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Post by johnthornton on Jan 25, 2015 14:41:13 GMT -5
I have got to respond to sandiferhands and maquereau. I strongly resent the statement that the only way to be professional or a good alj is to donate time to the agency and/or work seven days a week. Do a diligent job in the face of poor management, of course. Treat everyone with dignity and respect, of course. Work when you are at work, of course. But some of us have lives, families, hobbies, and volunteer work that are owed our attention too. The claimants are the beneficiaries of my professionalism 40 hours a week, but that is enough to give to this agency. Further, you will never resolve the backlog and if they decide they need to throw you under the bus for some reason they won't care at all how many weekends you spent in the office. Working all that extra time does not make you a better judge but it probably makes you a poorer person. And if you are working all that extra time just to meet the arbitrary quota, you are skewing the statistics and "de-boning" every one of your fellow judges who would like to have a life. I couldn't agree more. We are paid for forty hours of work per week--no more, no less. In fact, no one really cares if we work ourselves to a heart attack (I have seen Region forget to send out obituaries for judges who died on the job). If you can't handle the job without working 12 hours a day and every weekend, it may be that you are just not cut out for it.
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Post by maquereau on Jan 25, 2015 15:20:57 GMT -5
Thank you for the replies. It may indeed be that I am not "cut out" for the job, at least not as it is currently practiced. I wish I were able to hear and decide cases and sign drafts - - - without having to perform all the other functions that staff are supposed to handle. Maybe I can manage to hold it together until such time as management starts doing a better job of hiring people. As for ALJs who are able to fix files and rewrite drafts in 40 hours per week, I salute you.
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Post by johnthornton on Jan 25, 2015 15:52:35 GMT -5
Sorry Maguereau for sounding like I was making a personal attack. I didn't mean it that way. But, I do believe that we are not doing a service to ourselves or our families if we allow the agency to dictate our lives in such a way that we must give up all of our free time in order to satisfy arbitrary agency goals. Management will never do a good job of hiring people. They tell us to read every word on every page of every case--knowing that each case is 500 pages and that this dictate is impossible. If we work ourselves to death waiting for the agency to act rationally, it will be on us. (I say this having experienced the untimely deaths of two judges in my office who were very stressed over doing a good job given the limitations imposed on us).
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Post by bartleby on Jan 25, 2015 16:19:29 GMT -5
I truly believe that anyone that is doing the numbers the Agency wants in 40 hours a week is cutting corners somewhere. I have said it before, we are not developing cases as we should. We are not complying with CALJ Bice's instructions on how to write instructions. We are paying questionable cases due to time constraints. We are not reviewing medical records as well as we could. We either sell our heart and soul to the Agency to do the right thing, or we are cutting corners. We Edit and sign reversals that are an embarrassment, but we figure they will not be reviewed by the Appeals Council. We are not doing our best on 40 hours a week.
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Post by jerseymom on Jan 25, 2015 18:47:05 GMT -5
Bart, you need to meet more ALJs. I know many, many judges who don't cut corners , who do the right thing, and they don't spend every waking moment on the job. And they do 500 or more cases a year. But not every ALJ can. So they do 450 or 425 or even 400. As long as they are doing their best and working as efficiently as possible, they will do just fine. We need every ALJ to do just that:the best they can. ALJs can learn a lot from each other about how to do the job better. Many of those who struggle have bad work habits-chatting with coworkers for hours at a time, spending hours on the internet, sleeping in the office, scheduling numerous hearings for each case because they can't make a decision, etc. For those still hoping to get a call, don't despair. The work is difficult but rewarding, and my office is much nicer than a poultry plant.
