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Post by onepingonly on May 12, 2016 21:14:39 GMT -5
They do not hold hearings on the remands. This would be new. Which is yet another reason this is absurd. The ALJ wasn't policy compliant on something totally silly, so now the agency strips the claimant and taxpayers of the independent decision maker. Brilliant. Remember that some remands have nothing to do with any failing of the ALJ decision -- it could be that the claimant submitted new evidence (since the record never closes) or the AC says it can't hear the recording of the hearing.
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Post by ba on May 12, 2016 21:25:12 GMT -5
Which is yet another reason this is absurd. The ALJ wasn't policy compliant on something totally silly, so now the agency strips the claimant and taxpayers of the independent decision maker. Brilliant. Remember that some remands have nothing to do with any failing of the ALJ decision -- it could be that the claimant submitted new evidence (since the record never closes) or the AC says it can't hear the recording of the hearing. Which only compounds the absurdity.
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Post by Prrple on May 12, 2016 21:29:10 GMT -5
So if there was a big change and they went to some sort of hearing officer system, what would happen to the current ALJs? Soylent green. Spit take! Wiping water off my screen now
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Post by funkyodar on May 12, 2016 22:14:26 GMT -5
They are not giving cdrs and age 18 redetermination to the AC. The cares initiative expressly states that nondisability cases (over payments and excess resources T16 issues) will go directly there and AAJs will have the ability to hold a hearing on cases they would normally remand and dispose of the case. There has never been any mention of giving AAJs cdrs and age 18s.
Yet. The fear is if they are successful in thwarting the APA and due process on these small subsets of cases, they will then expand. CDRs and age 18s would be the natural next step with some spurious argument that those types of cases are merely "reviews" and not applications for benefits and thus ok to be reviewed by an appellate council AAJ. The mile that is feared taken from these inches given is the ultimate removal of all cases from ALJs to Hearing Officers.
But beyond the real danger or imaginary fear is the fact that this initiative is just plain dumb from a backlog perspective.
In the conference call to ALJs announcing the initiative it was proudly stated that the nondib cases going to the AC would take 10,000 cases out of the ALJ workload. 10k. Out of 1.1 million. And for that you have to hire 27 new AAJs at the same cost as an equal number of ALJs. But, if you hired 27 ALJs and they did the goal of 500 a year, you'd get 13,500 cases out. And you don't have to hire them 2 attorneys each.
As for the remands that will now he heard by AAJs, ridiculous. Instead, take 3 steps and really do something about the backlog. First, close the damn record like every other court system in the world and you stop having the new evidence remands that account for near 50% of the remands I have seen. Second, adopt a real harmless error rule so stupid drafting mistakes that are not outcome determinative don't get remanded and take hearing slots. Finally, free up more funds for quality medical experts and consultative examiners so ALJs get reports that are reliable.
Each of those is a helluva lot cheaper than the current plan and that doesn't include the legal fees and damages that will be awarded when a violation of due process class action is won by AAJ denied plaintiffs.
The agency would surely rather have hearing officers they can discipline or dismiss. What agency wouldn't? They strive greatly to remind ALJs that they are no better than any other employee. But every other employee can be disciplined or terminated. Sure, they have union protection. But one of the big unsaid facts of the new writing and case pulling centers is they don't have those protections. A writer hired into a HO that doesn't hit the numbers? The NTEU or AFGE contract protects them and while the agency can get rid of them, there are hoops to jump through. One hired at the writing unit...no such protections and they are gone. Add that to the fact that almost all hiring is now done on a NTE 2 year basis...pretty apparent the agency wants freer reign to discipline and fire. And I don't blame them.
But ALJs are different. They need that independence and freedom of fear from agency retribution. The people need them to have it.
The fear of converting to hearing officers may be real or imagined. But if it's imagined it isn't a very big stretch considering what's happening with hiring within the agency at other positions. Considering as well this blatant skirting of the APA for a "small subset" of cases. A subterfuge? Perhaps...when one can easily see around the purported innocent intentions and much cheaper, saner ways to surpass the stated benefit of the action.
Thankfully, as ba noted, Congress appears to respect the independence of the ALJs. Even if their reason for doing so is suspect (sorry, I tend to believe certain congressional members' religiously spouted desire to dismantle all of social security more than their now espoused sanctity in securing the system).
Perhaps too there is no ill intent on the part of the architects of the cares initiative. Maybe they really are just trying to help the 1.1 million waiting. Maybe it's just they suck at math or have no grasp on the fact that the biggest court/quasi court system in the world should at least sort of have rules akin to other court systems.
But when there is thunder in the distance and a flash of lightening overhead, I expect to get rained on.
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Post by funkyodar on May 12, 2016 22:55:08 GMT -5
Funky, my above comment was not in response to your most recent post (so keep your panties out of a wad), we were typing at the same time buddy! You just keep your dirty old mind off the condition of my undergarments and we will be just fine, buddy.
