email from Judge Bice

[christina]

in a recent email from Judge Bice, she referenced another email that she said she disagreed with. i think it may have been AALJ correspondence that inculuded negative comments about writing staff, perhaps at writing units in particular. anyone up for elaborating. Thanks, C

[christina]

thanks sr. i guess you and i are both somewhat in the dark then. without seeing said troubling email, her comments were hard to put within context. Still, i appreciate what to me sounded like clear support of the writing staff and also her reinforcing that we are all part of the same team. i know others read her email differently than i did and everyone i talked to was at least curious and scratching their heads.

[aljsouth]

No one is sure, but I saw an email where she apparently said writers were to check to see if the instructions were policy compliant, and if not, report the judges to management. The is much more than communicating which she is now trying to say all she meant. In effect it makes the writers a pre-decision review level.

To me the AC should be spot checking for complaince, not anyone else.

For example, I had a quality review of one of our writer's drafts critize the writer over some minor issue and then critize me for not commenting on a DDS opinion. However, the opinion referenced was an initial decision and the reconsideration decision was much different and it was discussed. So no matter what CJ is saying, she has set up reviews of the judges by writing staff.

[whyohwhy]

Judge frye has decided he will not be running for re-election as the union president. As such, judge Zahm has suddenly decided she is really interested in sending out blast emails to the ALJs showing how she is trying to get things done and fighting with the agency about things most judges don't think are problems. This has nothing of course to do with her upcoming run for Union president.

[maquereau]

Super is quite right. Many judges give crappy instructions. I know, I use to have to turn them into decent decisions. If done properly, both jobs are hard as hell. But there are plenty of skaters in both; they do enough to get by. That sucks. If there were a way, I'd like to see the crappy instruction givers paired with the crappy decision writers. They ought to be satisfied with each other.

[Deleted]

Super is 100% right.

The way I understand the NCAC, the "best instructions" and "easiest cases" go there at the outset, which leaves us in ODAR offices with bad instructions and harder cases, without those easy ones to help our numbers. Personally, I have not written an unfavorable for my two "favorite" judges (by instruction) in several months.

To be fair, I have also received rewrites from outside offices that had sufficient instructions that the writer either couldn't or refused to follow.

The fact of the matter is that although really good judges make some mistakes occasionally, the ones whose decisions are not compliant do it time after time... after time. And those judges will not bend to comply with agency requirements after those things are pointed out, which puts Suzie Writer in a position of writing as instructed or creating a legally sound opinion.

The problem is that an outside party has to generally review the evidence before they can determine the soundness of the instructions. So I'm not sure who is in a better position than writers to note if instructions are sound.

[valkyrie]

I've was a writer for over ten years and I have been a judge for nearly five. While not a writing unit, the office that I wrote for frequently took on writing work for other offices, and when I became a judge my first office leaned heavily on the writing units. I think we're just seeing an increase in these kind of complaints from the judges due to the whole centralization plan. When judges and writers have to work with unfamiliar medical providers, instructions and writing styles, the work becomes more difficult. That is the unfortunate consequence of a more efficient method of allocating the resources. Obviously there are crappy writers and crappy judges, and each office generally knows the good from the bad. As federal employees, the crappy writers and ALJs generally must be tolerated regardless of their inadequacy. The vast majority of federal field managers will tell you just how difficult and time consuming it is to try and rid yourself of an incompetent employee. So, unfortunately certain ALJs and writers just keep putting out crap. The funny part is that while the crappy writers are generally smug little twits who know they are riding the gravy train, many of the judges are completely unaware that that they have no idea what they are doing, or that their local writers have been propping them up the whole time. Eventually their instructions make it to a writing unit, where the writers have had no experience dealing with instructions like, "deny based on the drinking and smoking," and the instructions get sent back to the utter shock of Judge Clueless. The home office writers know that ALJ Training, the ALJ Mentoring Program, and numerous unofficial attempts by local management failed to clarify the intracacies of DAA Materiality to Judge Clueless, and that a staff meeting has determined a strategy for writing these instructions into a decision that is policy compliant and legally defensible, while not attracting any negative attention from Judge Clueless. Unfortunately the poor slob at the writing unit can only guess at what strategy will work.

My overall experience with the writing units was positive, and I found that they really appreciated positive feedback in the form of emails cc'd to their supervisors. Many of them had never experienced this very basic form of polite consideration for quality work, which reflects poorly on the ALJ Corps. My nice emails probably helped with my request that my decisions no longer go to the little turd who cut and pasted by very casual instruction language into my decision.

[crab]

Feb 6, 2015 11:25:08 GMT -5 JudgeRatty said:

This is a team effort, and sharing the QR information with the ALJ is putting them on the defensive for no reason.

This is totally directed at me, isn't it...?

[anotherfed]

Feb 6, 2015 11:56:09 GMT -5 crab said:

Feb 6, 2015 11:25:08 GMT -5 JudgeRatty said:

This is a team effort, and sharing the QR information with the ALJ is putting them on the defensive for no reason.

This is totally directed at me, isn't it...?

Maybe you should stop drenching your instructions in clarified butter and Old Bay...?

[prescient]

Maybe there are differences in how QR is being conducted in different regions, but this is not the way it's intended or implemented in my neck of the woods. ALL aspects of the case, from how it was pulled, how it was drafted, and the instructions are reviewed. Now, if a fatal deficiency is identified in the judge's decision, extra steps are involved such that you never have a GS13 QR attorney telling an ALJ that he or she made said error. In these situations, the review gets escalated such that the RCALJ becomes involved in reviewing it. and it is the RCALJ who makes the call to the office's HOCALJ to explain why there is a fatal IE group 1 error that the ALJ made, with instruction as to how it must be fixed.

