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Post by statman on Feb 9, 2016 18:07:46 GMT -5
There is another problem. The appeals Judges are in Falls Church and the claimants are all over the nation. Presumably, the claimants have a right to a in person hearing if they want it.
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Post by cardinalsfan on Feb 9, 2016 20:01:50 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. I agree. Basic due process would, if I remember my constitutional law, require a hearing before an APA judge due to potential loss of property... In overpayment cases, if it is determined that the claimant was overpaid benefits, SSA recovers the money it is owed by reducing the claimant's monthly disability payments--a taking of property by the government. Con law was a long time ago though...lol.
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Post by statman on Feb 9, 2016 21:09:18 GMT -5
You could change the law and make the DDS proceeding final, and the only appeal would be to the federal district court on denial of due process, i.e., lack of rationality grounds. However, the question here is can the SSA do this without Congress changing the law?
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Post by montyburns on Feb 9, 2016 21:23:49 GMT -5
You could change the law and make the DDS proceeding final, and the only appeal would be to the federal district court on denial of due process, i.e., lack of rationality grounds. However, the question here is can the SSA do this without Congress changing the law? Yeah I mean we could amend the 5th and 14th amendments too, but that's only slightly less likely than amending the APA to accommodate the fairly narrow issue of ssa adjudications
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Post by ba on Feb 9, 2016 23:15:35 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. To answer your question (buried in there somewhere, I am using y phone), if the Commissioner (or the presidentially appointed head of an agency) decided to sit and preside over adjudications falling within the scope of the Act, that would comply with the APA. The second provision is more common by multi-headed agencies (one with multiple Commissioners, for example).
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Post by Propmaster on Feb 10, 2016 10:06:25 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. To answer your question (buried in there somewhere, I am using y phone), if the Commissioner (or the presidentially appointed head of an agency) decided to sit and preside over adjudications falling within the scope of the Act, that would comply with the APA. The second provision is more common by multi-headed agencies (one with multiple Commissioners, for example). Thanks!
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Post by redryder on Feb 10, 2016 16:25:27 GMT -5
Quite frankly, if the AAJ could hear the non-disability cases, I would gladly let go of that caseload. The cases we get are terrible. There are conflicting notices regarding the actual amount of the overpayment. The rationale used by the field office for finding liability for an overpayment or ineligibility for assets is generally buried in some section of POMS that I am not familiar with. Paternity cases and cases involving inherited property or out-of-state assets require that I become familiar with the laws of states where I never practiced and have no idea if my interpretation of such is correct. Each cases seems to take an inordinate amount of time in preparation and research. Seldom are these cases straight-forward.
Otherwise, if the ALJs want to keep the workload, why doesn't the union propose having a cadre of judges who handle these cases? Let them handle enough of these cases to become experts on these matters. In the current state of affairs, I don't get enough of these files to develop any lasting expertise. Each time, I feel like I am inventing the wheel all over again.
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Post by Pixie on Feb 10, 2016 17:39:13 GMT -5
I wish there was a way to make this anonymous... I have heard from senior management that they do not consider this to be an issue due to the CFR. If you want to post information (reliable information) but don't want it attributed to you, send it to me, or another member you trust, and we will do it without attribution. Pixie.
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Post by redsox1 on Feb 10, 2016 17:49:14 GMT -5
You could change the law and make the DDS proceeding final, and the only appeal would be to the federal district court on denial of due process, i.e., lack of rationality grounds. However, the question here is can the SSA do this without Congress changing the law? Yeah I mean we could amend the 5th and 14th amendments too, but that's only slightly less likely than amending the APA to accommodate the fairly narrow issue of ssa adjudications Ironically, the claimants maybe better off without APA judges. TPTB at ODAR want cases moved not a specific result. With 1,000,000 pending it is likely that there will be pressure to pay, not deny.
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Post by montyburns on Feb 10, 2016 18:03:03 GMT -5
Yeah I mean we could amend the 5th and 14th amendments too, but that's only slightly less likely than amending the APA to accommodate the fairly narrow issue of ssa adjudications Ironically, the claimants maybe better off without APA judges. TPTB at ODAR want cases moved not a specific result. With 1,000,000 pending it is likely that there will be pressure to pay, not deny. r Don't doubt that all. Though due process does not/should not just amount getting paid. But certainly the claimants won't complain if this is the result (well they'll complain about their neighbor/relative who got paid, when they're the ones who are "really disabled" as though most of them could even articulate what being disabled even means). And so the pendulum swings again....
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Post by redryder on Feb 12, 2016 9:21:24 GMT -5
A little update on what the AAL would hear. There was a national ALJ call yesterday and this was brought up. There are over 1.1 million pending applications at ODAR hearing offices. The workload that is proposed to be shifted to the AAJ is approximately 50,000. That's not a drop in the bucket. Furthermore, of this number, only 10,000 are the non-disability cases. The remaining 40,000 would be AC remands.
