|
Post by JudgeRatty on Dec 27, 2013 10:18:44 GMT -5
All of these changes remind me of the management technique of sending out directives across the board, reminders, to everyone and not just to the few select individuals who need it. Ok, we all know of the outliers who are at the ends of the bell curve in terms of quality, quantity, etc. It is hard to deal with those folks without an uphill union battle, EEO complaints, etc. Anytime you are trying to counsel a lawyer....it isn't an easy battle. So is the point, the end game to all the changes a way to smooth the path to supervising those folks a little better? Has the prior path been efficient, or not? I don't know the answers. Maybe it is management's attempt to react to the history of bad press and crazy events like WV. My worry is the slippery slope. I hope it all levels out so it isn't an infringement on the APA, but at the same time, we all want to see people who are routinely arbitrary in their decisions seek other employment. Balance. It's all a balance.
|
|
|
Post by decadealj on Dec 27, 2013 10:28:55 GMT -5
What I haven't seen on this or other posts for sometime is the fact that SSA's own policies and rulings often controvert the plain meaning of the law, i.e. the APA, the Act and implementing regulations. SSA's liberal interpretation of the law often make it darn near impossible to write a legally defensible unfavorable decision especially in mental heath cases and those claimants with an unskilled or vocationally specific work history; I won't even address the disability mills with quacks who know how to game the system. SSA is just trying to shoot the messengers stuck with implementing a hearing process that they, SSA and specifically ODAR, have implemented, adverse to constructive advice ALJs haqve advocated for decades (like closing the record and some
|
|
|
Post by 71stretch on Dec 27, 2013 10:30:42 GMT -5
Shooting a fly with an elephant gun is usually not the best plan.
I have a hard time believing this is as benign a change as many are suggesting. I've been around other levels of government way too long not to view this with more than a bit of trepidation.
|
|
|
Post by decadealj on Dec 27, 2013 10:30:56 GMT -5
Guess I inadvertently hit submit but you get the picture.
|
|
woody
Full Member
Posts: 50
|
Post by woody on Dec 27, 2013 10:47:15 GMT -5
"And then they came for me." All of the sitting aljs and wannabees ought not to be so smug about these changes applying to everybody else but them. The "supervision" they are now able to apply does not have to be limited to the outliers; it can be applied to any one of us based on the whims of any manager or a change in the political winds. They asked me if I wanted a job as a judge and now I find out they were lying- they just wanted a hearing officer they could tell what to do. Excuse my bitterness, but I never needed somebody to tell me how to do my job when I was prosecuting criminals. I certainly don't need some management-hack (like our chief alj who has only dipped her toe into the hearing room), telling me how to develop or decide a case at this point in my career. Unfortunately, my reliance on their false promises a decade ago has put me in a position and locality where my choices are limited for other employment.
|
|
|
Post by JudgeRatty on Dec 27, 2013 10:56:27 GMT -5
"And then they came for me." All of the sitting aljs and wannabees ought not to be so smug about these changes applying to everybody else but them. The "supervision" they are now able to apply does not have to be limited to the outliers; it can be applied to any one of us based on the whims of any manager or a change in the political winds. THIS is the worrisome part of the whole thing. You have a valid point.
|
|
|
Post by foursquare on Dec 27, 2013 12:25:19 GMT -5
Is the HOD still supervised by the HOCALJ in the new PD? That's the worrisome part.
|
|
|
Post by deltajudge on Dec 27, 2013 13:34:20 GMT -5
8-)Woody, I think you succintly summed up what bartleby, decade, and I have been trying to get over to everyone.
|
|
|
Post by christina on Dec 27, 2013 19:39:13 GMT -5
i am glad other ALJ's have joined Bartleby in this discussion. Based on the whims of who is running the show is of major concern. and the smug ones may end up pretty darn unsmug quicker than they dreamed possible. the changes at ODAR within the last year and it sounds like a lot more on the horizon are bad tidings for everyone. My best to the ALJ applicants...
|
|
|
Post by philliesfan on Dec 27, 2013 20:32:28 GMT -5
As a sitting SSA ALJ, while I have concerns about the new PD, keep a couple of things in mind. First, the Appeals Council has always had the authority to review our decisions on its own motion, even the favorable ones and reverse, revise, or remand them, even under the old PD. So we have never been totally independent of the Law, Regulations, Rulings, and SSA policy, or for that matter Agency review. Because of the volume of decisions issued by SSA ALJs every year, it has been impractical for the Appeals Council to review every decision. Second, in other agencies with many fewer ALJs, the ALJs hear cases for a Board or Commission that can accept, reject, or modify the decision, and many of those cases were adversarial and go on for weeks.
