GAO Report on ALJ Program

[privateatty]

The Report is illuminating. A quote from the introductory statement:

"Based on a mandate accompanying the Consolidated Appropriations Act
of 2008, this report examines (1) the process for hiring ALJs and selected
agencies’ observations on the process; (2) ALJ retirements and retirement
eligibility; (3) the reported ALJ management practices at SSA and HHS,
and the stakeholders’ views of these practices; and (4) the options that
have been proposed to improve the management of the ALJ workforce,
either within existing authorities or requiring new authorities."

[nonamouse]

Thanks for posting the link to the report. It was interesting. I think that they hit on something that is going to be more urgent than the report, OPM or the agencies have acknowledged and that is a large group of ALJs who are eligible to retire heading for the door earlier than the norm in the past decade.

SSA has been transitioning to paperless case processing over the past several years. There is an increased need for ALJs at SSA to be competent using various types of technology in order to do their job. The days are gone when an ALJ could get away with having a clerk log them onto the system simply to check for email once per day. We already have some ALJs who don't want to use the video systems to hold hearings. We have some who failed to learn the proper use of the electronic folders when the initial training was done and now almost every new case is fully electronic. I predict another large wave of ALJ retirements is coming in the next few years as all of the ways that ALJs have been able to "fudge" it instead of learning to use the required technology efficiently and independently are eliminated.

[privateatty]

Oh I think there are number of aspects that are far more alarming.

To begin with (and I will just raise one concern), SSA and OMHA want Agency specific knowledge from their Register applicants. Since there were only three or four off-Register 2007-2009 hires at other Agencies, that means that in order for you to be an ALJ you had to have been at SSA or OMHA or possibly litigated before those Agencies. That stinks, big time.

And the notion really damages the whole SSA Corps. These lawyers don't necessarily have the litigation experience to know a leading question from a direct one or instinctively know what hearsay is. If Transportation or Labor or Interior want an ALJ who is really comfortable in trying a litigated case, they are crap out of luck. And then what?

This is Agency arrogance--SSA has it in spades--we have a backlog and our need is great so the ends justify the means. Now we find out OMHA has it too. Well shame on them! As pf (and I have concurred) this work at these Agencies in not nuclear regulatory work. It ain't that tough. If you're bright enough to get a 70 score, then you're sure as heck bright enough to master it.

nonamouse's concerns about retirement and old non-adaptive geezers is good news for this Board. I would like more people to get out of their parochial views of "SSA all the way" and perhaps think more about what it means to be an ALJ for all Agencies. And why that is so important.

[Orly]

Jan 17, 2010 8:40:46 GMT -5 privateatty said:

I would like more people to get out of their parochial views of "SSA all the way" and perhaps think more about what it means to be an ALJ for all Agencies. And why that is so important.

PA, as noted in the report, SSA + OMHA = approximately 95% of ALJs in the system. So really, for all the other agencies, they are a drop in the bucket. To hold up 5% as an example for the 95% is unlikely to withstand scrutiny.

Honestly, agency specific legal knowledge is not all that important. SSA's five step process can be grasped in a few months, and OMHA's Medicare regs can be read through and memorized in a weekend. What is medically reasonable and necessary takes a bit longer if you don't have med-legal knowledge, but OMHA ALJs supervise their own attorney advisors. So if you have a good AA, he/she will do all the grunt work and research for you.

The key issue both agencies are struggling with is a crushing caseload. SSA has a monstrous backlog, OMHA has a 90 day statutory deadline that is difficult to meet. They are trying to innovate out of it through technology and pressure on the ALJs to produce more, and both agencies are stuck with a small number of ALJs who seems to believe they have no duty to adjudicate cases and provide honest work for the American public, and the most common complaints from those ALJs (which I have heard in quite a few meetings), is that the work is "too complicated" and they "don't have enough resources."

