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Post by maquereau on Jan 2, 2015 18:04:43 GMT -5
I agree, I have seen very few straight grid denials. But some ALJs do not utilize VEs making it very difficult to write the denials. It seems almost every case has a mental component. The mental would have to be nonsevere to have a straight grid denial. Thankfully, there are less and less ALJs who refuse to use VEs. It is frustrating to the writers when those who do not use them insist on RFCs that really do need VE testimony. We get dinged for the case when the case comes back on remand through the AC agreement rate, and there is nothing we can do about it. Some issues are not curable no matter how skillfully written. Indeed. If I were a writer (and I once was), I would go to management to make them get onto ALJs for not using VEs when required (which is most all the time). I just don't understand it. Do they want to make MORE work for themselves and the office as well as makes themselves and the writers look bad at the AC? The AC can send a case back for anything at all; why make their job any easier?
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Post by johnthornton on Jan 2, 2015 18:26:21 GMT -5
I have had the displeasure of handling remands from one of the "Productivity King" judges (3600 decisions a year).
He would use an RFC with multiple exertional and non-exertional limitations--far outside the straight grid rule. Yet, never use a VE and decide the case based on the straight grid rules.
Basically, an automatic remand of every single case.
What did the agency do?
Sent him on the road traveling throughout the country (and to the beach cities of Florida) handling 20 cases per day.
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Post by factfinder on Jan 3, 2015 16:59:08 GMT -5
To Sealaw 90 and the rest.
1. I always used VE's and would argue with the judge in question to do so. He countered that if they could work because they lacked substantial physical/mental limitations or restrictions why did he need a VE to tell him that? He is a hellaciously smart dude, but i did not agree with him. But, I agreed less with those who persecuted him while letting creeps like the guy who was the HOCALJ for Daugherty be a HOCALJ and teach new judges. Similarly that egomaniac who could do 3000 cases -I remember one of the most valuable things I did was letting these folks be heard - I listened as I am sure all of you did and whether we believed the or not, darn it, we listened and let them have their day in front of us. What he did is just disgusting - it is a perversion.
2. The Union - what a bunch! Changing the law now would be good if the process could be controlled or predicted to any degree, but given the makeup of the Congress, I would rather try swimming with a 600 lb mushroom anchor. We do not need some Chief ALJ and anew bureaucracy. OPM is undoubtedly a poor steward, but they cannot screw us like this new Chief ALJ could - especially if Congress facilitated the screwing. I think all of you ought to vote your leadership out. They have been ineffective moon calfs IMHO.
3. Membership of ALJs who do adversarial hearings is largely concentrated in the FORUM, many of whom also belong to FALJ along with some SSA judges. These are very tough and pragmatic people - many of whom with decades of trial experience at the Federal level. Some, like the judges at FERC, OSHRA, and the ITC deal with mind blowing/complicated litigation, with very high stakes. While I doubt all of them think some elements of the FALJ - AALJ leadership are wrong, I have found no support for what their proposal and a lot of exasperation. Some folks recall the support of the recent challenge to independence at the circuit court level that resulted in a really bad decision of record as a serious blemish on FALJ's judgment. So, it is not mere tilting of windmills they object to, but the large potential for really terrible changes or decision like in the Mahoney case. If it is not broke - - -
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Post by sealaw90 on Jan 3, 2015 22:07:12 GMT -5
Wow. Thank you for providing more details. Although I currently work in an often mind blowing bureaucracy, I want to know what playing field/mine field I may have the privilege of walking onto if/when I get the job. Avoiding land mines has been my specialty of late, so thanks for the fuller picture.
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Post by statman on Jan 4, 2015 2:38:43 GMT -5
If you are remanding ALJs who use alight RFC with very little or no other restriction for an over 50 under 55 claimant you are not following the law.
Are you an Appeals Council Judge?
