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Post by Deleted on Feb 9, 2016 16:38:29 GMT -5
Spit balling ideas... fire for effect at me all you want, I'm Teflon.
The year (plus) hiring process is due in large part to the high risk in making a "hiring" mistake.
I propose a new stream-lined announcement hiring 1,000 ALJs on Not to Exceed (NTE) 3 year terms. At the end of the 3 years you'll be made permanent based on performance and how many ALJs are going to be needed permanently to continue eliminating the backlog or maintaining it being gone.
Pros:
Could seriously speed hiring up to a few months because hiring "mistakes" aren't permanent like now. Getting the new ALJs holding hearings in a few months would help with the backlog faster. Pushing for permanence would give the ALJ union something to do.
Cons:
Apparently people applying for ALJ positions deserve a lifetime appointment without proving merit from the bench. Some "high" quality applicants wouldn't apply without the permanent guarantee. (I say fine, good luck with other endeavors).
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Post by Propmaster on Feb 9, 2016 17:14:05 GMT -5
It's a question of statute. You cannot rate the performance of an ALJ.
The risk is that ALJs during those three years will feel beholden to their 'bosses' to make decisions that may be politically expedient at the time, but that do not capture the true outcome mandated by the rules. The risk is the appearance of this, not even the wide-spread actual occurrence of it.
Without being able to rate the performance of the ALJs legally, you have no basis to keep or not keep some of them in the job.
Your proposal would be captured in spirit by a change to highly paid hearing officers, which is a change endorsed by some, but not by ALJs, the ALJ union, or (I dare say) most on this board.
However, brainstorming is never a bad idea. I welcome others' thoughts.
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Post by Propmaster on Feb 9, 2016 17:19:58 GMT -5
I'm not going to do real research, but the following is from an ABA document from 2002, and I don't guarantee it's timeliness, relevance, or fundamental correctness:
The position of administrative law judge is a tenured position, and one holding this position may be removed or disciplined only for good cause established by the Merit Systems Protection Board (MSPB) after opportunity of hearing before the Board. The MSPB itself has no authority to take action against an ALJ; it determines whether there is good cause for the particular agency to take action and, if so, what particular action the agency is allowed to take. Actions by an ALJ that are inconsistent with the primary purpose of the APA in that they undermine confidence in the administrative adjudicatory process constitute good cause for disciplinary action. Thus, good cause for disciplinary action may include instances of bias, misconduct, incompetence, failure to perform duties, insubordination, physical incapacity, violations of statutory law or agency rules, or a refusal to follow settled precedents. If a disciplinary action by an agency is arbitrary, politically motivated, or otherwise based on reasons that constitute an improper interference with the performance by an ALJ of his or her judicial functions, the charge cannot constitute good cause.
Under OPM regulations, an agency shall not rate the performance of an ALJ. An agency may, however, introduce managerial programs to increase the quality and production of case decisions, so long as these programs do not interfere with the decisional independence of the ALJ. Agencies may institute programs for reviewing ALJ decisions outside of the normal administrative appeal process. Agencies may also set reasonable production goals for ALJs.
edit: I'm not trying to discuss the final sentence. The ABA document proceeds to break down the rules in light of court cases, etc., with a big footnote to Bellman, essentially pointing out that quotas are not ok as production goals and that enforcing production goals is hard.
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Post by christina on Feb 9, 2016 17:25:52 GMT -5
it's not a bad idea for backlog issues. i'd be far less likely to apply because why would i want to give up a permanent govt job. if i had written assurances i'd be returned back to a GS 13 with my current telework if being an ALJ did not work out, then i would consider it.
Propmaster's points are well taken, in particular is that the ALJ's could feel beholden to the powers that be. the ALJ's independence is crucial in my opinion to allow a claimant to have a fair and fully impartial hearing. i am not discrediting anyone with this comment. As a attorney for the government, i can be held in/back more than an ALJ can. this holds true for any govt employee. I don't like the idea of any ALJ's job being potentially on the line to PTB that could use the PTB's own agenda to decide which ALJ's can stay and which will leave; on paper, this would not be the case of course but it opens up a very real risk this could happen.