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Post by Deleted on Jan 25, 2015 20:49:34 GMT -5
Bart, you need to meet more ALJs. I know many, many judges who don't cut corners , who do the right thing, and they don't spend every waking moment on the job. And they do 500 or more cases a year. But not every ALJ can. So they do 450 or 425 or even 400. As long as they are doing their best and working as efficiently as possible, they will do just fine. We need every ALJ to do just that:the best they can. ALJs can learn a lot from each other about how to do the job better. Many of those who struggle have bad work habits-chatting with coworkers for hours at a time, spending hours on the internet, sleeping in the office, scheduling numerous hearings for each case because they can't make a decision, etc. For those still hoping to get a call, don't despair. The work is difficult but rewarding, and my office is much nicer than a poultry plant. I think bartleby made some good points in his post, but I agree likewise with jerseymom. I stay focus in my office 95% of the day doing my job. Yes I do donate time, (very little) but that's my business. This is my lifetime appointment and my time, I will do exactly what I wish to do with it after I meet the Agency's requirements.
And yes, if you can't make a quick decision without this, that, or another this or that, then this is not your job. My biggest strength thus far in my mind is that I can make a decision and move on to the next case. If's it is a pay case and I didn't like the claimant, I pay it, if it's a denial because of no medical records to support the claim and I loved the claimant, I deny it and move on to the next decision.
I let the law and the facts support my decision period. But if you can't handle the computerized world and make a decision quickly, well then things get a little harder.
IMHO, tiger
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Post by bettrlatethannevr on Jan 25, 2015 22:15:18 GMT -5
There's a lot of good points on opposite sides of this most important issue. Maybe it's reasonable to consider the amount of time we spend editing or otherwise moving a case forward, and it's certainly reasonable to expect some kind of minimum output tied to a validation study. But I personally do not think there is any way we can ever tolerate balancing our responsibility to decide cases against a notion that we are a better judge if we reached the decision more quickly. From my experience there are many cases that can be decided quickly. Not all of them. They should never be decided prematurely. Otherwise, we really are processing rather than judging.
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Post by valiant on Jan 25, 2015 22:32:24 GMT -5
I have got to respond to sandiferhands and maquereau. I strongly resent the statement that the only way to be professional or a good alj is to donate time to the agency and/or work seven days a week. Do a diligent job in the face of poor management, of course. Treat everyone with dignity and respect, of course. Work when you are at work, of course. But some of us have lives, families, hobbies, and volunteer work that are owed our attention too. The claimants are the beneficiaries of my professionalism 40 hours a week, but that is enough to give to this agency. Further, you will never resolve the backlog and if they decide they need to throw you under the bus for some reason they won't care at all how many weekends you spent in the office. Working all that extra time does not make you a better judge but it probably makes you a poorer person. And if you are working all that extra time just to meet the arbitrary quota, you are skewing the statistics and "de-boning" every one of your fellow judges who would like to have a life. I could not disagree with this viewpoint of the ALJ job description more. In terms of your salary, you are at the apex of the federal government food chain, and thus should view the job as salaried. If you can't do it in 40, work as much as needed to do the job right. I completely agree with everything that Bartleby posted. I just don't think it's possible to do this job right, working only 40 hrs, unless you are working in the hypothetical dream office where every case is pulled logically and correctly, each decision is written perfectly, and no case needs any type of development, because all the reps happily obtain and submit all relevant evidence several months ahead of the hearing. That said, I do agree that the 500-700 quota is ridiculous.
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Yeats
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Post by Yeats on Jan 25, 2015 22:44:44 GMT -5
Hamster:
Yes Pixie is correct. Yeats and Zach Weiss are one and the same. Perhaps, early on I thought that there was safety in anonymity. Now, I see no reason to post under a nom de plume. I very much believe in the concept of skin the game, and I think that naming oneself in a post may at the margin make one think more carefully about what one is saying, and ultimately come up with sounder opinions. But everyone is entitled to their own view of this matter.
I apologize in advance for the length of this post, but you raise a number of interesting points and it will take me a little while for me to address them.
I actually think that we are pretty much in agreement. Like you, I am in an office where I have been given considerable freedom to determine what I believe is the right trade off between numbers and quality. Like you, I also think we would be a lot better off if all ALJs followed the rules, did not take short-cuts when it comes to justice, and followed their inner compass rather than blaming management. Like you, I also believe that in the current management environment attempts to intimidate judges into producing large numbers have pretty much vanished, albeit in response to the Huntington scandal and recent issues with quality raised by Congress.
