|
Post by southeastalj on Dec 24, 2013 11:24:50 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. The reference to the APA is still in the same exact sentence it was in in the old version of the PD its just in a different part of the sentence. This was also the only reference to the APA in the old PD, so its apparently just as in passing and "very ambiguous" as it always has been. Of course if you only look at the union website where it alleges to compare the old PD to the new PD it conspicuously fails to contain the fact that the new PD still contains a reference to the APA. www.aalj.org/system/files/documents/pd_track_changes.pdf Apparently the union is just as good at being disingenuous as the agency can be. ALJs have always been implicitly under the supervision of the HOCALJ and the Agency. If an ALJ simply decided to stop holding hearings then action would be taken against the ALJ, thats something called supervision. If an ALJ decided to continually grid someone disabled with only nonexertional impairments, thats a misapplication of the law and granting benefits to someone who isn't entitled to them. There obviously must be a remedy for that and, again, thats something called supervision. As usual what union management thinks is the end of the world is of little concern to the corps. The thread on the union website about the new PD has 3 responses, 3. Hows that amazing lawsuit the union filed last year against our "goals" that the union hasn't seemed to mention since they filed it going???
|
|
|
Post by bartleby on Dec 24, 2013 11:38:24 GMT -5
Actually, Southeastalj, You are wrong, it as not the "only" reference to the APA in the old PD. The old PD also 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 think that is a very important part for you to overlook. Nothing ambiguous about that, now was there?? If you think this is of little concern to the corps, I suggest perhaps you are management??
Further, the "amazing" lawsuit regarding goals is moving along in the judicial system and has been mentioned many times in the AALJ newsletter and at the AALJ annual conference.. I guessed you missed it, but considering how you missed the important APA mention above, I guess that is possible???
Also, the Union website is indicative of only one thing, a poorly designed user unfriendly website and is not being used by hardly anybody. The Union has promised to fix it, but... I wouldn't gauge the degree of concern by the lack of participation on the website..
|
|
|
Post by hamster on Dec 24, 2013 11:53:05 GMT -5
Workdrone said: "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."
I completely agree with Workdrone! I don't move my cases out of ALPO soon enough, and I often get a prodding from the Regional Chief Judge every month or two. But there are a number of free-wheeling ALJs who feel jurisprudentially divine and unfettered, and the new PD will, no doubt, be appropriately used to rein them in. If you use a VE in adult disability cases; treat reps/claimants/staff/colleagues with respect and courtesy; get a reasonable number of cases done each year (400+, I'd bet, is the ticket, regardless of the "goal"); don't surf porn on your government computer; and conscientiously apply the law, regulations, and commonsense, nobody is gonna mess with you.
As a current ALJ, appointed in January 2012, I remember that I am obliged to follow the Commissioner's policies, the Grids, and the Social Security Act. If one gets too big in one's britches, though, you'll get some heat. Appropriately so, in my view. If I'm ever Chief Justice of the Supreme Court, then I might throw my weight around a little more. But for now, I recognize that while the APA protects my decisional independence, I still am obliged to adhere to the Commissioner's policies. I've got no problem with that.
The Union is throwing around words like "despicable" and "illegal" in terms of the new PD. Frankly, I just don't see it.
Best, Hamster.
|
|
|
Post by philliesfan on Dec 24, 2013 12:26:08 GMT -5
I totally agree with Hamster. If you do a reasonable number of dispositions per year and are not at one end or the other of the pay/deny spectrum, the new PD probably will not make any difference in the ALJ job. HOCALJs always have had some supervisory control over line ALJs. Back about 15 years ago, when I was a Supervisory Attorney Advisor, the HOCALJ in my office would sign off on each ALJ's monthly hearing docket to assure that enough cases were scheduled, especially at remote sites. If he felt there were not enough scheduled, he would ask the ALJ to schedule more cases.
It should also be noted that given the new directive from OCALJ with respect to the number of cases that can be assigned to each ALJ per month (70), the HOCALJ, who is technically responsible for assigning cases to the ALJs, is responsible in an administrative/supervisory way to assure that this policy is adhered to. Further, the HOCALJ has always been responsible for ALJ's time and leave and assuring the IFPTE contract provisions were followed. I am not sure that the new PDs change any of this or add any additional supervisory duties to the HOCALJ.