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Post by workdrone on Jan 4, 2015 10:08:17 GMT -5
If you are remanding ALJs who use a light RFC with very little or no other restriction for an over 50 under 55 claimant you are not following the law. I'm assuming this is a scenario where a VE was not used. I would agree with the general proposition above, but the million dollar question is whether the ALJ's "light RFC with very little or no other restriction" is supported by the medical evidence on file, including DDS and possibly CE opinions. If so, then the ALJ is on solid ground. On the other hand, if all the medical record and opinions on file provide a whole battery of postural, environmental and mental limitations, and the ALJ watered down the RFC just so he/she don't have to use a VE, then guess who's not following the law and regulation here? The bottom line is we have an obligation to follow the law and regulation and fairly apply it to the evidence at hand. Don't ever distort the RFC just because of a personal preference not to use a VE.
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Post by johnthornton on Jan 4, 2015 12:59:29 GMT -5
On the other hand, if all the medical record and opinions on file provide a whole battery of postural, environmental and mental limitations, and the ALJ watered down the RFC just so he/she don't have to use a VE, then guess who's not following the law and regulation here? The bottom line is we have an obligation to follow the law and regulation and fairly apply it to the evidence at hand. Don't ever distort the RFC just because of a personal preference not to use a VE. I guess I don't understand why some judges don't use VEs. Why is that their personal preference? To save money for the agency? Or is it because they don't want to take the time to actually articulate an RFC during the hearing? As you say, it is a rare case without some postural, environmental and mental limitations already conceded by the DDS or agency ordered CEs. As an ALJ, if you don't want to use a VE, you must either discount the limitations already established, or submit an RFC that includes the limitations (which takes the case out of the grid resulting in an automatic remand.) Seems like a false economy to me.
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Post by bartleby on Jan 4, 2015 13:50:43 GMT -5
I use VE's all the time. Takes less than 10 minutes usually to have them categorize past work and give me jobs based on my RFC's. I had a VE arrive late to a hearing a month ago and I had already started. She was all huffy like something was wrong. After the hearing I asked her why she was upset. She said she didn't appreciate me starting without her. I, being amazed, asked why. She said because she was not able to take notes during the entire hearing. I said, what are you talking about. She said she takes notes all during the hearing. When I enquired why, she said a few judges will come to that part of the hearing and say, "If everything the claimant testified to is correct, would there be any jobs and what would those jobs be?". I was flabbergasted. The Judge has her decide what the RFC should be. I told her that was not her job, She said there were 2 judges in my office that do that and 1 in another nearby office. Another VE confirmed that later in the week. I am very surprised at this as this is the responsibility of the Judge. Creating proper RFC's is a bit complicated, but... The Judge at the other office that does this uses an ME on every case also.
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Post by statman on Jan 4, 2015 13:54:23 GMT -5
You do not understand the process. You establish the RFC based on the evidence, not based on whether you will or will not need a VE. Or that is how it is supposed to be done and that is how I do it.
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Post by hopefalj on Jan 4, 2015 14:24:12 GMT -5
I guess I don't understand why some judges don't use VEs. Why is that their personal preference? To save money for the agency? Or is it because they don't want to take the time to actually articulate an RFC during the hearing? The judges I know that have not used VEs simply provided their own vocational findings because they felt that they were their own best vocational experts. It's pretty remarkable to get instructions with an RFC far less than the full range of any exertional level that also provide three jobs selected by the ALJ based on their own DOT research. These judges have since begun using VEs at the suggestion of management (which was based on writers asking not to be assigned these automatic remands), but they still don't know how to properly utilize a VE. Of course, it seems like quite a few don't. Two things that drive me crazy are gridding a claimant out without asking a VE about transferable skills when such skills are material and just asking a VE what a claimant's past relevant work is and relying on that testimony without performing any sort of analysis. At least in our area, VEs just classify all past work as past relevant work because they are not aware that it is a legal finding with specific criteria that need to be satisfied. I have been asked to write step 4 denials where a claimant has never had earnings over $500 in a single year or when they last performed the "PRW" in 1992.
