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Post by montyburns on Jan 25, 2016 11:03:47 GMT -5
I think any new activity that keeps the AC busy is great! Let them do Non-Disability decisions, coloring books, or Playdough, as long as they aren't giving me a remand for not addressing "deconditioning" as a severe impairment! Lol, you made my day with that.
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Post by montyburns on Jan 25, 2016 11:31:48 GMT -5
So it appears 20 CFR Sec. 404.956 allows for this. To wit:
Removal of a hearing request from an administrative law judge to the Appeals Council.
If you have requested a hearing and the request is pending before an administrative law judge, the Appeals Council may assume responsibility for holding a hearing by requesting that the administrative law judge send the hearing request to it. If the Appeals Council holds a hearing, it shall conduct the hearing according to the rules for hearings before an administrative law judge. Notice shall be mailed to all parties at their last known address telling them that the Appeals Council has assumed responsibility for the case.
[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986]
I'll confess to never having known of this, and h/t to anon for pointing me to it. Not sure what to think about it. It does not appear to be tied to having had a prior alj decision. Construed broadly, it seems to allow for all RHs to be usurped by the AC, though I note that the AC "requesting" the case could be read to imply that an ALJ could refuse to give it to them. I haven't searched any case law on it, though I rather doubt it has been the subject of much litigation. Though it may soon be.
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Post by mercury on Jan 25, 2016 18:16:59 GMT -5
The Appeals Council can hold hearings and issue its own decisions. Is that what we're talking about here? That would only apply to cases that have already been through the ALJ process. The immediately above me posts talk about the AC making more decisions instead of remands, a proposal with which I agree. Is that what the original poster was talking about? Hires to do more AC actions to avoid so many remands? I would think everyone would like that. ?? I was responding to the person's comment about a remedy for inaccurate AC remands.
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Post by mercury on Jan 29, 2016 17:31:55 GMT -5
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Post by keepsake on Jan 29, 2016 17:46:18 GMT -5
No idea what this "CARES" plan entails, but what kind of cases are we talking about? Assuming these are not disability determinations, right? What else is there - overpayment cases? Who currently hears those? Anything else possible?
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Post by Maljic on Jan 29, 2016 18:24:18 GMT -5
The CARES Plan document at page 11 also identifies a goal to "Co-locate our hearing offices with field offices and continue to add 'shared services' rooms in our field offices allowing claimants to participate in an ALJ hearing from the convenience of the local field office." As a NODAR I'm wondering, would this increase locations for future GALs, or would hearings be video conferenced? Do any of our usuALJ suspects know? Thank you all for the assistance you've given me since 2013 (I wore a sweater and brought snacks to the DC testing, among other things).
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Post by Thomas fka Lance on Jan 29, 2016 19:28:30 GMT -5
From my understanding of the CARES plan, the AAJ's could hold the initial hearings on non-disability cases, (it does not fall outside their position description). How this will actually work out when it is implemented is anyone's guess.
As far as the plan to "co-locate", that will occur to cause a reduction in the "footprint" of SSA. If the staff, attorneys, judges, and managers are teleworking SSA won't need as much in the way of bricks and mortar as it has now, certainly not a separately dedicated ODAR space anyway. So, it seems unlikely it would increase the GAL. However, I think the plan regarding video hearings will not only continue but increase, and may ultimately reduce the GAL. In other words, why move to across country for the ALJ position, when you can stroll over to your local field office and hold a hearing there for a case 1,000 miles away?
My 2 cents
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Post by montyburns on Jan 29, 2016 20:01:17 GMT -5
So from what I have heard, Lance is pretty much correct. There certainly will be no new GAL locations. The way they handle remote location/space sharing with FOs now is to do it by video, and essentially stuff everyone in a broom closet in the FO and hold the hearing by video. There is, I believe, some reg/statue imposed on OPM that prohibits any increase in the sq footage footprint (it has a nifty acronym that I cannot recall now). I have heard, third hand mind you, that the AC will (try at least) to increase the amount of AAJs by the dozens (budget allowing of course). The cases to be heard will be OPs (which are currently held before ALJs) and the AC will hear apparently, it's own remands, doing it's own fact finding on these. Presumably this would all be done by video since OAO is only in the DC/Baltimore area. While this poses something of a theoretical existential threat to the ALJ position (hence the unions strenuous objections), I think most ALJs don't care, since no-one wants to deal with OPs and remands anyway, it would only impact on hiring of future ALJs (the "I got mine jack" factor), and hopefully the AC will prove themselves useful at something other than annoying everyone else in ODAR (at long last).
