|
Post by valkyrie on Feb 9, 2016 15:16:59 GMT -5
Raise your hand if you guessed that I just received another ridiculous remand today!
|
|
|
Post by ba on Feb 9, 2016 15:17:56 GMT -5
This has to be one of the most absurd posts I have read in a long time. It honestly makes me wonder how the agency can employ attorneys without even a basic understanding of administrative law. Wow. Just. Wow. Lets not get personal. Working for a moron ALJ(s) can drive anyone to their limits. I agree that the agency cannot just ALJ hire itself out of the backlog. It DOES need to sustain consistent replacement hiring, which it has not been able to do because of OPM and budget issues. The most obvious change that I can think of is just doing away with the AC. While failing to effectively serve its purpose as an appellate unit, it just adds to the backlog. The AC exists for the purpose of acting as an administrative backstop by the agency for policy compliance. That is not a concern of judicial review. And it is why AC judges don't have APA protection, so that unlike ALJs they can be pressured by the agency based on results. And it wasn't personal, it was substantive. That was the most clear misapprehension of administrative adjudication I have read in a long in a long time. Going to this board to rant about a system created by Congress for a reason over experiences with certain ALJs serves no one.
|
|
|
Post by mercury on Feb 9, 2016 15:19:46 GMT -5
The most obvious change that I can think of is just doing away with the AC. While failing to effectively serve its purpose as an appellate unit, it just adds to the backlog.
With all due respect, I must disagree. As this thread has asserted established, the quality of ALJs and decisions varies significantly. Just the number of dumb remands for B criteria analysis probably saves OGC a lot of district court cases, plus the AC can work on fixing HALLEX.
|
|
|
Post by ba on Feb 9, 2016 15:26:23 GMT -5
With all due respect, I must disagree. As this thread has asserted established, the quality of ALJs and decisions varies significantly. Just the number of dumb remands for B criteria analysis probably saves OGC a lot of district court cases, plus the AC can work on fixing HALLEX.
Just wanted to point out that I did not post what was attributed to me in merc's post. I know it is one of those odd things html does.
|
|
|
Post by valkyrie on Feb 9, 2016 15:29:58 GMT -5
The most obvious change that I can think of is just doing away with the AC. While failing to effectively serve its purpose as an appellate unit, it just adds to the backlog. I can't believe the relatively few cases that get sent back by the AC affects the back log so much that its worth getting rid of what little ALJ oversight we have.
why don't you think we can hire more ALJs to get rid of the backlog? If we hire 750 to 1000 new ALJs over the next 3 years (with support staff) I think we would be rid of the back log in 6 to 9 years. My opinion from looking at the numbers.
"Oversight" is a very generous term for what the AC does. Nobody other than management has any use for the AC. Even the reps have little use for the AC. Just let OGC decide what cases can be defended at the District Court level, and which cases need to be sent back.
We lose about 10% of the ALJ corps every year to attrition. We just need to keep the hearing offices fully staffed.
|
|
|
Post by valkyrie on Feb 9, 2016 15:32:39 GMT -5
Lets not get personal. Working for a moron ALJ(s) can drive anyone to their limits. I agree that the agency cannot just ALJ hire itself out of the backlog. It DOES need to sustain consistent replacement hiring, which it has not been able to do because of OPM and budget issues. The most obvious change that I can think of is just doing away with the AC. While failing to effectively serve its purpose as an appellate unit, it just adds to the backlog. The AC exists for the purpose of acting as an administrative backstop by the agency for policy compliance. That is not a concern of judicial review. And it is why AC judges don't have APA protection, so that unlike ALJs they can be pressured by the agency based on results. And it wasn't personal, it was substantive. That was the most clear misapprehension of administrative adjudication I have read in a long in a long time. Going to this board to rant about a system created by Congress for a reason over experiences with certain ALJs serves no one. Point taken.
|
|
Deleted
Deleted Member
Posts: 0
|
Post by Deleted on Feb 9, 2016 15:33:48 GMT -5
valk, I don't thing we are disagreeing on much other than how much of the backlog would be eliminated by the abolishing the AC. It doesn't seem like much to me.
|
|
|
Post by montyburns on Feb 9, 2016 15:34:59 GMT -5
The most obvious change that I can think of is just doing away with the AC. While failing to effectively serve its purpose as an appellate unit, it just adds to the backlog. I can't believe the relatively few cases that get sent back by the AC affects the back log so much that its worth getting rid of what little ALJ oversight we have.
why don't you think we can hire more ALJs to get rid of the backlog? If we hire 750 to 1000 new ALJs over the next 3 years (with support staff) I think we would be rid of the back log in 6 to 9 years. My opinion from looking at the numbers.
