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Post by philliesfan on May 6, 2013 18:28:48 GMT -5
Bartleby, I joined the Union during training in August 2011 and did not get the survey.
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Post by bartleby on May 6, 2013 19:56:37 GMT -5
Well all, I am disappointed we don't have better support for this than we do. I was with SSA for 15 years and never belonged to a Union until I became a Judge. You should consider the professional liability insurance the Union recommends as it has a rider for litigation expense/defense against the Agency if you find yourself in a hard place. Which can happen faster than you think and without your being aware of it prior to receiving the directive.. I hate to see the Corps splintered into several factions. Best of luck to all and let's pray for the best.
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Post by westernalj1 on May 6, 2013 20:02:50 GMT -5
I don't understand the timing of the lawsuit, as the union should have filed it years ago. However, perhaps the Shapiro case belatedly roused the union to action. The union needs to have the agency articulate the average file size in each region and each hearing office, as I understand the numbers to vary greatly. ALJs in some offices tell me their files rarely exceed 250 pages, while ALJs in other offices have files that rarely have less than 500 pages. How is it the agency expects ALJs to do a certain amount of cases without ever articulating with specificity the size of the files. Obviously, ALJs in offices with smaller files can dispose of more cases, and those with larger files should reasonably be expected to dispose of fewer cases. In addition, there are many other factors that contribute to production, including the number of dismissals and the number of claimants who appear pro se. In Shapiro, in defending his lower disposition rate, he claimed he was more diligent than some others, but inexplicably offered no basis for the assertion, and the MSPB judge inaccurately stated there was no way to tell who is more diligent. It is very easy to determine who is more or less diligent -- the length of time spent reading the case exhibits, the level of detail of the ALJs case review notes, the length of their hearings, the nature of their questioning, their use of medical and vocational experts, their pre- and post-case development, and the level of detail in their instructions. Of course, the length of the file determines the amount of time needed to review the file, but the less time spent reading the file equates to a less diligent ALJ. Also, an ALJ who takes only a couple of pages of case review notes, routinely holds 30-45 minute hearings, asks only generic questions untailored to a particular defendant, frequently takes no expert testimony, does little case development, or writes very brief, general instructions are all hallmarks of someone who is less diligent. The union needs to stress these facts and that the claimants and the American public suffer when ALJs are anything less than fully diligent. If any of the above rubs any of the readers the wrong way, well, my guess is they are some of those who meet the 500-700 production goal, and do so by taking many improper short cuts. If many of the high-producing ALJs took the same sort of short cuts while they were in law school, they almost certainly would have finished in the bottom of their class or would not have graduated at all.
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Yeats
New Member
Posts: 9
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Post by Yeats on May 6, 2013 20:38:49 GMT -5
I doubt the Agency keeps page records by Office. However, I wonder whether a a FRLA request might give us aggregate information about the aggregate number of pages that get scanned into files a year. It is the sort of statistic that the Agency night very well keep.
I very much agree with Western ALJ that validation is key. It might very well be better if the Union organized a page counting campaign than filed a lawsuit. Less costly too.