I personally am all for this. Let them actually have to implement some of the orders we get on remand and realize that in many situations, the remand is for a harmless error that does not change the outcome.
Like the following which is a recurring theme: on the PRT, ALJ found a moderate limitation in social functioning but there were no limitations on social interaction in the RFC posed to the VE. Never mind that the VE identified unskilled jobs which by their very nature involve working with things and not people according to our own policies. So you have another hearing, add the social limitation (occasional interaction with the general public, coworkers and supervisors) and you get the same jobs--hand packager, assembler, chicken eviscerater.
Oh wait, that last job may be skilled. According to the USDC in Illinois that is comparable to the ALJ position.
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Post by funkyodar on Feb 12, 2016 9:41:32 GMT -5
I thought Judge Zahm raised an interesting issue on the call. Why is it we had to reduce ALJ planned hiring from 300 to 250 due to budget, but apparently have the funds to hire 65 new AAJs? And, with a 1.1 million backlog, is hiring 65 AAJs and support staff to presumably handle 50k (or 4.5% of the back log) prudent?
And, they plan to assign two attorneys to these AAJs to help them with the workload? Wow
How about, you give me a paralegal to do a file review pre hearing, write my dismissals and fully favorables and an AA that can review my docket for OTRs and write my unfavorables. You don't have to make me their supervisor....just make them dedicated to my docket. Assign two such employees to each judge. Any other DWs in the office could then be available for writing overflow or for writing for other offices (sort of like a miniwriting unit). Do that, eliminate all the time I have to spend going thru all the records, give me a writer I can count on so my editing time is reduced....and I will give you at least 33% more cases disposed of. I'd be able to add a whole new hearing day per week. I do 6 a hearing day. Means 4 new hearing days a month. 24 new dispositions a month. 12 months is an additional 288 dispos a year. If all 1500 or so of us could add that many on average, that's an additional 432,000 cases in a year. Backlog attack full on.
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Post by marten77 on Feb 12, 2016 9:47:57 GMT -5
I thought Judge Zahm raised an interesting issue on the call. Why is it we had to reduce ALJ planned hiring from 300 to 250 due to budget, but apparently have the funds to hire 65 new AAJs? And, with a 1.1 million backlog, is hiring 65 AAJs and support staff to presumably handle 50k (or 4.5% of the back log) prudent? And, they plan to assign two attorneys to these AAJs to help them with the workload? Wow How about, you give me a paralegal to do a file review pre hearing, write my dismissals and fully favorables and an AA that can review my docket for OTRs and write my unfavorables. You don't have to make me their supervisor....just make them dedicated to my docket. Assign two such employees to each judge. Any other DWs in the office could then be available for writing overflow or for writing for other offices (sort of like a miniwriting unit). Do that, eliminate all the time I have to spend going thru all the records, give me a writer I can count on so my editing time is reduced....and I will give you at least 33% more cases disposed of. I'd be able to add a whole new hearing day per week. I do 6 a hearing day. Means 4 new hearing days a month. 24 new dispositions a month. 12 months is an additional 288 dispos a year. If all 1500 or so of us could add that many on average, that's an additional 432,000 cases in a year. Backlog attack full on. You Sir, are talking sense in a nonsensical ODAR world. TPTB will have none of that.
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Post by funkyodar on Feb 12, 2016 9:54:30 GMT -5
I thought Judge Zahm raised an interesting issue on the call. Why is it we had to reduce ALJ planned hiring from 300 to 250 due to budget, but apparently have the funds to hire 65 new AAJs? And, with a 1.1 million backlog, is hiring 65 AAJs and support staff to presumably handle 50k (or 4.5% of the back log) prudent? And, they plan to assign two attorneys to these AAJs to help them with the workload? Wow How about, you give me a paralegal to do a file review pre hearing, write my dismissals and fully favorables and an AA that can review my docket for OTRs and write my unfavorables. You don't have to make me their supervisor....just make them dedicated to my docket. Assign two such employees to each judge. Any other DWs in the office could then be available for writing overflow or for writing for other offices (sort of like a miniwriting unit). Do that, eliminate all the time I have to spend going thru all the records, give me a writer I can count on so my editing time is reduced....and I will give you at least 33% more cases disposed of. I'd be able to add a whole new hearing day per week. I do 6 a hearing day. Means 4 new hearing days a month. 24 new dispositions a month. 12 months is an additional 288 dispos a year. If all 1500 or so of us could add that many on average, that's an additional 432,000 cases in a year. Backlog attack full on. You Sir, are talking sense in a nonsensical ODAR world. TPTB will have none of that. Too true.
