|
Post by mercury on Sept 21, 2015 11:28:56 GMT -5
ON another front, I hear the AJs who review the ALJ opinions on the Appeals Council have a point system and they get more points for a remand or other negative action against ALJs. It is a wonder SSA can even get out of its own way with nonsense like that. Other than number of dispositions goals, AAJs do not get credit or points for remands or other actions that reflect negatively upon the ALJ's decision. Almost all of their actions vacate the ALJ decision anyway, because most denials are signed by Appeals Officers.
|
|
|
Post by ba on Sept 21, 2015 13:29:17 GMT -5
My query to all this addresses the unaddressed elephant in the room:
Why isn't the CALJ (e.g. the Chief representative of all ALJs) standing in support of the ALJ in this case rather than in opposition? *grabs popcorn*
|
|
|
Post by lawmom90 on Sept 21, 2015 14:07:24 GMT -5
My query to all this addresses the unaddressed elephant in the room:
Why isn't the CALJ (e.g. the Chief representative of all ALJs) standing in support of the ALJ in this case rather than in opposition? *grabs popcorn* I'm picturing Moss on "The IT Crowd" saying "Go on."
|
|
|
Post by lawmom90 on Sept 21, 2015 15:44:23 GMT -5
|
|
|
Post by eyre44 on Sept 22, 2015 3:20:58 GMT -5
Claimant, who may or may not speak English, requests an interpreter. My response; get an interpreter. That act literally requires nothing more than physically dialing a telephone at the hearing. It is not a major event. Get the interpreter, have the hearing, dispose of the case, move on. What would be the point of argument here against getting an interpreter? For those of us who speak Spanglish, I commonly hear claims where an interpreter is requested, provided, and the claimant will routinely lapse into answering questions in English midway through the hearing much to the roll of the eyes of the rep. Or, better, after close of the hearing I will thank the claimant for coming in and wish him a good day..in Spanish. At which the point the claimant responds in surprise in English "Wait, you understood everything I said today in Spanish??" which gets him nothing more than a smile from me. While I get your point, just get an interpreter and hear the case, an interpreter makes for longer hearings, and I personally don't want the taxpayer's time or money wasted on frivolous interpreters. I was in an office that took on workload from Judge Butler's area and there was a much larger portion of claimant's requesting interpreter services. It was clear that a good portion of the requests occurred when the claimant spoke passable if not good English (claimant presented at numerous exams speaking English, claimant said he spoke, read, and wrote English in his application materials, claimant lived in U.S. since childhood). So the only reason the rep was making the request for an interpreter was to cloud the vocational and grid issues. I think preventing the waste of increasingly scarce resources is a reasonable argument for not providing an interpreter unless necessary. As you said, interpreters are readily available at the dial of the phone, so let me decide whether or not one is needed during my hearing.
|
|
Deleted
Deleted Member
Posts: 0
|
Post by Deleted on Sept 22, 2015 6:32:27 GMT -5
"So the only reason the rep was making the request for an interpreter was to cloud the vocational and grid issues"
Curious, we do not see this issue here (and interpreters are common) as interpretation of VE and ME testimony is routinely waived on record.
|
|
|
Post by christina on Sept 22, 2015 7:52:48 GMT -5
ok, i am jumping in on rabbit trail, not original post. There are claimants who can communicate in English better than they care to present and there are those who need an interpreter. and honestly, some who may be still be able to communicate in English from a grid perspective may still benefit from an interpreter as they may not be fluent enough in English to follow whole hearing properly without interpreter. Despite my comments above, it sounds like ALJ at issue suspected claimant was under representing ability to communicate in English and wanted to put this to the test. i follow their logic in doing so as well as papajudge's comments that many of these folks will trip themselves up at hearing anyway and it will come out in the wash they can communicate in English. seemed like things were getting a bit contentious and honestly, everyone has made valid points. now go back to lawyerly fighting, i mean discussions while i get a donut(too early for popcorn)!!
|
|
|
Post by onepingonly on Sept 22, 2015 8:20:57 GMT -5
It's a well-crafted 77-page decision. Please read and understand it before critiquing it. The main issue (among several) boiled down to whether the ALJ had discretion to decide whether to provide an interpreter in every case in which it was requested, or could the ALJ first make an assessment of the claimant's English fluency. Once the interpreter is present, the ALJ never gets to hear the claimant speak, or try to speak, English. English fluency is a factor the ALJ is REQUIRED to decide. The AJ held that the regs give the ALJ this discretion, and the HALLEX, as internal guidance only, could not take it away. This is a perfectly logical outcome in light of Perez v Mortgage Bankers. Agencies cannot overrule published regs by internal fiat. HALLEX provisions that copy the regs are irrelevant, since the regs are binding anyway. HALLEX rules that, as applied, directly conflict with regs, are not a basis for discipline (but could be a basis for remand). HALLEX rules that govern areas not covered in published rules are outside the scope of the MSPB ruling.
|
|
|
Post by onepingonly on Sept 22, 2015 8:31:32 GMT -5
If the agency wants to remand cases for perceived HALLEX violations, the MSPB decision does not appear to prevent it. It dealt only with discipline. Courts can do what they wish, of course. Ours is not to wonder why. Two other salient points. MSPB held that the agency could discipline the ALJ for not taking action fast enough on his cases, but suspension was not warranted. And the CALJ testified that the ALJ's come under the protection of the APA (and the decision assumes so too). I have heard that the agency previously took the position that ALJ's at SSA were not protected under the APA. I don't know if the agency really took that position, but if so, it appears to have no currency now. For a good overview of the ALJ job, read the APA, Perez v Mortgage Bankers, the new MSPB decision, and, for fun, Butz v Economou. Then watch M*A*S*H for insight into how big agencies work. I won't be so cynical as to suggest rereading Catch 22 or Kafka. My experience after almost 30 years in government has been very positive, but you have to have an ability to deal with bureaucracy. It ain't the private sector.