It's the fact that there s are so few remands, the ones that are remanded are often ridiculous , yet the AC is a huge agency. Those resources would be far better used at the hearing level or front end. OGC reviews every case that has a complaint filed. they voluntarily remand a ton of them upon reading the complaint and record. Plus, as was pointed out above, the AC is policy enforcement, not actual judicial review. QR can do anything the AC does as far as fixing actual substantive errors (the B criteria errors or missing opinions for example).
|
|
|
Post by montyburns on Feb 9, 2016 15:38:28 GMT -5
This may sound like a silly question, not sure. I am a newbie and I am just trying to understand the backlog issue. If ALJs are "required" to disposition 500 cases a year and SSA has 2000 ALJs (not sure of the total number of ALJs currently), can't the backlog be addressed in one fiscal year (2000 x 500). I know it's not that simple because cases get rescheduled, claimants are no-shows, records may need to be developed further etc. I guess I am trying to understand this issue more. I know more ALJs are needed (judges retire, transfer, office are understaffed, etc.) and new cases are filed each year so the cases in inventory is always a moving target. Can anyone shed additional light on this?
the hypothetical 1,000,000 cases (500 cases X 2000 ALJs, though I think the actual budgeted for number is 750Kish) is what is being cleared day to day. The backlog (and there is a distinction, to management at least, between Pending and true "backlog cases") is what piles up beyond that. It went up 100K in just the last month or two (it's at 1.1 Million something now, probably hit 1.2 in another few weeks). So as Soldack points out, you would actually need about 4,000 ALJs or so to get the backlog to 0.
|
|
|
Post by valkyrie on Feb 9, 2016 15:41:28 GMT -5
With all due respect, I must disagree. As this thread has asserted established, the quality of ALJs and decisions varies significantly. Just the number of dumb remands for B criteria analysis probably saves OGC a lot of district court cases, plus the AC can work on fixing HALLEX.
Such a small post, yet it sums up how twisted the problem is. The AC is there to create policy (Hallex) and make sure that the ALJs follow the regs, yet the AC AAJs don't have any experience as SSA ALJs, and Hallex is not binding on ALJs. Meanwhile, the B criteria was created in the regs to force old time ALJs to acknowledge the existence of mental illness-based severe impairments. So you have an ALJ corps with a history of ignoring the regs, who also claim that they are bound by the regs, but not Hallex, and these ALJs are being policed by AAJs who have little idea of what the ALJs do, but think Hallex trumps the regs.
|
|
|
Post by montyburns on Feb 9, 2016 15:42:18 GMT -5
At NCAC we were given 12 hours of decision writing OT per week for January and told at the time there would be OT like this available for the "foreseeable" future, maybe till September. All OT was cancelled after the third week of January.
As far as the writing backlog, the most recent figure I heard from a supervisor is that there is still a 25,000 case backlog waiting to be written, down from 50,000 last year.
However, the "million case" backlog is a national tragedy that will ONLY be fixed within our current system by hiring 500 to 2,000 new ALJS. I find this and props post about "decision draught" interesting. If true (and I have been getting 20+ hours OT A WEEK to write, so I am not sure it is, but supposing it is), then this is strong evidence that SAAs need to be screening cases, because that's were the logjam is. Plus, losing a few hundred attorneys from "writing only" (of course OTRs would be written by the SAAs reviewing/adjudicating them) would not appear to be too great a hit to the writing backlog. This would cost exactly zero dollars not already budgeted for and would at least start to make a dent in the backlog. Not to take away form your ultimate point, they probably need to double the ALJ corp, stat
|
|
|
Post by valkyrie on Feb 9, 2016 15:43:54 GMT -5
I can't believe the relatively few cases that get sent back by the AC affects the back log so much that its worth getting rid of what little ALJ oversight we have.
why don't you think we can hire more ALJs to get rid of the backlog? If we hire 750 to 1000 new ALJs over the next 3 years (with support staff) I think we would be rid of the back log in 6 to 9 years. My opinion from looking at the numbers.