By the same token, based on what judges from other regions have told me, and based on the recent House Oversight report from Congress, I think you might concede that until recently some members of management has have been quite zealous in attempting to enforce a 500-700 de facto target. As the recent House Oversight report found,
“The disposition targets were enforced by officials from SSA’s central office in Baltimore, Maryland, and ODAR’s national headquarters in Falls Church, Virginia, who exerted pressure on regional and local hearing offices to ensure that ALJs were deciding the target number of cases. This pressure often took the form of either an informal reprimand for not meeting the targets, or a congratulatory note acknowledging that the ALJ or hearing office met or exceeded the agency’s arbitrary targets. In 2005, Associate Commissioner A. Jacy Thurmond began sending out monthly “Performance Recognition” memoranda to hearing offices that were successful in achieving disposition targets. He also encouraged hearing offices to “remain focused on [the] goals” while “remain[ing] diligent.”
In addition to informal reprimands, SSA management has threatened to take away certain privileges, such as telework privileges, for ALJs who do not meet the target goals. Multiple current and former ALJs have informed the Committee that ALJs who do not meet monthly production goals are shunned by their colleagues and others have privileges restricted, such as parking spots being reassigned. In contrast, ALJs who regularly met the goals are treated preferentially in relation to leave requests and requests for reassignments to hearing offices in more desirable locations. In addition, if one ALJ in a hearing office fails to meet the goals, the other ALJs and the HOCALJ must each dispose of more cases that month, by any means possible , to avoid repercussions for the hearing office not meeting its goal (House Oversight Report at p. 35).”
Of course (and maybe you were referring to this), one mentor was infamous for recommending that her charges use an egg timer to process cases. We now know more than we want to know about the backlog busters who traveled from heavily back-logged office to office, and who produced thousands of cases a year. I am quite familiar with a judge who did a superb job with less than a 1% remand rate, a high denial rate but produced about 250 cases and who was subjected to management through directive in a rather transparent attempt to coerce the judge into doing more than 500 cases a year. The list could go on and on.
Most alarmingly, from my standpoint, the House Oversight Committee obtained an internal ODAR report (that I do not think has been made public but if it has and any one on this Board knows where to find it I would appreciate someone directing me to it), which found that quality went down substantially as case production increased:
“CALJ Bice testified that after discussions with Glenn Sklar, Deputy Commissioner for the Office of Disability Adjudication and Review (ODAR); Jim Borland, Assistant Deputy Commissioner for ODAR; and Deputy Chief ALJ John Allen, the agency decided to further reduce the cap to 840 cases per year:
We thought it was more appropriate to come down to a little bit lower. It gives us a cushion. You know, if a thousand is where the quality is, let’s drop it down a little bit and given judges more time on their cases.
The Committee has obtained the analysis referenced by CALJ Bice in the above testimony. The analysis suggests both the 960 and 840 caps established by SSA leadership are still too high. SSA’s analysis uses the “agree rate” to determine the quality of an ALJ’s decisions. The agree rate is essentially the percentage at which the SSA Appeals Council agrees with an ALJ’s decision. According to the analysis, ALJs who issued between 355 and 435 dispositions per year had the highest average agree rate for allowances,at 87 percent. This means that ALJs who decided between 355 and 435 dispositions per year made the highest quality allowance decisions. In contrast, ALJs who issued more than 617 dispositions a year had an average agree rate for allowances of only 78 percent, the lowest average agree rates on allowances per ALJ disposition grouping. In other words, ALJs who issued over 617 dispositions made the lowest quality allowance decisions. (House Oversight Report at p. 50).”
So, I think my statement that the Agency has used quotas to intimidate and manage judges is on sound footing. Like you, I hope that this does not happen again and I hope that individual ALJs have the strength to resist these efforts. Now that we know about this internal study, I think there is now a tension between the Agency’s quality review target of 85% and a 500-700 range. If the time you put into a decision is the greatest determinant of agree rate, it may very well be that a range of 355-435 is the right range. My perception (as I have expressed it in the past) was the 400-450 was probably the optimal number, and I am heartened that there is some statistical evidence that might support my view.