|
|
|
Post by onepingonly on Sept 22, 2015 8:33:04 GMT -5
And finally... EEOC AJ hearings are governed by published rules and a short-and-sweet Management Directive 110. Good old MD-110! They don't go modifying and amending it all the time.
|
|
|
Post by Gaidin on Sept 22, 2015 9:16:42 GMT -5
My experience after almost 30 years in government has been very positive, but you have to have an ability to deal with bureaucracy. It ain't the private sector. I think anyone getting any government job should have to memorize the above passage and perhaps write a short essay explaining what it means to them.
|
|
|
Post by sealaw90 on Sept 22, 2015 10:21:35 GMT -5
And finally... EEOC AJ hearings are governed by published rules and a short-and-sweet Management Directive 110. Good old MD-110! They don't go modifying and amending it all the time. No, they just amended it once, quite recently, but other than that, MD-110 stays the same.
|
|
|
Post by christina on Sept 22, 2015 10:52:50 GMT -5
It's a well-crafted 77-page decision. Please read and understand it before critiquing it. The main issue (among several) boiled down to whether the ALJ had discretion to decide whether to provide an interpreter in every case in which it was requested, or could the ALJ first make an assessment of the claimant's English fluency. Once the interpreter is present, the ALJ never gets to hear the claimant speak, or try to speak, English. English fluency is a factor the ALJ is REQUIRED to decide. The AJ held that the regs give the ALJ this discretion, and the HALLEX, as internal guidance only, could not take it away. This is a perfectly logical outcome in light of Perez v Mortgage Bankers. Agencies cannot overrule published regs by internal fiat. HALLEX provisions that copy the regs are irrelevant, since the regs are binding anyway. HALLEX rules that, as applied, directly conflict with regs, are not a basis for discipline (but could be a basis for remand). HALLEX rules that govern areas not covered in published rules are outside the scope of the MSPB ruling. do onepingonly, do you have a cite to this case? i could not find it last night online. i am eager to read it.
|
|
|
Post by onepingonly on Sept 22, 2015 11:27:34 GMT -5
And finally... EEOC AJ hearings are governed by published rules and a short-and-sweet Management Directive 110. Good old MD-110! They don't go modifying and amending it all the time. No, they just amended it once, quite recently, but other than that, MD-110 stays the same. Thanks, Sealaw. I've been away from that process the last 6 years. I don't recall any amendments in the 8 years I was there. I always thought it worked well, and I appreciated that they left it alone for the most part.
|
|
|
Post by onepingonly on Sept 22, 2015 11:51:41 GMT -5
Christina, I'm scouring the Internet (I'm on leave today), but I can't find a link. It was circulated by the association, but it's not on their website, nor MSPB.gov, as far as I have been able to find so far. If I find a link, I will post it. Apologies for leading folks down the primrose path.
|
|
|
Post by christina on Sept 22, 2015 12:24:55 GMT -5
alj association? i can probably get a copy then. Thanks for info and your insights. i had same issue looking for it internet last night so i know what you mean in trying to find this document online.
|
|
|
Post by onepingonly on Sept 22, 2015 12:32:31 GMT -5
alj association? i can probably get a copy then. Thanks for info and your insights. i had same issue looking for it internet last night so i know what you mean in trying to find this document online. It's very intelligently written. My hat is off to Judge Devine. The decision says it becomes final on October 21, so perhaps it will be posted on MSPB.gov at that time. It could also be modified or appealed, of course, but it seems very solid.
|
|
|
Post by sealaw90 on Sept 22, 2015 13:01:03 GMT -5
alj association? i can probably get a copy then. Thanks for info and your insights. i had same issue looking for it internet last night so i know what you mean in trying to find this document online. It's very intelligently written. My hat is off to Judge Devine. The decision says it becomes final on October 21, so perhaps it will be posted on MSPB.gov at that time. It could also be modified or appealed, of course, but it seems very solid. Well if and when the decision is posted by MSPB on their website, it will be interesting to see which column the case gets posted under: Precedential or non-precedential.
|
|
|
Post by 71stretch on Sept 22, 2015 14:31:22 GMT -5
My experience after almost 30 years in government has been very positive, but you have to have an ability to deal with bureaucracy. It ain't the private sector. Amen. And I say again, amen. And the level of government doesn't matter.
|
|
|
Post by luckylady2 on Sept 22, 2015 15:44:14 GMT -5
While I get your point, just get an interpreter and hear the case, an interpreter makes for longer hearings, and I personally don't want the taxpayer's time or money wasted on frivolous interpreters. I was in an office that took on workload from Judge Butler's area and there was a much larger portion of claimant's requesting interpreter services. It was clear that a good portion of the requests occurred when the claimant spoke passable if not good English (claimant presented at numerous exams speaking English, claimant said he spoke, read, and wrote English in his application materials, claimant lived in U.S. since childhood). So the only reason the rep was making the request for an interpreter was to cloud the vocational and grid issues. I think preventing the waste of increasingly scarce resources is a reasonable argument for not providing an interpreter unless necessary. As you said, interpreters are readily available at the dial of the phone, so let me decide whether or not one is needed during my hearing. I'd always err in favor of an interpreter. Speaking your second language passably is not the same as understanding all of the terms in a legal/medical setting or understanding what is going on at a hearing, regardless of a rep's purported ulterior motives. All due process requires is notice and an opportunity to be heard, but that opportunity does need to be meaningful.
|
|