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Post by notyet on May 7, 2013 7:07:52 GMT -5
I don't understand the timing of the lawsuit, as the union should have filed it years ago. However, perhaps the Shapiro case belatedly roused the union to action. The union needs to have the agency articulate the average file size in each region and each hearing office, as I understand the numbers to vary greatly. ALJs in some offices tell me their files rarely exceed 250 pages, while ALJs in other offices have files that rarely have less than 500 pages. How is it the agency expects ALJs to do a certain amount of cases without ever articulating with specificity the size of the files. Obviously, ALJs in offices with smaller files can dispose of more cases, and those with larger files should reasonably be expected to dispose of fewer cases. In addition, there are many other factors that contribute to production, including the number of dismissals and the number of claimants who appear pro se. In Shapiro, in defending his lower disposition rate, he claimed he was more diligent than some others, but inexplicably offered no basis for the assertion, and the MSPB judge inaccurately stated there was no way to tell who is more diligent. It is very easy to determine who is more or less diligent -- the length of time spent reading the case exhibits, the level of detail of the ALJs case review notes, the length of their hearings, the nature of their questioning, their use of medical and vocational experts, their pre- and post-case development, and the level of detail in their instructions. Of course, the length of the file determines the amount of time needed to review the file, but the less time spent reading the file equates to a less diligent ALJ. Also, an ALJ who takes only a couple of pages of case review notes, routinely holds 30-45 minute hearings, asks only generic questions untailored to a particular defendant, frequently takes no expert testimony, does little case development, or writes very brief, general instructions are all hallmarks of someone who is less diligent. The union needs to stress these facts and that the claimants and the American public suffer when ALJs are anything less than fully diligent. If any of the above rubs any of the readers the wrong way, well, my guess is they are some of those who meet the 500-700 production goal, and do so by taking many improper short cuts. If many of the high-producing ALJs took the same sort of short cuts while they were in law school, they almost certainly would have finished in the bottom of their class or would not have graduated at all. Here! Here! In other words, the "less diligent" make a farce of the program/process.
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Post by privateatty on May 7, 2013 16:26:02 GMT -5
Regarding other options. On several occasions I seriously considered filing a Writ of Mandamus to compel the RCJ to enforce subpoenas against a TS who refused to produce medical records in an area in which he was the sole source of primary care. The RCJ refused to forward the enforcement request even though our HOCALJ strongly recommended enforcement since this TS was impeding the development of numerous cases. All I could do was order a CE and could not refer the case back to the DDS for a medical opinion. Therefore the only agency medical opinion was insufficient evidence. The claimant had a right under the APA that the RCJ and the CJ refused to acknowledge. That was the beginning of the end for me because AALJ determined it wasn't worth the fight and of course that was my administrative remedy. For those of you yet to fight the fight, do not have any illusions of enforcement. I'm not sure a Writ of Mandamus would be the correct vehicle to enforce a SDT, but the refusal on the part of your managing Judge to refer the matter to counsel for enforcement would be for me a sharp stick in the eye. Wouldn't that be a grievable matter? What is the point of having subpoena power if the dang thing isn't enforced? What would happen if you had sought enforcement yourself in USDC? File a simple Declaration in support that states that a request for enforcement was denied and that the APA demands that you develop your record and file it. Send a copy to OGC and wait for the outcry. What are they going to do?
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Post by factfinder on May 7, 2013 17:20:23 GMT -5
They would try every way to fire you and you would really appreciate the Union then. They say they have regulations that prohibit this kind of stuff. You know, like we could not fire ethical complaints against lawyers, etc.
When I started this thread, I was just reporting news. I see there are hard feelings on all sides. As an outsider to ODAR now I can say that I understand why the Union did it, but not sure it is worth it. The house members who criticize the judges (egged on by the unlamented Astrue) will take it badly. Never mind that they caused most of the problems through inaction - accepting blame is not going to happen.
BTW, I tend to agree strong with Bartleby's comments.
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Post by southeastalj on May 8, 2013 13:31:50 GMT -5
As something that might also give the union pause and help them better understand the political environment they are working in, the federal services impasses panel has ruled against the union on every issue it appealed including provisions that place restrictions on how often ALJs can telework depending on the number of cases scheduled and cases being held too long on the judges desk Www.flra.gov/node/16272
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Post by decadealj on May 8, 2013 15:29:53 GMT -5
privateatty- I was with the USAtty's office when appointed and was close to both our magistrate judges. I didn't want to create problems for our terrific HOCALJ who had resigned in four other HOs and had taken the job only to prevent another terrible piece of work like the previous HOCALJ who had been canned. But the real reason was that I encouraged the rep to appeal the decision to the District Court since the claimant was the real party in interest. Our local AALJ rep cautioned that the union wanted nothing to do with it. As it turned out, three attorneys didn't have the guts to make things miserable for the Commish.
