Oral Arguments in that ALJ Quota lawsuit

[JudgeRatty]

Dec 12, 2014 17:25:00 GMT -5 @hannah22 said:

Not one mention so far (unless I missed it) of the legal reps duty to go through the file with a fine tooth comb and cite exhibits and exact page numbers in a pre-hearing memorandum and submit that memo in a timely manner (i.e. before the ALJ closely reviews the file). OK, this may not be a "duty," but it certainly makes the ALJs job much easier- provided he or she trusts that attorney to not skim the record and cite only the pretty stuff. (And yes, this is especially important with respect to voluminous VA exhibits. Also, in somatoform disorder cases where the claimant visits every ER and clinic in town 24/7 and we need to cite the frequency of visitation and normal testing to show the disorder itself. It's also helpful in substance abuse cases, to note times of sobriety and symptomotology during those times- accurately pulling out each and every relapse date from treatment records often takes time).
Point being, a good attorney should enter hearing with such a memo in hand. A good ALJ should read the memo when it is submitted pre-hearing. Too often, I work all afternoon on such a memo and at hearing the ALJ tells me that he or she didn't notice it or read it. That said, most ALJs do read the memos and are appreciative. Recently, one ALJ cited my Step Three argument verbatim to the testifying ME to see if the claimant met or equalled the listing. Of course, I liked that approach very much.

I find this is a rare occurrence. Many reps are not attorneys, and of the attorneys (and non-attorneys for that matter), VERY few submit a brief. It is usually helpful when writing the draft for the ALJ as well. Maybe this practice varies in different areas, but in my office, I hardly ever see a brief. And of the briefs that are submitted, some are vague and simply use language verbatim from the regs and SSRs without direct application to the facts. I wish more reps would do as you describe! 

[JudgeRatty]

It saddens me to see so many ALJs pointing out that the writing ability of the writers in their offices is lacking. I take great pride in my writing and my AC agreement rate. My production is also good and is balanced with the quality. I know of a few writers in our office who could use some improvement and one or two who should not be writers at all. But put them all on a bell curve and the great majority are doing what they should be doing. I hope that those of you who have these issues are doing something about it. And by that I mean I hope you are showing the edits to the supervisors who can then do something to either help them to improve or help them to move on to another career. Please do everyone (taxpayers, claimants, coworkers, etc.) a favor and document your issues and get it to your management. If you don't document it, they cannot do a thing about it. It's like voting.... you can't complain if you don't vote.

Now with all that said, maybe you all DO document and talk to the supervisors. Maybe you will tell me that the supervisors do nothing. And if that is the case, that just stinks. Bad writers AND bad supervisors? Next stop should be the HOCALJ's office.... keep doing the right thing and it will pay off. Call me Pollyanna, that's cool.

[Deleted]

God Bless the hardworking decision writers. I mean it. There were days when I would walk from the parking garage to the ODAR office, write one or two decisions (usually unfavorable, given the climate of that ODAR), and then walk back to the parking garage without speaking to one single soul.  It was a monk-like existence. I can say that the vast majority of writers at that particular ODAR in Ohio were highly productive. Two are now ALJs.
That said, when I went to "Decision Writer Training" in Kansas City after one year on the job (which kind of made no sense, but that's another story for another day- the steak and jazz were worth the trip), I was shocked at the mediocrity of some of the newbie writers on staff. Many were office workers without law degrees. I thought, given the high unemployment rate amongst graduating JDs (with solid GPAs), can't we do better than this for hires? I was also surprised at the level of conformity in the new writer group. I was used to being at CLEs with veteran practicing attorneys wearing cowboy hats and challenging the CLE instructors based on their own experience practicing law in the trenches. Dissent was a good thing, in those groups. I think that's why I'm liking this forum. All hail, mindful questioning and vigorous debate! 

[Deleted]

Agreed. Love me some decision writers. Ours are fabulous and we couldn't do our jobs without them.

The term '"judicial independence" encompasses a lot of area. Big term. But, for the purposes of just the quota argument, I think it means this: someone has to decide how many cases I schedule, how many hearings I hold, how long I spend reviewing a case file, and how long I get to spend reading the finished decision. Question: who should make those decisions? Or, who is best placed to make those decisions and keep a balance between productivity and quality?

