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Post by montyburns on Feb 9, 2016 16:10:40 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 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. Silly Rabbit, don't you know SAAs don't have production expectations and that metric can't be used on their performance reviews (LOLOLOLOLOLOLOL). Seriously though, I did not know that about the cases paid being used as the measuring stick. That's truly horrible. A reasonable person might say, let's change the metric to cases reviewed. Of course, suspending the whole program makes a lot more sense from the knee-jerk reaction to political considerations perspective.
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Post by mercury on Feb 9, 2016 16:12:38 GMT -5
So many posts in a short time. BA, I apologize for making it look like I was quoting you--I was quoting Valkyrie's comment about the AC. My HTML is not as good as in the '90s, it would seem.
As far as the AC is concerned, there are AAJs who have ALJ experience. Insiders can review their biographies on the intranet and learn that most of them have some sort of HO experience.
With respect to B criteria remands, some may feel it is pointless, but those are the regulations. The AC doesn't have the power to change them.
I'm not sure where people are getting the idea that the AC costs a lot. Replacing them with OGC would cost just as much, because OGCers are going to be GS-12 to 15, roughly equivalent to the attorneys at the AC who range from 12-14 and AAJ(15-equivalent).
Considering the average federal district court judge's experience with disability and the SEP, some of the terrible ARs we've seen are not surprising. It'd be better to avoid district court.
As for the point that QR could do what the AC does, my understanding is that QR became a part of the AC some years ago, and you'd still need somebody to sign off on remands.
I agree with most that SAA case screening would be useful in reducing the backlog, assuming that management were to understand that ALJ productivity might go down, and I hope to apply to such a position if they ever open up again.
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Post by valkyrie on Feb 9, 2016 16:13:44 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. We used the same screening tools, and the training and experience was invaluable. I'd also like to point out that our local management was very helpful and realistic. We were concerned about the viability of the program, so we asked what would be expected of us, in order to balance reviewing/writing responsibilities, and the response from region was 10 reversals per month! Of course the idiot accountants couldn't see the ethical ramifications of goals like that...
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Post by montyburns on Feb 9, 2016 16:18:50 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. This is a good point. I assume that those on the NAT detail were instructed on what specific criteria to use. I had really hoped that those who did the NAT detail would be freed to start doing this on their own. If management want to dictate what criteria can be used in the DART reports, or hell, just make the DART queries themselves, fine. But damn, just running the NAT detail again isn't going to do anything (even if it is 50 SAAs instead of 20).
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Post by valkyrie on Feb 9, 2016 16:20:11 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. Silly Rabbit, don't you know SAAs don't have production expectations and that metric can't be used on their performance reviews (LOLOLOLOLOLOLOL). Seriously though, I did not know that about the cases paid being used as the measuring stick. That's truly horrible. A reasonable person might say, let's change the metric to cases reviewed. Of course, suspending the whole program makes a lot more sense from the knee-jerk reaction to political considerations perspective. Another example of the natural emnity of accountants and attorneys in the wild (predictability vs due process). I saw it on Mutual of Omaha's Wild Kingdom when I was a kid.
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Post by montyburns on Feb 9, 2016 16:21:13 GMT -5
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. We used the same screening tools, and the training and experience was invaluable. I'd also like to point out that our local management was very helpful and realistic. We were concerned about the viability of the program, so we asked what would be expected of us, in order to balance reviewing/writing responsibilities, and the response from region was 10 reversals per month! Of course the idiot accountants couldn't see the ethical ramifications of goals like that... OMG, that is ridiculous. at the rate I paid, I'd have to screen probably 50-100 cases to get that, in addition to doing 40 hours of writing. Wow
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Post by valkyrie on Feb 9, 2016 16:23:27 GMT -5
We used the same screening tools, and the training and experience was invaluable. I'd also like to point out that our local management was very helpful and realistic. We were concerned about the viability of the program, so we asked what would be expected of us, in order to balance reviewing/writing responsibilities, and the response from region was 10 reversals per month! Of course the idiot accountants couldn't see the ethical ramifications of goals like that... OMG, that is ridiculous. at the rate I paid, I'd have to screen probably 50-100 cases to get that, in addition to doing 40 hours of writing. Wow
I probably reviewed about 50-60 cases per month, and averaged about 10 OTRs. OT helped.
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Post by Propmaster on Feb 9, 2016 18:10:09 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 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. That was not the metric used in my office. My office used straight productivity - 1 hour for each review, and 3 hours for writing a favorable that came out of it.
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Post by Propmaster on Feb 9, 2016 18:26:44 GMT -5
Some people were talking about the Appeals Council being eliminated and letting OGC make the call for Federal Court. Just for those that don't know, the Appeals Council decides if a case will be defended in Court. OGC is often as annoyed as the claimant that they have to defend obvious tripe in court. Even without the Appeals Council review stage, the Appeals Council Court Branches would still exist to handle the interface with OGC and the Courts. Giving OGC the authority to decide would simply make them the Appeals Council - and they are much more strict than the random analysts at the AC now.
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Post by christina on Feb 9, 2016 19:23:41 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. 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. Actually, i disagree. i thought he raised some interesting points. Bottom line of his argument is system as it stands is not currently working. Valid point. and he proposed solutions. Also, as he noted, it was a free flowing thought process.
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Post by christina on Feb 9, 2016 19:30:41 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. Don't want to get rid of AC. A long time ago, i would have agreed. But since then, i have seen some of the decisions the Courts sent back without AC review. It was some type of pilot program where there was no AC review. I also saw the Court orders on those remands. only comment i wish to make is i was surprised by what i saw. i learned to appreciate the AC. in thinking about it now, District courts and/or magistrates must have been irritated by a massive uptake in appeals that made it to them(since there no AC buffer between ODAR and federal court). That could explain the great push by the courts to send those cases RIGHT back to SSA. Although now that i have had time to read rest of posts, moving AC resources to odar level would help.
