue, giving reasons therefore, and render conclusions of law; (18) fully consider all the evidence of record, and issue timely and legally sufficient decisions within the requirements of the Act, which decisions are final, Page 3
and which are individually signed or individually approved by the incumbent prior to issuances; and (19) entertain petitions for representative fees and issue orders designating the amount of fee authorized.
B. Taking other action not inconsistent with the Act, the Commissioner’s regulations, rulings, and other policies, such as issuing decisions in matters remanded by the Federal courts in accordance with the Appeals Council’s instructions.
C. In the absence of the Hearing Office Chief Administrative Law Judge or Hearing Center Chief Administrative Law Judge, may be assigned to act as the Hearing Office Chief Administrative Law Judge of a hearing office or Hearing Center Chief Administrative Law Judge of a hearing center under the general direction and supervision of the Regional Chief Administrative Law Judge or Associate Chief Administration Law Judge for the National Hearing Center, Deputy Chief Administrative Law Judge, Chief Administrative Law Judge, and the Deputy Commissioner for Disability Adjudication and Review. As such, the incumbent would be responsible for the management of the hearing office or hearing center, and would also be responsible for holding hearings and making and issuing decisions on hearing requests made pursuant to the Act. Assignment as a Hearing Office Chief Administrative Law Judge or a Hearing Center Chief Administrative Law Judge is subject to the duties, responsibilities, and authorities set forth in the addendum for the Hearing Office Chief Administrative Law Judge and Hearing Center Chief Administrative Law Judge.
IV. SUPERVISION AND GUIDANCE
The incumbent is subject to the supervision and management of the Hearing Office Chief Administrative Law Judge or Hearing Center Chief Administrative Law Judge, Regional Chief Administrative Law Judge, Associate Chief Administrative Law Judge, Deputy Chief Administrative Law Judge, Chief Administrative Law Judge, and the Deputy Commissioner for Disability Adjudication and Review. The Page 4
incumbent exercises independent judgment on the evidence, free from pressure by the parties or agency officials, but is subordinate to the Commissioner in matters of policy and the interpretation of the law. The Commissioner has delegated authority to the incumbent to apply agency policy regarding the administrative adjudication and review of claims. The incumbent’s decisions may not be substantively reviewed before issuance, but may be reviewed by the Appeals Council after issuance.
The Deputy Commissioner for Disability Adjudication and Review ensures, through delegations of authority to the Chief Administrative Law Judge, Deputy Chief Administrative Law Judge, Regional Chief Administrative Law Judge, Associate Chief Administrative Law Judge for the National Hearing Center, Hearing Office Chief Administrative Law Judge and the Hearing Center Chief Administrative Law Judge, that incumbents shall, on a continuing basis, receive such training and guidance as is necessary to ensure knowledge of the agency’s policies and agency’s interpretation of the law so that he/she is able to apply them properly.
V. SPECIAL KNOWLEDGE AND ABILITIES REQUIRED
An entry-level ALJ must meet OPM’s regulatory requirements and qualification standards for ALJs and have passed the OPM ALJ examination. The following special knowledge and abilities are required for fully-trained, experienced incumbent ALJs at SSA.
The incumbent must have expert knowledge of judicial practice; a capacity for analysis; the ability to clearly and concisely convey decisional instructions to support staff; a capacity for clear and concise oral and written articulation; the ability to balance important and conflicting considerations; a proven ability to ensure a fair hearing; and the ability to discharge effectively and timely the responsibilities placed upon him/her for bringing all matters to a prompt and just decision. Inherent demands of the job require the incumbent to have such characteristics as tact, poise, firmness, impartiality, diplomacy, originality, imagination, initiative, professional bearing, as well as the ability Page 5
to control dispassionately any emotionalism of counsel, claimants, witnesses, or other individuals in order to ensure the orderly conduct of the proceedings. The incumbent must possess the ability to analyze and address novel and complex legal problems in accordance with the Commissioner’s policies and interpretation of the law. The incumbent is required to evaluate the issues promptly and thoroughly before any testimony is adduced. If the pleadings are insufficient, the incumbent must have the necessary legal ability to take all actions required to clarify the issues, and may obtain stipulations of fact. Since the incumbent has no contempt powers, poise and diplomacy in meeting delicate situations are essential, as well as the ability to convey courtesy and respect to all those who appear in front of him/her.
Utilizing all of the technological and support staff resources provided by the agency, the incumbent must be able to exercise effective docket management and time-management skills including: (1) efficiently schedule cases for hearing; (2) hear and decide cases in a high volume caseload environment; (3) timely move cases toward dispositions; (4) timely write clearly and decisively; and (5) issue timely and legally defensible dispositions.
The incumbent must timely develop a clear and concise record, containing all relevant facts, while excluding all immaterial matters. The incumbent must be responsible and use judgment and initiative in deciding what evidence must be in the record in order to decide the issues in the case. The incumbent ensures that a hearing is timely held at which experts and/or other witnesses are called when evidence on medical and/or vocational factors are relevant and necessary to deciding the issues in the case.
In the disability programs, under titles II, VIII, and XVI, the incumbent must decide cases involving a wide variety of physical and mental impairments, and determine how the claimant’s impairments affect the claimant’s ability to perform substantial gainful activity. To reach informed judgments in these cases, the incumbent must possess knowledge of the medical, psychological, and vocational factors involved in each case. The incumbent Page 6
must also possess the ability to competently read and understand medical terminology and medical records.
The incumbent will sometimes need to utilize oral or written testimony of vocational and medical experts. The incumbent is required to perform the skillful and comprehensive interrogation of expert witnesses. The incumbent must be able to analyze and summarize in decisional format complex facts and legal conclusions clearly and concisely, and to create a dignified and objective atmosphere at the hearing. When the incumbent determines that a material issue in a case involves a determination of federal, state, local or foreign law on which the agency has not issued an opinion, the incumbent ensures that the issue is referred to the agency’s Office of the General Counsel so that the agency can make a decision on the issue.
