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Post by Deleted on Aug 25, 2014 8:15:26 GMT -5
Generally, I am not upset when the AC catches an error that I, or the very, very, good writers we are lucky to have here, make. It's a learning oportunity and I appreciate the opportunity to learn something I didn't know. But, I feel as if those learning oportunities are few and far between. Mostly, AC remands just feel like some argumentative lawyer somewhere disagreed with me and gave the claimant another bite at the apple.
I did not know what my AC agree rate was. Apparently, I was doing well back in September of 2011 when I had an agree rate of 88.7%. Woo Hoo! Then, it dropped to an all time low in February 2014 to 70.2%. Oh no! But, as of July 2014, I'm back up to 80.2% and climbing. How do we explain that particular data set? Did I become a signficantly bad judge for a while, and then got over it?
Anyone know how the AC actually works? Quotas? Rotation of cases? Amount of time per case reviewed?
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Post by sandiferhands (old) on Aug 25, 2014 9:50:43 GMT -5
Generally, I am not upset when the AC catches an error that I, or the very, very, good writers we are lucky to have here, make. It's a learning oportunity and I appreciate the opportunity to learn something I didn't know. But, I feel as if those learning oportunities are few and far between. Mostly, AC remands just feel like some argumentative lawyer somewhere disagreed with me and gave the claimant another bite at the apple. I did not know what my AC agree rate was. Apparently, I was doing well back in September of 2011 when I had an agree rate of 88.7%. Woo Hoo! Then, it dropped to an all time low in February 2014 to 70.2%. Oh no! But, as of July 2014, I'm back up to 80.2% and climbing. How do we explain that particular data set? Did I become a signficantly bad judge for a while, and then got over it? Anyone know how the AC actually works? Quotas? Rotation of cases? Amount of time per case reviewed?
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Post by prescient on Aug 25, 2014 10:12:21 GMT -5
Sandi: Under new quality guidelines, if an ALJ wants to stay out of trouble, whatever that means, they need to have an AC agree rate of at 85% on cases where a decision is issued. Another downside is that we all have hundreds of cases on our dockets. AC remands are just another case that we thought we disposed of and now have to hear again. Without double-checking, I believe my AC agree rate is 91%. I do not agree often with AC remands, and I sometimes think that my colleagues there lack an appreciation of the realities at the hearing-level. But I do see remands from other ALJs who obviously did not know what they were doing--e.g., an RFC that is clearly not legally sufficient. So, there are incompetent ALJs out there--truly incompetent, not just someone who, on occasion, goofs up. That's why we have an AC, I guess. As my friend Philliesfan wrote, "if an ALJ wants to stay out of trouble...." However, if an ALJ is conscientious and paid attention at the initial training, their AC agree rate is going to be close to 85%. It is only the incompetent and unconscientious ALJs who would have an AC agree rate that is so low that they're going to get noticed. IMHO, no hardworking and conscientious ALJ has anything to worry about, even if they aren't at or above 85%. Best, Hamster I think it's more than just not being hardworking or conscientious. The bigger issue is hiring ALJs who have no medical background, and thus have no idea how to translate medical records into a proper RFC. Would anyone hire an attorney to brief their 1st amendment case before the Supreme Court, whose work experience consists of 25 years as a tax attorney/general practitioner/criminal defense/etc? If I were in charge: Step 1: 7 yrs legal experience Step 2: extensive medical background
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Post by cubbietax on Aug 25, 2014 10:20:01 GMT -5
Watch the basing on tax lawyers
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Post by ssaer on Aug 26, 2014 22:59:27 GMT -5
I have seen all of the above problems. I have actually seen worse from the AC. Yes, they have to make their numbers too, so there is a certain element of randomness or capriciousness in the decision to return a case. I had one returned to me that counted against me although the reason was "new and material evidence" that they admitted did not exist at the time the decision was rendered. I asked that the status be changed so that, even though I had the case on remand, it was not listed as due to my error. They said that it was too late to change the designation of the case - but that they would try to be more careful in the future. ... great I had exactly the same experience last week -- I was told that the "new evidence" remand should not have been designated as an error on my part but, this having been done, it could not be reversed, although steps would be taken to ensure it doesn't happen again...