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Post by christina on Feb 9, 2016 19:41:51 GMT -5
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. To be clear I'm suggesting legislative changes to fix the system. Congress created this adjudication process a long time ago it clearly needs updating. This isn't about a judge this is about the backlog. It came off as a rant because its exhausting to hear everyone talk about the backlog as if its this unsolvable monster. It's only difficult within the current model, change the model. We need a system where a claimant can consistently have a hearing and a decision in hand within 3 months from a request for hearing
i don't see it dropping to 3 months but less than a year would be a big improvement too. or say 6 to 12 months.
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Post by christina on Feb 9, 2016 19:56:44 GMT -5
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. yepp
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Post by mercury on Feb 9, 2016 22:29:27 GMT -5
I'm no AAJ but I feel like I've seen so many remands from bad decisions I can't possibly see doing away with the AC.
Even if you do away with the "B" criteria evaluation, do you guys really feel like most remands are pointless? I've seen plenty of questionable decisions denied review by the AC unless the lack of substantial evidence was obvious.
I've seen cases where judges ignored 12.05, ignored manipulative limitations supported by substantial evidence, mischaracterized DDS opinions? I don't blame other AAs or the ALJs because I know we're in a production environment. Mistakes will be made. The AC is the claimant's chance to say, hey, this judge made a mistake, without filing a federal lawsuit.
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Post by montyburns on Feb 10, 2016 22:57:49 GMT -5
I'm no AAJ but I feel like I've seen so many remands from bad decisions I can't possibly see doing away with the AC. Even if you do away with the "B" criteria evaluation, do you guys really feel like most remands are pointless? I've seen plenty of questionable decisions denied review by the AC unless the lack of substantial evidence was obvious. I've seen cases where judges ignored 12.05, ignored manipulative limitations supported by substantial evidence, mischaracterized DDS opinions? I don't blame other AAs or the ALJs because I know we're in a production environment. Mistakes will be made. The AC is the claimant's chance to say, hey, this judge made a mistake, without filing a federal lawsuit. I don't think anyone is against the AC in theory. But in practice, they just appear to be so numbers driven as to be effectively useless. Certainly many, maybe most, AC remands are meritorious to some extent. If the purpose was to give claimant's a review before heading to federal court, then yes, that would be fine. But that is not the experience I have with them, from the inside or outside. I'd like to think that I am such a great writer that these remands are unmeritorious, as I rarely get the "You totally missed this opinion" (has happened once to me) or missed this critical piece of objective evidence (never happened to me remand. More often it is essentially "we disagree with the ALJ's findings" type remand, the ALJ did something blatantly wrong type remand (like say, on the record, "I haven't looked at the file" - no kidding, have seen it twice), or "we are literally making up our own rules" remand (did you know it is apparently reversible error to fail to consider a SDM opinion, fail to specify "morbid" before "obesity", despite having the correct BMI, cite a GAF score from 10 years before the AOD or, not cite to page numbers in a favorable decision? Neither did I!"). But the reality is I could be a crap writer and still have the same AC agree rate.
The reality is what they characterize as say "insufficient analysis of this opinion" in one case, is sufficient in another. I have literally seen this. I have also noticed a trend (anecdotal I'll admit) that the most ridiculous remands are made at the end of the month, which strongly suggests to me that they are just meeting a quota. And to some extent, an unmeritorious remand is worse than an unmeritorious opinion, because it A) adds to the backlog and B) is not really providing the claimant with a new or fresh shot. I'd love to see that stats on how many ALJs reverse themselves simply because such and such opinion was not thoroughly addressed, or worse, the writer cited the wrong grid rule (even though all the findings as to the vocational profile were correct and the step 5 VE testimony cited jobs within the correct grid rule). This is not actually doing anything to help claimants or the system, it is only helping the AC meet their arbitrary numbers.
In you example, did the claimant meet 12.05? NO? Harmless error! Also it is the Judge's decision that must be "supported by substantial evidence," not the claimant's allegations of impairment, which must be proved by a preponderance (I am sure you know that and just inartfully stated it in your post). These remands seek some meaningless perfection, and do not consider the realities of appellate litigation (i.e. remanding a favorable because you found an impairment not severe - it literally could not change the outcome of the case, but I have seen several of those).
Meh, rant over. Bedtime.
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Post by montyburns on Feb 10, 2016 23:29:59 GMT -5
I'm not on the inside at the AC, but I think many at OGC see a 'disconnect' in the Appeals Council's court branch between what the Appeals Council feels is defensible and what OGC thinks is actually defensible in district court XYZ. The reality is that many courts vary drastically in what constitutes 'substantial evidence,' a fully developed record, a proper credibility determination, etc. I'm not entirely sure how much the Appeals Council appreciates that and how much the agency spends on attorney's fees when it loses at the court level. EXACTLY! I'll take OGC over the AC all day b/c they actually have to stand in front of a magistrate and try to argue this stuff with a straight face. I've seen it. It is legitimately painful to watch. Even when I was the one benefitting from it. And your point about EAJA fees also is totally correct, and completely ignored in the arguments. Someone up thread talked about appreciating the AC after a pilot program with direct fed review provided puzzling results (I am assuming this meant unwarranted remands). This so misses the point (I think anyway, I could be reading the post wrong). The fed court is the law. Anything the AC upheld would have been taken to the usdc and remanded anyway. AC precedent is meaningless - repeat meaningless. The only thing the AC should be doing is making sure circuit case law is applied correctly. Anything else is a waste of time and money. Ok, now it's bedtime
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