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Post by Propmaster on Jan 30, 2014 15:38:24 GMT -5
Why? It only involves a 5 minute phone call. It accomplishes exactly what the ALJ wanted, but now has almost completely eliminated the chance for remand. The reality is, that 90% of later onsets have an EOD that is difficult to firmly establish. IE The ALJ feels the claimant is clearly disabled now, and clearly not disabled at the AOD. But when exactly should the EOD be set? I have found that later onsets have a high rate of remands due to the difficulty in justifying the EOD. In the time one wastes writing 1 later onset, 3 fully favorables could have been written. I guess if in your neck of the woods, the reps are going to try to engage in some type of negotiation, then of course it wouldn't be worth doing; but in my experience, this almost never happens. Again, my experience is different. Around our area, reps are not readily available to talk to you when you happen to call (hearings, meetings, phone calls, etc.). There will either be a game of telephone with a receptionist/assistant, or a game of phone tag with the representative. Then you have to open a development item to await the amended alleged onset date or notification that you are not getting it. Otherwise, your benchmarks age and someone asks why you're not moving that case. Then, when you get it, you have to exhibit it, close the development, move the case back to writing. Far longer than 5 minutes in this neck of the woods. It has not eliminated the chance for remand. We get a number of remands where a claimant says he or she did not understand the effects of the amended alleged onset date, despite representative and ALJ discussion about it, and the AC remands. You are far less likely, in my experience, to get a remand of a partially favorable than an amended onset date, as a percentage of cases appealed (acknowledging that fewer fully favorable amended onset date cases are appealed, by far). Finally, if an ALJ gives me a step 4 denial (the claimant is able to perform the requirements of his or her past relevant work) and I decide it accomplishes the same thing and would be even better supported by the evidence to say the claimant cannot do his or her past relevanbt work and instead grid the claimant as "not disabled" at step 5, would you expect the ALJ to complain about it? Some will, some won't; but I think he or she would have every right to complain, and I think that if a writer talks to a representative without ALJ authority and changes the underlying facts of the case, such as alleged onset date, and the determination, from partially to fully favorable, the ALJ would have a right to be upset and the writer would have overstepped his or her authority.
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Post by Propmaster on Jan 30, 2014 15:57:24 GMT -5
Blog Entry about ALJ Frye's Op Ed"Despite my vehement disagreements with Judge Frye in his reasoning, in an odd way … I find myself in agreement with him. The adversarial process is tried and true. Claimants of Social Security disability benefits have high-stakes claims, and they should arguably be granted the gold-standard of processes. To follow the argument to its logical end, Judge Frye’s complaints beg the question: Why should Social Security claimants not go directly to federal court?"
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Post by decadealj on Jan 30, 2014 16:11:35 GMT -5
Because the claimant is required to exhaust his administrative remedy.
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Post by grandparay1 on Jan 30, 2014 16:22:31 GMT -5
A few years ago, there was some support for a separate formal Social Security Court. I don't remember the particulars, or who supported that idea, but it may have been the AALJ.
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Post by Deleted on Jan 30, 2014 16:31:56 GMT -5
Thank you robg, that is a very important link for us to read. I like the brief; it is well-written and offers a significant argument. I am interested in a line from page 3 of the memo at the start of the link: " Moreover, the Agency would defend the [new Position Description] by contending that it was OPM who made the change as it has no authority to do so, an argument that may well prevail." So who made the change to the PD? I thought all along it was SSA, not OPM. It refers to "the Agency," presumably SSA, subordinating the judgment of ALJs to "the Agency". As such, I thought it would be limited to SSA ALJ positions. Apparently I thought wrong? I thought the same thing. OPM did this? Then, I thought, well...if some non-lawyer, non-ALJ, at OPM wrote the PD, that may explain why I thought the PD was so poorly written. And it might explain why no one at OPM thought to ask the judges. But, I can't imagine that OPM would write a PD without consulting with SSA. They had to work together on it on some level. So, the argument that OPM did it, and the Agency just implemented it, seems weak to me. I took a look at the actual PD, entitled "Social Security Administration SSA-801 -- Position Description." Under "Organizational Location" it indicates "SSA, ODAR, OCALJ...etc." So, to answer the question, yes, it appears to apply only to the ALJs here at ODAR. It was "Classified/Graded By" an Associate Director for HR at OPM. Under "Supervisor Certification" is this interesting statement: "I certify that this is an accurate statement of the major duties and responsibilites of the position...This certification is made with the knowledge that this information is to be used for statutory purposes relating to appointement and payment of public funds, and that the [sic?] false or misleading statements may constitute violations of such statutes or their impending regulations." That certification was endorsed by our current Chief ALJ and a “Higher Level Management Concurrence” was endorsed by the Deputy Commissioner for Disability Adjudication and Review.