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Post by ssaer on Aug 26, 2014 23:07:04 GMT -5
For the sitting ALJ’s out there, I have something I want to vent about, and I’m curious if anyone else has had a similar experience. When I get a case back from the Appeals Council, I generally have one of two reactions. About half the time, I say, “Oh, I see, I could have done that better.” The other half of the time, I say “What? What does that even mean? What?…How?…that doesn’t even make grammatical, much less legal, sense.” (The sad part is I am beginning to recognize the names of the AC judges. Before I read the decision I can flip to the back and read who wrote it and tell you if it’s going to be a “head-scratcher.” Can you sense my frustration? So, for the past year or so I have gone through the trouble of submitting cases to the Appeals Council Feedback Initiative. I received a response yesterday which I’d like to vent about... The Appeals Council Feedback Initiative is like a poorly conceived joke: excessively multilayered, replete with delays, and almost never productive. Has anyone had a positive experience with this initiative?
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Post by Deleted on Aug 26, 2014 23:29:10 GMT -5
I think it's more than just not being hardworking or conscientious. The bigger issue is hiring ALJs who have no medical background, and thus have no idea how to translate medical records into a proper RFC. Would anyone hire an attorney to brief their 1st amendment case before the Supreme Court, whose work experience consists of 25 years as a tax attorney/general practitioner/criminal defense/etc? If I were in charge: Step 1: 7 yrs legal experience Step 2: extensive medical background "If I were in charge" I wanted to go "tigerlaw" here, but I remembered Step 3:
Step 3: Have a nice day, I'm working on my internet social skills since becoming an ALJ!
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Post by Deleted on Aug 27, 2014 7:38:49 GMT -5
[/quote]The Appeals Council Feedback Initiative is like a poorly conceived joke: excessively multilayered, replete with delays, and almost never productive. Has anyone had a positive experience with this initiative? [/quote]
I did send back maybe 7-10 remands back to the Remand Initiative over the past year, year and a half. All of them, as far as I can remember, where received and reviewed by Regional, and then forwarded to the AC. I don't recall that they rejected any. Several months ago the Remand Initiative issued a report, which included several of the cases I had kicked back. I tried to find a link for the report, but can't seem to put my hand on it.
The experience was NOT positive. 1. Only a paragraph or two was allotted to each request for review. So, a very few words to say, "We were right, you were wrong." 2. The tone was very combative, argumentative. Quotes from my request for review were cherry-picked and sometimes used out of context. Frequently, it seemed that the writer was deliberately missing the point I was trying to make. It read much like a letter I would have received from counsel opposite in a contentious litigation matter. If the goal is to help us issue better decisions, that is not helping. The message it really implies is that the reviewers don't take your concerns seriously, and would rather you just not bother them. 3. Of the cases I sent back, so far I recall only one that the Remand Initiative sort of begrudgingly admitted was an error. Training was recommended I believe was the ultimate conclusion. Of course, I had long since re-heard the case, so one wonders what the point is.
The only real positive is that when I get an AC remand that makes me throw my hands up in frustration, at least I can write a strongly worded letter about it. Makes me feel better anyway.
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Post by privateatty on Aug 27, 2014 17:02:55 GMT -5
I think it's more than just not being hardworking or conscientious. The bigger issue is hiring ALJs who have no medical background, and thus have no idea how to translate medical records into a proper RFC. Would anyone hire an attorney to brief their 1st amendment case before the Supreme Court, whose work experience consists of 25 years as a tax attorney/general practitioner/criminal defense/etc? If I were in charge: Step 1: 7 yrs legal experience Step 2: extensive medical background "If I were in charge" I wanted to go "tigerlaw" here, but I remembered Step 3:
Step 3: Have a nice day, I'm working on my internet social skills since becoming an ALJ!
I'm not sure you need a medical background to work in disability law. What you need is a desire to learn, a willingness to do the research when needed and above all a keen notion when a doctor, V.E. or Claimant is selling you a bill of goods--and be able to articulate that. Also, I think you really need to understand the difference between subjective and objective in medicalese and not just legalese. As to the new and "improved" tigerlaw with avatar, your social internet skills, such as they were, are what endeared you to all of us. While we appreciate the effort, ask if Holden Caufield would approve. If so, carry on!
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Post by ok1956 on Aug 27, 2014 17:14:38 GMT -5
"If I were in charge" I wanted to go "tigerlaw" here, but I remembered Step 3:
Step 3: Have a nice day, I'm working on my internet social skills since becoming an ALJ!
