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Post by JudgeRatty on Apr 11, 2014 7:55:14 GMT -5
There is a short window, 60 days, for the Appeals Council to review a decision on it's own motion. So just because a claimant receives a favorable decision (a reversal of the lower level determination) and is found disabled, not out of the woods yet. www.ssa.gov/OP_Home/cfr20/404/404-0969.htmAnd to add to this, it's a rarity when a favorable decision is reviewed by the AC. I'm not sure I've even had any that I've written reviewed over the past 13 months. I have had one in the past 7 years, and it was involving a step 2 issue. It was a situation where the claimant would be disabled if the case went past step 2, and the ALJ found only non-severe impairments. The AC did not agree, and it meant a straight pay. So they reversed the ALJ decision, and awarded a fully favorable. When I was a rep, I had 3 of these AC fully favorables based on listing level arguments. Coincidentally (or not) all 3 were from the same ALJ.
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Post by dudeabides on Apr 11, 2014 8:00:54 GMT -5
As I thought. Hence, the easiest/safest thing for an ALJ to do is to grant the claim.
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Post by JudgeRatty on Apr 11, 2014 8:10:18 GMT -5
As I thought. Hence, the easiest/safest thing for an ALJ to do is to grant the claim. In my area of administrative law, the easiest/safest thing for the AJ to do is to deny the claim. A grant will always trigger a firestorm of appeals & challenges by very competent lawyers. Not saying that such considerations should play ANY part in the judge's determination. But knowing how the human dynamic works sometimes help explain how things turn out. For sure I can see how this could be viewed as the "safe" route....but now, the winds seem to be changing in that there is more focus on "outliers" and quality review of the decisions before they get to the ALJ to sign. But statistically, your chances of a review are much higher issuing an unfavorable since almost every unfavorable case is appealed. Some reps (and claimant's without reps) submit detailed appeal briefs. Some simply fill out a form that essentially says "I appeal." Either way, that gets the foot in the AC door and they review the case, or deny to review the case as the facts warrant. There have been periods of time where the AC did not do many "own motion" reviews of favorable ALJ decisions, and some times when they focused on this. It varies and I have no doubt staffing and workload has a part in this.
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Post by redsox1 on Apr 11, 2014 8:14:38 GMT -5
As I thought. Hence, the easiest/safest thing for an ALJ to do is to grant the claim. In my area of administrative law, the easiest/safest thing for the AJ to do is to deny the claim. A grant will always trigger a firestorm of appeals & challenges by very competent lawyers. Not saying that such considerations should play ANY part in the judge's determination. But knowing how the human dynamic works sometimes help explain how things turn out. That is what economists call "misaligned incentives". Easier pay leads to depleted Trust Fund.
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Post by moopigsdad on Apr 11, 2014 8:27:14 GMT -5
As I thought. Hence, the easiest/safest thing for an ALJ to do is to grant the claim. In my area of administrative law, the easiest/safest thing for the AJ to do is to deny the claim. A grant will always trigger a firestorm of appeals & challenges by very competent lawyers. Not saying that such considerations should play ANY part in the judge's determination. But knowing how the human dynamic works sometimes help explain how things turn out. For sure I can see how this could be viewed as the "safe" route....but now, the winds seem to be changing in that there is more focus on "outliers" and quality review of the decisions before they get to the ALJ to sign. But statistically, your chances of a review are much higher issuing an unfavorable since almost every unfavorable case is appealed. Some reps (and claimant's without reps) submit detailed appeal briefs. Some simply fill out a form that essentially says "I appeal." Either way, that gets the foot in the AC door and they review the case, or deny to review the case as the facts warrant. There have been periods of time where the AC did not do many "own motion" reviews of favorable ALJ decisions, and some times when they focused on this. It varies and I have no doubt staffing and workload has a part in this. There are just too many variables depending upon the case, the client, the VE, the ALJ, etc. to try to explain all the possibilities sratty. Not every denial is or should be an appeal. With the change in the Regulations of not being able to file a new claim, while an appeal is at the AC, many experienced attorneys no longer appeal SSI denials, unless very unique circumstances exist. It is not one size decision fits all. Now, I would agree inexperienced attorneys and representatives might appeal everything, but they aren't really looking out for their clients' interest. Like any practice of law in general, clients need to make careful decisions on who represents them on their case, if they expect a good outcome.