[hamster]

I've been an ALJ for nearly three years. I am in my second office. Currently, my AC agree rate has dropped to 95.8%. I did not meet goal last year--I issued about 460 decisions. This is my second career, and I'm in my mid-fifties.

My first HOCALJ was a yeller and screamer mico-manager, who was incompetent and disliked by the entire office. My new HOCALJ is wonderful.

Some writers are OUTSTANDING! Most are competent. Some are abysmal.

Some reps are highly competent, reasonable, ethical, and very well-prepared. Others typically have that "deer in the headlights" look. Some are horrible...and loud (and lazy and stupid). 

Frankly, most of the ALJs I've worked with are conscientious, intelligent, and, in general, stupendous public servants. Some ALJs are burned out, narcissistic and rude to claimants and reps. One ALJ at my old office, whom I did not know as he was before my time, was in his early 90s and used to fall asleep regularly on the bench. I worked with one ALJ who was simply nuts. I have also worked with one ALJ who is completely incompetent...I have elevated my concerns (and examples) to the highest echelons, and will elevate my concerns further if the problem goes unaddressed.

Some files are "ginormous," to quote one of my teenagers. Other files are petite and desireable. Most are in-between.

So, there are good judges...and execrable judges. Same with reps, writers, HOCALJs, support staff, and file size.

If the new ALJ does his or her job to the best of his or her ability, then let the chips fall where they may. There is no need to "donate" time to the Agency. There is no need to sweat making production goals (I'm convinced that 400 + won't get you a second thought). If your HOCALJ is a jerk or a martinet, just ignore them. Be polite, but tell them to get the h*ll out of your office and leave you alone. If the rep is woefully unprepared or tries something underhanded, then (1) postpone the hearing and (2) tell them to write you a brief. They'll get the message in time. If they are truly unethical, report them up the chain. Some reps have been disqualified. If treating sources won't give you records and ignore your subpoena duces tecum, do what I do: write to the doc, tell them you're gonna subpoena them personally if they don't give you the documents immediately, and tell them you're going to report them to the state licensure board and similar entity. I send a letter to the doc to that effect, and I don't mince words. In 100% of those cases, I have the records in two to three days. I've even had them hand-delivered to me the next day.

The bottom line for prospective ALJs and the newbies is: Don't take s**t from nobody. Not the agency, not your HOCALJ, not the rep, not doctors with an inflated opinion of themselves (they're not JDs, after all ). Do your best, work hard at not becoming cynical, demonstrate interest and compassion at your hearings, be competent, and be courteous dealing with the public and your office staff. Do those things, and everything else takes care of itself.

Best, Hamster

[maquereau]

Dec 12, 2014 18:31:05 GMT -5 @hannah22 said:

God Bless the hardworking decision writers. I mean it. There were days when I would walk from the parking garage to the ODAR office, write one or two decisions (usually unfavorable, given the climate of that ODAR), and then walk back to the parking garage without speaking to one single soul.  It was a monk-like existence. I can say that the vast majority of writers at that particular ODAR in Ohio were highly productive. Two are now ALJs.
That said, when I went to "Decision Writer Training" in Kansas City after one year on the job (which kind of made no sense, but that's another story for another day- the steak and jazz were worth the trip), I was shocked at the mediocrity of some of the newbie writers on staff. Many were office workers without law degrees. I thought, given the high unemployment rate amongst graduating JDs (with solid GPAs), can't we do better than this for hires? I was also surprised at the level of conformity in the new writer group. I was used to being at CLEs with veteran practicing attorneys wearing cowboy hats and challenging the CLE instructors based on their own experience practicing law in the trenches. Dissent was a good thing, in those groups. I think that's why I'm liking this forum. All hail, mindful questioning and vigorous debate! 

Hanna, my experience somewhat parallels yours. I agree with you that, for what we pay "paralegals," we could get actual attorneys into ODAR. In a way, the paralegal promotion thing has turned into a form of cronyism. I'm not so exasperated at the so-called paralegals (though I am exasperated) as I am at management putting them into positions for which they have absolutely no qualification.