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Post by Deleted on Feb 9, 2016 17:25:53 GMT -5
It's a question of statute. You cannot rate the performance of an ALJ. The risk is that ALJs during those three years will feel beholden to their 'bosses' to make decisions that may be politically expedient at the time, but that do not capture the true outcome mandated by the rules. The risk is the appearance of this, not even the wide-spread actual occurrence of it. Without being able to rate the performance of the ALJs legally, you have no basis to keep or not keep some of them in the job. Your proposal would be captured in spirit by a change to highly paid hearing officers, which is a change endorsed by some, but not by ALJs, the ALJ union, or (I dare say) most on this board. However, brainstorming is never a bad idea. I welcome others' thoughts. That's that. It is really hard to speed up the hiring process of someone who has life tenure and can't even be evaluated.
With the appeal to Federal court judges a possibility, do the ALJs need to be this tenured and free or evaluation to give the claimant's due process? Does having the Federal Court option ensure constitutional rights even if the ALJ tenure was "revoked" going forward, not for existing ALJs, by new statutes?
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Post by redryder on Feb 9, 2016 17:37:06 GMT -5
The appointment could be for a term just like the bankruptcy court judges or the USDC magistrates, as long as the applicable laws and regulations that govern the appointment are brought into line. But even if there were term limits, a rogue judge can do a lot of costly damage during that term. I have heard figures kicked around that a fully favorable DIB award costs about $250,000 or more over the lifetime of the recipient and beneficiaries when you consider the monthly cash award as well as the Medicare expenses.
From where I sit, the problem is not the appointment process itself. It's what happens when there is a rogue judge. And I am limiting my comments to the outliers on outcome alone (both those who pay and those who deny). The low-producer is just as much of a rogue.
Unfortunately, rather than address the individual, the responses tend to be new rules or procedures that apply to all, but never address some of the core problems. How does an office deal with a judge who won't retire but the consensus is that this person is not able to perform the duties of the job? How does an office address the low producer who does not work at home? Right now, that's the carrot for increasing the number of cases scheduled for hearing.
There are no easy answers.
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Post by Propmaster on Feb 9, 2016 17:47:13 GMT -5
The appointment could be for a term just like the bankruptcy court judges or the USDC magistrates, as long as the applicable laws and regulations that govern the appointment are brought into line. But even if there were term limits, a rogue judge can do a lot of costly damage during that term. I have heard figures kicked around that a fully favorable DIB award costs about $250,000 or more over the lifetime of the recipient and beneficiaries when you consider the monthly cash award as well as the Medicare expenses. From where I sit, the problem is not the appointment process itself. It's what happens when there is a rogue judge. And I am limiting my comments to the outliers on outcome alone (both those who pay and those who deny). The low-producer is just as much of a rogue. Unfortunately, rather than address the individual, the responses tend to be new rules or procedures that apply to all, but never address some of the core problems. How does an office deal with a judge who won't retire but the consensus is that this person is not able to perform the duties of the job? How does an office address the low producer who does not work at home? Right now, that's the carrot for increasing the number of cases scheduled for hearing. There are no easy answers. Well said. Especially since many aspects of poor performance - including failure to follow established precedent, are cited as reasons that can justify removal of an ALJ. I think the agency gets itself into a corner when it issues inconsistent verbal and sometimes written policy that contradicts official policy, and then when it evaluates whether it has a "case" for removal, it realizes that there is nothing it can point to that is "clear" instructions, settled policy, etc. If the agency was straightforward to begin with, they would have more control of their processes and less people pushing the envelopes - instead, they approach discipline and productivity underhandedly, tainting their abilities to move forward with appropriate corrective measures. They're lying in a bed of their own making.
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Post by Propmaster on Feb 9, 2016 17:56:49 GMT -5
It's a question of statute. You cannot rate the performance of an ALJ. The risk is that ALJs during those three years will feel beholden to their 'bosses' to make decisions that may be politically expedient at the time, but that do not capture the true outcome mandated by the rules. The risk is the appearance of this, not even the wide-spread actual occurrence of it. Without being able to rate the performance of the ALJs legally, you have no basis to keep or not keep some of them in the job. Your proposal would be captured in spirit by a change to highly paid hearing officers, which is a change endorsed by some, but not by ALJs, the ALJ union, or (I dare say) most on this board. However, brainstorming is never a bad idea. I welcome others' thoughts. That's that. It is really hard to speed up the hiring process of someone who has life tenure and can't even be evaluated.
With the appeal to Federal court judges a possibility, do the ALJs need to be this tenured and free or evaluation to give the claimant's due process? Does having the Federal Court option ensure constitutional rights even if the ALJ tenure was "revoked" going forward, not for existing ALJs, by new statutes?