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Post by JudgeRatty on Apr 11, 2014 8:31:33 GMT -5
For sure I can see how this could be viewed as the "safe" route....but now, the winds seem to be changing in that there is more focus on "outliers" and quality review of the decisions before they get to the ALJ to sign. But statistically, your chances of a review are much higher issuing an unfavorable since almost every unfavorable case is appealed. Some reps (and claimant's without reps) submit detailed appeal briefs. Some simply fill out a form that essentially says "I appeal." Either way, that gets the foot in the AC door and they review the case, or deny to review the case as the facts warrant. There have been periods of time where the AC did not do many "own motion" reviews of favorable ALJ decisions, and some times when they focused on this. It varies and I have no doubt staffing and workload has a part in this. Not every denial is or should be an appeal. This seems to be a problem with some firms. Blanket appeals....without consideration of what is better for the claimant, i.e. new app v. appeal. So true on the rep issue, some are great, some not so great. Just like everything!
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Post by moopigsdad on Apr 11, 2014 8:42:12 GMT -5
As I thought. Hence, the easiest/safest thing for an ALJ to do is to grant the claim. In my area of administrative law, the easiest/safest thing for the AJ to do is to deny the claim. A grant will always trigger a firestorm of appeals & challenges by very competent lawyers. Not saying that such considerations should play ANY part in the judge's determination. But knowing how the human dynamic works sometimes help explain how things turn out. That is what economists call "misaligned incentives". Easier pay leads to depleted Trust Fund. While the ALJs job does entail making sure only claimants, who deserve benefits according to the Rules and Regulations are paid. The issues of the Trust Fund and the amount of funding in it are issues for Congress, not ALJs. Is the ALJs job affected by the amount of money left in the Trust Fund? Of course, because without a Trust Fund there is no job, however the proper funding and control of money in the Trust Fund falls on Congress. ALJs just need to make proper approvals or denials based solely upon the facts of the claim and the Rules and Regulations and leave Trust Fund issues to Congress.
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Post by redsox1 on Apr 11, 2014 9:03:36 GMT -5
That is what economists call "misaligned incentives". Easier pay leads to depleted Trust Fund. While the ALJs job does entail making sure only claimants, who deserve benefits according to the Rules and Regulations are paid. The issues of the Trust Fund and the amount of funding in it are issues for Congress, not ALJs. Is the ALJs job affected by the amount of money left in the Trust Fund? Of course, because without a Trust Fund there is no job, however the proper funding and control of money in the Trust Fund falls on Congress. ALJs just need to make proper approvals or denials based solely upon the facts of the claim and the Rules and Regulations and leave Trust Fund issues to Congress. I agree. My point was not that ALJ's are or should be concerned with that issue. I was trying to say if the regulations/policies make pay an easier option then you can be pretty sure you will end up with more pay cases. In the big picture it is fair to argue about what is a disability and I am sure there are lots of differing opinions but it does not help anyone if the $ is gone.
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Post by sandiferhands (old) on Apr 11, 2014 9:49:03 GMT -5
While the ALJs job does entail making sure only claimants, who deserve benefits according to the Rules and Regulations are paid. The issues of the Trust Fund and the amount of funding in it are issues for Congress, not ALJs. Is the ALJs job affected by the amount of money left in the Trust Fund? Of course, because without a Trust Fund there is no job, however the proper funding and control of money in the Trust Fund falls on Congress. ALJs just need to make proper approvals or denials based solely upon the facts of the claim and the Rules and Regulations and leave Trust Fund issues to Congress. I agree. My point was not that ALJ's are or should be concerned with that issue. I was trying to say if the regulations/policies make pay an easier option then you can be pretty sure you will end up with more pay cases. In the big picture it is fair to argue about what is a disability and I am sure there are lots of differing opinions but it does not help anyone if the $ is gone. Fascinating discussion. In any game (used in the scientific, not pejorative sense of the word) all participants will apply the rules to maximize their outcome. When the rules here allow an ALJ to significantly decrease his hassle factor by simply paying if in doubt, then many will take that option. When the ALJ has to be the fact-finder, prosecutor, devil's-advocate, sympathizer, and finally judge he is being made to wear too many hats, and different ALJs will have different preferences and this leads to inconsistent outcomes. The problem is not the ALJs, but the system. I believe 99% come to this job wanting to "do their best", but it is uncertain just what metrics determine the "best." Our outsider's traditional litigation "adversary" system is far from perfect, but it is better than the mish-mash of rules and motivations that is being volleyed back and forth here.
