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Post by bartleby on Feb 24, 2014 17:02:45 GMT -5
I received an e-mail from another Judge today that contained this:
At today’s Social Security CLE, we learned that Judges who repeatedly receive Remands on the same issue will be subject to what is called a “Forced Review.” In essence, a random sampling of 50-60 of the Judge’s decisions will be reviewed by AC Judges and Analysts. The AC Analysts and Judges will each review the batch of cases and determine whatever errors exist.
If both the Analyst group and the Judges’ group agree that there are errors, then a summary of the errors assessed will be comprised. Thereafter, the report will be shared with the Chief Judge, who will , in turn, share the report with the individual’s RCALJ and HOCALJ. The RCALJ and the HOCALJ will then determine the appropriate course of re-training and meet with the affected Judge. The affected Judge will be taken off of hearings for a month to participate in training, which will be done by VOD.
Thereafter, OCALJ will check the decisions of that affected Judge again. If the problems persist, disciplinary action will ultimately be imposed.
With the computer programs the Agency is now using, they are tracking Remands and the reason for them. It will take no effort to implement this "Forced Remand" scheme. So now, it's not only about the number, but the perceived "correctness" of those numbers.
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Post by dudeabides on Feb 24, 2014 18:51:42 GMT -5
Not sure that I understand the problem.
If a judge consistently and repeatedly ignores binding law or precedent on a key issue, and consistently and repeatedly gets remanded on that issue, then it seems to me that he or she is doing something significantly wrong. This is not interference. This is how the law works. Isn't it?
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Post by hamster on Feb 24, 2014 18:58:12 GMT -5
Assuming this is even true, I agree with Dudeabides. What's the big deal? If an ALJ repeatedly screws up, then they need retraining. This does not sound to me like a vast, ill-conceived, right-wing conspiracy to gratuitously and cynically dictate to ALJs how to do their jobs.
Bartleby, you'll have to come up with something better than this to cause me to start worrying!
Best, Hamster
(Although, if an ALJ can make a mistake, then so can a judge on the Appeals Council. Just sayin'.)
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Post by mcb on Feb 24, 2014 19:41:24 GMT -5
Assuming this is even true, I agree with Dudeabides. What's the big deal? If an ALJ repeatedly screws up, then they need retraining. This does not sound to me like a vast, ill-conceived, right-wing conspiracy to gratuitously and cynically dictate to ALJs how to do their jobs. Bartleby, you'll have to come up with something better than this to cause me to start worrying! Best, Hamster (Although, if an ALJ can make a mistake, then so can a judge on the Appeals Council. Just sayin'.) Might even be a left-wing mistake.
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Post by deltajudge on Feb 24, 2014 21:07:41 GMT -5
8-)This is management's convoluted way of handling a conceived problem. I had a case involving res judicata and administrative finality. I had dismissed it due to many denials well before DLI, based on the law and regulations, however due to some ruling, the AC sent it back. The staff attorney who wrote the decision based on my instructions agreed with me, and he and I fought the AC with dueling remands. They finally reassigned the case, and I was glad to be rid of it. Don't know how it turned it turned out and didn't care. That's what they should do in this latest demonstration of management acumen.
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Post by jerseymom on Feb 24, 2014 21:44:27 GMT -5
The term is "focused review". If an ALJ is having trouble with a certain issue, additional training is provided. With over 900,000 people waiting for a hearing, is it so terrible that the Agency is trying to reduce the number of cases remanded?
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Post by bartleby on Feb 24, 2014 22:19:27 GMT -5
The problem as I see it is the confusion and contradiction in all of the Agency dicta. I know some, maybe many, or maybe most argue with me regarding the need to interpret this dicta. For example, some Agency terminology regarding severity of impairments involves the terms, extreme, marked, moderate and mild. Agency definition being that marked is less than extreme, but more than moderate. This is only one of many, many areas where intelligent minds may differ..
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Post by deltajudge on Feb 25, 2014 8:35:12 GMT -5
8-)I remember the case fully now. The AC was trying to apply DEBRA rulings retroactiveluy to a mental case,decided several years before DLI.
