ALJ decision quality - (Again Long-I'm verbose)

[Propmaster]

ORIGINALLY POSTED 2/25/08, NOT SIGNIFICANTLY MODIFIED SINCE. This thread may again be relevant to appointees, so I have bumped it on 6/2/09.

Here's a slightly relevant rant/complaint/question that arose while I was reviewing ALJ decisions for potential appeals grounds. My points may be of use to people who get appointed.

I read a decision from a judge who I consider just about the pinnacle of legal analysis. When he calls and wants to talk about an amended onset date, I always know that his proposal is probably the best defensible onset date; and I actually tell my clients (and only with this judge) that he will probably know their file better than I do. The decision I read today was a masterpiece. As it went along, every grounds I could have considered for appealing was proactively dealt with. The ALJ was respectful, laid out his grounds, came to his conclusions, and we are probably not going to appeal it (depending on the client's insistence level).

The down side - this hearing was held in 2006. And not in fall or summer, either. This ALJ issues decisions on a monthly basis that can be counted on a normal human complement of digits (sometimes with shoes still on), and it takes up to 2 years after a hearing is held. Not a valid trade-off - from mine, the claimant's, or the agency's perspectives.

Then I read another fairly well defensible decision from a much more timely HOCALJ. He had even ordered CEs, etc. in developing a sparse record, and the decision was probably legally sound.

However, this ALJ spent so much time identifying ridiculous inconsistencies and abdicating (needlessly, since he actually did everything he should have) his responsibilities that the tone of the decision came across as arrogant and insulting. At one point I literally held these two decisions up in my hands and compared the boilerplate they used about the credibility factors. While seemingly identical, all of the sudden the latter ALJ inserted a couple paragraphs about the Supreme Court's assignment of the burden of proof, etc. etc.

I know the purpose of these paragraphs this judge inserts - they are for my benefit and the benefit of the reviewer of his decision on appeal - they are unrelated to his actual decision process (except as general background info). The client does not need to hear this stuff. The ALJ seems to want to go along to defend his decision against the appeal he knows will be coming - and by being so defensive in his decision, he helps ensure that the appeal will, in fact, come! JUST tell me your decision. If you need to include arguments in it about why an appeal should fail, maybe you should look more closely at the decision you made!

Then I picked up a third ALJ's decision. While reading the procedural history section of the decision I became incensed. I immediately asked, "is this one of Judge _______'s opinions?" And it was. The ALJ had managed to express so much disdain for the claimant in describing the "pattern of failed applications" in the past, I decided to appeal before actually reading the rationale! (As it happens, this ALJ made mistakes worthy of taking all the way to district court - as this ALJ often does). Again, the defensiveness and/or disdain this ALJ feels against claimants comes out in the decisions the ALJ writes (this ALJ tends to write a lot of their own unfavorables - word is that this ALJ was previously a decision-writer at ODAR who "specialized" in unfavorables), leading to more appeals, which leads to more remands, which leads to more defensiveness, etc. The ALJ seems to be losing a battle with them-self - with claimants caught in the middle.

So what ALJ is worthy of emulation? We have another ALJ who is a kind, compassionate decision-maker and, perhaps, one of the highest payers in our city, but his hearing demeanor is so bad, he has been known to make lawyers cry. Another ALJ is nice as the day is long, but hears only 10 cases a month.

Obviously, any new ALJ will have to gather elements of the ALJs he or she respects (if he or she knows any) or perhaps the best elements of other judges or decision-makers. I can't emphasize enough, though, as someone who reviews hundreds of ALJ decisions, that the tone and quality of the decision you sign will influence whether it gets appealed (and to a lesser extent whether that appeal is successful).

Don't "challenge" the claimant. (The 2nd ALJ I described above began, in 1998, expressly rejecting the emergency teletype regarding DA&A materiality, expressing his written opinion that his interpretation of the new statute change trumped this agency policy, and challenged the AC on appeal to send it back if they didn't like the fact that he ignored them. For some reason, this practice only lasted about a year - the average AC review wait at the time...)

Don't insult the claimant (they get enough of that already).

Don't belittle the claimant's problems.

Don't explain how the claimant's doctors are wrong based on your reading of the DSM-IV and the treatment notes. Even if you're right, this simply triggers an appeal. If you're unhappy, get a medical expert.