The new IFPTE contract, in the form of the provisions of the Telework article (15), including the potential for suspension of Telework under certain circumstances, gives the HOCALJ more supervisory control in the form of a carrot and stick, than he/she had before. This is not a result of the new PDs.
Other than fuming a lot, I do not see what the Union has done for us as a group over that last year. BTW, I am a Union member.
|
|
|
Post by decadealj on Dec 24, 2013 13:02:52 GMT -5
Secretary of H&HS, July, 1994 before administering the Oath of Office to 50 new ALJs:
The description for the office you are about to accept can be summarized very easily- you are the firewall between our citizens and a very powerful government bureaucracy.
How far has the position been deteriorated? Res Ipsa Loquitor.
|
|
|
Post by deltajudge on Dec 24, 2013 21:59:51 GMT -5
8-)Decade, it's good to see bartleby pointing out the pitfall of management "initiatives" and the response from the shavetail ALJs and others. They just don't know, and don't care to know. They are going to go along to get along. If you respect the law, you will do the right thing. Management in ODAR has no concept of the law, its application, or what it is all about. I always went with the idea that I actually knew more about it than they did, and did it my way. Being a lawyer and a professional, I did my job, moved my cases, and then when I had a problem with management, I entered into the fray with clean hands. I admit I was a maverick, but I lasted for 30 years.
|
|
|
Post by privateatty on Dec 25, 2013 14:39:08 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. Let's not be condescending in this Holiday Season. Here are the relative potions of the two ALJ job descriptions and based upon same it is clear that this is a very big deal (at least to where this Judge sits). The CALJ wants to decide what the law is and what is any substantive deviation from how they decide y'all should write your decisions. I guess this is all going to shake out in litigation when the OGC gets to decide just how y'all write it and whether or not the judicial independence that they have promised you is just an illusion in the wake of Policy. The only question is whether or not the litigation will be AALJ instigated or in the form of a disciplinary action after an ALJ has left the reservation and written it his/her way. 1994 ALJ Position Description: 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. 2013 ALJ Position Description: 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 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.
|
|
fredcdobbs
Member
If you know what's good for you, you won't monkey around with Fred C. Dobbs.
Posts: 23
|
Post by fredcdobbs on Dec 25, 2013 15:18:39 GMT -5
Well put.
|
|
|
Post by deltajudge on Dec 25, 2013 19:42:53 GMT -5
"the agency's interpretation of the law."
|
|
|
Post by moopigsdad on Dec 26, 2013 10:12:18 GMT -5
I agree with private attorney upon reading the language changes. While it may not change things immediately, it allows changes in how things may occur down the road. As the Pink Floyd song states: "All in all it's just another brick in the wall. All in all you're just another brick in the wall." Changes don't just occur, unless there is a reason for a change to occur.
|
|
|
Post by deltajudge on Dec 26, 2013 21:33:40 GMT -5
"agency's interpretation of the law<" and "unless there is a reason for a change to occur." Those two statements are intriguing. Which comes first, the chicken or the egg. Y'all need to grow up.
|
|
|
Post by redsox1 on Dec 26, 2013 21:42:00 GMT -5
An article about this just appeared in the WSJ. I can't post because I am not a subscriber.
|
|
|
Post by ssaogc on Dec 26, 2013 22:13:07 GMT -5
WASHINGTON—The Social Security Administration, smarting from recent scandals, this weekend is set to tighten its grip on 1,500 administrative law judges to ensure that disability benefits are awarded consistently and to rein in fraud in the program.
The agency is rewriting the job descriptions of its judicial corps, allowing officials more latitude to crack down on judges who are awarding disability benefits outside the norm. More
WashWire: Six Changes Social Security Is Making to Its Disability Program
Many judges have operated as if they were independent of the agency and awarded or denied benefits based on their own judgments. A few weeks ago, the SSA notified the judges of the changes.
The job descriptions will no longer include the words "complete individual independence," and will also clarify that the judges are "subject to the supervision and management" of other agency officials, according to a draft reviewed by The Wall Street Journal.
The changes are among a number of revisions the SSA has adopted in the wake of a several recent scandals, including the arrest of more than 70 people in Puerto Rico and a separate criminal investigation into a former judge in West Virginia. Both affairs raised questions in Congress about how much fraud might be in the disability adjudication system. Enlarge Image
Rep. James Lankford (R., Okla.) chairs an oversight subcommittee that monitors Social Security. Associated Press
The Social Security Disability Insurance program, funded by payroll taxes, pays monthly benefits—often until someone receives retirement benefits in their 60s—for people who can no longer work because of physical or mental health problems.