A big problem is if you look at the Supervision statement of both:
The Old:
III. SUPERVISION AND GUIDANCE
The Social Security and Administrative Procedure Acts prohibit substantive review and supervision of the Administrative Law Judge in the performance of his/her quasi-judicial functions of holding hearings and issuing decisions. His/Her decisions may not be reviewed before publication and after publication only by the Appeals Council in certain prescribed circumstances. He/She is subject only to such administrative supervision as may be required in the course of general office management. His/Her decision take into account all applicable Federal, State, and foreign laws, statutes, regulations, rulings, and decisions of the Federal courts.
The New:
IV. SUPERVISION AND GUIDANCE
The incumbent is subject to the supervision and management of the Hearing Office Chief Administrative Law Judge or Hearing Center Chief Administrative Law Judge, Regional Chief Administrative Law Judge, Associate Chief Administrative Law Judge, Deputy Chief Administrative Law Judge, Chief Administrative Law Judge, and the Deputy Commissioner for Disability Adjudication and Review.
Notice the changes? The Agency has totally dropped any mention of the APA and has placed us under the supervision and mangement of the HOCALJ, et al...
Sorry this has been so choppy, but I am not that good at getting PDF documents to copy and paste, etc.. If you have any questions, please ask away. The Commissioner was asked to revoke this and she has refused. This places all of our judicial independence at risk and if sustained will be the end of the ALJ corps and the beginning of the ODAR Hearing Officer position.. We are the only ALJ corps that does not have the APA mentioned in their position description at this time. Sorry for the length of the post..
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Post by workdrone on Dec 24, 2013 8:44:54 GMT -5
The new PD does not contain even one mention of the APA. The final version of the new PD still reference the APA in its introduction paragraph. ALJ's have never been under the supervision and direction of anyone and all discipline had to be brought through a MSPB action. Not true. Even before the new PD, MSPB cases have found violation of HOCALJ/RCALJ directives as orders violation and a basis for discipline, so ALJs always had superiors. Also, MSPB only have specific jurisdiction over certain types of ALJ disciplines, such as removal or suspension. You can read the CFR yourself for the details. For minor disciplinary actions such as reprimand or termination of flexiplace, MSPB have no jurisdiction. So that's two factual errors in a single sentence. To give management evaluation authority will totally do away with any judicial independence along with the appearance of same. Straw man argument. PD doesn't say anything about performance evaluation. That's specifically prohibited by the APA and 5 C.F.R. 930.211, so absent an Act of Congress, there will be no performance evaluation and the new PD doesn't address it. Our job is to offer the public recourse against actual and perceived wrongs from the Agency. Your job is to conduct fair hearings in accordance with Social Security laws and regulations. You're not Judge Dredd. This maneuver is totally illegal and will be fought to the utmost. AALJ certainly believes it. Whether they can successfully litigate it is a different story. I hope all newbies and wantabees understand the seriousness of this. This is the natural outcome of a small percentage of ALJs ruining it for everyone else. The new PD change is basically done to enhance the Agency's ability to discipline non-performing ALJs through orders violation charges. While I personally don't like it, I understand how it came about and its purpose. The bottom line is if you do a reasonable number of legally sufficient cases in a timely manner, there's nothing to worry about. However, if you're deciding a very small number of cases and taking forever to decide them, this PD change was made just for you. Bart, you have my condolences.
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Post by bartleby on Dec 24, 2013 8:50:42 GMT -5
After posting this and then reading Maxlaw's post, I will admit the new position description does mention APA in one spot in passing and is very ambiguous.. As far as dispassionate, it is hard to recall that your purpose was to drain the swamp when you are up to your arse in alligators.. It will be handled in a dispassionate manner at the proper level. At this point I am trying to point out that SSA-ODAR has once again attacked it's own ALJ corps and to ignore it is to succumb.. Join the Union, be aware, write your Congressmen and the Commissioner.
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Post by bartleby on Dec 24, 2013 9:04:01 GMT -5
workdrone noted: In the second paragraph of the Introduction section of the PD:
"Under the direct delegation from the Commissioner of SSA, and in the manner prescribed by the Administrative Procedure Act, the Administrative Law Judge holds hearings and makes and issues decisions on appeals from determinations made in the course of administration of Titles II and XVI of the Social Security Act."
Unfortunately, he/she is quoting the old positiond escription and not teh new one...
workdrone also noted:
"Not true. Even before the new PD, MSPB cases have found violation of HOCALJ/RCALJ directives as orders violation and a basis for discipline, so ALJs always had superiors.
Also, MSPB only have specific jurisdiction over certain types of ALJ disciplines, such as removal or suspension. You can read the CFR yourself for the details. For minor disciplinary actions such as reprimand or termination of flexiplace, MSPB have no jurisdiction."
The old position description noted: "The Social Security and Administrative Procedure Acts prohibit substantive review and supervision of the Administrative Law Judge in the performance of his/her quasi-judicial functions of holding hearings and issuing decisions."
I mentioned that MSPB action was required and it has been for any substantive punishment. Minor disciplinary actions could be handled through HOCALJ action, but ALJ's were also offered some protection through Union Grievance.
You may think that this will only affect a few, and maybe it will this year, but how about next year when they come for others that are not writing three hour instructions per Judge Bice instructions? Will all be able to maintain their number goal while meeting all of the requirements of the job?? Some can do the job well and maintain the numerical goal, but a lot more can maintain the numerical goal while short cutting the claimant and the system. My condolences for your arrogance workdrone..
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