Now if the said ALJs are high producers or even medium producers, the complaints might have some merit. However, those that raise this flag are usually your bottom-feeders who put out the fewest cases in the office. And unfortunately, prior agency experience is no guarantee of competence. You really have to look long and hard at the person's track record and personality to make sure the candidate is a good fit.

So if I have to identify what characteristics would make a good ALJ in this brave new world, I would identify the following:

1. Decisiveness - information will always be imperfect. You're rarely going to get the smoking gun. So make a decision based on the information you have instead of what you would like to have in your dreams.

2. Tech Savvy - ability to use computer systems to the hilt and keep up with technological innovations in the years to come. CPMS and E-folder (ODAR) and MAS (OMHA), etc are only the beginning. There will be plenty more to come in the future.

3. Ability to handle a high volume caseload under tight deadline. There are really three components to this. I already put decisiveness down as a separate category because I think it's the most critical element. The other two components are a) ability to read/absorb a lot of information in a short period of time (speed reading anyone?) and b) familiarity with medical records. After all, remember that last time you had 1400 pages of VA records faxed in the night before the hearing? I think this one of the key reasons I saw quite a few State Workers' Comp ALJs in my class. Of course, one of THE worse federal ALJs I had the pleasure of knowing was a state WC ALJ, but I blame that on poor pre-employment screening more than anything else.

4. Work Ethics - A proven track record of strong work ethics. Someone who takes pride and pleasure in his/her work. This is a job where you spent a lot of time reviewing large reams of records and holding hearings. So you really got to be committed to your work.

5. Judicial temperament - Someone who treats everyone fairly and respectfully. Being a judge means being an example to the rest of the staff to the office. While some respect comes with the position, true respect has to be earned. So it's important that the ALJ acts like a judge instead of a bully - which some ALJs seems to have a problem distinguishing.

Anyway, just my two cents on this matter. Thanks for finding the report. It was a very interesting read.

[fanning]

As a trial attorney who works for a non-SSA fed agency that uses ALJ's, I can tell you virtually every ALJ to come to our agency did their time as an ALJ w/SSA, prior to arriving at our agency and none of them to my knowledge actually worked at SSA prior to becoming an ALJ. The bias complaints seem overdone unless we know how many people from SSA are applying.

As for SSA wanting people who know their law, I do not see that as arrogant at all. Call me crazy but demonstrating literacy in the law you are going to be practicing before being hired into a senior level position seems reasonable. Judicial temperment, as summarized by Orly is very important also, but I find it very disquieting when I feel I know the law better than the judge.

[ssaer]

Jan 17, 2010 8:40:46 GMT -5 privateatty said:

Oh I think there are number of aspects that are far more alarming.

To begin with (and I will just raise one concern), SSA and OMHA want Agency specific knowledge from their Register applicants ... These lawyers don't necessarily have the litigation experience to know a leading question from a direct one or instinctively know what hearsay is...

If you're bright enough to get a 70 score, then you're sure as heck bright enough to master it.

I assume that those SSA and OMHA attorneys "bright enough to get a 70 score" are also "sure as heck" bright enough "to know a leading question from a direct one or instinctively know what hearsay is." It's not brain surgery or rocket science.

[magpie]

ALJs who come from the agencies have little or no experience in trail work or adversarial work. While hearings are not supposed to be adversarial, they clearly are with judges who pay far less than the average. A judge has to understand the rules of engagement. i will always remember a judge who stopped my examination of a VE, asking me: Are you trying to impeach this witness? I recognize that lawyers within the agency have expertise in the system. There must be balance between hiring from within the agency and other agencies, and lawyers who have trial practice and appellate practice.

[nonamouse]

Jan 17, 2010 8:40:46 GMT -5 privateatty said:

Oh I think there are number of aspects that are far more alarming.

To begin with (and I will just raise one concern), SSA and OMHA want Agency specific knowledge from their Register applicants. Since there were only three or four off-Register 2007-2009 hires at other Agencies, that means that in order for you to be an ALJ you had to have been at SSA or OMHA or possibly litigated before those Agencies. That stinks, big time.