I'm not sure you need a medical background to work in disability law. What you need is a desire to learn, a willingness to do the research when needed and above all a keen notion when a doctor, V.E. or Claimant is selling you a bill of goods--and be able to articulate that. Also, I think you really need to understand the difference between subjective and objective in medicalese and not just legalese. As to the new and "improved" tigerlaw with avatar, your social internet skills, such as they were, are what endeared you to all of us. While we appreciate the effort, ask if Holden Caufield would approve. If so, carry on! Privateatty: Thank you, I agree wholeheartedly and couldn't have said it any better!
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Post by statman on Aug 31, 2014 15:23:05 GMT -5
The problem is that under the new SSR governing DAA and psychiatric disorders, it is almost impossible to find DAA material. The SSR states that the burden of proof is on the claimant, then places the burden on the administration, thus effectively overruling the multiple Circuit Courts who have ruled otherwise, and thwarting the clear intention of Congress.
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Post by southerner on Sept 5, 2014 12:05:08 GMT -5
I check my DART weekly but not the AC portion. My experience w/remands from AC has not been positive. Oftentimes, these non-line, non-APA judges simply wish to substitute their judgment for mine. They have not conducted any disability hearings and often know not of what they speak.
That said, the record should be subject to closure. The perpetual "new and material evidence" exception should be revised to require a new app should be filed and that the judge can ascertain if reopening is warranted, instead of remands due to submission or medical evidence post decision.
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Post by mamaru on Sept 5, 2014 13:16:17 GMT -5
I am a writer chiming in here to say that we too are evaluated on our remands. We don't appreciate being tagged with ALJ errors. I hate to make mistakes, but step up and take responsibility when I do. It hurts to get dinged for someone else's error, especially when we catch mistakes and the judge decides to "roll the dice" just to get a case out the door without making a modification which would make the case bulletproof on appeal. If and when those come back, they show up on our remand reports even if we have actually caught the problem and brought it to the judge's attention. It feels as if we are being evaluated on our ability to persuade the judge to make a change!
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Post by Deleted on Dec 16, 2014 10:20:57 GMT -5
Okay, I once again tried, and failed, to discuss with the AC new and material evidence via the remand initiative. My theory is that medical evidence that is created after the date of adjudication, does not constitute “new and material evidence.” For example, the claimant comes to hearing; the hearing does not go well. Counsel for the claimant sends the claimant to a doctor, who issues a report. That report is then attached to the appeal as “new and material” evidence.
I base that theory on “… [T]he AC usually considers only the evidence that was before the ALJ at the time period through the date of the ALJ decision.” See 20CFR 404.976(b) and 416.1476(b). “HALLEX I-3-3-6 A. And, “For the AC to consider additional evidence, the regulations require that the evidence in new, material, and related to the period on or before the date of the ALJ decision.” HALLEX I-3-3-6 B.
Yet, the AC has absolutely no problem taking evidence created and submitted post hearing and using it to establish that my decision was contrary to the weight of the evidence, even if that evidence is duplicative of evidence already in the record.
Their response to my query via the remand inititive was that remand was appropriate. “The evidence was new, as it was not part of the record and pertained to the claim of disability and mental impairment (dated less than one month after the ALJ’s decision).”
Any thoughts? If I’m crazy, set me straight.
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Post by maquereau on Dec 16, 2014 10:34:22 GMT -5
Okay, I once again tried, and failed, to discuss with the AC new and material evidence via the remand initiative. My theory is that medical evidence that is created after the date of adjudication, does not constitute “new and material evidence.” For example, the claimant comes to hearing; the hearing does not go well. Counsel for the claimant sends the claimant to a doctor, who issues a report. That report is then attached to the appeal as “new and material” evidence. I base that theory on “… [T]he AC usually considers only the evidence that was before the ALJ at the time period through the date of the ALJ decision.” See 20CFR 404.976(b) and 416.1476(b). “HALLEX I-3-3-6 A. And, “For the AC to consider additional evidence, the regulations require that the evidence in new, material, and related to the period on or before the date of the ALJ decision.” HALLEX I-3-3-6 B. Yet, the AC has absolutely no problem taking evidence created and submitted post hearing and using it to establish that my decision was contrary to the weight of the evidence, even if that evidence is duplicative of evidence already in the record. Their response to my query via the remand inititive was that remand was appropriate. “The evidence was new, as it was not part of the record and pertained to the claim of disability and mental impairment (dated less than one month after the ALJ’s decision).” Any thoughts? If I’m crazy, set me straight. I had a great one like this. After the hearing, and after receiving my decision, the rep turned his case over to another person for appeal. On appeal, the new rep sent my decision to one of his doctor friends who wrote a rebuttal. On remand, it was called "new and material" evidence. It was, I suppose, "material" to the disability determination - but that had already been rendered. It was declared "new" by virtue of the following logic: There was no way that the rep could have submitted the evidence to the court in a timely fashion because it needed the court's decision in order to write a rebuttal of it. Therefore, this evidence was necessarily dependent upon a decision already being rendered in a case. The moral of the story is, you can never have a closed decision because someone can always come along to disagree with the ALJ and, once that happens, the record is open once again. Nothing is ever closed at ODAR. I think I got more of a chuckle out of this than I did annoyance.