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Post by valkyrie on Apr 11, 2014 10:14:42 GMT -5
I agree. My point was not that ALJ's are or should be concerned with that issue. I was trying to say if the regulations/policies make pay an easier option then you can be pretty sure you will end up with more pay cases. In the big picture it is fair to argue about what is a disability and I am sure there are lots of differing opinions but it does not help anyone if the $ is gone. Fascinating discussion. In any game (used in the scientific, not pejorative sense of the word) all participants will apply the rules to maximize their outcome. When the rules here allow an ALJ to significantly decrease his hassle factor by simply paying if in doubt, then many will take that option. When the ALJ has to be the fact-finder, prosecutor, devil's-advocate, sympathizer, and finally judge he is being made to wear too many hats, and different ALJs will have different preferences and this leads to inconsistent outcomes. The problem is not the ALJs, but the system. I believe 99% come to this job wanting to "do their best", but it is uncertain just what metrics determine the "best." Our outsider's traditional litigation "adversary" system is far from perfect, but it is better than the mish-mash of rules and motivations that is being volleyed back and forth here. 99% coming to the job do NOT come in wanting to do their best. Unfortunately, there are too many that come in from the outside to the job and do not want to adjust to a new system, learn a new area of law, or just decide that they've moved on to easy street and can do whatever the hell they want. Similarly, there are insiders that come into the job with a chip on their shoulder, are already burned out, or they figure they have finally hit the top of the food chain and they can abuse people the way they were once abused themselves. Just one ALJ falling into one of these categories can do an immense amount of damage in terms of office efficiency, employee morale, and wasting money. The problem is how difficult it is to remove one of these ALJs. Don't get me wrong, I am well aware of the potential of management/political abuse of that kind of power, but let me give you an example of the dysfunction. We spend a lot of time debating the description of a "bad judge," as in how much time he/she spends reviewing files, reviewing decisions, holding hearings, productivity, etc. But what do you do if an ALJ is screwing things up completely because of an obvious dementia problem? It could be a head injury, stroke, alzheimers or any number of illnesses. One would think that it would be pretty easy to remove an ALJ who is obviously struggling with cognitive issues. However, I was in an office where this happened, and the management team contacted the regional office for assistance. The regional office replied that in these situations the ALJ can only be removed if there is a finding of "legal incompetence." That is an incredibly high standard. Someone with a functional IQ of 65 is most likely NOT "legally incompetent." Think about it.
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Post by valkyrie on Apr 11, 2014 10:32:24 GMT -5
I'll also take the bait on, "Our outsider's traditional litigation "adversary" system is far from perfect, but it is better than the mish-mash of rules and motivations that is being volleyed back and forth here."
Putting the claimant's in an adversarial system would just be down right insulting to them, especially the Title II claimants. They aren't being accused of breaking a law, or causing someone else damage. They are applying for a government benefit which they are entitled to if they can prove that they meet certain criteria. Sure, some people commit fraud, and for that we have an IG and fraud prosecutions. What are you going to do with an unrepresented claimant? Are we going to appoint a public defender? Why not give the claimant an option for a jury trial? If the claimant reps are now expected to deal with countering opposing counsel's competeing arguments and motions, don't they have a legitimate expectation of higher fees? Making the system adversarial would tremendously increase the expense of the system. One of the unsung stories of SSA is the minimal percentage of adminstrative draw on the trust fund in comparison to similar systems. Lets not mess that up.
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Post by JudgeRatty on Apr 11, 2014 11:03:55 GMT -5
Fascinating discussion. In any game (used in the scientific, not pejorative sense of the word) all participants will apply the rules to maximize their outcome. When the rules here allow an ALJ to significantly decrease his hassle factor by simply paying if in doubt, then many will take that option. When the ALJ has to be the fact-finder, prosecutor, devil's-advocate, sympathizer, and finally judge he is being made to wear too many hats, and different ALJs will have different preferences and this leads to inconsistent outcomes. The problem is not the ALJs, but the system. I believe 99% come to this job wanting to "do their best", but it is uncertain just what metrics determine the "best." Our outsider's traditional litigation "adversary" system is far from perfect, but it is better than the mish-mash of rules and motivations that is being volleyed back and forth here. 99% coming to the job do NOT come in wanting to do their best. Unfortunately, there are too many that come in from the outside to the job and do not want to adjust to a new system, learn a new area of law, or just decide that they've moved on to easy street and can do whatever the hell they want. Similarly, there are insiders that come into the job with a chip on their shoulder, are already burned out, or they figure they have finally hit the top of the food chain and they can abuse people the way they were once abused themselves. Just one ALJ falling into one of these categories can do an immense amount of damage in terms of office efficiency, employee morale, and wasting money. The problem is how difficult it is to remove one of these ALJs. Don't get me wrong, I am well aware of the potential of management/political abuse of that kind of power, but let me give you an example of the dysfunction. We spend a lot of time debating the description of a "bad judge," as in how much time he/she spends reviewing files, reviewing decisions, holding hearings, productivity, etc. But what do you do if an ALJ is screwing things up completely because of an obvious dementia problem? It could be a head injury, stroke, alzheimers or any number of illnesses. One would think that it would be pretty easy to remove an ALJ who is obviously struggling with cognitive issues. However, I was in an office where this happened, and the management team contacted the regional office for assistance. The regional office replied that in these situations the ALJ can only be removed if there is a finding of "legal incompetence." That is an incredibly high standard. Someone with a functional IQ of 65 is most likely NOT "legally incompetent." Think about it. Ugh. Many parts of this are depressing and sad. I hope interviewers can spot folks who have a chip on their shoulders or are already in the bad attitude realm.