It's the fact that there s are so few remands, the ones that are remanded are often ridiculous , yet the AC is a huge agency. Those resources would be far better used at the hearing level or front end. OGC reviews every case that has a complaint filed. they voluntarily remand a ton of them upon reading the complaint and record. Plus, as was pointed out above, the AC is policy enforcement, not actual judicial review. QR can do anything the AC does as far as fixing actual substantive errors (the B criteria errors or missing opinions for example). Probably a better explanation of my problems with the AC.
|
|
|
Post by montyburns on Feb 9, 2016 15:44:31 GMT -5
You're ignoring the constant input of new cases. There are approximately 1400 ODAR ALJs. He was asking about my opinion that 500-2000 more ALJs are needed to actually get rid of the back log. So, with 1400 ALJS plus 2000 ALJs hired, maybe 3,400 ALJs could get rid of the back log in 1-2 years.
Then that creates problems. If the backlog was taken care of, and the balance could be maintained by half that 3,400, say 1,700 ALJs could keep the SSA current if there was no backlog, what do you do with the other 1,700 ALJs?
Would people be willing to serve under a Not-To-Exceed (NTE) 2 year term the way SSA hires new AA/DWs at the NCACs?
Another big reason they won't hire 2,000 more ALJs is the expense of support staff. Forget the physical logistics of where to put them, I've heard it could take as much as 4 support staff to support every ALJ hired. Probably an exaggeration, but the point is valid.
Hhmmm, wait two years + for a two year NTE, no. Although, it would probably drastically reduce competition for the job! Also I think there are APA considerations that would render this a no-go from the start. But hey, it never hurts to spitball some ideas.
|
|
|
Post by montyburns on Feb 9, 2016 15:51:36 GMT -5
If we were serious about doing away with the backlog we would radically change the system to where its mostly like the DDS. There are no ALJs its just gs-13 disability hearing officers who are attorneys that work for ODAR. One of the main criticisms of the program has been that a disability claimant has more levels of appeal than a capital murder defendant. If you don't like what you get, you still have the appeals council and federal court, they can hire a few more magistrates. You shift a lot of the backlog and most of the difficult cases to the judicial branch and have them decide or the AC decide not simply remand. SSA ALJs are radically overpaid and the job is not that hard (sure I haven't done the job but you get a pretty good sense of the job spending years working with them) The ALJ's value, in theory, stems from those years of experience namely lit experience that informs their ability to make a valuable credibility analysis. The actual law is not all that complicated. That ALJ value is too expensive with how massive the disability program has become. Have the paralegals write the decisions. The ALJ system is outdated with respect to Social Security. Any attorney could easily perform the job as well or better after the 6 week training. ALJs are necessary for those other agencies with lower case loads where cases are much more complex. You performance rate the attorneys based on production not outcomes. Just like they want to do with ALJs (500-700). You can hire and fire attorneys way quicker and you can hire them on 2 year terms. Under this paradigm you blow through the backlog and then you have so many attorneys you CDR the hell out of people to ease republican fraud concerns. But were not serious about ending the backlog because its not a national outrage because these are mostly nonveteran poor people with no voice. and because NOSSCR and the AALJ would never allow it. The VA backlog in my area is basically gone because it was a national outrage. Hell the GOP wants adversarial hearings with someone representing the government. Some even believe part of the functionality of the program is its a total pain in the ass and takes years to get disability. Others want a backlog because it undermines public confidence of the federal government it perpetuates the stereotypes of the bureaucracy. Feeds the idea that government is always the problem and can never do anything right. The program has to be broken in order to shut it down. The backlog is never going away if it does it will be when the program goes insolvent or when the GOP finally figures out a way to outsource the adjudication process to a private insurance company. I was going to say you're going to get killed for this post, but I see the slaughter has commenced in earnest. I understand the spirit of frustration behind this post, but we're the government, we have to ensure due process and judicial independence is part of that. Forget Admin law, Con law should be all you need to know as to why your solution is a no-go. Making ODAR DDS II is basically the same as making us a private insurance company (minus the profit motive, which isn't nothing I'll concede). I used to hold the "why not make ALJs Hearing Officers" view, but really, that just gets us back to being DDS lite, and basically having to do whatever management would want us to do, as pointed out by Valkyrie.