Don't deliberately or negligently mischaracterize the facts. Nothing seems like a clearer ground for appeal to a claimant than a misstated fact. I can talk about standard of review until I'm blue in the face, but a claimant who sees that the ALJ said they were a 43 year old, divorced, ex-army, former dishwasher when they are, in fact, a 44 year old, never-married, ex-navy, former fast food cook figures they have an appeal sown up. They assume they can point out a litany (and believe me - I've gotten litanies) of factual errors and get a remand (to a whole other judge, of course, since this one must be biased since he didn't listen, etc.). Let the claimant know you listened, you understood, and you decided based on the true facts of the case.

Anyway - this incoming class of ALJs has a chance to help reduce the backlog. In addition to the mere "boots on the ground," being the "best you can be" (pun not initially intended) can avoid remands, which makes decision-making more efficient.

And so, good night. I hope to awaken to the sound of my phone ringing from OCALJ, whereupon I'll awaken, grab the phone, mumble something incoherent (possibly drunk-sounding), then drop the phone...never mind - Maybe I shouldn't sleep with it tonight.

[jagghagg]

First, to sarcasm:

Feb 25, 2008 23:36:53 GMT -5 Propmaster said:

Now that the "Age of Privateatty" has dawned

Man, will he be happy to hear THAT!!!

…the pinnacle of legal analysis.

I’m sorry – I can’t resist: you really like this word, don’t you ?

I decided to appeal before actually reading the rationale! (As it happens, this ALJ made mistakes worthy of taking all the way to district court - as this ALJ often does).

Soooooooooooo yer sayin’ that you decided to appeal without regard to content?

And so, good night. I hope to awaken to the sound of my phone ringing from OCALJ, whereupon I'll awaken, grab the phone, mumble something incoherent (possible drunk-sounding), then drop the phone...never mind. Maybe I shouldn't sleep with it tonight.

Hey, I hope you read the “transcript” of the job offer call made to PrivateAtty – at least you will only drop the phone, apparently HE will have a heart attack!

****
Ok, all sarcasm aside, Prop:

Let the claimant know you listened, you understood, and you decided based on the true facts of the cases.

…this has got to be the best repeated advice on the boards from those who know.

I appreciate your insightful soliloquy and have printed it out and placed it in my file of “ALJ Stuff”….I am sure that practicing ALJs have a different point of view – (we have even heard a few expressed on these Boards) – and I am sure those who get to the classes in B’more Town will hear a full scope of this dynamic. The bottom line, however, is as you indicate, I think: let ‘em know you heard them and you understand and make sure the decision is clear. Thanks!

[privateatty]

"Now that the age of privateatty has dawned"?

I assume you mean that I finally revealed that I am an old fut. I believe I am in good company on this board. And I further assume that you took umbrage at my remark regarding my inability to relate to your confession that you are still paying off student loans. If I hurt your feelings, I am sorry. I was simply incredulous that there were folks on this board who were still paying off student loans and certainly, I did not mean to be a judgmental. Subsequent posts have educated me on the subject. As I indicated in a previous post, I very much appreciate your willingness to bear all and I can certainly relate to much of your sentiments. It takes courage to be so honest.

Now is the time for all of us on this board to pull together as the specter of non-responsiveness will be a plague for many folks.

So let's keep humming one of our 10 favorite songs to wait by. And thank you, jagghagg, for sticking up for me (you did, didn't you)? One is never quite sure...

[jagghagg]

Feb 26, 2008 7:54:08 GMT -5 privateatty said:

And thank you, jagghagg, for sticking up for me (you did, didn't you)? One is never quite sure...

Well, "sticking" anyway........

[Propmaster]

Feb 26, 2008 7:54:08 GMT -5 privateatty said:

I assume you mean that I finally revealed that I am an old fut.

Actually, no. I just meant that it was late at night. I forgot that not everyone has switched to telling time by whose guess would be closest at any given second if a phone call were made RIGHT NOW. About 9:30 last night, we moved into "the age of privateatty" (like the Age of Aquarius - get it?) and we'll soon move into the "Age of Tootsie." Cause the waiting is like the swivel of the Earth through the Zodiac (thousands of years...).

I'm fonder of analogies than I am good at them, apparently.

And yes, Jagghagg, I see what analogies and analysis have in common.