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Post by deltajudge on Jan 30, 2014 17:10:57 GMT -5
8-)Nobody has addressed my previous post, whee DHHS/SSA had their own hearing corps, examination and appointment process for SSI hearing examiners and black lung judges. Does this kinda get your attention?
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Post by privateatty on Jan 31, 2014 6:50:52 GMT -5
8-)Nobody has addressed my previous post, whee DHHS/SSA had their own hearing corps, examination and appointment process for SSI hearing examiners and black lung judges. Does this kinda get your attention? The APA and the precedent of Court of Appeals Decisions thereunder would preclude adjudication by agency officials in the guise of "hearing examiners". The ABA and other professional organizations would raise holy heck.
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Post by privateatty on Jan 31, 2014 7:02:45 GMT -5
Thank you robg, that is a very important link for us to read. I like the brief; it is well-written and offers a significant argument. I am interested in a line from page 3 of the memo at the start of the link: " Moreover, the Agency would defend the [new Position Description] by contending that it was OPM who made the change as it has no authority to do so, an argument that may well prevail." So who made the change to the PD? I thought all along it was SSA, not OPM. It refers to "the Agency," presumably SSA, subordinating the judgment of ALJs to "the Agency". As such, I thought it would be limited to SSA ALJ positions. Apparently I thought wrong? I thought the same thing. OPM did this? Then, I thought, well...if some non-lawyer, non-ALJ, at OPM wrote the PD, that may explain why I thought the PD was so poorly written. And it might explain why no one at OPM thought to ask the judges. But, I can't imagine that OPM would write a PD without consulting with SSA. They had to work together on it on some level. So, the argument that OPM did it, and the Agency just implemented it, seems weak to me. I took a look at the actual PD, entitled "Social Security Administration SSA-801 -- Position Description." Under "Organizational Location" it indicates "SSA, ODAR, OCALJ...etc." So, to answer the question, yes, it appears to apply only to the ALJs here at ODAR. It was "Classified/Graded By" an Associate Director for HR at OPM. Under "Supervisor Certification" is this interesting statement: "I certify that this is an accurate statement of the major duties and responsibilites of the position...This certification is made with the knowledge that this information is to be used for statutory purposes relating to appointement and payment of public funds, and that the [sic?] false or misleading statements may constitute violations of such statutes or their impending regulations." That certification was endorsed by our current Chief ALJ and a “Higher Level Management Concurrence” was endorsed by the Deputy Commissioner for Disability Adjudication and Review. You know I really don't think that OPM worked with SSA on the PD. IMO, FWIW, OPM either doesn't really care about the ALJ Corps or SSA ALJs and basically allows SSA to do what they want with what they see as their position description (PD)--or they just got snookered into thinking something other that the truth: that they have a responsibility and statutory duty to ensure that Agencies don't run rough shod over the ALJs they created. If I have to get their permission from them to transfer from one agency to another why would they not have this duty to ensure that ALJs are being utilized in the manner envisioned by the APA? OPM has always seen this whole duty of testing and selecting a royal pain in the keister. They have no ALJs themselves and have little if any respect for the Corps in general. SSA knew that they could get this one past them. For all I know SSA could have fed them some bs line like "oh, this just requires your rubber stamp." This is but another example of OPM's attitude towards ALJs--they don't care--and you folks waiting for your NORs like the proverbial bride at the altar, well, wait some more.
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Post by privateatty on Jan 31, 2014 7:50:10 GMT -5
Why should Social Security claimants not go directly to federal court?" Because that would bore federal judges to death. Why would you apply for a position that would bore you to death? A. You seek death. B. You would not be bored to death because you have a secret "bore button" that elevates you to Nirvana by clicking your heels. C. You would not be bored to death because you are so unlike every other USDC Judge or Magistrate as you see whimsy, hilarity and feel contempt in very tale of woe. D. You will never die because you are immortal.