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Post by carrickfergus on Apr 11, 2014 11:06:20 GMT -5
Don't think that the non-legally-incompetent judge is unique to SSA. I once managed a judge in a different system - he was a concrete thinker and had borderline traits - and he threatened me in writing. I tried to discipline, and as part of the process he was sent for an IME psych. The evaluator opined that the claimant had "poor judgment and insight" but was not a threat to anyone. He kept his job - as a judge.
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Post by mcb on Apr 11, 2014 11:59:22 GMT -5
Don't think that the non-legally-incompetent judge is unique to SSA. I once managed a judge in a different system - he was a concrete thinker and had borderline traits - and he threatened me in writing. I t ried to discipline, and as part of the process he was sent for an IME psych. The evaluator opined that the claimant had "poor judgment and insight" but was not a threat to anyone. He kept his job - as a judge. So "[good] judgment" for this judge was not required to keep his job. ...hmmmmm!
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Post by privateatty on Apr 11, 2014 13:16:56 GMT -5
Fascinating discussion. In any game (used in the scientific, not pejorative sense of the word) all participants will apply the rules to maximize their outcome. When the rules here allow an ALJ to significantly decrease his hassle factor by simply paying if in doubt, then many will take that option. When the ALJ has to be the fact-finder, prosecutor, devil's-advocate, sympathizer, and finally judge he is being made to wear too many hats, and different ALJs will have different preferences and this leads to inconsistent outcomes. The problem is not the ALJs, but the system. I believe 99% come to this job wanting to "do their best", but it is uncertain just what metrics determine the "best." Our outsider's traditional litigation "adversary" system is far from perfect, but it is better than the mish-mash of rules and motivations that is being volleyed back and forth here. 99% coming to the job do NOT come in wanting to do their best. Unfortunately, there are too many that come in from the outside to the job and do not want to adjust to a new system, learn a new area of law, or just decide that they've moved on to easy street and can do whatever the hell they want. Similarly, there are insiders that come into the job with a chip on their shoulder, are already burned out, or they figure they have finally hit the top of the food chain and they can abuse people the way they were once abused themselves. Just one ALJ falling into one of these categories can do an immense amount of damage in terms of office efficiency, employee morale, and wasting money. The problem is how difficult it is to remove one of these ALJs. Don't get me wrong, I am well aware of the potential of management/political abuse of that kind of power, but let me give you an example of the dysfunction. We spend a lot of time debating the description of a "bad judge," as in how much time he/she spends reviewing files, reviewing decisions, holding hearings, productivity, etc. But what do you do if an ALJ is screwing things up completely because of an obvious dementia problem? It could be a head injury, stroke, alzheimers or any number of illnesses. One would think that it would be pretty easy to remove an ALJ who is obviously struggling with cognitive issues. However, I was in an office where this happened, and the management team contacted the regional office for assistance. The regional office replied that in these situations the ALJ can only be removed if there is a finding of "legal incompetence." That is an incredibly high standard. Someone with a functional IQ of 65 is most likely NOT "legally incompetent." Think about it. 99%? Puleeze. From all that I have seen I would say that number is so far off the mark as to be discarded. Of course folks come to the job with a sense of entitlement or WTF, but its in the 10 to 20% category. And I can't believe that ODAR is that radically different on this issue. Now, people do get burned out or just tired of doing the job, but that is another question.
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Post by valkyrie on Apr 11, 2014 14:10:57 GMT -5
Let me just clarify my own "99%." I did not mean to imply that 99% of incoming ALJS have the "wrong" attitude. I meant that 99% is too high of an estimate of the ALJs coming into the job for the "right" reasons. I agree with privateattorney that the number of ALJs that apply for the wrong reasons is closer to 10-20%, and I would like to thank privateattorney for identifying my lack of clarity. Still, if there is just one of these idiots in every office, it is enough to have a significant impact.