For the record, I was not at all offended about the student loan discussion. The implications of what I wrote were totally foreseeable, had I thought it through. I am perversely proud of the ability to acquire over 1/4 of a million dollars in student loan debt (although I would rather be boringly proud of having 1/4 million dollars in an IRA - que sera sera).

If it doesn't make this board TOO treacly, I'm sorry that I made you think you had to be sorry about posting something I consider innocent and I believe you are correct that we should continue collegially to await the hires (and the unfortunately pretty much unavoidable - but completely suppressable everybody - schadenfreud (however you spell it)).

Good luck all!

[travis]

Propmaster's missive is very thoughtful and worthy of consideration for those who may soon be training for the ALJ position. However, I would briefly add on the topic of decisions that the vast majority of decisions are not written by the judges. The belittling, mischaracterization, and insulting may actually reflect the shortcomings of the writers, rather than the judges. I imagine one challenge of the job will be to hold your nose and to sign off on decisions which are not written exactly the way you might write them if you had the time to do so (which you won't). I also imagine that ALJs quickly discern which writers they can trust to craft a decent decision that is ready for signing. Just as quickly they will also learn which writers' work product may require significant editing. Depending upon the circumstances, you may be able to make edits and have these returned to the writing staff via the supervisors so they can learn how you want your decisions written. Some of the staff, however, may not be capable of writing it the way you want it no matter how much guidance you provide. In those cases, you may be better off simply editing it yourself on the computer and moving it on.

Might I suggest that whatever proficiencies or deficiencies you may encounter among the writing staff that you treat everyone with respect as you will likely be working with them for many years. Also, do not be defensive if approached by a writer with a question or a concern over one of your decisions. Nobody is perfect, not even the one wearing the robe, and some problems become apparent only when going through the process of crafting the decision. Some new ALJs, in particular, are resistant to suggestions, comments or questions from the staff because they do not wish to look fallible. If we treat each other with respect, encounters between writers and judges will result in learning experiences for both parties.

[Propmaster]

Feb 26, 2008 7:19:18 GMT -5 @jagghagg said:

First, to sarcasm:

***

Soooooooooooo yer sayin’ that you decided to appeal without regard to content?

***

Even though it was sarcastic, I'd like to respond. An appeal to the AC can take 2 minutes if it is a bare form. From my perspective, if there is a colorable claim of error, it is worth making a client who would otherwise be dissatisfied more happy. I understand that the AC would theoretically have to spend longer reviewing the file than it took me to appeal, but in my current position it is not my job to save the AC time - it is my job to represent my client within the bounds of the law.

Attaching an argument for the AC takes me about ten minutes per single-spaced page. I always base my appeals on the face of the decision, assuming the AC is so busy they will want to be grabbed by error before they have to go digging too deep for it. I never bother to argue weighing of the evidence to the AC, since I don't think they care too much about my opinion in that regard - I stick to process unification rulings, regulations, and to a lesser extent some case law - all dealing with the rationale (or lack thereof) actually present in the ALJ's decision.

If reading the decision lets me know we will be going to court (and I file court appeals for several firms), my AC appeal will also be sure to at least set forth all the grounds I would plan to raise in court, even if not based on the above AC oriented grounds for appeal.

Thus, the effort involved on my and my client's parts for making an AC appeal is often not an impediment to the desire to point out a poorly reasoned/written decision - or especially an offensive one that would make my client think I am "in league" with the ALJ if I don't appeal (this has happened).

Federal Court, on the other hand, is a much bigger deal. It often takes as much as 10 hours to prosecute an appeal at that level, so I better darn well expect to win it - I don't go there as a matter of pride or indignance.

And finally, as I pointed out, this ALJ's decisions are almost always appealable. In my ODAR, decisions are given to a different ALJ even on the first remand. The group in which this ALJ is assigned also contains two other ALJs - an even worse (or at least equally bad) ALJ, and a slow but steady judge with excellent judgment. All of my cases, almost, before the third ALJ are remands from the other two (often a second remand after having both of the other two). They get their disposition numbers up, but don't seem to care that their pieces of garbage decisions come right back to continue clogging the system. [ODAR should not count remanded cases in ALJs' statistics - I wonder what that would do to decision quality?]. Certainly the public, and maybe ODAR itself, would be better off if these two judges heard less cases each month but did a better job of it.