The answer to this question depends on your analysis of the program in general. It is fairly well established fact that ALJs overturn 40-60% (varying from year to year and decade to decade) of cases initially denied by the non-ALJ components of the agency. The reconsideration stage, on the other hand, overturns ... I think I remember 5-15% depending on jurisdiction, but that might be low. The only difference is the qualifications of the reviewer and the discretion the reviewer has. The reconsideration decision makers are subject to quality assurance, which can intercept their decisions, decide they did them wrong, and send them back. None of these people are lawyers, necessarily, by the way. They follow the policy set forth in agency manuals without the ability to interpret gray areas. ALJs are not subject to the same degree of pressure, although I note that the AALJ argues that ALJs consistently fail to do their jobs correctly because of agency pressure. I tend to think that most ALJs do a quality of job with which they are satisfied, and that the ALJs claiming they do not read evidence before making a decision because of the decision quotas are grandstanding. Nevertheless, they are not subject to outright reversal by someone who is essentially a colleague. Only when the Appeals Council takes jurisdiction of a case (on its own motion or because of an appeal) is an ALJ's decision reviewed, and unlike the state agency disability examiners, frequent errors do not affect the (non-existent) performance rating of an ALJ. Thus, if you believe that the state agency personnel are doing a "good enough" job effectuating the intent of the statute, there would be little reason for a "life-tenured" ALJ. A non-life tenured ALJ would be a hearing officer. A hearing officer is not required to be a lawyer. You would need to fundamentally change the nature of due process established in 1946 with the APA in order to have an ALJ who was just like a current ALJ, but more easily fire. However, note that the APA (and SS Act) require an ALJ at a certain point when there is going to be a hearing. If the APA does not apply in full, the need for a hearing also does not apply - why should it? So why have anything after reconsideration? Why not eliminate ODAR and let people appeal directly to court? (This is impractical because of the number of appeals that would result, FYI). Edit: Regarding differences between ALJs and DDS DEs, there is also often more evidence before an ALJ. Part of that is a side effect of the backlog and waiting times. Part of it is representatives getting involved after the initial stage and generating/gathering more useful evidence.
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Post by Propmaster on Feb 9, 2016 18:00:37 GMT -5
... They're lying in a bed of their own making. Haha, no pun intended.
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Post by Gaidin on Feb 9, 2016 18:38:45 GMT -5
It's a question of statute. You cannot rate the performance of an ALJ. The risk is that ALJs during those three years will feel beholden to their 'bosses' to make decisions that may be politically expedient at the time, but that do not capture the true outcome mandated by the rules. The risk is the appearance of this, not even the wide-spread actual occurrence of it. Without being able to rate the performance of the ALJs legally, you have no basis to keep or not keep some of them in the job. Your proposal would be captured in spirit by a change to highly paid hearing officers, which is a change endorsed by some, but not by ALJs, the ALJ union, or (I dare say) most on this board. However, brainstorming is never a bad idea. I welcome others' thoughts. That's that. It is really hard to speed up the hiring process of someone who has life tenure and can't even be evaluated.
With the appeal to Federal court judges a possibility, do the ALJs need to be this tenured and free or evaluation to give the claimant's due process? Does having the Federal Court option ensure constitutional rights even if the ALJ tenure was "revoked" going forward, not for existing ALJs, by new statutes?
I really don't think you understand the due process purpose of Administrative Law Judges. What you are proposing is not just a rewrite of a few statutes it is a fundamental change to the level of due process rights of claimants. I don't normally wade into these discussions about the internal operations of ODAR but your proposal is problematic on a due process level. On a more pragmatic level I find it bizarre that a person who claims they want to be an ALJ also wants to cut out the APA protections that make being an ALJ a worthwhile pursuit.
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Post by blondswede on Feb 9, 2016 19:15:08 GMT -5
I agree with your "edit." In my neck of the woods, SOP is for claimants to file their own application for SSDI/SSI, and after being initially denied, then attorneys will hire on.
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Post by montyburns on Feb 9, 2016 20:27:09 GMT -5
Props to the OP for starting thread, and props to err.. propmaster for his even cursory APA research in the AAJ thread. I agree NTEs are a no go. And I agree with Gaidin above about the importance of preserving due process. I think the problems with the ALJ process/position, as applied to ODAR anyway are - A. they cannot hire enough of who SSA feels are "qualified" quickly enough and B. If they pick a dud, they are stuck with them. B has many subparts , in terms of a "dud" being either low producing judges, high producing judges who pay everyone (high producers who deny lots of people probably would not be viewed as a problem, fairly or not), and judges with high reversal rates regardless of production.