[grassgreener]

I think it's unfortunate that we have to air our dirty laundry to the public - seems like there should be a better way.

[JudgeRatty]

Feb 6, 2015 15:30:36 GMT -5 grassgreener said:

I think it's unfortunate that we have to air our dirty laundry to the public - seems like there should be a better way.

I agree. I deleted by comments. One remains due to quoted material, but I agree these are details that have little value for the public. I was thinking it may help ALJs and writers but upon further reflection you have a good point.

[aljwatch]

I think this is true in many agencies, where staff attorneys write for the ultimate decision makers. There are always decision-makers/judges who either don't understand the law or don't care, as well as staff attorneys/writers who don't understand/care. Those staff attorneys/writers who do care & know the law often have valid complaints and frustrations when they must draft decisions for decision-makers who don't. Likewise, it is very difficult and frustrating for good decision-makers to review, revise, or edit decisions drafted by writers who don't follow instructions or care to draft a good decision. It's not unique to SSA. Don't know that this particular problems is ever going to be "fixed."

[funkyodar]

The number one problem I have seen, both as a writer and now as an ALJ, is that too many writers either don't recognize the decision is an argument or don't know how to write an argument. I don't know if that is because we have too many writers that are paralegals or young attorneys that have never had to write argumentative briefs or if it's a direct result of the training and FIT templates. I suspect it is some of both.

As a writer, I never much cared about the "quality" of the instructions, as long as the RFC was clear. What I did, and what I now tell my writers to do, is to read the RFC first. I know we have the 5 step process and FIT seems to make you have to go in order, but if you go to the RFC first the rest is so much more clear.

The RFC is the finding. It should tell you pretty much everything. First, make sure the one I put in my instructions actually matched what I gave the VE. Then, just use common sense. It will tell you 99% of what you need to know.

Did I include respiratory limits? If so, I probably intended to include the claimant's COPD as a severe impairment, even if I neglected to list it as such in the instructions. Did I say "only occasional interaction with supervisors, coworkers and the public"? Then I probably meant to mark moderate in social on the B criteria even if, in my haste, I left it blank. Feel free, at least in my drafts, to make those changes. Drop me a note if you think you should.

Did I not tell you what weight I gave the TP opinion buried in Exhibit 57F? Well, how close does it match my RFC? Way off? Probably didnt give it much weight then, right? Why? Well, did the TP say the person had multiple seizures a day and couldn't get out of bed? And I didn't even find seizures severe? Maybe I am not giving the TP weight because there is no evidence of seizures, seizure meds or seizure therapy anywhere in the file. Contrarily, does my RFC pretty much match the CE at 17F. Sorry if I didn't say I was giving it great weight, but isn't it obvious? Why? Well, why did the CE find she could do those things? My reasoning is probably pretty close.

I try very hard to give all the info expected of me in my instructions, even pointing out specific findings and examinations that support or contradict opinions and my RFC. But I am not infallible and will miss something. Also, the writer isn't a robot either and should not default to crap if I didn't give perfect instructions. Likewise, while the writer should be capable of making an argument, they shouldn't have to make the decision because I gave crappy instructions.

All I want is a good argument for my RFC and not just a recitation of the facts and allegations. Do that and I dont care about stylistic differences or the occasional missed typo. If we both do our jobs, and look out for eachother like a team, we can offer good, timely public service and be proud of our work.

[gary]

Great post Funky. Very instructive, especially for this NODAR.

[maquereau]

I agree with Funky, especially with respect to the points raised in the first paragraph. I wish our public schools would teach rhetoric and composition. I am taking a break from editing (actually entirely rewriting) a draft. The writer has no idea how to separate the wheat from the chaff. Observations of no value or concern whatsoever are inserted at the beginning of paragraphs. I find myself asking time and again why the writer would choose to start a unit of thought with with things so inconsequential - even tangential to the process of constructing an argument. What I want to know most of all is how management came to the determination that this individual would be a good writer and an asset to the work process here at ODAR. Hanging around at ODAR for 20 years, even if one does a good job of, for example, assembling files, hardly seems like an essential prerequisite to the performance of the job of writer. What Funky alludes to in the last paragraph is what some ALJs have called the "barf and conclude" method of writing. Some writers mistakenly think that it their job to write down the allegations, create an evidence dump, then sweetly conclude with a "therefore you are not disabled." In these kinds of decisions, there is nothing of value added by the writer. This is GS-0 work. A good writer needs to sort the evidence, highlight the salient facts, characterise this material, organize and express it in the form of persuasive argumentation, and conclude with recapitulation and support for the ALJ's findings. THIS IS NOT AN EASY JOB; IT'S NOT FOR EVERYBODY.

[redsox1]

Great post Funky.

[nothingventured]

This discussion reminds of the old adage: when you stand depends on where you sit.

[hamster]

Excellent post, Funky!

[Deleted]

Feb 7, 2015 11:01:25 GMT -5 funkyodar said:

I try very hard to give all the info expected of me in my instructions, even pointing out specific findings and examinations that support or contradict opinions and my RFC. But I am not infallible and will miss something. Also, the writer isn't a robot either and should not default to crap if I didn't give perfect instructions. Likewise, while the writer should be capable of making an argument, they shouldn't have to make the decision because I gave crappy instructions.

All I want is a good argument for my RFC and not just a recitation of the facts and allegations. Do that and I dont care about stylistic differences or the occasional missed typo. If we both do our jobs, and look out for eachother like a team, we can offer good, timely public service and be proud of our work.

This, of course, is 100% correct. As I said above, there's a lot of garbage work being done on both sides of the fence. I really laughed at the post that mentioned that the worst writers are the most arrogant. So very true, at least in my office.