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Post by philliesfan on Jan 4, 2015 15:50:19 GMT -5
The first document I open in a hearing is the detailed earnings record. Based on the jobs listed during the relevant 15-year period involving SGA, I ask the claimant to describe those jobs. I then tell the VE that those are the only jobs I consider to be past relevant work. The VEs do not get the DEQY and must rely on the list of jobs provided by the claimant to prepare for the hearing.
With respect to transferable skills, in the last month or so, I have had three or four hearings with a claimant over age 50, where the VE has identified transferable skills and semi-skilled or skilled jobs within the assessed RFC to which those skills could be transferred (the same or lower SVP). I wound up denying these claims based on that testimony.
When I was a writer, I knew ALJs who asked the if I accept all of the claimant's testimony, are there jobs. It is the responsibility of the ALJ to assess the RFC. I will develop an RFC during the hearing based on the claimant's testimony and ask a hypothetical question based on it.
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Post by maquereau on Jan 5, 2015 8:00:27 GMT -5
I guess I don't understand why some judges don't use VEs. Why is that their personal preference? To save money for the agency? Or is it because they don't want to take the time to actually articulate an RFC during the hearing? The judges I know that have not used VEs simply provided their own vocational findings because they felt that they were their own best vocational experts. It's pretty remarkable to get instructions with an RFC far less than the full range of any exertional level that also provide three jobs selected by the ALJ based on their own DOT research. These judges have since begun using VEs at the suggestion of management (which was based on writers asking not to be assigned these automatic remands), but they still don't know how to properly utilize a VE. Of course, it seems like quite a few don't. Two things that drive me crazy are gridding a claimant out without asking a VE about transferable skills when such skills are material and just asking a VE what a claimant's past relevant work is and relying on that testimony without performing any sort of analysis. At least in our area, VEs just classify all past work as past relevant work because they are not aware that it is a legal finding with specific criteria that need to be satisfied. I have been asked to write step 4 denials where a claimant has never had earnings over $500 in a single year or when they last performed the "PRW" in 1992. It really is such a waste of a writer's time to deal with issues like this! Used to make me crazy. I guess that was partly the reason I applied for ALJ; I figured I could do a better job. Every time a writer has to see a judge or see mgmt for an issue that could have been avoided, the writer should receive some kind of credit toward writing productivity.
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Post by hopefalj on Jan 5, 2015 9:36:53 GMT -5
"I guess that was partly the reason I applied for ALJ; I figured I could do a better job." That's a big part of why I want the job. I realize that sounds extremely arrogant from someone that has never done the job, but man, the quality of work performed by some is maddening. Interestingly and somewhat timely, I found that my one December remand was due to putting a claimant back to "PRW" that they never performed at SGA levels. C'est la vie. Doesn't matter anymore anyway. I think the biggest advantage an insider has is familiarity with the obstacle course that is avoiding AC remands, assuming that the insider cared to learn it. For outsiders, I encourage you to review your remanded decisions and see why they were sent back. Sometimes (perhaps many times?), you'll shake your head in disbelief at some of the reasons they sent it back. But as you continue to learn this area of law, AC remands will be a great source to learn some of the nuances associated with the program. They may very well have been my greatest learning tool as a writer.
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Post by Propmaster on Jan 5, 2015 11:46:10 GMT -5
I use VE's all the time. Takes less than 10 minutes usually to have them categorize past work and give me jobs based on my RFC's. I had a VE arrive late to a hearing a month ago and I had already started. She was all huffy like something was wrong. After the hearing I asked her why she was upset. She said she didn't appreciate me starting without her. I, being amazed, asked why. She said because she was not able to take notes during the entire hearing. I said, what are you talking about. She said she takes notes all during the hearing. When I enquired why, she said a few judges will come to that part of the hearing and say, "If everything the claimant testified to is correct, would there be any jobs and what would those jobs be?". I was flabbergasted. The Judge has her decide what the RFC should be. I told her that was not her job, She said there were 2 judges in my office that do that and 1 in another nearby office. Another VE confirmed that later in the week. I am very surprised at this as this is the responsibility of the Judge. Creating proper RFC's is a bit complicated, but... The Judge at the other office that does this uses an ME on every case also. EDIT: I misunderstood the last sentence, my error. It's like when they say a child is kidnapped every 15 minutes in this country (or whatever the statistic) and someone says "that poor child."