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Post by Deleted on Jan 31, 2014 9:05:02 GMT -5
[quote author=" Propmaster" source="/post/49080/thread" timestamp="1391115444 Why should Social Security claimants not go directly to federal court?" [/quote] Well, thinking it through, there are about 1400 of us ALJ's, and we're all issuing on average, let's say 600 decisions a year? That's 74,000 decisions a year. The staff will probably schedule me for around 720 hearings in 2014? More or less? What Federal Court could, or would, absorb that kind of case load, particulary with the percentage of unrepresented claimants we have? The Federal Judicary has their hands full already, as the recent budgets have not been kind to them either. Above there is a link to a blog, which quotes an exchange between a Federal Judge and a member of SSA's General Counsel. (My sympathy to the Counsel). The Judge calls the ALJ decision in question "garbage". That frustrated me a little. My question was, "Compared to what?" I would argue that he is comparing apples and oranges. When a decision comes out of his office, his top 10% law grad will spend oceans of time writing and re-writing. How many decisions actually come out of his court in a year? How many actual hearings/trials does he hold? By comparison, in our Administrative Law system, we couldn't spend anything close to that amount of time on a hearing or single case. By necessity, our practice has to be high-volume and boiler-plate dependent. I'm not sure what other kind of system Judge Posner would create, unless it was a system with 10-20,000 ALJ's, each with the required amount of staff.
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Post by maquereau on Jan 31, 2014 9:22:03 GMT -5
My math says that's actually 840,000 dispositions.
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Post by Deleted on Jan 31, 2014 11:25:59 GMT -5
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Post by decadealj on Jan 31, 2014 16:37:09 GMT -5
privateattorney- comment about the ABA is interesting. The ABA used to be a factor in ALJ issues but not in the last twenty years, since about the time OPM did away with the Office of Administrative Law Judges. I won't bore everyone with another history lesson but OPM at one time scrutinized the ALJ selection process. The initial interview and written examination were administered by OPM officials and OPM solicited information and comment from ALJs on proposed quailification and written exam questions rather than rely on SSA to develop the exam.
aljfaq- don't hold your breath waiting for an appointment from an agency that conducts adversary hearings. The last time I think that happened was when the Coast Guard hired someone in New Orleans and it didn't work out too well. It is so much easier to let SSA have its way ( because of the billions of dollars at stake) and cull applicants for ALJ positions knowing their background, track record and reputation. They hire so few ALJs, they can't take a chance on getting a register and its top 3 scorers) from OPM when they can hire any sitting or retired ALJ they want.
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Post by gunner on Jan 31, 2014 22:57:07 GMT -5
I don't think anyone's holding his breath for adversary hearings, but aljfaq's done the research and seems to have a pretty good handle on how it might happen.
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Post by christina on Jan 31, 2014 23:09:51 GMT -5
I agree with decade's last comment. I am aware of an ALJ who got one an offer to do adversarial hearings after a very long time. Such a long time they no longer had an interest in going that route.
i follow where aljfaq is going too. Why not play this out and see what happens?
and the quality review stuff. Aagh. too leery to bring up all my thoughts in a public forum and grateful to those who have. in theory, could be a good idea. As being implemented, sounds like too much nitpicking to be of any good value. Regarding Bartleby's example, does QR think the claimant magically developed cancer on the day of the testing. Hmm, maybe they had cancer 2 weeks before that date too, especially if they were reporting symptoms consistent with that diagnosis. looks like it will be a long ride for any ALJ or attorney at ODAR.
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Post by redryder on Feb 1, 2014 14:09:41 GMT -5
I have not seen any of the QR reports for my office. That being said, I have trained writers. It is not uncommon to see a failure to provide the rationale for a finding regarding an AOD, particularly when there is a condition such as cancer that has not definitive onset date. Like Christina said, it should not be difficult if the records document reported symptoms and that is incorporated into the rationale. However when there are no symptoms, and the instruction is to find the onset is 6 months before the diagnosis, what is the rationale for that? The onset has to be supportable by some evidence. And unfortunately it sometimes means the AOD is the date the condition is diagnosed. Any date prior to that is speculation and nothing more.