[Deleted]

Hamster: Your comments ring of truth. I have been on both sides of the fence and have met all of the above-referenced individuals. I left my decision writer position, in part, because of a micro-managing supervisor who has since resigned from the agency. I was a top producer and thought that i would retire as an ODAR employee after 30 years of productive service. Alas, 21 months in a very unhappy work environment changed my path. Someone commented on this thread that some ODARs are more functional than others, and that is certainly true. Having a demanding and somewhat stressful job in a positive and affirming environment with other well-adjusted and productive workers can be a pleasure. This leads me to the question of pre-employment testing at all levels of the agency. Of course, the ALJ test is a gage for how someone will do on the job. However, your correct assessments of certain types of ALJs proves that the test and overall process of interviewing and references still lets a few bad apples fall through the cracks.

By way of history, I have employed eight legal assistants/paralegals over the years in my private practice. I had to fire/let go five of them for reasons ranging from various types of incompetence to unreliability. Those experiences taught me that what a person says in an interview, in their resume, or via references, holds little value. You really can't know if an individual will be well-suited for a job (and dare I say "excel" at that job on a personal and professional level), until you give them a well-recognized and virtually guaranteed pre-employment test. Most large businesses require such testing these days; many don't even bother interviewing a potential employee until the green light is given from the test.

I recently advertised for a legal assistant on Monster.com and received over 200 resumes within days. The ad provided a link to a customized test that I paid $375.00 to a pre-employment test company to create. This company received great reviews on NPR and Forbes.com. It took me several hours to provide the information to that company so that the test could accurately assess the skills and personal qualities that I was looking for in a new hire. In addition to necessary skills like multi-tasking and working in high volume, the test addressed personality issues and an individual's ability to handle stress, work with the public, co-workers, etc. Not surprisingly, at least two thirds of test takers scored poorly. (Imagine the time I would have wasted interviewing them!) A small group scored in the mid-range. An even smaller group scored in the high range. Many of the low test scores came from people with legal experience and good references. Surprisingly, some of the high scores came from people you would never have guessed would score high, for example, a stay at home mother with a PhD in English Literature. Through this test, I made the best hire of my career. My current paralegal is a working machine and a beautiful human being. We make a great team.

All this said, I think that SSA needs to improve it's pre-employment testing procedures. Weed out the narcissists, the control freaks, the micro-managers, the lazy ones. This applies to the ALJ testing process as well. I'm all about the concept of Social IQ.

[redsox1]

I may be a little late to the party as it seems this thread has moved on to related topics. I am a new ALJ with ODAR experience, FWTW. My problem with the "quota" is that Sr. Mgt will not admit that it is a quota. It is listed as a quota here but I have yet to hear it characterized as a quota by Sr. Mgt. Personally, I would feel better about it if Mgt said, "you will do 500 cases a year. If not, here's what happens …". Then let a District, or Circuit, Court decide whether a quota is permissible under the APA. Maybe it is, I don't know but why the smoke and mirrors? I don't know whether 500 is reasonable but I would feel better about it if mgt said, "here's why we think that an ALJ can do 500 cases." I understand that the methodology they used will be criticized by some no matter what. However, why not throw it out there and stand by it?

On another note, some of the OP's in my opinion, frame the "judicial integrity" issue in a black and white manner when it is really gray. What I mean by that is that many cases, I have seen, come down to a fairly narrow issue that could reasonably be resolved either way. For example, a claimant with Carpal Tunnel, mild findings on an EMG but tons of subjective complaints, and mixed clinical findings. Occasional manipulation will pay, frequent deny and both are supportable based on the MER. It's human nature, if the ALJ is under the gun and favorable decisions are easier, perhaps the ALJ gives the benefit of the doubt to the claimant, maybe even unconsciously, and moves on. Particularly if more evidence will likely have the same conflicts. Does that mean the ALJ lacks integrity, I don't know, but I don't think so.