So, in loquacious summary, yes I decided to appeal immediately, but it won't be frivolous. (Also, it's not my case, so some other attorney has to write the appeal anyway ).

[Propmaster]

Travis' addition is well-received. Good points. I'll add to your addition, though, as follows.

The ALJ must read the decisions and agree to them before signing. I can't imagine that the burden of reading what you sign is so onerous. (Maybe I'm wrong. I hope to find out.)

I once appealed a decision that had the claimant's name and social security number and the boilerplate, and a whole bunch of blanks that looked like this:

[***INSERT RATIONALE HERE***]

Yes, the ALJ signed a decision that had not been written. It was literally IMPOSSIBLE to miss this with the most cursory examination of the decision.

And on only one occasion, I have met with a (different) judge specifically to complain about offensive language in a decision. The decision was explaining why the witnesses' testimony was not sufficiently credible to establish the alleged limitations, and the writer (according to the ALJ) wrote that "the disability program is not yet a friends and family referral program." In the context of the analysis, this was so dismissive of the people who took time to come talk to the ALJ that I had to complain. I almost did it in writing, but instead merely met with the ALJ. He apologized for not catching it, and I believed him (I'm gullibly optimistic about these things), but that didn't really excuse the fact that he SIGNED the decision. The words are attributable to him. And to YOU (and hopefully me). If you let someone put words in your mouth, they're still in there.

So I recognize that writers develop their own clever boilerplate for certain situations. But the ALJ must issue decisions up to their standards. If they don't bother, it turns out those aren't their standards after all.

[judicature]

I also suggest not signing an order until you are certain all of your changes have been made.
I serve on a high volume court and when I was still relatively new, I made several hand-written edits to the second page of a three page order with appropriate circles, cross-outs, arrows and bubble insertions; I went ahead and signed the order on the third page to speed the process up and gave the edits to the order writer. Well, the order writer forgot to make the edits on page 2 and filed and sent to all parties a copy of my signed order reflecting all of my hand-written edits on page 2!!

It was brought to my attention by one of the parties and I was able to vacate and reissue the order in proper form, but it was embarrassing. So, I second propmaster - take care in what you sign!

[jagghagg]

Feb 26, 2008 9:38:10 GMT -5 Propmaster said:

So, in loquacious summary, yes I decided to appeal immediately, but it won't be frivolous. (Also, it's not my case, so some other attorney has to write the appeal anyway ).

Okaaaaaay, SINCE you decided to take raise this to a more serious level, you respond, I reply:

What you said was "The ALJ had managed to express so much disdain for the claimant in describing the "pattern of failed applications" in the past, I decided to appeal before actually reading the rationale! (As it happens, this ALJ made mistakes worthy of taking all the way to district court - as this ALJ often does)."

Explanations after the fact which justify your choice to make decisions based on the known personality of the ALJ whose opinion you had not read are just that: after-the-fact.

Ah'm not sayin' that you don't do your job well; nor am I saying that you may not have been proven correct in your actions - all I'm saying is that you indicated you made a decision in your work based NOT on content but rather on character -- something you want to impress on others is NOT something an ALJ should do.

"Good for the goose; good for the gander" is all ah'm sayin' .....

[morgullord]

My very first day as an Assistant AG for the Commonwealth of PA I was summoned to my supervisor's office. He also called in my typist. She had mis-spelled a word on a memo that I signed without catching the error. He said nothing to me but ripped her big time. I got the message.

Ever since I have used a ruler that allows me to see only one line of text at a time when I am proofing.

Character can be an issue; as an ALJ make sure it's not yours that is under scrutiny.

[Propmaster]

Feb 26, 2008 9:59:46 GMT -5 @jagghagg said:

Feb 26, 2008 9:38:10 GMT -5 Propmaster said:

So, in loquacious summary, yes I decided to appeal immediately, but it won't be frivolous. (Also, it's not my case, so some other attorney has to write the appeal anyway ).

Okaaaaaay, SINCE you decided to take raise this to a more serious level, you respond, I reply:

What you said was "The ALJ had managed to express so much disdain for the claimant in describing the "pattern of failed applications" in the past, I decided to appeal before actually reading the rationale! (As it happens, this ALJ made mistakes worthy of taking all the way to district court - as this ALJ often does)."