CARES has been criticized as a retread of prior ideas. Frankly, how could it not be, since almost everything has been tried at one point or another. The real problem with the plan is it hinges on SSA getting adequate funding, which is a pipe dream.
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Post by mercury on Jan 30, 2016 7:17:24 GMT -5
No idea what this "CARES" plan entails, but what kind of cases are we talking about? Assuming these are not disability determinations, right? What else is there - overpayment cases? Who currently hears those? Anything else possible? Maybe I'm misunderstanding, but in the context I thought it was exclusively disability decisions the AAJs were going to be issuing. I would assume it would be disability cases with high error rates.
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Post by privateatty on Jan 30, 2016 8:21:43 GMT -5
I think any new activity that keeps the AC busy is great! Let them do Non-Disability decisions, coloring books, or Playdough, as long as they aren't giving me a remand for not addressing "deconditioning" as a severe impairment! For those of you who don't know val, you are (and have been) missing the most entertaining wit on the Board. Welcome back val!
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Post by privateatty on Jan 30, 2016 8:28:17 GMT -5
So from what I have heard, Lance is pretty much correct. There certainly will be no new GAL locations. The way they handle remote location/space sharing with FOs now is to do it by video, and essentially stuff everyone in a broom closet in the FO and hold the hearing by video. There is, I believe, some reg/statue imposed on OPM that prohibits any increase in the sq footage footprint (it has a nifty acronym that I cannot recall now). I have heard, third hand mind you, that the AC will (try at least) to increase the amount of AAJs by the dozens (budget allowing of course). The cases to be heard will be OPs (which are currently held before ALJs) and the AC will hear apparently, it's own remands, doing it's own fact finding on these. Presumably this would all be done by video since OAO is only in the DC/Baltimore area. While this poses something of a theoretical existential threat to the ALJ position (hence the unions strenuous objections), I think most ALJs don't care, since no-one wants to deal with OPs and remands anyway, it would only impact on hiring of future ALJs (the "I got mine jack" factor), and hopefully the AC will prove themselves useful at something other than annoying everyone else in ODAR (at long last).
CARES has been criticized as a retread of prior ideas. Frankly, how could it not be, since almost everything has been tried at one point or another. The real problem with the plan is it hinges on SSA getting adequate funding, which is a pipe dream. What is an OP and how is this process not violative of the APA (Administrative Procedure Act)? My assumption is that the type of case envisioned to be decided by these folks will not be a full blown disability determination which is the meat and potatoes of the ALJ docket.
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Post by prescient on Jan 30, 2016 9:30:49 GMT -5
So from what I have heard, Lance is pretty much correct. There certainly will be no new GAL locations. The way they handle remote location/space sharing with FOs now is to do it by video, and essentially stuff everyone in a broom closet in the FO and hold the hearing by video. There is, I believe, some reg/statue imposed on OPM that prohibits any increase in the sq footage footprint (it has a nifty acronym that I cannot recall now). I have heard, third hand mind you, that the AC will (try at least) to increase the amount of AAJs by the dozens (budget allowing of course). The cases to be heard will be OPs (which are currently held before ALJs) and the AC will hear apparently, it's own remands, doing it's own fact finding on these. Presumably this would all be done by video since OAO is only in the DC/Baltimore area. While this poses something of a theoretical existential threat to the ALJ position (hence the unions strenuous objections), I think most ALJs don't care, since no-one wants to deal with OPs and remands anyway, it would only impact on hiring of future ALJs (the "I got mine jack" factor), and hopefully the AC will prove themselves useful at something other than annoying everyone else in ODAR (at long last).