We do not make law, we follow it. Unlike Federal Court Judges, who can declare a law unconstitutional, if we do not like a portion of the law, regulations, rulings, or policy we have no authority to change any of it and must apply it. Don't like the Grids, you are still required to apply them.
Perhaps, the AC should have been reviewing the decisions of "outliers" at both ends of the pay/deny spectrum all along. Nothing in either the old or new PD would prevent them from doing so.
|
|
|
Post by deltajudge on Dec 27, 2013 21:23:47 GMT -5
8-)Decade, I should have thrown this in long ago, briefly mentioned it, but a perfect example of what you pointed out is the "grid." It was enacted way back in 1978 as a regulation. Back then, I and a few others objected to it as removing a lot of a judge's discretion in determining disability. It got nowhere, went into effect, and ALJs, instead of denying benefits to those in their 50s and early 60s, paid. Of course, the intent of the regulation was to cut down on reversals.
|
|
|
Post by justwaiting on Dec 28, 2013 3:17:01 GMT -5
I'm out of the office for a week and so won't be able to provide the full name of the individual from OGC who proclaims, "there is no such thing as a United States Administrative Law Judge." She speaks at all of the new ALJ trainings and I believe her first name is Angela. I will find her full name and post here. Truth is I don't care if I am referred to as US ALJ, ALJ, Judge or Hey you. I just find it interesting that someone is so concerned with putting us all in our place that she harps on this every chance she gets.
But this is just a minor irritation, while the new PD is a serious concern. My experience with the union so far is that it is not very effective and often gets diverted to relatively unimportant things. Does anyone have any suggestions of effective action that could be taken to address the new PD?
|
|
|
Post by privateatty on Dec 28, 2013 6:45:28 GMT -5
As a sitting SSA ALJ, while I have concerns about the new PD, keep a couple of things in mind. First, the Appeals Council has always had the authority to review our decisions on its own motion, even the favorable ones and reverse, revise, or remand them, even under the old PD. So we have never been totally independent of the Law, Regulations, Rulings, and SSA policy, or for that matter Agency review. Because of the volume of decisions issued by SSA ALJs every year, it has been impractical for the Appeals Council to review every decision. Second, in other agencies with many fewer ALJs, the ALJs hear cases for a Board or Commission that can accept, reject, or modify the decision, and many of those cases were adversarial and go on for weeks. We do not make law, we follow it. Unlike Federal Court Judges, who can declare a law unconstitutional, if we do not like a portion of the law, regulations, rulings, or policy we have no authority to change any of it and must apply it. Don't like the Grids, you are still required to apply them. Perhaps, the AC should have been reviewing the decisions of "outliers" at both ends of the pay/deny spectrum all along. Nothing in either the old or new PD would prevent them from doing so. I have great respect for you and your postings. I don't know what its like to be an ODAR Judge and have to defer to your expertise and from what I do know (mostly from this Board) and also practising and deciding under the APA for well over thirty years, most of what you have written makes sense and seems to be consistent with what I know. This is one of the lines in the PD I have a problem with: The incumbent exercises independent judgment on the evidence, free from pressure by the parties or agency officials, but is subordinate to the Commissioner in matters of policy and the interpretation of the law. The Commissioner has delegated authority to the incumbent to apply agency policy regarding the administrative adjudication and review of claims. Well, if you can't interpret the law what the heck are you? I would submit you are no longer an ALJ, but rather some Agency hack. Blind allegiance to an Agency in matters of policy and intrepretation of the law is, I would submit, alot more scary than ALJs run amok. Because then the Claimant is not getting his or her day in Court that they so richly deserve.
|
|
|
Post by deltajudge on Dec 28, 2013 9:33:13 GMT -5
8-)Privateatty, that is what this has been all about. Even the APA is mentioned in passing, the main thkrust is hidden in the excerpts we have seen here, including this one.
|
|
|
Post by christina on Dec 28, 2013 9:37:20 GMT -5
Exactly privateatty, esp on your last sentence. When I was a claims rep, i felt my client at least had a shot at their case and at true justice once they had an ALJ hearing. Sadly, I did not feel that way at the initial and recon levels. i am far more concerned about an overreaching agency than i am about SOME ALJ's running amok. Emphasis on some, as many do the best job they can and are conscientious. And several of the agency's recent actions, with this being the most blatant, look like a power grab to me. The ALJ's have always had to follow the law. That is nothing new. Most follow it just fine and don’t need Central to whip them into following the law. The change i see is that management and Central now gets to tell ALJ's how to interpret the law and if an ALJ disagrees, such as "gasp" finding someone disabled using the rulings and Central disagrees, it sounds to me like the ALJ could be disciplined for this. Also, this setup could allow Central and management to have full control over factual conclusions made by each ALJ, since every case is very fact specific. I see no independence or perhaps more accurately, far less independence in this setup. As i have heard, the whole point of the APA is to protect ALJ's and in fact, at the end of the day, US citizens from overreaching agencies and I think came into existence do to overreaching agencies.