Explanations after the fact which justify your choice to make decisions based on the known personality of the ALJ whose opinion you had not read are just that: after-the-fact.

Ah'm not sayin' that you don't do your job well; nor am I saying that you may not have been proven correct in your actions - all I'm saying is that you indicated you made a decision in your work based NOT on content but rather on character -- something you want to impress on others is NOT something an ALJ should do.

"Good for the goose; good for the gander" is all ah'm sayin' .....

I don't dispute what you said at all, except the ultimate conclusion. As an advocate for my client, I am of a different species than an ALJ right now. I must stick up for my client who otherwise has no recourse. I must satisfy my client that I am on their side, prosecuting their case to their standards. When an ALJ is so insulting that I want to appeal based on the first paragraph, you can be pretty sure my client is thinking the same thing. My client has a right to appeal on any or no grounds. I mentioned the simple filing of a form - sometimes that's all I do (when I have no good legal argument); it is my job to assist my client through a process he or she otherwise would have difficulty understanding. So if you feel like you've "caught" me (no offense taken by the way) appealing cases for clients that I personally think were probably decided correctly - you're right. And that was pretty much the point of my whole long post - how ALJs can avoid causing appeals through poor decision writing (as opposed to poor decision making). Sometimes ALJs could make it a lot easier for me to convince my client not to appeal if they would leave the editorializing and social engineering out of their decisions.

[yogibear]

Propmaster, Having experience of what you speak, I think you did a fine job touching upon some issues with a bit of colorful writing license on top of it that may have confused some without first hand ODAR experience. (Don't mean to sound arrogant. Slap this bear!) Anyway, a few points I wanted to respond or add to that were brought up in this thread.

BOTH ALJs and Writers can be offensive. I've seen writers edit out ALJ offensive statements in ALJ detailed instructions only to have the ALJ put them back in (THE AC does take notice of these statements and they are RED FLAGS FOR REMAND), and I've heard ALJs complain of a few things written by writers (ODAR has both attorney and paralegal writers). Everyone keeps copies of what they write, and well, it depends on your office and the interpersonal dynamics of where it goes from there. But, all in all, the ALJ does sign the final decision, and it's his/her reputation on the line. It's also the responsibility of the HOCALJ and the management to set the tone in the office. But ALJs do their jobs fairly independently, until the claimant's representatives get together and files complaints. A "once in a blue moon" statement is one thing. A pattern of offensive and demeaning hearings and decisional text is a whole other matter, and in my opinion, is wrong on so many levels.

As ALJs you will be public servants of the most needy and/or under-educated population of the United States, and compassion and respect is key. To serve this population, you will need to: 1) get out as many decisions as possible by making the most accurate and administratively cost-effective decisions of which you are capable (beginning with case review through hearing through signing of the decision--there are a lot of tools (new and old) available to the ALJ to expedite work); 2) Remember this is not about you and these decisions are not your works of art- they must be accurate and legally sufficient-any "tone" should exude respect regardless of favorable or unfavorable-anything extra is just that icing on your ALJ cake; 3) respect your coworkers and be approachable- those attorneys and paralegals will save you from making bad sequential evaluation or factual choices at least once, and; 4) RESPECT THE CLAIMANTS AND THEIR REPRESENTATIVES. Regarding the representatives, most are entitled to respect. On the "others," respectfully call them on their deficiencies. It's your job as the "Finder of facts" to make sure the claimant does not suffer due to a "poor" or "substandard" representative. KEY: they always care about their fee and this is a motivating tool.

Attorneys and Paralegals should understand that they may have an opinion on the ultimate favorable or unfavorable decision, but YOU saw and heard the claimant and it is YOUR decision alone. Attorneys and Paralegals will provide the best input on the best analysis with the facts in evidence. Listen to them and think about it. As an ALJ, you won't have to get the writing experience you really need early on to fully get it. I've seen the best situations in office happen when NEW ALJS with no inside experience were assigned to an attorney-mentor who shared their expertise and experience. Really pick their brains on the day to day work in sequential evaluation. Even after 10 years you will find idiosyncrasies and points that you missed before. You will ALWAYS be learning. And the Law and regs will always be evolving.

