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Post by decadealj on Jan 4, 2014 12:44:44 GMT -5
and may I add to deltajudge's solution: close the darn record so all adjudicators see the same evidence or lack thereof!
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Post by deltajudge on Jan 7, 2014 17:45:34 GMT -5
8-)I can't begin to describe a lot of the DDS determinations, especially those in Florida. Some of them were so bad, I really thought there should be a criminal investigation. Decade, you are absolutely correct about the closed record. You would think, having gone through initial and recon, and finally getting to us, the record should be complete. But no, how many remands did we get from the AC based on new evidence submitted on appeal? I know, the claimant's condition changes during the slow process of the appellate process, but it should end with the ALJ.
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Post by privateatty on Jan 7, 2014 19:38:00 GMT -5
8-)I can't begin to describe a lot of the DDS determinations, especially those in Florida. Some of them were so bad, I really thought there should be a criminal investigation. Decade, you are absolutely correct about the closed record. You would think, having gone through initial and recon, and finally getting to us, the record should be complete. But no, how many remands did we get from the AC based on new evidence submitted on appeal? I know, the claimant's condition changes during the slow process of the appellate process, but it should end with the ALJ. It is easy to take pot shots at ODAR. It is something I have done too often and I try to choose my words carefully. The only rational reason to keep the record open after an APA adjudicative trial is to afford the Claimant every opportunity to prove his or her case. But at what cost? You throw the whole process for the ALJ into a "whatever" mode, the Trust Fund opens itself up to another bite of the apple and cases never die. ODAR is the only agency that engages is such craziness. I mean can you imagine going to a workers' compensation trial and everyone knows that the injured worker and not the carrier can keep the record open and get another medical opinion that you are disabled? Puleeze. In my forum its not an issue--nor is it in the other 25 or so federal agencies that employ the ALJ Corps. What REALLY gets my goat are the attorneys who cynically dump evidence in when it suits them--knowing that it must be considered. They are an affront to the EC requirement that there be truthfullness and respect to the Tribunal---for at the end of the day the ALJ must wear his or her two hats and grit their teeth.
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Post by trekker on Jan 7, 2014 23:51:03 GMT -5
And then there are those of us who request, request and request. Most of the large hospital systems are using contractors who either over collect records or just look for a split second on the computer screen and see nothing. Why? Because the health care system has maybe 30 clinics, 10 hospitals, numerous specialty centers (rehab, PT/OT, outpatient surgery, etc) but everything is electronically filed in a central location and the system web site tells you to submit all medical records to 555 Jones St, Suite A Where Everything Gets Lost, Large City, Crapland USA. And the contractor looks at one clinic and then says there are no records despite patient being seen at PT once a week, primary care doc once a month, specialists q 6 months. And then there is the claimant who goes in and signs multiple releases when he submits his application but DDS puts the start date for 1/1/2013 and the ending date 1/1/2012. Contractor rejects as you can't have a start date that is after an end date (and they can't just think outside the box and realize that dates have been reversed. No we need the exact dates in the correct order. Second submission has correct dates but is missing the required witness signature. Third request is just ignored because it is now past the 6 months allowed under HIPPA.) Oh and the VA -- not happening. Never going to get those records unless some one makes a mistakes and sends them. Or you get 1000+ pages and have to send them to the ALJ along with an apology (luckily you get them in time to send them 1.5 months before the hearing.) The system is just not meant to run smoothly. And I can't tell you how many mental health providers are now saying we can't release those to you. Not allowed. As I sit here writing a brief that is a week late because my client has not been able to reach me for the past 4 weeks because of illness (mine and hers), bad weather, and no minutes on her phone. I wish I had the perfect client who went to the boutique doctor who was at his/her beck and call. But I don't. And in defense of providers, the bean counters in the corporate offices making 6 mil a year just want them to up the RVU's and not engage in any thing that looks like it can't be billed under an ICD number.
Again, I will say that most ALJ's engage in ethical practices and write decent opinions -- even if I may disagree with the outcome. But if you cut corners, I will appeal. That is my job. It would be unethical of me or committing malpractice to read a decision that has a legal error(s) in it and not file an appeal.
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Post by decadealj on Jan 8, 2014 15:14:34 GMT -5
There is an easy answer to the problem of getting medial records- it is called a subpoena which 15-20 years ago could be enforced albeit through a tedious process involving the RO and the headquarters in Falls Church but it could be done. Not as effective as sending the U S Marshall as Deltajudge did. And physicians offices responded to subpoenas until they realized they were not enforced because about a dozen years ago when at least Region 3 refused to enforce subpoenas. The subpoenas are a fundamental provision of due process in the APA and it is going to take some heavy lobbying by claimants advocates and the disability Bar to force the agency into compliance. I personally think it would make one heck of a lawsuit brought by an attorney rep who was denied enforcement.