And the notion really damages the whole SSA Corps. These lawyers don't necessarily have the litigation experience to know a leading question from a direct one or instinctively know what hearsay is. If Transportation or Labor or Interior want an ALJ who is really comfortable in trying a litigated case, they are crap out of luck. And then what?

This is Agency arrogance--SSA has it in spades--we have a backlog and our need is great so the ends justify the means. Now we find out OMHA has it too. Well shame on them! As pf (and I have concurred) this work at these Agencies in not nuclear regulatory work. It ain't that tough. If you're bright enough to get a 70 score, then you're sure as heck bright enough to master it.

nonamouse's concerns about retirement and old non-adaptive geezers is good news for this Board. I would like more people to get out of their parochial views of "SSA all the way" and perhaps think more about what it means to be an ALJ for all Agencies. And why that is so important.

Must everything be turned into an opportunity to bash SSA and the attorneys with some agency or subject matter specific knowledge while padding one's argument with false assertions?

False assertion #1 "Since there were only three or four off-Register 2007-2009 hires at other Agencies, that means that in order for you to be an ALJ you had to have been at SSA or OMHA or possibly litigated before those Agencies. "

The vast majority of ALJs at SSA and across all federal service have not litigated before SSA or OMHA nor worked at either agency prior to becoming an ALJ. In fact, OMHA didn't even exist until several years ago when jurisdiction over Medicare cases was given to the new agency by SSA. Until the qualifying experience to meet the 7 years of practice was changed post litigation (for the new register) to include nonadversarial work from SSA the only people who ever became ALJs with SSA experience came from one of the ligitation units or they gained litigation experience outside of the agency.

False assertions #2 and #3 "These lawyers don't necessarily have the litigation experience to know a leading question from a direct one or instinctively know what hearsay is. If Transportation or Labor or Interior want an ALJ who is really comfortable in trying a litigated case, they are crap out of luck. And then what?"

Having SSA or Medicare specific knowledge does not preclude having litigation skills and vice versa. For example, the litigation division of a state agency where I used to work has a Medicare specialty unit. Many of the attorneys who worked at that state agency ended up working at SSA because of better pay, better benefits and the opportunity to transfer to other locations while utilizing skills/knowledge they gathered over their years of state government work. Some of those same people have litigation experience as prosecutors or assistant AGs or JAG officers, so other federal agencies that select an ALJ who happens to have experience valued by SSA or OMHA can also get someone quite comfortable in trial and/or appellate work in that same individual.

Various state governments also produce litigators who have moved on to the other side of the bench who have subject matter knowledge helpful in the ALJ position at SSA or OMHA and at other agencies. Given a choice between 3 litigators with other things being equal, it is only logical that an agency would prefer the one who brings that something extra to the table whether it is in the form of some subject matter experience or adjudicatory experience. It has not resulted in a shut out of those who lack such experience as can be discerned from looking at every single training class of ALJs since 2008 which have been filled with a majority of new ALJs who have never appeared before SSA or OMHA nor worked for them in any manner.

What seems to really "stink" (of sour grapes) and keep causing these unending bashes of SSA and anyone remotely connected with it is the fact that only 1 of 3 considered for each position is ultimately hired and some people must convince themselves that it must be the work of nefarious outside forces that they were not the first choice, on the first posible certificate, out of 3 highly successful and experienced attorneys.

Using unsupported assertions that are posted as fact does not serve the higher purpose of providing accurate information to those still trying to negotiate the process. Everyone is entitled to have an opinion and just like certain holes we all have one, but opinions should be posted as that and not as though it were fact.

[McLovin']

Just popping in to say thank you for an interesting read. As for technology, the lack of knowledge is far worse at the DDS than it is among the ALJ corps in my state.

[ssaer]

Jan 17, 2010 14:47:11 GMT -5 magpie said:

ALJs who come from the agencies have little or no experience in trail work or adversarial work.