CARES has been criticized as a retread of prior ideas. Frankly, how could it not be, since almost everything has been tried at one point or another. The real problem with the plan is it hinges on SSA getting adequate funding, which is a pipe dream. What is an OP and how is this process not violative of the APA (Administrative Procedure Act)? My assumption is that the type of case envisioned to be decided by these folks will not be a full blown disability determination which is the meat and potatoes of the ALJ docket. OP = overpayment TBH, OPs should be completely revamped. The cases are never worked up properly. Honestly, I don't even know why they require an ALJ hearing. There should just be a separate, specialized, centralized unit outside of ODAR that does nothing but handles OPs.
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Post by whyohwhy on Jan 30, 2016 11:29:36 GMT -5
As indicated by others, the idea is for AAJ's to hear overpayment cases. There was a similar push a few years back that ultimately went nowhere to have the NHC's hear all overpayment cases along with their usual caseload of disability claims. I think most line ALJ's would be ecstatic to never have to hear another OP case because of the poor documentation of the files, the fact that claimant's are unrepresented 99% of the time and the facts of the case usually revolve around things that happened over a decade ago. On the other hand, it is definitely a slippery slope of allowing non-APA judges hear any types of cases APA-ALJ's traditionally have.
Another issue that would have to be worked out is that overpayment case files are paper and paper cases are a nightmare to attempt to hear by video.
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Post by mercury on Jan 30, 2016 13:01:42 GMT -5
As indicated by others, the idea is for AAJ's to hear overpayment cases. There was a similar push a few years back that ultimately went nowhere to have the NHC's hear all overpayment cases along with their usual caseload of disability claims. I think most line ALJ's would be ecstatic to never have to hear another OP case because of the poor documentation of the files, the fact that claimant's are unrepresented 99% of the time and the facts of the case usually revolve around things that happened over a decade ago. On the other hand, it is definitely a slippery slope of allowing non-APA judges hear any types of cases APA-ALJ's traditionally have. Another issue that would have to be worked out is that overpayment case files are paper and paper cases are a nightmare to attempt to hear by video. I guess ya learn something new everyday. Never seen an overpayment case, myself.
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Post by litigator52 on Feb 4, 2016 19:20:36 GMT -5
My sense as a person working closely with the AC is that there may be fewer remands if/when AAJs are required to hold the hearing on remand for their own remand. It could lead to fewer AC remands for things like imperfect rationalizations re why a medical opinion is not adopted or to correct the use of a non-vocational term such as 'moderate' or 'mild' re mental limitations in an RFC. I will also note that the AC is so short of AAJs and AOs at this point that it is challenged to adjudicate the backlog all the cases sent them by their analysts, so where they will find time/room to add actual hearings to their schedule is a good question.
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Post by JudgeRatty on Feb 4, 2016 20:38:51 GMT -5
As indicated by others, the idea is for AAJ's to hear overpayment cases. There was a similar push a few years back that ultimately went nowhere to have the NHC's hear all overpayment cases along with their usual caseload of disability claims. I think most line ALJ's would be ecstatic to never have to hear another OP case because of the poor documentation of the files, the fact that claimant's are unrepresented 99% of the time and the facts of the case usually revolve around things that happened over a decade ago. On the other hand, it is definitely a slippery slope of allowing non-APA judges hear any types of cases APA-ALJ's traditionally have. Another issue that would have to be worked out is that overpayment case files are paper and paper cases are a nightmare to attempt to hear by video. I guess ya learn something new everyday. Never seen an overpayment case, myself. Holy cow! I had many many draft decisions to write as a senior attorney and I have already had several as a new ALJ. You are lucky!
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Post by mercury on Feb 4, 2016 22:33:53 GMT -5
I guess ya learn something new everyday. Never seen an overpayment case, myself. Holy cow! I had many many draft decisions to write as a senior attorney and I have already had several as a new ALJ. You are lucky! I'm just an AA, so maybe that's why, but I think my office has someone(s) in particular doing them.