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aljm2
New Member
Posts: 1
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Post by aljm2 on May 20, 2013 15:13:58 GMT -5
Judge Weiss has given an excellent lawyerlike analysis of the situation but he’s higher on his likelihood of success calculations than is realistic. I think, given the times, the likelihood of success is poor to none. What needs to happen here is that the situation needs alteration. Pres. Frye and his lawyers need to strike some deal with the SSA that leaves both saving face and accomplishes “something”. That something could be a joint effort at a reasonable time study to come up with some rational analysis of how much time actually should be devoted to a case. A special Master could be appointed to perform the task.
Everyone could hold their claims in abeyance pending that determination, i.e. no disciplinary action for failure to meet the quota, and no further action on the lawsuit, essentially put things in suspense and agree to cooperate to come to a supportable answer to the main question.
The money would be much better spent on this rather than tilting against the govt.
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Post by westernalj1 on May 20, 2013 23:03:10 GMT -5
Can anyone actually imagine the Agency and the union cooperating to actually accomplish something truly beneficial. Sounds great, makes sense, and would be the best thing for the Agency, the union, and the American public. However, it is highly unlikely because neither the union nor the Agency have good track records for doing things that make sense. In any event, even if the union was inclined to do so, the Agency needs to be willing, which they are not, or the union would not have been compelled to commence the instant action. While Astrue is gone, the Agency's management style is firmly in his mold, such that cooperation is out and unjustified arrogance is in.
Regarding the action, if the union has a roadmap for the action, properly frames the issues, engages in vigorous discovery, and has well thought out responses to the Agency's obvious defenses, the union has a very good chance of prevailing. I do, however, question the union's ability to do so because few of them have strong litigation backgrounds, and the union officers seem to do few cases themselves, thus, I doubt they fully understand the issues themselves. Fortunately, however, I equally question the Agency's ability to properly defend the action. While the US Attorney's Office is well experienced, they are not well versed in the workings of ODAR. Thus, they will need to rely either on OGC attorneys, who likely know little of how ODAR and ALJs work, or rely on ODAR management, who are mostly light-weights with little litigation experience and equally little experience as ALJs, such that their command of the disputed issues is doubtful, as well.
If the union handles the action well, I suspect the Agency's position will soften once the US Attorney's Office gets fully involved, becomes fully aware of all the holes in the Agency's position, and advises the Agency of how its position will sound to an impartial third-party in open court, a forum which the Agency does not control. The ALJs that I know who think management has the stronger position are all former writers and former group supervisors, who tend to be more management oriented, and their views have been skewed from years of working solely in ODAR, such that they do not appreciate how low-quality ODAR work appears to outsiders. On the other hand, the ALJs that I know who think the union could have a strong position - depending on whether the union is able to explain it, tend to have litigation backgrounds, are used to higher quality work, and are relatively new to ODAR, such that they are better able to recognize the weaknesses in management's position, similar to the impartial third-party who will ultimately decide the matter. That being said, it would best for the Agency, the union, and the American public, if management would show some professionalism and true leadership, accept that the 500-700 production goal is unreasonable for some offices and ALJs, that it leads to both improperly granted and denied cases, undermines the public's confidence in the disability program, and management should cooperatively search for legitimate means -- within ODAR and other branches of the Agency -- to reduce the backlog, which is an honorable goal.
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Post by deltajudge on May 21, 2013 11:20:43 GMT -5
8-)When occasionally I had a recalcitrant medical or other source, I would issue the subpoena, send it to the nearest U.S. Marshall's office, who would serve it. I required the recipient to bring his/her records, if a duces tecum, or their person to the office on a day certain. They didn't know I was powerless, but being served by a US Marshall impelled them to cough up the records. Never failed.