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Post by privateatty on Jan 8, 2014 17:19:41 GMT -5
What's wrong with the ALJ calling the Medical Records gatekeper and asking why they are not obeying MY subpoena? Because that would be unfortunate if I was forced to discuss the matter with the Gen. Counsel's Office or the Compliance Officer...
And if someone asked, I'd just say hey, I'm developing the Record.
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Post by decadealj on Jan 8, 2014 18:38:45 GMT -5
You could have done that 15 years ago just as deltajudge sent a U.S. Marshal. But I don't think you could get away with it today. ODAR tried to crucify ALJs who tried to require reasonable procedural prerequisites to hearings and they (ODAR) can't wait to jump on any judge (woooops- adjudicator) who dares to vary from the HALLEX or any other policies or business practices the headshed deems gospel!
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Post by sealaw90 on Jan 9, 2014 9:16:17 GMT -5
Yet another reason for an independent ALJ Corps instead of being agency-owned automatons.
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Post by christina on Jan 9, 2014 9:25:55 GMT -5
seelaw, i think you are saying it would be best for ALJ's to be independent of any agency? if so, that makes a world of sense. It would probably be wise for them to specialize on a certain type of law(although they could be called on in any federal case) but other than that, it makes sense and would avoid the current problems at SSA that i am calling an agency power grab.
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Post by Gaidin on Jan 9, 2014 10:13:00 GMT -5
Our state ALJs do not work for any given agency and are instead assigned from a central office to hear cases. It works wonderfully. You probably would have to let ALJs specialize at the federal level but it would also allow some agencies that either don't use ALJs or use them sporadically to draw upon ALJs for certain kinds of cases without having to shoulder the entire pay benefits for ALJs they barely use.
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Post by 71stretch on Jan 9, 2014 10:18:31 GMT -5
Our state ALJs do not work for any given agency and are instead assigned from a central office to hear cases. It works wonderfully. You probably would have to let ALJs specialize at the federal level but it would also allow some agencies that either don't use ALJs or use them sporadically to draw upon ALJs for certain kinds of cases without having to shoulder the entire pay benefits for ALJs they barely use. Our state does a mixed approach. Three (perhaps four, I'm not sure) have their own ALJs, the rest use ALJs at a central office. The state personnel board uses contract ALJs, so they don't pay for what they don't use.
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Post by bowser on Jan 9, 2014 10:42:48 GMT -5
I'm not going to make any effort to respond to each concern expressed, but just wanted to offer myself as one ALJ who does not perceive the sky as falling.
I really don't see why this is considered a big deal by anyone who is doing their job competently. If you have allusions of being an Article 3 judge with endless resources at your disposal and no production expectations, then you may well have cause for concern. But if you are consistently producing more than 450 or so dispositions, and are paying somewhere between 30-70% - as the vast majority of ALJs are - then my firm opinion is that you have absolutely nothing to worry about.
Also, (DISCLAIMERS: my personal opinion, I'm sure many of you have more experience doing disability law than my 20+ years, and the claimants one sees varies somewhat among HOs), if a judge is paying more than 70%, they are applying something other than the Act and regs as written and interpreted through policy. (Heck, I can't imagine how I could possibly pay more than 60% of claimants I see without completely making things up, but that is just my impression.) And I don't understand why judicial independence would encompass something other than applying the law.
Also, my firm belief is that anyone who was issuing more than 800 dispositions was not doing their job. It is a shame the Agency tolerated (encouraged?) such in the past, but at least they are addressing it now.
Yes, I anticipate the same BS responses about the terrible complexity of applying an inherently unclear and contradictory body of law... Blah, blah, blah. Just do your jobs, folks. And if you don't want to, there are plenty of other very capable folk who would be happy to.
There are a lot of things that are messed up about SS disability and ALJs, but I don't consider this position description to be among them. For good or bad, SS disab seems to have become our nation's primary general "welfare" system. Absent any alternative safety net or any impediments to initial and repeat filing, there is going to continue to be a huge pressure of cases. I can't imagine what alternative reality one would have to live in to assume the ALJ corps is suddenly going to receive greatly increased funding/staffing/support. But barring drastic systemmic changes of a sort I have not heard even hinted at by anyone who actually would be able to effectuate such changes, there is going to continue to be a significant productivity requirement at all steps of the disability review process, from initial applications through the federal courts. If you don't want to have what I consider to be a really great job, notwithstanding the presence of such pressures, then feel free to withdraw your application or - if currently an ALJ - feel free to seek greener pastures elsewhere.