So in regard to B: might it not be possible to have all ALJs subject to a review by the MSPB every 10, 15 or 20 years? A review at the 15-20 year mark would be sufficient to get those out the door who need to... retire. I mean browbeating these folks with nasty emails, cessation of telework, remanding/QRing everything are the only options SSA really has (outside of the one egregious MSPM case we all know about). I haven't seen it be very effective. OTOH, a review this infrequent would I think, not hamper judicial independence. I mean, you can pretty much retire after 20 years, so it's not the same as living under the threat of a 3 year review. No idea how this would jive with the APA, but it's an idea.
As to A: I'd reiterate my idea of OPM making a distinction in hiring procedures for non-adversarial and adversarial ALJs, and relatively fast tracking/altering the criteria for the former. I don't think this would require major (or any) statutory changes, which generally speaking, I find to be so pie-in-the-sky as to be not worth considering. I think of State WC ALJs as the prototypical "adversarial" ALJs. The law is more complex, with many more issues, more witnesses, and a greater need for courtroom management. OTOH, it's usually less volume and less pressure in terms of deadlines. Going through the OPM process should return people who are good at this (emphasis, should). Conversely, I think a lot of people who qualify through this process are not suited to deal with the repetition, relative boredom, and production expectations associated with ODAR. So I think a lot of "ideal" OPM ALJ candidates are at once overqualified, yet still unprepared, for life as an ODAR ALJ. I can't imagine that, if I were a State ALJ, I would come to ODAR and find the work satisfying. The pay and leave would doubtlessly help, but I've seen ALJs who look great on paper, but now so obviously phone it in (I assume due to disinterest) that, IMO, they are unfit for the bench. And even as someone who wants to be an ALJ, I don't think a distinction in pay between adversarial and non-adversarial ALJs would be unreasonable.
Anyway, some thoughts in the spirit of the thread.
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Post by ba on Feb 10, 2016 6:51:05 GMT -5
"Would PRW of visionary, out-of-the-box thinker, and ideaperson be available?" No. "Would there be any other jobs in the national economy that a person with soldack's RFC could perform?" pot stirrer, Sed, Un, SVP2, 38,000 rabble rouser, L, Un, SVP1, 42,000 apple cart upsetter, M, Un, SVP2, 18,573 Love this post, but relevance of past work is an issue reserved to the Commissioner.
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Post by christina on Feb 10, 2016 7:09:30 GMT -5
ah yes, but prw can be actually performed as well!!! and i loved the post too!!
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Post by Deleted on Feb 10, 2016 7:56:55 GMT -5
That's that. It is really hard to speed up the hiring process of someone who has life tenure and can't even be evaluated.
With the appeal to Federal court judges a possibility, do the ALJs need to be this tenured and free or evaluation to give the claimant's due process? Does having the Federal Court option ensure constitutional rights even if the ALJ tenure was "revoked" going forward, not for existing ALJs, by new statutes?
I really don't think you understand the due process purpose of Administrative Law Judges. What you are proposing is not just a rewrite of a few statutes it is a fundamental change to the level of due process rights of claimants. I don't normally wade into these discussions about the internal operations of ODAR but your proposal is problematic on a due process level. On a more pragmatic level I find it bizarre that a person who claims they want to be an ALJ also wants to cut out the APA protections that make being an ALJ a worthwhile pursuit. First, isn't it a balance of due process? There is due process in having a federal court appeal, and second, how is a two to three year wait meeting their due process now? I would wager if you polled claimants, they would prefer a six month answer over a 26 month answer even given the alleged mythical risk to their due process. I just think that ALJs try to make fair unbiased decisions regardless of outside pressures. They want to be policy compliant so they don't get remanded, and I assume the majority don't want to be outliers that over pay or under pay. I may be giving ALJs, and the people who want to be ALJs, too much credit, which is a nice segue into your next point(?).
As to what you find bizarre, my proposal intends for many if not the vast majority of the hired ALJs to become permanent and fully protected by the APA eventually, if they aren't "terrible" and if we need the judges once the "temporary" backlog is eliminated.
I also deeply feel being an ALJ is a worthwhile pursuit even without the APA protections. ALJs utilize years of experience and judgment to decide outcomes significantly affecting claimant's lives. The wisdom and judgment applied fairly and evenly by an excellent ALJ, in a pressured and time-sensitive position, can change someone's life, or can be a harsh ending when a sympathetic and otherwise deserving applicant has to learn that the law and regulations don't allow them to be paid. Sure sometimes it feels like we are writing cases about lazy do-nothings trying to get a handout from the government. However, the majority of the claimants who can work still have heart-wrenching and sad stories and I wouldn't want to change lives with any of them.