Okay...Spring's almost here...time to get my last winks.
Yogi

[nonamouse]

Something that we were taught in the police academy was that there is no need to demean or belittle people regardless of their actions. Officers have the last word and it is "jail."

The same theory holds true for an ALJ. There is no need to treat anyone with disrespect. The claimant's credibility can be attacked by pointing out inconsistent statements and the like. There is no need to go for the snippy, unprofessional remarks in a decision. There is no need to be rude or hateful in order to keep control of a hearing.

As others have already stated, ultimately the ALJ is the one signing his/her name to a decision. Everyone needs to take the time to read what is given to them before signing. Speak to any writer who tends to stick in inappropriate comments or language on a regular basis and explain in a nonaccusatory manner why this is not acceptable or desirable.

New ALJs, please give writers an example of a decision that you have written so that they can get an idea of your thought process, writing style and tone. You are going to be required to write at least a few decisions when you first start, so you will have some examples. Don't worry about writers doing a critique of your decisions. It will be much worse if they have no idea of your requirements before they crank out 10 or more decisions that will need major edits.

[extang]

I am a little stunned that there are ALJs who can still get away with the kind of behavior described by propmaster in terms of perfectionism and low productivity. One thing that is important to try to remember about ODAR is that all of us know at most a very small piece of it, and different hearing offices [and maybe Regions] might as well be in alternative universes: what seems inconceivable in one hearing office may be routine practice in another. In a sense, I am encouraged that the spirit of at least some obsessive compulsive ALJs has not been broken yet, and they are still cranking out small amounts of high quality work while others of us have compromised in the attempt to come up with higher numbers.
All of us and all of you who get picked have to figure out how far to go in attempting to satisfy the incessant management demand for "more more, faster faster." I would never sign a decision without reading it [it can get a little burdensome to try to just read everything that they are trying to get you to sign; if Morgullord is proofing his draft decisions with a ruler, he is very different from writers at my hearing office, who as far as I can tell do not even try to proofread their drafts, or they would not fail to notice, e.g., that in the same paragraph the claimant is referred to as both "he" and "she"]. If I understand correctly, the willingness of some ALJs in New Orleans to sign decisions without reading them has ended up with all of us having to do AVID [for outsiders, it's not worth explaining; you may be learning about it sooner than you know. Good luck, by the way: tomorrow will be quite a day for many of you]. But I have been known to do things that are probably almost as if not equally or more reprehensible.
Somebody pointed out, correctly, that it's not about you as an ALJ. The legal profession attracts more than its share of perfectionists, and that may be a problem for you in ODAR. We are all small cogs in a big bureaucratic machine. For a moment or two, we are the crucial cog, but that does not last for long. All we can do is the best we can while keeping the cases moving.

[morgullord]

The ruler is one that has type-face/font measurements along the ends and the center has a cut-oout precisely for proof-reading line by line. It is from a by-gone era. When not in use I keep it in the drawer next to my slide rule.

[counselor95]

Feb 26, 2008 10:23:54 GMT -5 yogibear said:

. . . As ALJs you will be public servants of the most needy and/or under-educated population of the United States, and compassion and respect is key. . . Yogi

Well said, Yogi! SSA handles both Title II and Title XVI disability claims. Title II is an insurance program, which people who have become insured are entitled to receive if certain requirements are met (e.g., age). Title XVI is needs based. When paychecks stop, many people have very little to get by on. And people filing for benefits/payments are doing so at vulnerable times of their lives, upon a death in the family, or a disability; even retirement can be somewhat traumatic. Working for SSA is an opportunity to provide help and take pride in public service. Of course, any one of us could/probably will be in the shoes of the claimant, one day--all the more reason for us to have compassion and respect for the claimants before us.

[Propmaster]

Feb 26, 2008 20:29:09 GMT -5 morgullord said:

The ruler is one that has type-face/font measurements along the ends and the center has a cut-oout precisely for proof-reading line by line. It is from a by-gone era. When not in use I keep it in the drawer next to my slide rule.

Wow. I never knew what that long cutout in my old rulers was for. Thanks for that educational and interesting bit of info.

[morgullord]

As my daughters say, I am so knowledgeable about American history because I have been around for most of it.

[Propmaster]

I'm bringing this thread back to the top because I think there is still some relevant information for those being appointed (and people need something to read, it seems, as the calls are not coming).