Now I do think it's worth considering whether we should have the same requirements for adversarial ALJs as we do for non-adversarial ALJs, and whether there is a way for OPM to distinguish those, and maybe make the hiring a little steadier, faster and less (seemingly) arbitrary for those wo are just going to work for ODAR. Because as is, with the many years it takes to even get hired for the ALJ spot, there's no way hiring will ever keep pace with demand/attrition (indeed it never really has).
|
|
|
Post by tripper on Feb 9, 2016 15:52:31 GMT -5
At NCAC we were given 12 hours of decision writing OT per week for January and told at the time there would be OT like this available for the "foreseeable" future, maybe till September. All OT was cancelled after the third week of January.
As far as the writing backlog, the most recent figure I heard from a supervisor is that there is still a 25,000 case backlog waiting to be written, down from 50,000 last year.
However, the "million case" backlog is a national tragedy that will ONLY be fixed within our current system by hiring 500 to 2,000 new ALJS. I find this and props post about "decision draught" interesting. If true (and I have been getting 20+ hours OT A WEEK to write, so I am not sure it is, but supposing it is), then this is strong evidence that SAAs need to be screening cases, because that's were the logjam is. Plus, losing a few hundred attorneys from "writing only" (of course OTRs would be written by the SAAs reviewing/adjudicating them) would not appear to be too great a hit to the writing backlog. This would cost exactly zero dollars not already budgeted for and would at least start to make a dent in the backlog. Not to take away form your ultimate point, they probably need to double the ALJ corp, stat Agreed, the last time the backlog was going down substantially, the SAAs were able to screen and write case and the VSU was in full force. Now with only 25 to soon be 50 SAAs screening cases, of course the backlog will be going back up.
|
|
|
Post by valkyrie on Feb 9, 2016 15:53:00 GMT -5
At NCAC we were given 12 hours of decision writing OT per week for January and told at the time there would be OT like this available for the "foreseeable" future, maybe till September. All OT was cancelled after the third week of January.
As far as the writing backlog, the most recent figure I heard from a supervisor is that there is still a 25,000 case backlog waiting to be written, down from 50,000 last year.
However, the "million case" backlog is a national tragedy that will ONLY be fixed within our current system by hiring 500 to 2,000 new ALJS. I find this and props post about "decision draught" interesting. If true (and I have been getting 20+ hours OT A WEEK to write, so I am not sure it is, but supposing it is), then this is strong evidence that SAAs need to be screening cases, because that's were the logjam is. Plus, losing a few hundred attorneys from "writing only" (of course OTRs would be written by the SAAs reviewing/adjudicating them) would not appear to be too great a hit to the writing backlog. This would cost exactly zero dollars not already budgeted for and would at least start to make a dent in the backlog. Not to take away form your ultimate point, they probably need to double the ALJ corp, stat Senior Attorney review was very effective at reducing the backlog. I was excited to do it, but was a little concerned at what metric management would use to measure our performance. We were still expected to do regular writing, so I was sweating how many cases they would want me to review per month. I was horrified to find out that number of reviewswould not be the metric, but rather number of cases paid on the record! That metric, plus the Huntington schedule lead to the "paying down the backlog" concerns, and killed the Senior Attorney Review Program.
|
|
|
Post by montyburns on Feb 9, 2016 16:00:30 GMT -5
With all due respect, I must disagree. As this thread has asserted established, the quality of ALJs and decisions varies significantly. Just the number of dumb remands for B criteria analysis probably saves OGC a lot of district court cases, plus the AC can work on fixing HALLEX.