Actually, if there was such a program, I would volunteer time to be an ALJ. I hear that's the holy grail of employment, find a job that you would love to do even if you weren't getting paid. Yes the job has horrible pressures and could be far better (such as a 500 case a year CAP - possible if we hired enough judges). Yes the job is way better with APA protections, and if I am ever fortunate enough to be an ALJ I will enjoy every protection it affords me. However, I hope I am not an outlier for believing being an ALJ has intrinsic merit that makes it a worthwhile profession and career, even without APA protections.
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Post by catspaw on Feb 10, 2016 10:47:51 GMT -5
I haven't vested heavily in this thread, but Soldack's reference to volunteering to be an ALJ struck a cord with me. When the news hit about veterans being treated so poorly with compensation and benefits, I immediately wondered why Big Law couldn't step forward and clear the backlog with pro bono assistance. Of course the government isn't pro bono, so there were lots of holes in my rationale, but I would have stepped forward immediately to assist if the option had been available.
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Post by anotherfed on Feb 10, 2016 12:15:00 GMT -5
"Would PRW of visionary, out-of-the-box thinker, and ideaperson be available?" No. "Would there be any other jobs in the national economy that a person with soldack's RFC could perform?" pot stirrer, Sed, Un, SVP2, 38,000 rabble rouser, L, Un, SVP1, 42,000 apple cart upsetter, M, Un, SVP2, 18,573 Dude. You seriously need to take a vacation.
And expect the brief from CD to arrive soon...
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Post by Gaidin on Feb 10, 2016 13:01:45 GMT -5
If you don't have APA protections then you aren't an ALJ you're a hearing officer, an AJ, or something else but you aren't an ALJ. Those protections both for the judge but also for the process they are part of is what sets them apart from these other positions.
As someone above said I'm not sure you're really considering the requirements of due process or where on the sliding scale of administrative process disability proceedings occur. I don't mean this as an attack because I have no doubt your substantive understanding of other areas of law is better than mine but you really need a better understanding of administrative law than your proposal and subsequent defense are demonstrating.
Finally, a trial period for ALJs where they hope to issue enough opinions that the agency will like in order to get hired full time sounds like a farce.
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Post by JudgeRatty on Feb 11, 2016 8:35:45 GMT -5
All these posts about having AJs or hearing officers instead of ALJs makes me cringe. Why on earth suggest or advocate for anything that changes the APA protections if you are presumably on this board to get one of those ALJ positions? I do not get it and I hope this idea dies a swift death.
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Post by Deleted on Feb 11, 2016 8:58:42 GMT -5
All these posts about having AJs or hearing officers instead of ALJs makes me cringe. Why on earth suggest or advocate for anything that changes the APA protections if you are presumably on this board to get one of those ALJ positions? I do not get it and I hope this idea dies a swift death. I am proposing a short term solution to two competing needs. The intent of hiring the 1,000 NTE ALJs would be that 85%+ of them would eventually become permanent under the full protection of the APA. The few that would quit from attrition during the 3 years, coupled with the few that would be clearly unsuited for the job, would take care of the attrition. OPM and SSA can't hire faster than they do now primarily because they have to be overly cautious in the hiring process due to the permanence of a mistake. Without a hiring mistake being permanent, they could hire dramatically faster than they do now. Imagine bringing on 1,000 new ALJs this calendar year.
In three years, even with 1,000 new ALJs there would still be a backlog, but a much smaller one, so there would be a lot of pressure to make them permanent.
Best case, keeping a 1,000 new ALJs permanently, even without a backlog, could also be justified with my other suggestion that once the backlog is gone, cap ALJs at 500 cases per year. (Maybe even 480 at 40 per month) A 500 case cap, with 2 weeks of vacation, that's approximately 10 cases per week. With some dismissals, that is a reasonable week of three hearing days of ~3 cases. The quality of life of all ALJs would go up and the quality of the decisions would improve as well.
Defending the current system and glacial rate of ALJ hires is tantamount to defending the horrendous two to three years injured Americans have to wait to get the protections we have decided they deserve. THAT, I do not get.
As far as me advocating for a solution that is against my personal best interest, I guess one person's definition of idiot is another person's definition of integrity.
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