Thanks for reading my rant. Have a great weekend

[JudgeRatty]

Dec 13, 2014 12:57:12 GMT -5 redsox1 said:

I may be a little late to the party as it seems this thread has moved on to related topics. I am a new ALJ with ODAR experience, FWTW. My problem with the "quota" is that Sr. Mgt will not admit that it is a quota. It is listed as a quota here but I have yet to hear it characterized as a quota by Sr. Mgt. Personally, I would feel better about it if Mgt said, "you will do 500 cases a year. If not, here's what happens …". Then let a District, or Circuit, Court decide whether a quota is permissible under the APA. Maybe it is, I don't know but why the smoke and mirrors? I don't know whether 500 is reasonable but I would feel better about it if mgt said, "here's why we think that an ALJ can do 500 cases." I understand that the methodology they used will be criticized by some no matter what. However, why not throw it out there and stand by it?

On another note, some of the OP's in my opinion, frame the "judicial integrity" issue in a black and white manner when it is really gray. What I mean by that is that many cases, I have seen, come down to a fairly narrow issue that could reasonably be resolved either way. For example, a claimant with Carpal Tunnel, mild findings on an EMG but tons of subjective complaints, and mixed clinical findings. Occasional manipulation will pay, frequent deny and both are supportable based on the MER. It's human nature, if the ALJ is under the gun and favorable decisions are easier, perhaps the ALJ gives the benefit of the doubt to the claimant, maybe even unconsciously, and moves on. Particularly if more evidence will likely have the same conflicts. Does that mean the ALJ lacks integrity, I don't know, but I don't think so.

Thanks for reading my rant. Have a great weekend

The problem with the theory that if under the gun, an ALJ may prefer favorable over unfavorable is that favorable decisions are no longer "easier." We (as writers) must support them just as well as the unfavorable and the pressure is on to write them just as well because of the all the impending CDRs coming down soon.

[redsox1]

I have heard that FF's are looked at more. However, in my region writers only get 4 hours to write not 8 which tells me that some one above my pay grade thinks they are easier to write. Also, in my opinion,, the nature of an of a UNF, which can involve rejecting treating source opinions and involves looking for contradictions in the record, rather than finding the claimant generally credible, means that they are inherently tougher to write/support. the odds of having an appeal to the AC are, I think, much greater than having a FF case pulled for a Quality check.

[philliesfan]

It used to be before the quality review people got involved, a fully favorable decision only had to cite to the evidence that supported the ALJ's decision. The presumption was that the evidence that did not was rejected. I had an attorney in my office show me one of my fully favorable that had gone through quality review. One of the comments by the reviewer was that there was an inadequate explanation as to why the State agency RFC was rejected even thought it was discussed in the decision. It seems obvious on its face. Had I not rejected it, I would have denied the case. It was the kind of decision, had it come to me directly, I probably would have made some minor tweaks and signed it.

I know one of the issues for the future is determining the RFC on which the favorable decision was based for continuing disability review purposes. However, I always delineate my RFC using the correct defined terms such as frequent, none or never, occasional, etc. I did so in the case referred to above. I did not see a problem. Further, most of the attorneys doing quality review in my Region have not been around ODAR that long and one is a former claimant's rep.

BTW, Hamster was I the ALJ who was "simply nuts"?

[Deleted]

Forgive me for being overly simplistic here, but I'm not quite getting why there is such focus on the alleged current or up and coming tsunami of quickie FF decisions when the grant rate nationwide usually ranges from 41% to 44%. In the main ODAR where I represent claimants, that rate is considerably lower- especially with the retirement of several 50% plus judges. I don't know how reliable disablityjudges.com is, but per those numbers, only Hawaii and to some extent Puerto Rico are over 60% in grant rates. It seems to me like the system at large has a lot of fair judges who are spotting the common patterns that contribute to a denial, or a grant, and assessing cases accordingly. It goes without saying that a DDS evaluating physician's RFC is usually done early on in the process, and he or she does not have access to the claimant for examination.
I understand that this law suit brought all of this to the surface for debate, but I cannot help but wonder if it's a grand waste of time. Seems most ALJs are towing the line.