Such a small post, yet it sums up how twisted the problem is. The AC is there to create policy (Hallex) and make sure that the ALJs follow the regs, yet the AC AAJs don't have any experience as SSA ALJs, and Hallex is not binding on ALJs. Meanwhile, the B criteria was created in the regs to force old time ALJs to acknowledge the existence of mental illness-based severe impairments. So you have an ALJ corps with a history of ignoring the regs, who also claim that they are bound by the regs, but not Hallex, and these ALJs are being policed by AAJs who have little idea of what the ALJs do, but think Hallex trumps the regs. This is an excellent point about the B criteria (and many other "errors"). I used to take decisions to USDC all the time, and I never even thought that the failure to address the B criteria was even worth bringing up, other than a tack-on/kitchen sink/"death by 1000 cuts" sort of approach. As long as the mental limitations were in the RFC, what could it matter, really? Clearly the ALJ had considered it. It was quite the shock when I came to the inside, and this was regarded as some holy dictate and a most grievous error to fail to discuss in the correct place (cause again, if there's mental impairments in the RFC, who cares, we're discussing it there). But it goes to show how many of the recurring "errors" are self-inflicted wounds by SSA and the relic of SSRs/regs that long ago stopped serving their intended purpose, but are still worshipped as holy dicta by the AC/QR. I mean, seriously, it'd be less work to change the reg so we don't have to have a B criteria analysis, than to deal with the multitude of remands and wasted time going through this useless motion.
|
|
|
Post by montyburns on Feb 9, 2016 16:01:35 GMT -5
I find this and props post about "decision draught" interesting. If true (and I have been getting 20+ hours OT A WEEK to write, so I am not sure it is, but supposing it is), then this is strong evidence that SAAs need to be screening cases, because that's were the logjam is. Plus, losing a few hundred attorneys from "writing only" (of course OTRs would be written by the SAAs reviewing/adjudicating them) would not appear to be too great a hit to the writing backlog. This would cost exactly zero dollars not already budgeted for and would at least start to make a dent in the backlog. Not to take away form your ultimate point, they probably need to double the ALJ corp, stat Agreed, the last time the backlog was going down substantially, the SAAs were able to screen and write case and the VSU was in full force. Now with only 25 to soon be 50 SAAs screening cases, of course the backlog will be going back up. Exactly! People are acting like we can't reduce the backlog. But we did and we were, until Huntington and the resulting obsession with QRing everything a million times.
|
|
|
Post by tripper on Feb 9, 2016 16:02:16 GMT -5
Senior Attorney review was very effective at reducing the backlog. I was excited to do it, but was a little concerned at what metric management would use to measure our performance. We were still expected to do regular writing, so I was sweating how many cases they would want me to review per month. I was horrified to find out that number of reviewswould not be the metric, but rather number of cases paid on the record! That metric, plus the Huntington schedule lead to the "paying down the backlog" concerns, and killed the Senior Attorney Review Program. Interesting. I was never given any metric. One reason to consider, as part of a bigger picture, the number paid on the record would be to encourage the use of honed case screening. I would run the Dart reports looking for certain impairments that I felt would result in a higher pay rate, like cerebral palsy, multiple sclerosis, liver failure, etc. If the SAAs aren't held accountable for screening the right cases, but just a lot of them, then that doesn't really help the backlog. This is where training plays a big role.
|
|
|
Post by montyburns on Feb 9, 2016 16:05:47 GMT -5
So if a federal agency called the Office of Personnel Management partially hires you due process is not violated but if a federal agency called the Social Security Administration hires you due process is violated, I see. Give the decision maker the same judicial independence the APA affords by statute or reg and if the decision maker feels their independence is compromised give them MSPB and federal court appeal rights on the issue. "Give the decision maker the same judicial independence the APA affords by statute or reg..." this would be the substantive difference, yes. Also, there is something to be said for a different agency (partially) hiring you to serve as an independent decisionmaker. Cronyism abounds in management (I mean generally, not just SSA, or even the federal government). Having another agency do the hiring(ish) at least contributes to the illusion that SSAers are not just hiring those they know will tow the company line.
|
|