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Post by dudeabides on Feb 25, 2014 9:09:56 GMT -5
Bart
Dicta. NOW I see your point.
In my world, judges are not bound by dicta. But I can see that some bureacrats probably do not know the difference between law and dicta. If that is what you are talking about, then it could be a problem.
When it comes to ODAR and SSA, I am a stranger in a strange land.
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Post by JudgeRatty on Feb 25, 2014 9:18:23 GMT -5
8-)I remember the case fully now. The AC was trying to apply DEBRA rulings retroactiveluy to a mental case,decided several years before DLI. I am normally a very positive person, but this post (and a few other similar ones--so not just picking on you, this was just the last straw) finally hit a bad note with me. I do not understand the point in calling the Chief Judge by her first name all in caps, or by calling her "Debbie" as I have seen in other posts. The only reason I see for anyone to do this is to be entirely disrespectful and to show your disdain for her personally. Regardless of how you feel about whoever is in the position, show a little respect. You may not feel she earned the position, or that she is a woman in charge, or that you do not feel her performance is good....whatever the reason, anyone in this position deserves the title Judge, Chief Judge, Judge Bice, ..... you get the point. There is simply something unnerving about reading this type of disrespect coming from individuals who have been in some form of leadership position themselves. “Wherever there is a man who exercises authority, there is a man who resists authority.” ― Oscar Wilde
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Post by bartleby on Feb 25, 2014 9:50:39 GMT -5
Sratty, I am sorry, but Deltajudge did not mean our Chief Judge. This was long before she was involved with SSA and refers to a set of rulings rising from a case and refered to as DEBRA rulings... I agree that we should show respect for our leaders whether we agree with them or not and I have always done so. Stay positive. I do appreciate your Oscar Wilde quote.
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Post by hopefalj on Feb 25, 2014 9:55:37 GMT -5
8-)I remember the case fully now. The AC was trying to apply DEBRA rulings retroactiveluy to a mental case,decided several years before DLI. I am normally a very positive person, but this post (and a few other similar ones--so not just picking on you, this was just the last straw) finally hit a bad note with me. I do not understand the point in calling the Chief Judge by her first name all in caps, or by calling her "Debbie" as I have seen in other posts. The only reason I see for anyone to do this is to be entirely disrespectful and to show your disdain for her personally. Regardless of how you feel about whoever is in the position, show a little respect. You may not feel she earned the position, or that she is a woman in charge, or that you do not feel her performance is good....whatever the reason, anyone in this position deserves the title Judge, Chief Judge, Judge Bice, ..... you get the point. There is simply something unnerving about reading this type of disrespect coming from individuals who have been in some form of leadership position themselves. “Wherever there is a man who exercises authority, there is a man who resists authority.” ― Oscar Wilde I assumed DEBRA was an acronym for something in the long long ago. I think delta was gone before even Judge Cristaudo took over, so I would be surprised if that was a shot at Judge Bice.
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Post by JudgeRatty on Feb 25, 2014 9:58:51 GMT -5
I am normally a very positive person, but this post (and a few other similar ones--so not just picking on you, this was just the last straw) finally hit a bad note with me. I do not understand the point in calling the Chief Judge by her first name all in caps, or by calling her "Debbie" as I have seen in other posts. The only reason I see for anyone to do this is to be entirely disrespectful and to show your disdain for her personally. Regardless of how you feel about whoever is in the position, show a little respect. You may not feel she earned the position, or that she is a woman in charge, or that you do not feel her performance is good....whatever the reason, anyone in this position deserves the title Judge, Chief Judge, Judge Bice, ..... you get the point. There is simply something unnerving about reading this type of disrespect coming from individuals who have been in some form of leadership position themselves. “Wherever there is a man who exercises authority, there is a man who resists authority.” ― Oscar Wilde I assumed DEBRA was an acronym for something in the long long ago. I think delta was gone before even Judge Cristaudo took over, so I would be surprised if that was a shot at Judge Bice. If this is the case I apologize to Delta, my bad. But my post still stands as to those who have in the past addressed the CJ as "Deb" or "Debbie." I am just tired of the general disrespect of late, in so many posts. Many have been addressed by ALJD, but then they slowly creep back in. Thank goodness the VAST majority of posters are respectful. Just a few bad apples I suppose....