Obviously privateattorney would have made an excellent decision writer...
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Post by privateatty on Apr 11, 2014 15:08:19 GMT -5
Let me just clarify my own "99%." I did not mean to imply that 99% of incoming ALJS have the "wrong" attitude. I meant that 99% is too high of an estimate of the ALJs coming into the job for the "right" reasons. I agree with privateattorney that the number of ALJs that apply for the wrong reasons is closer to 10-20%, and I would like to thank privateattorney for identifying my lack of clarity. Still, if there is just one of these idiots in every office, it is enough to have a significant impact. Obviously privateattorney would have made an excellent decision writer... Well, where I come from ALJs do write decisions--amongst our many skills/vocational tools/job functions. And thanks for the recognition, val. Its good to see more of you on the Board.
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Post by moopigsdad on Apr 11, 2014 15:50:11 GMT -5
In thirty plus years of doing thousands of Social Security Disability Hearings I have seen it all from ALJs, including sleeping on the Bench, an ALJ cutting his fingernails during a hearing, an ALJ picking his nose during a hearing, an ALJ taking a personal call during a hearing, etc. There are good and bad in every profession. Yes, I may have even seen a few ALJs who had cognitive issues, although one or two of these with cognitive issues may be of my own thinking. There are good and bad in every occupation. As to Sandifer's point, I disagree that SSA needs an adversarial system. We don't need to punish claimants even more. Sandifer, I sincerely urge you to find a way to attend several SSA Disability hearings and see what really goes on in one. I think those who come into an ALJ position at ODAR, who have some experience and knowledge of how it works, will be much better off in the long run than those with 0% experience and knowledge of how ODAR works. Can those without any experience and knowledge make it as an ODAR ALJ? Yes, but it will be a much longer learning curve and a harder process IMHO. Even I, as a non-insider, will be a little behind because I don't know all the computer programs ODAR uses. At least I have extensive medical knowledge and non-adversarial experience (I have extensive adversarial experience, too), but if all you have is adversarial experience as an attorney, it will be difficult for you to adjust to a non-adversarial hearing or system.
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Post by Deleted on Apr 11, 2014 16:14:17 GMT -5
I agree with privateattorney that the number of ALJs that apply for the wrong reasons is closer to 10-20%,... Still, if there is just one of these idiots in every office, it is enough to have a significant impact. IMHO,
It's a job folks, anyone can apply and ALL LAWYERS are qualified to do the job. I know the insiders/ claimants' reps/ and those with medical training believe you are pre-ordained to greatness as an ALJ, but just because you say it three times while clicking your heels, doesn't make it so Dorothy. I was trained as a Army combat medic and I now practice in a medical scientific area of defense law and all that means nothing as to how well I will perform as an ALJ. Val, one of your earlier posts hit the nail on the head for me, including myself:
"Second, everyone on this board, including Yours Truly, is a whiner, has a narcissistic personality disorder, delusions of grandeur, a gambling addiction, or is clinically bored, or some sort of combination of all of the above."
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Post by gary on Apr 11, 2014 16:16:43 GMT -5
I agree. My point was not that ALJ's are or should be concerned with that issue. I was trying to say if the regulations/policies make pay an easier option then you can be pretty sure you will end up with more pay cases. In the big picture it is fair to argue about what is a disability and I am sure there are lots of differing opinions but it does not help anyone if the $ is gone. Fascinating discussion. In any game (used in the scientific, not pejorative sense of the word) all participants will apply the rules to maximize their outcome. When the rules here allow an ALJ to significantly decrease his hassle factor by simply paying if in doubt, then many will take that option. When the ALJ has to be the fact-finder, prosecutor, devil's-advocate, sympathizer, and finally judge he is being made to wear too many hats, and different ALJs will have different preferences and this leads to inconsistent outcomes. The problem is not the ALJs, but the system. I believe 99% come to this job wanting to "do their best", but it is uncertain just what metrics determine the "best." Our outsider's traditional litigation "adversary" system is far from perfect, but it is better than the mish-mash of rules and motivations that is being volleyed back and forth here. I don't know whether an adversary system would be better or not. There are pros and cons. An adversary system would not, however, insult claimants, punish claimants, require jury trials, require appointing counsel for indigent claimants, require much in the way of motion practice, implement the Federal Rules of Evidence, implement the Federal Rules of Civil Procedure or require full federal civil discovery.
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