During the recent economic downturn, the program grew quickly and now has close to 11 million beneficiaries. It has grown so fast, in fact, that it is projected to exhaust the reserves in its trust fund by 2016, which could force all beneficiaries to see an immediate cut in their payments.
In 2011, The Wall Street Journal reported a widespread disparity in the probability that certain judges would award benefits. Dozens of judges awarded benefits in more than 90% of their cases, while others were much less likely to find someone unable to work, denying benefits in more than 80% of their cases, data showed.
After the published report, the agency began tightening control over judges deemed "outliers," but it also complained that "judicial independence" prevented SSA officials from intervening, even if a judge paid benefits in more than 95% of the cases.
Critics of the system say a number of changes are necessary to combat abuse, especially at a time when the disability trust fund is threatened.
"The economic recession and slow and weak recovery combined with the perceived ease with gaining benefits in federal disability programs has led many individuals who are not disabled to apply for benefits," read a letter signed by Rep. James Lankford (R., Okla.) and two other lawmakers to SSA acting commissioner Carolyn Colvin this month. Rep. Lankford chairs an oversight subcommittee that monitors Social Security.
The union that represents many of the judges complains that the change will strip them of independence and open the process to political meddling. The judges are selected by the agency after a screening process, and their jobs tend to focus exclusively on hearing disability appeals and deciding whether or not to award benefits. In all, the judicial corps decides several hundred thousand cases each year.
Many judges also say they have faced constant pressure from senior officials to move cases in recent years, and many have responded by approving a large number of cases, according to interviews with several judges. The process was known within the agency as "paying down the backlog."
The process of applying for benefits is complicated and multilayered. If someone is denied for benefits after an initial screening, they can appeal and request to have their case heard by an agency judge.
When the agency began tightening scrutiny over the judges two years ago, after publication of the Journal articles, many judges changed their behavior.
In 2010, for example, judges awarded benefits in 67% of their 585,855 decisions, according to federal data. By 2013, the award rate fell to 56%.
"The allowance rate right now is probably at a 40-year historic low," Social Security Administration Deputy Commissioner Glenn Sklar said at a congressional hearing in November.
However, the agency's changes are expected to do little to thin the ranks of beneficiaries. In 2003, the agency paid $71 billion in disability benefits to 7.6 million people. By 2012, the agency was paying $137 billion in benefits to 10.9 million people.
SSA spokesman Mark Hinkle said the change came about because the existing job description had been in place for 17 years. Mr. Hinkle said the new description "appropriately preserves [the judges'] qualified decisional independence."
But the judges have tried to block the move amid fears that they will be told how to decide cases by agency officials.
"They could take disciplinary action against a judge basically controlling the outcome" of any particular case, said Randall Frye, a Social Security judge who is also president of the Association of Administrative Law Judges. "That's bad either way, and it could be bad under different [political] administrations."
In the meantime, the judges' behavior is having a noticeable effect, according to lawyers and others who represent people applying for benefits.
"It's getting harder, especially with younger claimants or people who have been incarcerated," said Geri Kahn, an immigration and disability lawyer with offices in northern California. "Cases that I think I could have won a couple of years ago, I'm not winning or I'm not taking."
Write to Damian Paletta at damian.paletta@wsj.com
|
|
|
Post by bartleby on Dec 26, 2013 22:16:58 GMT -5
WSJ: "WASHINGTON—The Social Security Administration, smarting from recent scandals, this weekend is set to tighten its grip on 1,500 administrative law judges to ensure that disability benefits are awarded consistently and to rein in fraud in the program."