I know a number of agency attorneys who have worked on various parts of the Appalachian Trail.

Some ALJ wannabees who do not come from the agencies have little experience in proofreading.

[privateatty]

Jan 17, 2010 19:04:52 GMT -5 nonamouse said:

Jan 17, 2010 8:40:46 GMT -5 privateatty said:

Oh I think there are number of aspects that are far more alarming.

To begin with (and I will just raise one concern), SSA and OMHA want Agency specific knowledge from their Register applicants. Since there were only three or four off-Register 2007-2009 hires at other Agencies, that means that in order for you to be an ALJ you had to have been at SSA or OMHA or possibly litigated before those Agencies. That stinks, big time.

And the notion really damages the whole SSA Corps. These lawyers don't necessarily have the litigation experience to know a leading question from a direct one or instinctively know what hearsay is. If Transportation or Labor or Interior want an ALJ who is really comfortable in trying a litigated case, they are crap out of luck. And then what?

This is Agency arrogance--SSA has it in spades--we have a backlog and our need is great so the ends justify the means. Now we find out OMHA has it too. Well shame on them! As pf (and I have concurred) this work at these Agencies in not nuclear regulatory work. It ain't that tough. If you're bright enough to get a 70 score, then you're sure as heck bright enough to master it.

nonamouse's concerns about retirement and old non-adaptive geezers is good news for this Board. I would like more people to get out of their parochial views of "SSA all the way" and perhaps think more about what it means to be an ALJ for all Agencies. And why that is so important.

Must everything be turned into an opportunity to bash SSA and the attorneys with some agency or subject matter specific knowledge while padding one's argument with false assertions?

False assertion #1 "Since there were only three or four off-Register 2007-2009 hires at other Agencies, that means that in order for you to be an ALJ you had to have been at SSA or OMHA or possibly litigated before those Agencies. "

The vast majority of ALJs at SSA and across all federal service have not litigated before SSA or OMHA nor worked at either agency prior to becoming an ALJ. In fact, OMHA didn't even exist until several years ago when jurisdiction over Medicare cases was given to the new agency by SSA. Until the qualifying experience to meet the 7 years of practice was changed post litigation (for the new register) to include nonadversarial work from SSA the only people who ever became ALJs with SSA experience came from one of the ligitation units or they gained litigation experience outside of the agency.

False assertions #2 and #3 "These lawyers don't necessarily have the litigation experience to know a leading question from a direct one or instinctively know what hearsay is. If Transportation or Labor or Interior want an ALJ who is really comfortable in trying a litigated case, they are crap out of luck. And then what?"

Having SSA or Medicare specific knowledge does not preclude having litigation skills and vice versa. For example, the litigation division of a state agency where I used to work has a Medicare specialty unit. Many of the attorneys who worked at that state agency ended up working at SSA because of better pay, better benefits and the opportunity to transfer to other locations while utilizing skills/knowledge they gathered over their years of state government work. Some of those same people have litigation experience as prosecutors or assistant AGs or JAG officers, so other federal agencies that select an ALJ who happens to have experience valued by SSA or OMHA can also get someone quite comfortable in trial and/or appellate work in that same individual.

Various state governments also produce litigators who have moved on to the other side of the bench who have subject matter knowledge helpful in the ALJ position at SSA or OMHA and at other agencies. Given a choice between 3 litigators with other things being equal, it is only logical that an agency would prefer the one who brings that something extra to the table whether it is in the form of some subject matter experience or adjudicatory experience. It has not resulted in a shut out of those who lack such experience as can be discerned from looking at every single training class of ALJs since 2008 which have been filled with a majority of new ALJs who have never appeared before SSA or OMHA nor worked for them in any manner.

What seems to really "stink" (of sour grapes) and keep causing these unending bashes of SSA and anyone remotely connected with it is the fact that only 1 of 3 considered for each position is ultimately hired and some people must convince themselves that it must be the work of nefarious outside forces that they were not the first choice, on the first posible certificate, out of 3 highly successful and experienced attorneys.