Years ago when a family member had a recurrence of cancer, the oncologist was asked how a tumor could be absent on a scan performed 2 months earlier and be the size it was when detected. His response was "it only takes 9 weeks from conception to birth to have a fully formed puppy, a creature far more complex than a tumor." Think about it.
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Post by bartleby on Feb 1, 2014 17:09:45 GMT -5
Many Judges will put down that it is medically reasonable to find the condition, symptoms, and limitations were present up to six months prior to the diagnosis.
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Post by Deleted on Aug 19, 2014 14:02:32 GMT -5
New life for the old position description discussion. Reading the above posts there were widely varying opinions as to who drafted the new PD, and what role, if any, did the Agency, and OPM, have in drafting it. It was my opinion that maybe OPM drafted it, because it was such a poor product and did not seem like something drafted by lawyers. Others thought that the OPM had nothing to do with it because of a lack of concern. There was even an argument that responsibility for the PD rested solely with OPM because the Agency does not have the authority to change a position description? Remember this line from the brief above? "Moreover, the Agency would defend the [new Position Description] by contending that it was OPM who made the change as it has no authority to do so, an argument that may well prevail." Please scroll through the AALJ newsletter and see this Aug 13, 2014 letter from General Counsel for OPM to a Congressional Oversight Committee: www.aalj.org/system/files/documents/aalj_newsletter_august_18__2014_final.pdfSome highlights: "...in early 2013 SSA submitted for review and approval by OPM certain changes that SSA wished to make to its ALJ PD. Relevant staff within OPM reviewed the proposed changes, raised questions about some of the proposed changes, and proposed alternative language to SSA (including removal of what appeared to be post-examination qualification criteria)." "This back-and-forth exchange occurred several times during the SSA PD revision process. For example, OPM questioned SSA as to its initial removal of all references to the Administrative Procedure Act (APA) from the proposed, revised PD." "After SSA accepted OPM's final changes, the revised SSA ALJ PD was approved in late November 2013 (OPM does not know what information, if any, was shared with the AALJ before, during or after this review process or how it was shared)." One should read the entire letter for context. It is, in my opinion, a masterwork of deflection and minimization. To paraphrase the letter: "It's not a big deal, and even if it was, it's not our fault and/or our job. Call SSA if you don't like it."
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Post by privateatty on Aug 19, 2014 19:44:43 GMT -5
Well, I guess we should thank OPM for not allowing SSA to gut any reference to the APA in the PD. That they, SSA, would have such an over-arching desire to do so is the best argument SSA can make for all ALJs to join AALJ--or at least FALJC.
Notwithstanding that, OPM does not come off well in their letter. Gen Counsel does not tell me what the law is--the Statutes, Regs and case law does. And OPM cannot side with SSA on their cloak and dagger approach and meat cleaver antics and then say we leave it to both sides to iron out their differences and that we have no dog in this hunt. Please.
No one asks the real question--which is WHY. Where is the need to change the PD? Are they really going to use one bad office to gut due process protections for all and put us on the path of Agency appartchiks deciding cases?
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Post by JudgeRatty on Aug 19, 2014 20:27:33 GMT -5
Well, I guess we should thank OPM for not allowing SSA to gut any reference to the APA in the PD. That they, SSA, would have such an over-arching desire to do so is the best argument SSA can make for all ALJs to join AALJ--or at least FALJC. Notwithstanding that, OPM does not come off well in their letter. Gen Counsel does not tell me what the law is--the Statutes, Regs and case law does. And OPM cannot side with SSA on their cloak and dagger approach and meat cleaver antics and then say we leave it to both sides to iron out their differences and that we have no dog in this hunt. Please. No one asks the real question--which is WHY. Where is the need to change the PD? Are they really going to use one bad office to gut due process protections for all and put us on the path of Agency appartchiks deciding cases? Do you think changing the PD will give management/ HOCALJs more power to force ALJs to follow SSA policy? I had the impression the change was to prevent issues like WV from happening by giving managers/HOCALJs clearer authority to control some behaviors of those stepping out of bounds before going down the MSPB route. But I really do not know what prompted the change in terms of desired outcomes. It was sure close in time to the recent scandals so my guess is it is related. I am not even sure of the process in place to discipline ALJs if they refuse to follow policy. Clearly 99% of the corps is not an issue but what do they do about the ones who are consistently not following the chief judge directives on various issues? Interesting.
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