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Post by Deleted on Dec 16, 2014 10:51:25 GMT -5
Yeah, I wish I could chuckle instead of grit my teeth, but it's just not happening. There is a Hallex rule about what "new and material" means, and there is a long line of jurisprudence in admin law and otherwise, that decines to review evidence on appeal that was not before the court at the time of decision.
And yet, someone has convinced the AC that anything that is not in the record at the time of decision is "new" (even if it did not exist at the time of decision) and any medical record (even if duplicative) is "material." So everything is new and everything is material. That's just nuts.
You would think that given the backlog and the desire to bring it down, the AC would not be reaching for excuses to send cases back. And yet, they are. It makes no sense to me.
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Post by Deleted on Dec 16, 2014 11:04:56 GMT -5
Regarding the AC and reviews: I will never forget during ALJ training the day of AC Appeals and Reviews. Two AC reviewers spoke, each very competent and well versed. At Q&A time, a newbie ALJ asked a simple "what if" scenario question which required either a yes or no answer. Simultaneously and without any hestitation at all AC "Bob" answered "yes" and AC "Jack" answered "no". They both then did the double head shake at each other. Silence (with eventual tittering and eye rolling) enveloped the classroom as AC Bob and Jack commenced to argue with each other over who was correct.
And that is all I have to say about that.
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Post by Propmaster on Dec 16, 2014 12:22:46 GMT -5
Regarding the AC and reviews: I will never forget during ALJ training the day of AC Appeals and Reviews. Two AC reviewers spoke, each very competent and well versed. At Q&A time, a newbie ALJ asked a simple "what if" scenario question which required either a yes or no answer. Simultaneously and without any hestitation at all AC "Bob" answered "yes" and AC "Jack" answered "no". They both then did the double head shake at each other. Silence (with eventual tittering and eye rolling) enveloped the classroom as AC Bob and Jack commenced to argue with each other over who was correct. And that is all I have to say about that. Beautifully put. All ALJs should read this if they were not there, and keep it in their hearts when wondering if the AC remands 'mean' something about their decision-making skills.
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Post by Propmaster on Dec 16, 2014 12:31:54 GMT -5
"If I were in charge" I wanted to go "tigerlaw" here, but I remembered Step 3:
Step 3: Have a nice day, I'm working on my internet social skills since becoming an ALJ!
I'm not sure you need a medical background to work in disability law. What you need is a desire to learn, a willingness to do the research when needed and above all a keen notion when a doctor, V.E. or Claimant is selling you a bill of goods--and be able to articulate that. Also, I think you really need to understand the difference between subjective and objective in medicalese and not just legalese. I think the most important thing for ALJs regarding medical evidence is to know that you don't know everything. Remember what you learn, but don't jump to conclusions. Moderate pain in medical records is not the same as moderate in the SSA legal parlance. Medically, moderate pain seems to include times when you're not on fire and nothing is jammed into your brain - those seem to result in severe pain. "Rule-Out" does not mean "does not exist," and neither does "NOS (not otherwise specified)." And etc., etc., etc. Ask an ME medical questions when you have them. You don't need to know 'medicine,' you just need to identify properly what you need to learn about in a particualr case.
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Post by bartleby on Dec 16, 2014 12:42:19 GMT -5
Rule out does not support or document an impairment. It means it might be a consideration, but establishes nothing. NOS, like wise does not establish a particular impairment per se. "This designation abbreviated NOS can be used when the mental disorder appears to fall within the larger category but does not meet the criteria of any specific disorder within that category."
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