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Post by 71stretch on Jan 9, 2014 11:35:34 GMT -5
It seems that there are offices where it might make less difference than others. There are many tales here of the differences from office to office based on who is sitting in the admin chairs.
And, some of the changes (detailed in the other thread) seem extreme and designed to take away a great deal of how ALJs historically (in all jurisdictions, including the fed) have been doing their jobs.
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Post by Deleted on Jan 9, 2014 12:06:10 GMT -5
Well, Bowser, no personal disrespect is intended, but I feel obligated to say that I find your augment...appalling. Like you, I do not feel the sky is falling. Like you, I have no objection to reasonable production requirements. Like you, I do my job, and am proud of my level of production, pleased with my fellow ALJs who work hard, and frustrated by those that do not.
However, I do very sincerely object to the Agency performing a radical re-write of my job position without the courtesy of at least engaging me in the process. Who writes, and enacts, a position description for 1300+ Union-represented employees without at least asking them "What do you do every day?"
I know that if I was tasked with the project of writing a PD, my first thought would be to gather working groups of ALJ's together and talk about what changes have occurred in the past 20 years since the old one was written. We would discuss computers, and scheduling, and video conferencing, as well as the legal sources upon which we base our opinion (Yes, SSA policy and regulation, but also the APA, and others).
So, the fact that this new PD, scrubs out the term "ALJ" repeatedly, totally removes the term "APA" and "independent", appears to argue that a legal opinion does NOT require anything other than doing exactly what Agency policy tells me to do, well...that's just unacceptable. The fact that it was done without consulting the ALJ corps itself ought to be unacceptable to all of us, regardless of your view. The people that wrote this...well...let me just be generous and say they did not think this through.
So, to respond to your argument, I am appalled that expressing concern and asking for dialogue over working conditions produces the response that essentially tells me "don’t rock the boat." I despise being told to "shut up and sit down", as much as I hate the argument "love it or leave it." These arguments are irrelevant to the question raised at best, and flatly disingenuous at worst. I, too, love my job, and I am not required to just 'shut up and do my job' when I see something clearly wrong.
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Post by christina on Jan 9, 2014 12:38:37 GMT -5
well said robg
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Post by Propmaster on Jan 9, 2014 14:57:08 GMT -5
... 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. ... I probably won't make it through all the posts, so sorry if this is already covered, better, by someone else. I used to have a lot of respect for ALJs, when I was outside the agency. Now I have respect for some, and lack respect for others. Respect for ALJs is, at best, a rebuttable presumption. One thing I've noticed in life, is that people who demand unquestioning respect from others are seldom willing to give it to those who in turn deserve their respect. And I am not talking about justwaiting here, with whom I am not familiar. But for those ALJs who might wonder at the need for advance planning, the key is that other people have tasks to do to get cases ready for hearings. If a hearing is going to be scheduled 90-120 days in advance (and to do so is laudable, since the representative can THEORETICALLY get the evidence in, etc.), the office needs to plan slots, and to do that, they need to have desired schedules, and to do that, they need to get all of the ALJs to respond timely to requests for schedules. I assume a month of your 6 month lead time, justwaiting, is from other ALJs in your office simply failing to give their schedules, holding everything up. At least that's what I've seen. Telling other people when you plan to do work that only you can do is not an imposition, it's an essential part of them making it possible for you to do that work. Some ALJs (not you in particular justwaiting - sorry that this is in response to your post; I have taken the topic off into my past experience of ALJs) seem to think there is a dedicated staff of 'clerks' waiting to process their cases on a moment's notice. No doubt old-timers prefer the old days when there WERE dedicated clerks. As much of the budget shortcomings have affected things, so have the ability to provide dedicated staff. I think we can all agree that there have been changes, and that the changes are less 'respectful' (some might say coddling) of the ALJs. Is this bad? Possibly. How 'right' or 'good' was the old system? Sometimes i think we have ended up with a bunch of 'spoiled brats.' There's an ALJ in my office (and YES, I let him give you all a bad name, since you all want to protect his rights so much) who does about 9 hearings a month and uses more staff time than all but 2 other ALJs because of his nitpicking (or some might say, "issue spotting"). His over-abiding concern for pretoection of his independence grinds his actual 'work' to a virtual halt. NOT EARNING RESPECT. Sorry. Is the agency hatching a nefarious plan to steal ALJ power? Maybe. Porbably? Maybe. Do I care? Even as an applicant for the job, I say "No" because I haven't seen power going to good use anyway. Hearing officers? Fine. I'll do that job at my current pay because I bet I'd like it better than my job anyway. If not? If I don't like it? I'll change back or to a different job. Or retire. So, in summary, Those of you who may yet be seeing a fundamental change of the ALJ position to one granting less inherent respect and less coddling/dignity/desirability/panache in the job, I'm sorry for your loss, but that doesn't make me want to support your overbroad claims for complete and unfettered self-determination to the detriment of those I have seen die or seriously worsen while waiting for a simple decision delayed for a stupid, selfish reason. Yes, I painted you all with that brush. I can't help it - you keep identifying yourselves as a single unit of undifferentiated professionals.