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Post by JudgeRatty on Feb 25, 2014 10:06:33 GMT -5
Sratty, I am sorry, but Deltajudge did not mean our Chief Judge. This was long before she was involved with SSA and refers to a set of rulings rising from a case and refered to as DEBRA rulings... I agree that we should show respect for our leaders whether we agree with them or not and I have always done so. Stay positive. I do appreciate your Oscar Wilde quote. aljdiscussion.proboards.com/post/49567I think this is why I was thinking it meant something more than it did. Again, sorry Delta... I misunderstood. Coincidence as to the spelling of the Chief Judge's first name and Delta's point as to the rulings!
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Post by funkyodar on Feb 25, 2014 10:09:17 GMT -5
When I first came to odar there was a judge here (not in my office any longer, he is among the many many to merely pass through) that held the firm belief that there was no such thing as Oppositional Defiant Disorder in a child. Also wasn't fond of adhd/add. He felt both were the result of poor parenting. On multiple occasions he made the comment to me and other writer and judges that he "wasn't going to pay someone for not doing their job as a parent." Thus, I never saw a Single case where he found ODD to be a severe impairment and adhd had to be very very extreme for it to warrant a severe finding. It didn't matter what the ev showed, what any treating, examining or consulting psych said. He just found it nonsevere or refused to even address it.
His attitude reminded me of a former family court judge I knew that held the antiquated view that husbands occasionally had to "correct" their wives and never held spouse abuse against the husband in divorce proceedings.
Well, not surprisingly, this aljs decisions involving ODD and adhd were routinely remanded. Should this alj not be called to task for continuously ignoring applicable law, pertinent policy and relevant evidence? Does "judicial independence" mean this guy is not only protected from interference in his application of law to fact, but also independent of the expectation that he applies all laws whether he agrees with them or not? Should the fact that he has some personal issue with a specific impairment that precludes him from serving as a dispassionate trier of fact merely be excused because he wears a robe and the APA says he has judicial independence?
If I join the ALJ Corps I will staunchly defend the independence of aljs, the applicability of the APA and the due process rights of the claimant. But, I can't see where mandating additional training for a judge that routinely misapplies the law counters any of those worthy causes.
Judicial independence is a shield against undue influence. It is not a protection for not doing your job.
As an aside, it appears some want aljs to have more "protections" than are afforded article 3 judges. If you get a chance, as a trial judge, state or federal, about judicial performance committees, mandamus and the pressure they are under to move cases along. The two I know complain more than any aljsin my office about the pressure they are under to move their docket.
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Post by onceinawhile on Feb 25, 2014 10:29:19 GMT -5
I expect that Deltajudge is referring to DBRA, or the Disability Benefits Reform Act. The 1984 DBRA reflected several important changes to the Social Security Act - Congress' response to many years of criticism of various agency policies, including policies regarding the evaluation of mental impairments. Congress specifically directed a moratorium on the evaluation of mental impairments, until the agency had developed new criteria. I am not positive, but I think that Congress also directed the redetermination of some claims involving mental impairments. Given the history and significance of the DBRA-prompted changes to the evaluation of mental impairments, it is not at all surprising to me that the AC directed a "retroactive" application of those policies to a claim that might have otherwise been dismissed based on res judicata. The current HALLEX still contains an instruction that res judicata cannot be applied to dismiss a case involving mental impairments if it was decided before the DBRA-directed changes were effective. (In fact, the "retroactive" application might have been Congressionally mandated - but I can't say for sure.)
If the focused review process is designed to identify when an ALJ repeatedly disregards instructions and policies (such as when it is not appropriate to apply res judicata), that seems entirely appropriate to me. There are certainly shades of gray in the evaluation of disability, and reasonable minds can disagree about whether a limitation is moderate, marked or extreme (using Bartleby's example). I doubt the focused review process is designed to nitpick about such shades of gray. More likely, it is designed to identify more plain errors (such as failing to evaluate whether the limitation is moderate, marked or extreme in the first place). Will every focused reviewer do a perfect job? Of course not. Will reasonable minds disagree about some of the results? Probably. But if the process helps well-meaning ALJs better understand and apply agency policy, I think it is a good one.