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Post by 71stretch on May 12, 2016 23:01:37 GMT -5
The agency has been free to hire post-Azdell since 2007. The fact that they haven't hired the numbers they needed since then is not entirely OPM's fault.
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Post by cowboy on May 12, 2016 23:23:13 GMT -5
I hate to belabor the point, but I still am seeing non-disability going to the AC not CDRs? I could be missing something. The DC report says specifically non-disability. maybe somebody else said it? Sorry to confuse the issue, but my information was incorrect. Funkyodar is correct that the issue at hand is moving non-disability cases going to the AC, not CDRs or Age 18 redeterminations. I was typing multiple responses and mixing the issues. The point is well explained by Funkyodar and JudgeRatty. Any cases being moved to AAJ and away from ALJs demonstrates a removal of cases from the ALJs to the AAJs who do not have judicial independence or the same kind of merit protection as ALJs. Management has greater authority over the AAJs and can exercise greater control over this group than ALJs; so in the short run, it seems easier to have more AAJs making decisions from which they can direct agency goals. However, if the Senate does not interrupt this process, it is hard to believe the DC will permit this run around Due Process. I'm sure some in OGC has reviewed this plan and put on their stamp of approval, but it will be a hard fight to defend it. More than one enterprising Rep has obtained less favorable verdicts from the DC.
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Post by christina on May 13, 2016 4:44:03 GMT -5
But ALJs are different. They need that independence and freedom of fear from agency retribution. The people need them to have it. The fear of converting to hearing officers may be real or imagined. But if it's imagined it isn't a very big stretch considering what's happening with hiring within the agency at other positions. Considering as well this blatant skirting of the APA for a "small subset" of cases. A subterfuge? Perhaps...when one can easily see around the purported innocent intentions and much cheaper, saner ways to surpass the stated benefit of the action. But when there is thunder in the distance and a flash of lightening overhead, I expect to get rained on. yep to whole post above, which was excellent, and triple yes to parts i quoted
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Post by christina on May 13, 2016 4:47:42 GMT -5
So if there was a big change and they went to some sort of hearing officer system, what would happen to the current ALJs? Soylent green. soylent green is a much better answer!! but here are some other options in case mch is still wondering: Encouraged retirement for those over 20 years Grandfathering out existing ALJ's Converting newer ALJ's to hearing officers(not sure 3 is doable under APA). My best guess is a resounding no.
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Post by maquereau on May 13, 2016 6:54:32 GMT -5
Personally, I'd be happy if they took the overpayment and non-disability cases from me. At the same time, the union is afraid that this is the start of the slippery slope. By way of a win-win compromise, the union could work with the agency to assemble a cadre of ALJs who actually like the non-dib issues and would specialize in that area. Thus, ALJs continue to hear the stuff, but we have some efficiency in the specialization. Everyone would/should be happy.
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Post by mch135 on May 13, 2016 7:01:31 GMT -5
So if there was a big change and they went to some sort of hearing officer system, what would happen to the current ALJs? Soylent green. I love this response!
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Post by onepingonly on May 13, 2016 7:17:53 GMT -5
The elephant in the room is that the backlog can easily be addressed by adjusting the criteria, even slightly. The agency rules build in assumptions that are outmoded and wrong, such as: people over 50 can't learn; the ADA, ADEA, and ADAA don't exist; overt fraud against one government agency has no bearing on another agency; education level brackets relate to employability; the BOP is actually on the ALJ at all steps; waiting until after the hearing to start gathering the proof of the case is a reasonable practice; attorneys have no responsibility for putting on a case; no error is ever harmless; it's the ALJ's job to account for every scribble in a 500-page record and rewrite a draft that lacks even basic cogency, in 2.5 hours, 500 times a year; issues that would require serious consideration (FM, DAA) are best addressed through Byzantine pronouncements of the agency that involve 15-step mechanical analyses; etc. A small core of meritless applications suck up a huge quantity of ALJ time and energy getting heard, remanded, reheard, refiled, ad infinitum.