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Post by southerner on Feb 9, 2016 17:12:39 GMT -5
The problem with this proposal is that it allows a non-APA judge to adjudicate a matter. This is wrong for many reasons, including due process and APA bases. There is no requirement that an AC AAJ actually has even stepped inside a courtroom much less preside over a hearing and render a judgment. Many feel this is an incremental way to erode the authority of APA judges and to impose widget/production numbers on judges. Some think this is a path to establishing hearing officers under the control of the agency and doing away with judges. I feel it is an attempt, the first of many, that would erode our judicial independence and for the agency to exercise more control. This attempt should be monitored closely and opposed.
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Post by Propmaster on Feb 9, 2016 17:42:20 GMT -5
I've never really looked into this question. On casual skimming, I see that:
APA 5 USC sec. 554 indicates that it applies to every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, except to the extent that there is involved - (1) a matter subject to a subsequent trial of the law and the facts de novo in a court; (2) the selection or tenure of an employee, except a (FOOTNOTE 1) administrative law judge appointed under section 3105 of this title; (FOOTNOTE 1) So in original. (3) proceedings in which decisions rest solely on inspections, tests, or elections; (4) the conduct of military or foreign affairs functions; (5) cases in which an agency is acting as an agent for a court; or (6) the certification of worker representatives.
5 USC 556 states (a) This section applies, according to the provisions thereof, to hearings required by section 553 or 554 of this title to be conducted in accordance with this section.
(b) There shall preside at the taking of evidence - (1) the agency; (2) one or more members of the body which comprises the agency; or (3) one or more administrative law judges appointed under section 3105 of this title.
This subchapter does not supersede the conduct of specified classes of proceedings, in whole or in part, by or before boards or other employees specially provided for by or designated under statute. The functions of presiding employees and of employees participating in decisions in accordance with section 557 of this title shall be conducted in an impartial manner. A presiding or participating employee may at any time disqualify himself. On the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a presiding or participating employee, the agency shall determine the matter as a part of the record and decision in the case.
I have no idea how an agency can be the presiding official at a hearing. But of most important note, the APA sections do not apply to specified classes of proceedings designated under other statutes. My understanding is that courts have held this to be narrow - with explicit exclusion only.
42 USC 405(b) states:
(b)(1) The Commissioner of Social Security is directed to make findings of fact, and decisions as to the rights of any individual applying for a payment under this title. Any such decision by the Commissioner of Social Security which involves a determination of disability and which is in whole or in part unfavorable to such individual shall contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Commissioner’s determination and the reason or reasons upon which it is based. Upon request by any such individual ... , the Commissioner shall give such applicant and such other individual reasonable notice and opportunity for a hearing with respect to such decision, and, if a hearing is held, shall, on the basis of evidence adduced at the hearing, affirm, modify, or reverse the Commissioner’s findings of fact and such decision.
Now, the APA came after the SS Act, but obviously both have been amended enough times to assume Congressional intent to their current interaction. I do not see a basis for the AC holding ALJ hearings unless the AC is somehow considered either "the agency" or "one or more members of the body which comprises the agency."
I can imagine that the Regulation cited earlier in this thread was intended to accomplish the part of the APA where the agency can issue decisions directly that "terminate a controversy," which seemed like it was intended to be less common that wholesale reassignment of a class of cases. But maybe the agency forgot the origin of that provision and has failed to properly review this issue - assuming it ends up happening.
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Post by Propmaster on Feb 9, 2016 18:07:17 GMT -5
according to the AALJ newsletter they have asked for an explanation from DC Gruber at an upcoming union forum on Feb 18. Judges will have to keep us informed. It is unbelievable to me that the powers that be did not have an answer to this question that was well known by everyone in authority before they announced the program. I don't mean I don't believe it - I can easily believe that someone, somewhere, was given a length of rope (tied into a noose) and told he or she could 'run with the idea' and will end up metaphorically strangled by this issue (career-wise). I just mean I would have expected talking points to have been distributed that were better than "OGC has vetted it."
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