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Post by decadealj on Feb 25, 2014 11:04:07 GMT -5
Like delta I had my battles with the AC over res judicata and collateral estoppel and law vs dicta and law vs policy were the two primary points of contention. And what too many recent attorneys don't now about the two concepts is scary; e.g. because SSA publishes a new listing on impairments 10 years after a case is decided and DLI long past, no case decided before the new listing was published is barred by res judicata regardless if the new listing is relevant to the prior impairment because "the law is not the same". Like delta, my SA and I went back and forth with the AC until I finally asked the HOCALJ to reassign it, which he was happy to do. Don't even know the final dispo but disputes between law and policy were often the root of disagreement with the AC and their analysts.
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Post by Loopstok on Feb 25, 2014 13:24:11 GMT -5
As an outsider turned insider turned ALJ applicant, who's litigated SSD cases from both sides, I would be worried about my future decisions being analyzed solely by computer algorithm, and about forced retraining and potential disciplinary actions being taken against me (should I be so lucky as to get the appointment). Unless there is some element of due process where I can defend specific instances of alleged but not actual judicial error, as with the example that Decade gives above.
However, given how many times in my previous career that I tried to get certain long-gone ALJs to give appropriate weight to treating physicians, or to not reflexively use receipt of unemployment benefits as proof of ability to sustain competitive work, or to treat depression as a severe mental impairment with corresponding functional limitations... over and over again... I think the idea of targeted review of remands is one that has merit. As with baseball umpires, the ALJ really should be there to "get it right", rather than to just reflexively defend turf against perceived management infringements.
Like all other things, this new initiative, if that's what it is, could prove to be a valuable tool. Or it could turn into a nightmare, if 40% of the ALJ corps is sent to retraining all at once because the computer search algorithm was programmed incorrectly.
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Post by privateatty on Feb 25, 2014 14:31:49 GMT -5
As I read this I wonder how much of these multiple remands constitutes actual "ignorance" susceptible to retraining versus plain old stubbornness. To be honest I have seen both and one is alot easier to correct than the other. Funky is right, the Art. III judiciary has a low tolerance for the latter and sometimes its just plain ugly.
I mean do you or do you not accept your oath of Office to protect and defend the Constitution and does this not also mean that you must accept the established law of the land?
That having been said I think we all remember our first reversal...argh....
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Post by hopefalj on Feb 25, 2014 14:54:59 GMT -5
As I read this I wonder how much of these multiple remands constitutes actual "ignorance" susceptible to retraining versus plain old stubbornness. To be honest I have seen both and one is alot easier to correct than the other. Funky is right, the Art. III judiciary has a low tolerance for the latter and sometimes its just plain ugly. I mean do you or do you not accept your oath of Office to protect and defend the Constitution and does this not also mean that you must accept the established law of the land? That having been said I think we all remember our first reversal...argh.... I would suggest it's both, and I would also suggest neither is easy to correct. If it's based in ignorance, how many remands should it take before you actually figure out that something should change? One of the most remanded issues across the board is the failure to find any social limitations in an RFC when moderate limitations in social functioning are found in the "paragraph B" criteria. It shouldn't take a whole lot of remands on this issue to figure out that you need to address a corresponding restriction on the RFC. Yet, I still get instructions with these incongruities, even in decisions that were remanded for that express reason. The best part is that such remands are now going to affect my metrics. All of this is said with my full acknowledgement that the vast majority of ALJs don't have problems in either area. I'm curious to see how this is utilized. Even though the initial numbers can be easily run, forced retraining won't be done until multiple sets of eyes actually review the pulled decisions. Unless your affirmation rate is around the 20-30% level (and yes, those exist), you're most likely not going to be subject to the sudpension. Is it possible that I'm wrong? Sure. I wouldn't say it's probable, however, given the amount if time that will be required by AC judges and analysts to fully evaluate this stuff.
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