[JudgeRatty]

Dec 13, 2014 17:58:12 GMT -5 @hannah22 said:

Forgive me for being overly simplistic here, but I'm not quite getting why there is such focus on the alleged current or up and coming tsunami of quickie FF decisions when the grant rate nationwide usually ranges from 41% to 44%. In the main ODAR where I represent claimants, that rate is considerably lower- especially with the retirement of several 50% plus judges. I don't know how reliable disablityjudges.com is, but per those numbers, only Hawaii and to some extent Puerto Rico are over 60% in grant rates. It seems to me like the system at large has a lot of fair judges who are spotting the common patterns that contribute to a denial, or a grant, and assessing cases accordingly. It goes without saying that a DDS evaluating physician's RFC is usually done early on in the process, and he or she does not have access to the claimant for examination.
I understand that this law suit brought all of this to the surface for debate, but I cannot help but wonder if it's a grand waste of time. Seems most ALJs are towing the line.

I completely agree that this suit is a waste of time and that the great majority of ALJs are within the goal of 500. I think of the ones who are not, there are apparently many different factors in play, many mentioned in posts above: some appear to work in areas where all the medical exceeds the norm with cumbersome , greater than 800 to 1400 pages or more etc.; some evidently work in offices where the writing skill is lacking and more than usual time has to be spent on editing; and some have "other" issues that may indicate they are not suited for this area of the law. I think if I were in the position where I was spending an inordinate amount of time editing or with cases over the norm medical, I would document those facts for future reference if ever needed. That way, I could support my efforts and the outcomes. After all, most attorneys are used to keeping track of billable hours so why not keep track of unusual circumstances? 

Also, the impending tsunami of CDRs has not hit yet. That is coming. They (SSA) are going to focus on initiating more and more CDRs in the upcoming year, something like 250,000 comes to mind. In order to adequately perform a good CDR review, the FFs that we write must be well supported for the comparison point. As far as the 8 hours / 4 hours for writers, that will also change and is in the works from what I understand. They are looking at different criteria since the ole way of doing FFs is no longer applicable. 

[Pixie]

Dec 13, 2014 17:09:05 GMT -5 philliesfan said:

It used to be before the quality review people got involved, a fully favorable decision only had to cite to the evidence that supported the ALJ's decision. The presumption was that the evidence that did not was rejected. I had an attorney in my office show me one of my fully favorable that had gone through quality review. One of the comments by the reviewer was that there was an inadequate explanation as to why the State agency RFC was rejected even thought it was discussed in the decision. It seems obvious on its face. Had I not rejected it, I would have denied the case. It was the kind of decision, had it come to me directly, I probably would have made some minor tweaks and signed it.

I know one of the issues for the future is determining the RFC on which the favorable decision was based for continuing disability review purposes. However, I always delineate my RFC using the correct defined terms such as frequent, none or never, occasional, etc. I did so in the case referred to above. I did not see a problem. Further, most of the attorneys doing quality review in my Region have not been around ODAR that long and one is a former claimant's rep.

BTW, Hamster was I the ALJ who was "simply nuts"?

The agency seems to be requiring almost as much discussion in the FF decisions as is required in the UNF decisions. The stated reason is the anticipated increase in the CDRs. It would seem to me that a brief discussion of the supporting evidence, along with well articulated RFC would be sufficient for a future CDR.

If the agency is so concerned with a full discussion of all of the evidence, coupled with a thorough analysis in the ALJ decisions, what about the overwhelming number of DDS decisions that contain little or no discussion or analysis? Is there something else in play here? Pix.

[grassgreener]

Dec 13, 2014 12:57:12 GMT -5 redsox1 said:

I may be a little late to the party as it seems this thread has moved on to related topics. I am a new ALJ with ODAR experience, FWTW. My problem with the "quota" is that Sr. Mgt will not admit that it is a quota. It is listed as a quota here but I have yet to hear it characterized as a quota by Sr. Mgt. Personally, I would feel better about it if Mgt said, "you will do 500 cases a year. If not, here's what happens …". Then let a District, or Circuit, Court decide whether a quota is permissible under the APA. Maybe it is, I don't know but why the smoke and mirrors? I don't know whether 500 is reasonable but I would feel better about it if mgt said, "here's why we think that an ALJ can do 500 cases." I understand that the methodology they used will be criticized by some no matter what. However, why not throw it out there and stand by it?