I also think that when you have a respected federal judge at the conclusion of his majority opinion saying, “But all that matters for the decision in the present case is that the administrative law judges’ remedy under the Administrative Procedure Act for interference with their decisional independence does not extend to the incidental consequences of a bona fide production quota,” this could be used by management as ammunition to resurrect a quota system, and as we have seen, quota systems that have not been validated can be used to intimidate and harass judges. I read Judge Posner to be saying that the APA does not invalidate quotas as long as they are adopted for the sole purpose of increasing case dispositions. This is quite a departure from what many have thought up to now. It is not a good result for us. It is the direct result of the NEB’s decision to initiate a lawsuit.
Although you have directed your attention to a snippet of my posting, my main purpose in posting was to make the claim once again that the NEB exercised extremely poor judgment in filing and continuing the lawsuit. Further, I do not believe that it is enough under the circumstances for union leadership simply to assert that it made a good decision based on the advice it received from legal experts and a healthy deliberative process. Transparent union leadership should not keep these materials under lock and key anymore. They should be released so the membership can draw its own conclusions. I think these points are not all that unreasonable, and I suspect that many ALJs may agree with them.
All the best,
Zach
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Post by Deleted on Jan 26, 2015 0:39:58 GMT -5
Zach, I haven't even read your entire lengthy post yet, but hence forward, Judge Z. Weiss is one of my ALJ heroes, hope to meet you in the future and I agree 100% with you about our union and its leadership.
tigerlaw
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Post by funkyodar on Jan 26, 2015 11:10:35 GMT -5
Just received the following email:
Dear Colleague,
Last week, the Seventh Circuit affirmed the District Court ruling that that the federal court does not have subject matter jurisdiction over our claim that the 500 to 700 disposition quota violates the APA, on the basis that the Civil Service Reform Act preempts the lawsuit. While the decision is disappointing, it is noteworthy that the Court indicated that some APA violations involving interference with decisional independence could be properly brought in federal court. And, the Circuit Court decision questioned the holding of the District of Columbia Circuit, in Mahoney v. Donovan, 721 F.3d 633 (D.C. Cir. 2013), suggesting that it was not sound.
This decision does not mean that the Agency’s quota is lawful, only that a challenge to it cannot be brought in federal court. The National Executive Board will be assessing this decision and other venues for such a challenge. Prior to this lawsuit, the Agency had been ratcheting up the 500 minimum to 600 (or more) in some Regions and enforcing the quota heavy-handedly. After we brought the lawsuit, the Agency stopped insisting on more than 500 dispositions and backed off on enforcement in general (although not entirely for some judges). Thus, despite the Court’s holding, the lawsuit has had a beneficial effect for us.
Marilyn Zahm, on behalf of the National Executive Committee Randy Frye, Dale Glendening Peter Valentino
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Post by bartleby on Jan 26, 2015 11:30:19 GMT -5
At least the concurrence saw the error of Judge Posner’s reasoning:
The rights of Americans are not processed by our judges; they are adjudicated. The task of adjudication at the administrative level involves an intimate knowledge of a complicated statutory scheme and the capacity to comprehend and analyze technical and, at times, conflicting statutory material. The judge must have the practical wisdom to evaluate the value of testimony, some of it true, some of it untrue, and some of it simply mistaken.
Further notice the reference to "conflicting statutory material"? To all of you that have said it is not my job to interpret the dicta, think again. Even those outside the Agency see the confusing and conflicting dicta we work with. If you think we have no need to interpret it, I think you are not familiar enough with it to understand the problem..
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Post by Deleted on Jan 26, 2015 12:32:23 GMT -5
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Post by JudgeRatty on Jan 26, 2015 12:35:52 GMT -5
Ah the electronic de-boner or eDB. Not to be confused with the eBB or eBP of course.