Using unsupported assertions that are posted as fact does not serve the higher purpose of providing accurate information to those still trying to negotiate the process. Everyone is entitled to have an opinion and just like certain holes we all have one, but opinions should be posted as that and not as though it were fact.

I wish I could "create" facts. I was talking in the theoretical, as what would happen if SSA/OMHA got its way.

The focus was the GAO Report, the subject of this thread and the fact that SSA and OMHA would prefer to hire those with Agency experience and find a way statutorily to do that. I understand that presently that is not the case.

But what if it were? What if that in order to be an ALJ you could only have two rather narrow levels of expertise? How would that fit into the original Congressional intent when they drafted the APA? It wouldn't and that's why the proposers of this idea are going to have to get legislation passed, legislation that I would fight tooth and nail. And I would have alot of help.

I can assure you that the ABA and FALJC are going to have a big problem with these "goals" of SSA and OMHA and rightfully so. If I'm not mistaken they have already opposed these ideas.

The previous post by orly essentially disses my point when he says that all those other Judges at the other 28 or so Agencies are statistically insignificant. They may be only 5% of the ALJ Corps, but they carry a lot of clout and responsibility. FALJC has been very, very concerned to ensure that their Judges have trial experience. So has even the SSA Union AALJ as that was one of the reasons they filed their lawsuit.

And yes, historically all the other Agencies have hired SSA Judges to fill their ranks as they only hire "vetted" ALJs and that system has worked "OK" in the rather large Agency I practised before. The learning curve was a bit steep though and they did get reversed (I did my share). What matters is whether the ALJ wants to learn the law.

My point is that IF we have only SSA-OMHA experienced attorneys becoming ALJs do you think that if you are the CALJ at say Transportation you want an ALJ with actual trial experience or one who has only been before SSA ALJs?

Finally, how am I bashing SSA or OMHA? Even assuming that I was, no worry, they have able defenders in these ranks. I think that all of these concerns bear a thorough airing and the GAO report is but a precursor to further machinations.

[topher]

For my two cents worth, all agencies, and the claimants involved with those agencies, need well-rounded ALJs from all backgrounds. A top-of-the class lawyer with other legal experience who has also practiced the type of law the agency handles would seem to be be ideal, but, people who do not meet this criteria have made great ALJs, and will continue to do so, and, people who do meet it sometimes fail. Any policy or law that would require, or even strongly recommend, the hiring of ALJs from only one or two legal backgrounds is doomed to failure IMHO.

I am relatively new here, but I struggle to understand the animosity toward SSA attorneys. It regularly becomes very personal and I just don't get it. I recently became an AA after seven years of private practice, and the attorneys who work in my office are some of the most intelligent, well-spoken, well-read, dedicated people I have had the pleasure of working with. Many graduated at the top of their law classes, and they have a variety of legal backgrounds. I am sure there are exceptions to that, as there always are, but AAs and SAs are not the bottom feeders of legal society as several here seem to imply. We do not, however, as a class, deserve any higher chance of becoming an ALJ than any other. The key there is "as a class." No "class" of people deserves preference over any other, with the exception of veterans. Although I understand that it may be naive and idealistic, this process should be about what the specific individual brings to the table, and people from all backgrounds should have the opportunity to prove that they are the best person for the job. Any legislation that undercuts that should be wholeheartedly opposed by everyone.

[magbob]

Have not posted in a long time- just lurking- but felt compelled to respond-
I understand that other agencies may want heavy litigation experience for their ALJs- and rightfully so based upon their proceedings- and when the "vetted" ALJS apply for such positions, they are free to choose whomever they want. That is their right as the hiring agency. However, it is not, nor should it be, the responsibility of SSA, or OMHA, to hire ALJS based upon the needs of these other agencies. If the other federal agencies do not "like" the ALJs from SSA or OMHA, they are free to request a cert and hire off the register.