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Post by JudgeRatty on May 13, 2016 7:22:57 GMT -5
I hate to belabor the point, but I still am seeing non-disability going to the AC not CDRs? I could be missing something. The DC report says specifically non-disability. maybe somebody else said it? Sorry to confuse the issue, but my information was incorrect. Funkyodar is correct that the issue at hand is moving non-disability cases going to the AC, not CDRs or Age 18 redeterminations. I was typing multiple responses and mixing the issues. The point is well explained by Funkyodar and JudgeRatty. Any cases being moved to AAJ and away from ALJs demonstrates a removal of cases from the ALJs to the AAJs who do not have judicial independence or the same kind of merit protection as ALJs. Management has greater authority over the AAJs and can exercise greater control over this group than ALJs; so in the short run, it seems easier to have more AAJs making decisions from which they can direct agency goals. However, if the Senate does not interrupt this process, it is hard to believe the DC will permit this run around Due Process. I'm sure some in OGC has reviewed this plan and put on their stamp of approval, but it will be a hard fight to defend it. More than one enterprising Rep has obtained less favorable verdicts from the DC. And just to make my point clear, I think the AAJs will do a good job... but that is not the problem. It is the judicial independence issue and the APA. I do not want to give the impression I think the AAJs are not capable, they ARE. After all they do review and remand all the time. But it is the hearing process AFTER an ALJ has already heard the case and then issuing potentially another unfavorable or partially favorable decision. Once the AAJs start hearing cases on the remands.... slippery slippery slope.
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Post by JudgeRatty on May 13, 2016 7:23:21 GMT -5
Personally, I'd be happy if they took the overpayment and non-disability cases from me. At the same time, the union is afraid that this is the start of the slippery slope. By way of a win-win compromise, the union could work with the agency to assemble a cadre of ALJs who actually like the non-dib issues and would specialize in that area. Thus, ALJs continue to hear the stuff, but we have some efficiency in the specialization. Everyone would/should be happy. THIS!
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Post by hopefalj on May 13, 2016 7:39:45 GMT -5
Personally, I'd be happy if they took the overpayment and non-disability cases from me. At the same time, the union is afraid that this is the start of the slippery slope. By way of a win-win compromise, the union could work with the agency to assemble a cadre of ALJs who actually like the non-dib issues and would specialize in that area. Thus, ALJs continue to hear the stuff, but we have some efficiency in the specialization. Everyone would/should be happy. THIS! Are you volunteering?
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Post by JudgeRatty on May 13, 2016 7:48:51 GMT -5
Are you volunteering? Sure! They are not my favorite because they are so far apart but if I am concentrating on those in batches, it would make the process easier. I think when there are cases that are rarely seen, the less common non-disability issues, it is much more efficient to have "experts" to handle them. Makes more sense than the way it is now.
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Post by onepingonly on May 13, 2016 7:52:24 GMT -5
Are you volunteering? Sure! They are not my favorite because they are so far apart but if I am concentrating on those in batches, it would make the process easier. I think when there are cases that are rarely seen, the less common non-disability issues, it is much more efficient to have "experts" to handle them. Makes more sense than the way it is now. It could work as a rotation. Spend a few months on overpayments, refine technique. I'm not up for hearing only overpayments for the rest of my career. YMMV
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Post by Gram Pop on May 13, 2016 8:01:07 GMT -5
Count me in. I find these cases to be a refreshing change from the usual sore backs and sad feelings that creep into my hearing room every week. I'm not sure that I would want to handle only those types of claims, but it seems that having one or two judges in each office who specialize in those cases would make for a better work flow and would result in quicker turn around times. Of course, I started in SSA as a FO claims rep so non-disability issues aren't as challenging to me as they are to others without that background. Given the minimal (or non-existent training) provided to ALJ's on those issues, it just makes sense to have some specialization which would hopefully result in building expertise in those areas.
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Post by southernfun on May 13, 2016 8:01:12 GMT -5
Could changing the analysis from credibility to consistency be part of the conspiracy?
I mean you need a judge to judge credibility, but isn't a medically trained person (or specially trained hearing officer) better suited to evaluate whether a claimant's testimony is consistent with medical records?
EDIT: I'm just discussing/spit balling/conversating, NOT advocating that there is a conspiracy or that we need hearing officers. My belief is that we need to hire 500 new permanent ALJs each year for four years, get rid of the backlog, then offer incentive retirement packages...
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Post by onepingonly on May 13, 2016 8:41:59 GMT -5
Could changing the analysis from credibility to consistency be part of the conspiracy?
I mean you need a judge to judge credibility, but isn't a medically trained person (or specially trained hearing officer) better suited to evaluate whether a claimant's testimony is consistent with medical records?
EDIT: I'm just discussing/spit balling/conversating, NOT advocating that there is a conspiracy or that we need hearing officers. My belief is that we need to hire 500 new permanent ALJs each year for four years, get rid of the backlog, then offer incentive retirement packages... By the time the case gets to an ALJ, doctors -- often multiple doctors -- have reviewed the file, and some or all of them considered the claimant not disabled. What would be the point of a hearing before a non-doctor (of any stripe) but to give the claimant a chance to persuade a human, face to face, that the doctors and the paper record are wrong? And how to persuade if not by sheer credibility as to purely subjective symptoms? I will be most interested to see the reaction of the federal district judges on review of decisions issued by non-judges who recognize no credibility on the claimant's part, not filtered through an additional agency appeal. How the DOJ lawyers are going to love defending those in Art. III courts!
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