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Post by bartleby on Jan 5, 2015 12:29:09 GMT -5
Propmaster, sorry if I misled you. The Judge does have rotating ME's. I was just just amazed me that he uses an ME on every case..
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Post by Lola on Nov 1, 2017 10:47:27 GMT -5
As a new forum member I was dismayed when I read this House Staff Report from 2014. Everyone is attacked, from the claimant reps, NOSSCR, ALJs and SSA leadership. I know that there are valid points made in the report but I believe that the majority of individual ALJs, SSA leaders and representatives are doing a good job. Now that several years have passed since this report was written do any insiders have insight into what impact this report has had, if any?
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Post by statman on Nov 1, 2017 19:44:00 GMT -5
None
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Post by redryder on Nov 2, 2017 15:11:26 GMT -5
I disagree. The number of cases assigned to judges is controlled. You don't see ALJs doing thousands of decisions in a fiscal year. Additionally, there have been changes in CPMS so that ALJs cannot assign cases to themselves, cherry-picking for certain reps or cases likely to result in favorable decisions. The AC is pulling fully favorable decisions prior to effectuation for review. Is there a focused review of a judge whose rate suggests an outlier? I don't know. What efforts are being made to address those who are outliers in terms of percentage of fully favorable or affirmation, or those who are underproductive? Again I don't know. Maybe others know.
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Post by Loopstok on Nov 2, 2017 21:07:27 GMT -5
I disagree. The number of cases assigned to judges is controlled. You don't see ALJs doing thousands of decisions in a fiscal year. Additionally, there have been changes in CPMS so that ALJs cannot assign cases to themselves, cherry-picking for certain reps or cases likely to result in favorable decisions. The AC is pulling fully favorable decisions prior to effectuation for review. Is there a focused review of a judge whose rate suggests an outlier? I don't know. What efforts are being made to address those who are outliers in terms of percentage of fully favorable or affirmation, or those who are underproductive? Again I don't know. Maybe others know. Well, it's fascinating for me to read this thread, 3 years later. I got my ALJ hiring phone call about 3 weeks after I posted -- so clearly Issa's report had no influence on OCALJ in the short term. Also, two of the posters above were hired as ALJ as around the same time as me, and are now personal friends, which I never expected back in December 2014. Thank you, Board! And now, having been an ALJ for the past 2.5 years, my opinion is .... that Issa's report has had no influence at all. The CPMS changes you describe have been in place, I think, since before Issa's report. And, while the AC was doing aggressive pre-effectuation FF review for a while, I recently wrapped up a 12-month period where not a single one of my FFs was reviewed -- absolutely none between October 2016 and October 2017. And, when they were reviewing, they weren't doing a particularly bang-up job: they threw back a closed-period case that I paid on a Listing for a worker who'd had 3 surgeries in 12 months and then went back to work... one of the most obvious "pay" cases you'll meet, and that was the one time they've meted out corrective action at me. After that, the claimant moved, and a different ALJ at her new ODAR (OHO!) paid the case on different grounds, but with the exact same closed period award, a year later... huge waste of money and effort and time for everyone involved. In terms of addressing under-productive judges, that seems to be up to the personnel in the Regional offices, but I haven't seen much of a culture change between December 2014, when I was an SAA who wrote the above post, and November 2017, when I'm an ALJ working in the same Region that I did as a writer.
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Post by ba on Nov 3, 2017 9:20:35 GMT -5
I actually didn't see this report (as I wasn't in the system then) but sort of had a strange reaction until I realized it was from 2014. The danger of necroposting from old threads.
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