And justwaiting, hopefully the union will be effective in this matter. Time will tell.
|
|
|
Post by decadealj on Dec 28, 2013 10:18:01 GMT -5
philliesfan, et.al. Couldn't agree more that the Commish has always had the policy wonks and authority to put SSA's spin on the law via the AC. My concern and every ALJ's should be the sudden cannonization of the HOCALJ, many of whom are worthless drones of ODAR and its business practices. Don't get me wrong, at one time there were many outstanding HOCALJs, like Dave Hatfield, Al Costanzo and others but me thinks most if not all the new appointees are numbers oriented folks who wouldn't recognize new process if it hit em in the mouth. I shudder to think what havoc a few of our past "stars" could have caused with the mantle of el supremo.
|
|
|
Post by sandiferhands (old) on Dec 28, 2013 11:34:19 GMT -5
This new job description for SSA AlJs is capable of being interpreted as an extension of Agency influence over substantive decisions and outcomes OR just a mechanism for giving the HOCALJ more administrative control over his office to prevent situations like W. Va. and gross outliers. However, obviously the SSA job description has no influence over ALJs who work for other agencies. Presumably, the judicial independence of ALJs working for other agencies would be preserved (under the APA?).
So--since OPM (not SSA) is the agency charged with qualifying and making ALJs available to the other agencies, and the APA and historical practice already gives the ALJ judicial independence, doesn't it seem likely that the SSA's new job description will have to be interpreted so that it does not conflict with other, overriding provisions of law according ALJs judicial independence in decision making? In other words, won't the collective body of "other" ALJ law and practice tend to limit interpretation of the SSA regs so that they can't be used as a basis to intrude upon the independence of an ALJ generally?
This situation seems analogous to a federal Appellate Circuit proclaiming that it will endow chief district judges with the ability to supervise the district judges, including "educating" them on what the Circuit law is that they are to apply. The first time a DC in that circuit applied the law otherwise and presented the conflict, the "rule" promulgated by the circuit would have to yield to the Constitution and other federal law allowing the judge the judicial independence to decide as he sees appropriate.
|
|
|
Post by christina on Dec 28, 2013 12:06:09 GMT -5
in theory yes, sandifer. would not bank on that being the reality though and it may take years of litigation for the theory to be implemented. Wish u the best in your application BTW. From the tenor and substance of ur posts, you would be a great addition and asset to ODAR.
|
|
woody
Full Member
Posts: 50
|
Post by woody on Dec 28, 2013 12:35:08 GMT -5
sandiferhands said: "This new job description for SSA AlJs is capable of being interpreted as an extension of Agency influence over substantive decisions and outcomes OR just a mechanism for giving the HOCALJ more administrative control over his office to prevent situations like W. Va. and gross outliers."
May I just point out that the HOCALJ as well as every single manager all the way up was completely aware of what was going on in WVa- they knew/know every number that comes out of every office and look at statistics every single day regarding cases being decided by every judge. They can tell with a click of a button who the attorneys are. They gave WVa awards for production and diverted cases there for decision. Their HOCALJ was one of my instructors. They have always been completely aware of the outliers. They know our grant/deny rates and they know our numbers. They look at this daily and complain about numbers to the underperforming offices daily. They diverted cases to the high producers. The only reason anything was done to stop what was going on for years was the embarrassment done by the WSJ and other inquiries. Their testimony now that they were unaware of all these shenanigans is so disingenuous that it makes me want to vomit. Had they ever wanted to do anything about the 1,000-case club or the pay-down-the-backlog judges they could have without any change to a job description or giving additional powers to management. When I came on the job we had a 98% payer and the management team used to ship him the paper files to his house Florida so he could "decide" those cases without a hearing and stay in Florida longer without taking leave.
|
|
|
Post by pubdef on Dec 28, 2013 12:38:13 GMT -5
I'm not sure if the law review article entitled Resolving the ALJ Quandary has been linked in the past but it seems fairly on point with this most recent development. Professor Barnett does a good job of arguing that there are some serious constitutional problems with the current appointment and supervision of ALJs. The thesis appears to be this: These differences between ALJs and Article III judges do more than chisel a chip on ALJs’ shoulders. They reveal material practical and constitutional tensions, if not constitutional violations, that the U.S. Supreme Court has recently revitalized. These tensions concern ALJs’ appointments, the President’s supervisory powers over ALJs, and ALJs’ independence and impartiality. These three concerns are in tension, rendering their resolution difficult. He offers some of his own suggestions. It's a quick and informative read if you have some time. www.vanderbiltlawreview.org/content/articles/2013/04/Barnett_66_Vand_L_Rev_797.pdf
|
|