[tricia]

Patriots Fan, I know that this is kind of an ignorant question.
Bear with me. Has it been proven that experience as a Social Security attorney has been a big factor in the hiring of ALJs? I know that people on this board have been debating forever as to whether it should be a factor or not, but I'm unclear as to whether anyone really knows.
The reason that I got involved in all of this is that I know a Social Security ALJ, and he kept telling me that I should apply because I was a public defender and therefore had a ton of litigation experience. He felt that litigation experience was the most important factor in getting hired.
At that time, all I knew about Social Security was my own Social Security number, but by sheer coincidence, right before I applied the first time, we moved across the country because of my husband's job, and I took a job through which I have learned a lot about Social Security. So at least I would now have some answers to Social Security questions in an interview.
But how about it? Do we know that Social Security experience now helps your chances more than litigation experience, and if so, how do we know that?

[topher]

PF, a sincere thank you for your explanation. I have found it hard to sort through the prior heated battles that this topic has inspired in order to get to the actual heart of the matter. Thanks again.

[privateatty]

Jan 18, 2010 12:47:51 GMT -5 tricia said:

Patriots Fan, I know that this is kind of an ignorant question.
Bear with me. Has it been proven that experience as a Social Security attorney has been a big factor in the hiring of ALJs? I know that people on this board have been debating forever as to whether it should be a factor or not, but I'm unclear as to whether anyone really knows.
The reason that I got involved in all of this is that I know a Social Security ALJ, and he kept telling me that I should apply because I was a public defender and therefore had a ton of litigation experience. He felt that litigation experience was the most important factor in getting hired.
At that time, all I knew about Social Security was my own Social Security number, but by sheer coincidence, right before I applied the first time, we moved across the country because of my husband's job, and I took a job through which I have learned a lot about Social Security. So at least I would now have some answers to Social Security questions in an interview.
But how about it? Do we know that Social Security experience now helps your chances more than litigation experience, and if so, how do we know that?

Wait until it comes up in the SSA Interview at Puzzle Palace.

[privateatty]

pf raises a number of points and one needs further explanation. The fact (sorry, nonamouse) that other agencies hire only existing ALJs is largely because OPM does not do its low level security background check until you're an ALJ. Who wants to buy an unknown quantity? Hiring off the Register (as I have posted before) can be a high risk business and a bad choice could be an Agency disaster. Years of high volume SSA work is generally a good indicator on a number of different levels as to what kind of NLRB or Agriculture or whatever agency ALJ you might apply for.

[coloradoman]

I just want to add to Private Attny and PF's comments that many SSA attorneys do have significant outside agency litigation experience, such as former prosecutors, public defenders, private practive, or JAG attorneys. Of course, that has been mentioned many times before in this forum.

As an SSA attorney, I don't want an unfair advantage as an ALJ applicant, nor do I want an unfair advantage, as was the case for SSA attorneys in the past. I believe there should be a completely fair playing field with OPM, SSA, and any other agency strictly following reasonable and publicly announced criteria; and may the best and most qualified candidates prevail.

[coloradoman]

correction added

As an SSA attorney, I don't want an unfair advantage as an ALJ applicant, nor do I want an unfair (dis)advantage, as was the case for SSA attorneys in the past. I believe there should be a completely fair playing field with OPM, SSA, and any other agency strictly following reasonable and publicly announced criteria; and may the best and most qualified candidates prevail.

[decadealj]

Several posts above seem to ignore the fact that the rules of evidence do not apply to our hearings. However, I readily admit that I use the rationale for the rules on more than an occasional basis i.e. "I really would like to hear the claimant testify", "how many times do you intend to ask the same question? please move along", "I am not interested in what the claimant thougt the doctor told him; I am intersted in the doctors notes", etc. Quite frankly, our hearing process would improve if the rules did apply when attorneys represent the claimant- FRCP would bed nice too. Back to my cave.