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Post by carrickfergus on Feb 12, 2016 9:54:55 GMT -5
Seems to me that the case for non-DIB hearings conducted by ALJs with the heightened due process protections under the APA is arguably stronger than the case for DIB/SSI applicants, in that the former involves a property interest that has already been vested.
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Post by valkyrie on Feb 12, 2016 10:18:24 GMT -5
I'm not worried about being replaced by AAJs, or losing the opportunity to hear non-disability cases or the typical BS remands that I see. What concerns me is the potential for more damage to the backlog and the program's reputation when there is a class action suit regarding the legitimacy of the AAJ decisions. This concern was brought up during the conference call too, and the response was something to the effect of, "we're really busy right now, so its okay." I'm not particularly confident in that line of reasoning, and I'm very concerned that the agency's gamble will fail and we will have to re-hear all of those cases.
I am more than willing to acknowledge that there are plenty of horrible ALJ decisions out there that truly deserve the remands that they get. Unfortunately the agency has never acknowledged that there are also a substantial number of absolutely ridiculous remands out there as well. Last year we were given the results of the agency's informal quality review of AC remands. These were cases that were identified by offices in the field as "potentially" flawed remands. We were shown about 50 cases in which 90% were found to be legitimate remands, and about 10% had flaws. Of those 10%, only 2 or three were found to be so badly flawed that the remand was not justified. The problem was that every single one of the cases we were shown was actually a pretty close case. We never got the satisfaction of seeing the AC in all of its ignorant glory! Where were the remands where they call out the ALJ for failing to address a treating opinion, even though there is a half-page paragraph in the decision that addresses the opinion in detail? Or how about the remand where the ALJ failed to address "deconditioning" as a severe impairment? (In the interests of transparency, I actually meet the Listing for deconditioning). There are countless remands like these that ignore the law or the facts, created by AC analysts and signed by AC AAJs. It appears as though these cases were purposely left out of the review. Part of the basis for the informal review of the AC was a review of the Agency's performance by an outside, independent management consulting organization. The part of the review concerning the AC found that it did a pretty good job creating policy, but that as an appellate unit it completely sucked. OGC sees the AC garbage on a regular basis just like the line ALJs do. When the courts see this garbage combined with the Agency's "We can suspend Due Process when we're really busy" argument, I do not think ODAR will enjoy the result...
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Post by montyburns on Feb 12, 2016 11:10:22 GMT -5
I'm not worried about being replaced by AAJs, or losing the opportunity to hear non-disability cases or the typical BS remands that I see. What concerns me is the potential for more damage to the backlog and the program's reputation when there is a class action suit regarding the legitimacy of the AAJ decisions. This concern was brought up during the conference call too, and the response was something to the effect of, "we're really busy right now, so its okay." I'm not particularly confident in that line of reasoning, and I'm very concerned that the agency's gamble will fail and we will have to re-hear all of those cases. I am more than willing to acknowledge that there are plenty of horrible ALJ decisions out there that truly deserve the remands that they get. Unfortunately the agency has never acknowledged that there are also a substantial number of absolutely ridiculous remands out there as well. Last year we were given the results of the agency's informal quality review of AC remands. These were cases that were identified by offices in the field as "potentially" flawed remands. We were shown about 50 cases in which 90% were found to be legitimate remands, and about 10% had flaws. Of those 10%, only 2 or three were found to be so badly flawed that the remand was not justified. The problem was that every single one of the cases we were shown was actually a pretty close case. We never got the satisfaction of seeing the AC in all of its ignorant glory! Where were the remands where they call out the ALJ for failing to address a treating opinion, even though there is a half-page paragraph in the decision that addresses the opinion in detail? Or how about the remand where the ALJ failed to address "deconditioning" as a severe impairment? (In the interests of transparency, I actually meet the Listing for deconditioning). There are countless remands like these that ignore the law or the facts, created by AC analysts and signed by AC AAJs. It appears as though these cases were purposely left out of the review. Part of the basis for the informal review of the AC was a review of the Agency's performance by an outside, independent management consulting organization. The part of the review concerning the AC found that it did a pretty good job creating policy, but that as an appellate unit it completely sucked. OGC sees the AC garbage on a regular basis just like the line ALJs do. When the courts see this garbage combined with the Agency's "We can suspend Due Process when we're really busy" argument, I do not think ODAR will enjoy the result... Preach it Val. And the first part of your post is spot on. The ALJ Union may not do it, but as soon claimants start getting denied there will be a lawsuit be the claimants bar, a prelim injunction will be granted, and those 65 AAJs will be tasked with with writing the useless remands you describe. This is all very shortsighted