Union might have a better argument for a quota if and when the Agency starts enforcing the requirement to schedule an average of 45 cases a month for telework. Judge Bice's memo required 40 cases per month for this telework cycle, which changes to 45 the next telework cycle.

[Deleted]

Karōshi (過労死), which can be translated literally from Japanese as "death from overwork", is occupational sudden death.
I cite this term from Wikipedia because it comes dangerously close to reflecting the inhuman expectations being placed on ALJs and decision writers. More numbers in the face of less money and ever-increasing claims for disability. There are no easy answers, but I believe that there are far deeper political and policy issues that must be addressed in this equation. 

[hamster]

Philliesfan: Of course not!

[bartleby]

Grassgreener, I was told it is now 50 cases scheduled a month to do telework...

[workdrone]

Dec 13, 2014 7:52:46 GMT -5 robg said:

The term '"judicial independence" encompasses a lot of area. Big term. But, for the purposes of just the quota argument, I think it means this: someone has to decide how many cases I schedule, how many hearings I hold, how long I spend reviewing a case file, and how long I get to spend reading the finished decision. Question: who should make those decisions? Or, who is best placed to make those decisions and keep a balance between productivity and quality?

As the 7th Circuit judges pointed out at the oral argument, we are employees of the executive branch, not Article III judges. Our authority derives from the APA created by congress, and the regulations set by the Commissioner of Social Security. So at the end of the day, we are her agents and act in her stead when we adjudicate Social Security claims. We are creatures of statutes and regulations, not the Constitution, so our discretion is limited.

As for Robg's question re who's in the best position to decide our work condition, it's an interesting one. Looking at the framework above, the individual judges are in the best position to know, assuming they are competent and diligent, which is not always the case. So assuming the judge is competent and diligent, and the mix of quantity and quality is acceptable to the Agency, that's the end of the story.

If the Agency is not happy with the quantity or quality, then it will try to fix the judge's performance through the tools it has. If the judge refuses to comply, then we end up at the MSPB and the federal courts.

In totality, it's a check and balance system. The ALJ gets to have his/her qualified independence unless performance is not acceptable to the Agency. Then the MSPB/Courts can sort out who's right.

So far, after all these years as an ALJ, no one bothered me yet. So I'm quite content with the way things are. I do what I can, and so far, it has been enough. However, I have also seen what happens to those who can't meet the Agency's expectations, and the level of micromanagement in those situations is not pretty.

I think the bottom line is that not everyone is cut out to be an ALJ, and some people walked into this job with the wrong expectations.

[Orly]

Dec 13, 2014 20:15:41 GMT -5 @hannah22 said:

Karōshi (過労死), which can be translated literally from Japanese as "death from overwork", is occupational sudden death.
I cite this term from Wikipedia because it comes dangerously close to reflecting the inhuman expectations being placed on ALJs and decision writers.

Oh man, what a hyperbole! While the job is not easy, it certainly is not inhuman nor likely result in death from overwork. The Japanese workers who die from Karōshi typically work hours in excess of 100 hours a week
or 36 hours straight without sleeping, etc. (See: en.wikipedia.org/wiki/Karōshi)

In the Wikipedia article you and I both cited, it appears Karōshi is typically triggered by a pattern of working twelve or more hours a day, six or seven days a week, year after year coupled with a huge dose of mental stress. It's also somewhat of an unique Japanese cultural phenomenon since the folks over there take work way too seriously. (See also: blogs.wsj.com/japanrealtime/2014/08/05/suicide-is-sometimes-means-of-atonement-in-japan/ re suicide to atone for work failures)

I certainly haven't seen nor heard of that level of crazed dedication coming out of any ODAR, EVER. If we did, maybe there wouldn't be a million case backlog nor the occasional embarrassing ALJ stories showing up on WSJ.

This comparison is truly demeaning to the lost lives of those poor Japanese workers who really did work themselves to death due to their cultural indoctrination.

So here's a T-shirt I think you have earned for Christmas: www.despair.com/exaggerators-anonymous.html