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Post by Propmaster on Jan 9, 2014 15:19:08 GMT -5
I read bowser's post. Obviously, I agree with it. And I just as obviously need to particularly exclude him, to the extent his statement is an accurate portrayal of his actions, from those about whom I complain. he answers one of the questions in my first e-mail, about whether any ALJ's do not become constitutional judges in their own minds. At least there are some. Robg, I think it is very very clear that management is constatntly seeking to undermine every union agreement they are party to, so I understand and agree with your point about no input or discussion about changing the PD. And to the extent that changing the PD changes the job to be less that of an ALJ, keep in mind that one answer to "that PD is not consistent with my job title" is "I'm changing your job title." Due process doesn't stem from one being an ALJ, it is a right the CLAIMANT has. The CLAIMANT has the right to an adjudication in compliance with the rules and regulations. The CLAIMANT. That's who has the right. Not the ALJ. Nor is the ALJ the protector of the claimants' rights (because then God help them, given some of the ALJs). OK. See you all in another few weeks, or when NOR comes out
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Post by moopigsdad on Jan 9, 2014 15:40:38 GMT -5
I am sorry propmaster, while I can respect your right to state your opinions, I cannot respect your calling out other Board members for their right to state their opinions. An ALJ's decision is like an opinion and you evidently probably issue many opinions everyday. You may think your opinion is always correct, but others may not, including claimants, attorney representatives, the Appeals Council, or Federal Courts. Hence, when people give opinions, it is their beliefs based upon the facts (and law and regulations) of the situation as he or she sees it. Nobody made you the final arbiter of others' opinions, so please respect others' opinions. People can have differences of opinion and this is what makes us human. If everyone's opinion was the same, there wouldn't be freewill of the human spirit. I can say one part of all your posts stood out to me the most and it was, I quote: "Is the agency hatching a nefarious plan to steal ALJ power? Maybe. Porbably? Maybe. Do I care? Even as an applicant for the job, I say "No" because I haven't seen power going to good use anyway. Hearing officers? Fine. I'll do that job at my current pay because I bet I'd like it better than my job anyway. If not? If I don't like it? I'll change back or to a different job. Or retire." This to me, tells me all I need to know about your opinions on the matter. Now, I can respect your right to say this statement and it being your opinion for what it says and I hope you can respect other peoples' opinions, which are different from yours, but if you don't want to do so on this Board, then I say you are the "lesser" person for it. Have a nice day!
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Post by bartleby on Jan 9, 2014 15:54:55 GMT -5
In just a partial response to one item. Although management is requesting hearing schedules 6 months out, they are still scheduling hearings 30 days out. That is the notice they give the Claimant. The other 5 months are used for them to schedule rooms, VE's, ME's, and VHR's. This is ridiculous as there are plenty of those around and with the use of telephonic testimony there is no need to try to schedule the experts 5-6 months out. It is all a game and an attempt to micromanage and make sure everyone is on schedule to make their quota, which they say we don't have and then they give us metrics showing how many we are supposed to be doing daily. If that isn't a quota, I don't know what is. I feel sorry for those with a don't give a damn attitude regarding the professionalism of the Corps. Perhaps I am a dinosaur and should gvie up the fight. There is so much going on in the world anymore that I just don't understand and can't comprehend. When I see college kids espousing communism, my heart breaks..
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Post by privateatty on Jan 9, 2014 17:14:56 GMT -5
bowser and propmaster are certainly entitled to their opinions and feelings. Of course I don't agree with them--but perhaps for a different reason--the same one that for once I disagree with chinook about. Because no ALJ is an island. And SSA is not the whole forest, just 90% of the trees. Look around the ALJ Corps, aljfaq has. And as he has posted, most of the other Agency ALJs started at SSA.
If the Commissioner is going to demean and devalue the ALJ Corps, then give me a rampart. My biggest gripe with my fellow ALJs is that too few are willing to stand together and fight for the same value that propmaster holds so dear--for him the Claimant and me, the process and the APA, which if you think about it are at the end of the day, one and the same. I agree that we are not Art. III Judges nor prima donnas (well some of us are), we are, though federal Judges. We are the difference between dignity and despair, a roof over one's head, careers won and devalued or even lost.
bowser equates the new PD with THE JOB and what he must do in order to do his job. The statutory protections this job affords allow you unparalled tree-sitting prerogatives. But my friend, I would submit (as does robg so well) that they are sawing on your tree.
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