To think that the power to ensure benefits are awarded consistently isn't tampering with judicial independence is crazy. I also appreciate how there is soooo much fraud by ALJ's in the program that we all need to be reined in. So far, almost every case that I have seen in the newspapers, including the Huntington affair, was well known by the Agency and management far before the press and even had the Agency and management's tacit approval. This is all a power grab to cover someone's arse..
|
|
|
Post by onepingonly on Dec 26, 2013 22:41:18 GMT -5
"Many judges have operated as if they were independent of the agency and awarded or denied benefits based on their own judgments." And all this time I thought that was the objective!
|
|
|
Post by bartleby on Dec 26, 2013 23:14:24 GMT -5
I thought that was what judicial independence was all about. After all the decisions prior to ours are all based on the Agency Reg's, policies, and procedures. I guess we are supposed to rubber stamp the initial and recon decisions? The Agency is out of control and if this isn't reversed soon, we will no longer fall under the APA and then we become hearing officers..
|
|
|
Post by justwaiting on Dec 27, 2013 1:56:24 GMT -5
I am still trying to understand exactly what is afoot here. A change does not happen for no reason, so one must surmise that the agency has some endgame in mind. I suspect the folks at OGC (who constantly harp on there be no such thing as a "United States" ALJ) would be very happy if they could dictate exactly how we do every aspect of our jobs. Perhaps the goal is to reduce us to the status of hearing officers.
More immediately, I am concerned with more bureaucracy. Already we are required to submit our hearing schedule about 6 months out in my office. With the new changes to the telework policy, we are being required to submit our work at home days for a month at a time by the 25th of the month prior. At the very least, all of this seems disrespectful of SSA ALJs.
On the other hand, this is still a great job. There are very few places where you can make a good living working 40 hours a week with the flexibility we have.
If the union is going to fight this, I'm not sure the Chicken Little approach will yield good results.
|
|
|
Post by mcb on Dec 27, 2013 2:40:45 GMT -5
"Many judges have operated as if they were independent of the agency and awarded or denied benefits based on their own judgments." And all this time I thought that was the objective! ...you mean to be free of Agency influence or pressure? ...something like that?
|
|
|
Post by privateatty on Dec 27, 2013 7:06:12 GMT -5
I am still trying to understand exactly what is afoot here. A change does not happen for no reason, so one must surmise that the agency has some endgame in mind. I suspect the folks at OGC (who constantly harp on there be no such thing as a "United States" ALJ) would be very happy if they could dictate exactly how we do every aspect of our jobs. Perhaps the goal is to reduce us to the status of hearing officers. More immediately, I am concerned with more bureaucracy. Already we are required to submit our hearing schedule about 6 months out in my office. With the new changes to the telework policy, we are being required to submit our work at home days for a month at a time by the 25th of the month prior. At the very least, all of this seems disrespectful of SSA ALJs. On the other hand, this is still a great job. There are very few places where you can make a good living working 40 hours a week with the flexibility we have. If the union is going to fight this, I'm not sure the Chicken Little approach will yield good results. I got an idea. Let's identify who at OGC says that "...there is no such thing as a "United States" ALJ" and have them do a talking points tour. They can address the ABA, the Federal Administrative Law Judge Conference, and as many agencies in the beltway as they would like. This is like trash talking in the locker room--when the talker doesn't have the uknowwhat to take it out on the playing field--where (OMG) their nonsense might get challenged.
|
|
|
Post by JudgeRatty on Dec 27, 2013 10:08:16 GMT -5
I am still trying to understand exactly what is afoot here. A change does not happen for no reason, so one must surmise that the agency has some endgame in mind. I suspect the folks at OGC (who constantly harp on there be no such thing as a "United States" ALJ) would be very happy if they could dictate exactly how we do every aspect of our jobs. Perhaps the goal is to reduce us to the status of hearing officers. More immediately, I am concerned with more bureaucracy. Already we are required to submit our hearing schedule about 6 months out in my office. With the new changes to the telework policy, we are being required to submit our work at home days for a month at a time by the 25th of the month prior. At the very least, all of this seems disrespectful of SSA ALJs. On the other hand, this is still a great job. There are very few places where you can make a good living working 40 hours a week with the flexibility we have. If the union is going to fight this, I'm not sure the Chicken Little approach will yield good results. I got an idea. Let's identify who at OGC says that "...there is no such thing as a "United States" ALJ" and have them do a talking points tour. They can address the ABA, the Federal Administrative Law Judge Conference, and as many agencies in the beltway as they would like. This is like trash talking in the locker room--when the talker doesn't have the uknowwhat to take it out on the playing field--where (OMG) their nonsense might get challenged. You are on to something here. This is clearly coming from some specific person. We received an email not too long ago (couple of weeks) about clearly NOT putting "United States" in front of the ALJ title in decisions as requested by a very few of the ALJs. This is someone trying to make a point and they should come out into the light! Very interesting.
|
|