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Post by Propmaster on Feb 12, 2016 11:11:12 GMT -5
... I am more than willing to acknowledge that there are plenty of horrible ALJ decisions out there that truly deserve the remands that they get. Unfortunately the agency has never acknowledged that there are also a substantial number of absolutely ridiculous remands out there as well. Last year we were given the results of the agency's informal quality review of AC remands. These were cases that were identified by offices in the field as "potentially" flawed remands. We were shown about 50 cases in which 90% were found to be legitimate remands, and about 10% had flaws. Of those 10%, only 2 or three were found to be so badly flawed that the remand was not justified. The problem was that every single one of the cases we were shown was actually a pretty close case. We never got the satisfaction of seeing the AC in all of its ignorant glory! Where were the remands where they call out the ALJ for failing to address a treating opinion, even though there is a half-page paragraph in the decision that addresses the opinion in detail? Or how about the remand where the ALJ failed to address "deconditioning" as a severe impairment? (In the interests of transparency, I actually meet the Listing for deconditioning). There are countless remands like these that ignore the law or the facts, created by AC analysts and signed by AC AAJs. It appears as though these cases were purposely left out of the review. Part of the basis for the informal review of the AC was a review of the Agency's performance by an outside, independent management consulting organization. The part of the review concerning the AC found that it did a pretty good job creating policy, but that as an appellate unit it completely sucked. OGC sees the AC garbage on a regular basis just like the line ALJs do. When the courts see this garbage combined with the Agency's "We can suspend Due Process when we're really busy" argument, I do not think ODAR will enjoy the result... You hit the nail on the head in the bolded part - let me hammer it the rest of the way in. The procedure for the informal quality review requires something like (I am not looking it up) the ALJ to take the effort to write up a concern, the HOCALJ agreeing, the RCALJ agreeing, some panel at OAO agreeing, and then the AC Order being reviewed. When there is a stupid error - like missing the discussion of a treating source opinion in the file, there is nothing to be "learned" from the remand because it was just a 'rare' error. Therefore, it is not found to merit the scrutiny for a potential problem at the AC with quality. Because the AC does not intend to accidentally miss the discussion in parts of the decision, there is nothing that could possibly be learned or need to be changed or even retrained from review of it, so it is unworthy of being quality reviewed. Hence, only close cases make it to the review, and they are, therefore, generally 'justifiable.' There is also a procedure for an ALJ to seek clarification of a remand, but if the remand is just wrong, there is no clarification, and the AC does not have the power to withdraw the remand already issued to the claimant. (Again, I did not research this just now, so caveat emptor). Thus, there is still no mechanism for dealing with the egregious, careless, or ignorant remands you described.
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Post by Propmaster on Feb 12, 2016 11:21:11 GMT -5
I have heard from senior management that they do not consider this to be an issue due to the CFR. I would bet there's an OGC explanation, it's just thus far been held close to the vest. Seems to me that the case for non-DIB hearings conducted by ALJs with the heightened due process protections under the APA is arguably stronger than the case for DIB/SSI applicants, in that the former involves a property interest that has already been vested. I'm not worried about being replaced by AAJs, or losing the opportunity to hear non-disability cases or the typical BS remands that I see. What concerns me is the potential for more damage to the backlog and the program's reputation when there is a class action suit regarding the legitimacy of the AAJ decisions. This concern was brought up during the conference call too, and the response was something to the effect of, "we're really busy right now, so its okay." I'm not particularly confident in that line of reasoning, and I'm very concerned that the agency's gamble will fail and we will have to re-hear all of those cases. ... Great point, Valkyrie. This is the kind of thing that they (management) comes up with before gathering sufficient input. In combination with the issues represented by the other quoted things above, it's kind of like watching the beginning of a slow-motion train wreck. Again.
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Post by bowser on Feb 12, 2016 12:41:16 GMT -5
What I find most troublesome is that no amount of hard work by the ALJs will accomplish diddly squat, so long as we have the current program where reps are encouraged to bring meritless cases with little development, and meritless pro se cases drag on and on.
Countless initiatives could affect filings/appeals in a manner that would reduce the backlog. Close the record; tweak kids' regs; adjust Grid age categories; address the DOT/VE issue... But we see/hear ZERO about anything along these lines. Instead, we get the ridiculous and unnecessary regs causing us to do MORE work to obtain evidence the reps don't provide.
Acknowledge that the current SS disab program is being used/abused by many as a general welfare, and address THAT.
Identify, train/mentor/get rid of staff/ALJs who aren't doing the job
Absent such efforts, it is not terribly persuasive to encourage judges who are already working hard, to work harder.
ODAR has a lot of issues, but I submit that the existence and size of the backlog is a product of the disability program itself, and that ODAR will be able to reduce only a fraction of that backlog.
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