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Post by deltajudge on May 21, 2013 11:21:23 GMT -5
8-)When occasionally I had a recalcitrant medical or other source, I would issue the subpoena, send it to the nearest U.S. Marshall's office, who would serve it. I required the recipient to bring his/her records, if a duces tecum, or their person to the office on a day certain. They didn't know I was powerless, but being served by a US Marshall impelled them to cough up the records. Never failed.
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Post by privateatty on May 21, 2013 17:45:57 GMT -5
8-)When occasionally I had a recalcitrant medical or other source, I would issue the subpoena, send it to the nearest U.S. Marshall's office, who would serve it. I required the recipient to bring his/her records, if a duces tecum, or their person to the office on a day certain. They didn't know I was powerless, but being served by a US Marshall impelled them to cough up the records. Never failed. deltajudge, my respect for you deepens. Seems to me the worst place for an ALJ in SSA (which I am not) to be is before a bunch of reps and attys who know that the Court can't or won't enforce a SDT. Faced with that scenario and discipline that I could beat at MSPB defending myself pro se, the choice seems rather obvious--at least to me. As to the analysis of the litigation which is the subject of this thread, don't you think that the USDC Judge hearing this case in a Rule 16 Conf would ask his or her Magistrate before same, gee how long do y'all take to do a SSA appeal? Wouldn't you ask that question if you were the USDC Judge? What's the OGC atty going to say? The ALJs can get by on Cliff Notes? I agree, the Union has a pretty good case. Let's see what they do with it.
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Post by decadealj on May 21, 2013 21:08:15 GMT -5
deltajudge- kudo! My problem was I had to go through my previous employer (the US Atty) to reach the US Marshall(and I really didn't want to po all of my former comrades and the US Marshall). Bottom line was the reps had a recourse and punted!
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Post by hod on May 22, 2013 6:58:52 GMT -5
Actually I found that just mailing a SDT to the doctor's office usually got the attention of a slow to perform doc office. Doc's do not want to "appear" and usually are concerned enough to cough up some records. The document looks intimidating enough. But then I will admit that I worked in an area that had pretty good providers and we did not have much trouble getting records. I think a greater problem is the few remaining providers who have not yet discovered the computer or even the typewriter. I think in this day and age the use of handwritten notes should be mal per se since the lack of legibility can lead to erroneous interpretation.
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Post by deltajudge on May 23, 2013 20:19:00 GMT -5
8-)I often wondered over the years, if we had no subpoena power, why did we have them in the office? with all due respect to hod, they were only used when all other attempts failed. Thank God the US Marshalls didn't bother with formalities. Thanks guys for the kind words. Sweet dreams.
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Post by bartleby on Jun 5, 2013 8:45:26 GMT -5
To get this back on path a bit, perhaps the law suit is already having an affect. The latest rumor is that numbers/goals/quotas are not that important, the emphasis is being switched to docket control, ie, CPMS. Once you hear a case, you own it and if the benchmarks are not met, directives may be sent. If directives are sent and not responded to properly, letters of reprimand may be issued, flexiplace may be resended, one may be taken off of the transfer list, and other bad things may happen. This is an area in which it appears the Agency does have control of. Danger Will Robinson... Now we need to get concrete numbers for the benchmarks, since we have been told various numbers by various people..
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Post by decadealj on Jun 5, 2013 11:50:03 GMT -5
Played golf (sort of) with two colleagues who continue to suffer in the CPMS environment bartleby alludes to. Both have had it and to make themselves look good. I advised our HOCALJ that the next time a GS "fixed" my numbers I would file a criminal complaint against then in USDC and it stopped them at the time. Don't know what is going on now but management using CPMS as a weapon is scary!
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Post by decadealj on Jun 5, 2013 11:54:40 GMT -5
I don't know how I messed up the previous post so badly. I was referring to management folks (GSs) cooking the books at the end of the month to make themselves look good to Region
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