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Post by gary on Jan 26, 2015 12:40:14 GMT -5
The existence of such a device will mean an enormous increase in chicken farm production, resulting in catastrophic devastation of the great farm chicken flocks of North America. I think before it's too late they need to put the domestic chicken on the endangered dinner list.
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Post by Deleted on Jan 26, 2015 13:14:48 GMT -5
Sratty said: "Ah the electronic de-boner or eDB. Not to be confused with the eBB or eBP of course"
The SSA ODC and OCALJ would have to run eDB though ODARs and HOCALJs and OEOHR before bringing eDB in under eBB and/or eBP to also consider integration with CPMS due to PII but also there would be oversight consideration AALJ. Just sayin'...
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Post by gary on Jan 26, 2015 13:29:19 GMT -5
Sratty said: "Ah the electronic de-boner or eDB. Not to be confused with the eBB or eBP of course" The SSA ODC and OCALJ would have to run eDB though ODARs and HOCALJs and OEOHR before bringing eDB in under eBB and/or eBP to also consider integration with CPMS due to PII but also there would be oversight consideration AALJ. Just sayin'... Sounds like they won't roll it out to everyone until after the chicken is extinct. Then what'll they use it to debone?
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Yeats
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Post by Yeats on Jan 26, 2015 15:32:48 GMT -5
JUDGE ZAHM’S LETTER
I am not surprised that the NEB would insist on characterizing a resounding defeat as a qualified victory. But is this really the leadership we deserve? Real leaders admit their mistakes. No one expects a real leader to be 100% perfect. We should expect them to be credible. In my view, this lawsuit was a whopper of a mistake. The NEB should simply own up to it. I would respect them a lot more if they did. But if the NEB did accept responsibility, then that might have political consequences. It might lead people to think the NEB is not particularly good at its job. For this crowd, it looks like it is much more important to avoid any shred of self-inflicted political damage than to be honest with the membership.
In my view, an honest reading of the 7th Circuit opinion leads to the conclusion that if ODAR imposes a quota because it wants to whittle down the backlog, then that is not a violation of the APA. The fact that Judge Posner left some room open to plead that a quota violates the APA in the narrow case where the quota is imposed to affect the ratio of grants and denials is hardly room for rejoicing. This is never the reason that an agency will give for imposing a quota, and proving such illicit motivation will be very difficult, if not impossible.
Judge Zahm’s further claim that the lawsuit led to the abandonment of the 500-700 quota is a classic example of the post hoc ergo propter hoc reasoning fallacy. Just because things follow one another does not mean that that previous thing causes the next thing.
This is a problem that one often finds in writing history. History emerges due to the complex play of all sorts of forces, sometimes ones we have no knowledge of. In this case, there are a number of far more plausible causal candidates, including intense political pressure from Congress, the Huntington scandal, the Agency’s own internal quality reviews and the eclipse of Commissioner Astrue. I would be interested in having Judge Zahm explain in detail why a lawsuit that was dead on arrival played any role whatsoever in the abandonment of the quota rather than having her just assert the claim. I suspect that any explanation she offers might be as confused as her oral argument in front of the Seventh Circuit.
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Post by factfinder on Jan 28, 2015 16:08:41 GMT -5
Judge Zahm has it right. This was a humiliating defeat for the AALJ. I cannot understand why AALJ leadership chose to challenge this in a venue any where near Judge Posner who hates ALJs as near as I can tell. Being compared to chicken deboners is a disgrace on so many levels. I have no earthly idea why any ALJ pays $20/pay period to the AALJ as long as it is run by the tone deaf folks who make these kind of litigation decisions. I think you would be better off buying 26 nice bottles of wine with it. It is time to replace the current AALJ leadership.
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Post by gary on Jan 28, 2015 16:16:18 GMT -5
Judge Posner did not compare ALJs to chicken deboners. He used chicken deboners to illustrate a point about production quotas. On the next page he used an example from the federal judiciary to illustrate another point. Interestingly, no one has taken that to mean he thinks ALJs are equivalent to Article III Judges.
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