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Post by Deleted on Oct 13, 2018 5:57:53 GMT -5
The agency has tried to solve the backlog by hiring more ALJs and giving them fewer resources. Hire more attorneys and have them brief the cases and I can cut my note taking time and hear more cases. Give it back to the attorney who briefed it to give them a crack at writing with some familiarity with the case and notes already taken on key evidence. Do that and you can often get a head start on ordering new records as well. This is hilarious. Have the attorney advisor review the entire file, brief the case for the ALJ, send it to the ALJ so they can simply say “award” or “deny,” and then send it back to the Attorney to write the decision. Might as well pay the attorney advisors at the ALJ level and let them decide the case. It is simple to review a case, listen to a claimant at a hearing, and then give a thumbs up or a thumbs down. Any chicken deboner can do that. But to actually explain why you ruled the way you did takes a lot more effort and skill.
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Post by vudublu on Oct 13, 2018 6:01:08 GMT -5
I agree with arkstfan.
Although I have met the mark (in a good office with great staff), I have to say that the main problem with productivity is that the process is set up for two reviews of the entire file, with the judge doing the first review. No rational system would have the highest paid person slog through all the file in the first instance. To truly boost productivity, the system should change so that an attorney reviews and summarizes all the evidence, the judge gets that summary in time to read it and look at the critical cited documents before the hearing, and then goes into the hearing armed to ask pointed questions based on all the evidence, without the need to eye every page. If we all had that (which is how I understand the NHCs operate), we could all exceed the disposition goal.
I came in as a NODAR, from private practice. During training we met with TPTB and I said this is crazy, no one in private practice would do this, and it should change. The response I received was essentially "you're right" with no interest expressed in making any change.
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Post by Deleted on Oct 13, 2018 6:50:39 GMT -5
I agree with arkstfan. Although I have met the mark (in a good office with great staff), I have to say that the main problem with productivity is that the process is set up for two reviews of the entire file, with the judge doing the first review. No rational system would have the highest paid person slog through all the file in the first instance. To truly boost productivity, the system should change so that an attorney reviews and summarizes all the evidence, the judge gets that summary in time to read it and look at the critical cited documents before the hearing, and then goes into the hearing armed to ask pointed questions based on all the evidence, without the need to eye every page. If we all had that (which is how I understand the NHCs operate), we could all exceed the disposition goal. I came in as a NODAR, from private practice. During training we met with TPTB and I said this is crazy, no one in private practice would do this, and it should change. The response I received was essentially "you're right" with no interest expressed in making any change. The process is not set up for two reviews of the file. The process is set up for one complete review of the file by the ALJ who, upon consideration of all the evidence in the case, renders a final disposition of the matter.
The decision writer is not supposed to have to review the entire file just to try to figure out why an ALJ decided the way they did. The ALJ is supposed to provide very detailed decision writing instructions explaining why they ruled the way they did (with pinpoint citations to the evidence, evaluation of the symptoms, evaluations of the opinions, evaluation of the past relevant work, evaluation of whether DA&A is material, etc.).
Secondly, if all of the decision writers are reviewing cases and then briefing them, they are not going to have the additional time to help you exceed the disposition goal. You will have a much higher UNWR rate than you've ever seen and the disposition rate will most likely decline.
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Post by vudublu on Oct 13, 2018 8:12:21 GMT -5
The process is not set up for two reviews of the file. The process is set up for one complete review of the file by the ALJ who, upon consideration of all the evidence in the case, renders a final disposition of the matter.
The decision writer is not supposed to have to review the entire file just to try to figure out why an ALJ decided the way they did. The ALJ is supposed to provide very detailed decision writing instructions explaining why they ruled the way they did (with pinpoint citations to the evidence, evaluation of the symptoms, evaluations of the opinions, evaluation of the past relevant work, evaluation of whether DA&A is material, etc.).
Secondly, if all of the decision writers are reviewing cases and then briefing them, they are not going to have the additional time to help you exceed the disposition goal. You will have a much higher UNWR rate than you've ever seen and the disposition rate will most likely decline.
That's not how the judges are trained. When I raised this point in training, no trainer or management person present said I was incorrect. Other than as to some highlights of the evidence, it's not done by any judge I know. And, finally, it's not required by the CALJ's memo on legally sufficient writing instructions. I suggest you review that memo.
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Post by maquereau on Oct 13, 2018 9:18:43 GMT -5
The process is not set up for two reviews of the file. The process is set up for one complete review of the file by the ALJ who, upon consideration of all the evidence in the case, renders a final disposition of the matter.
The decision writer is not supposed to have to review the entire file just to try to figure out why an ALJ decided the way they did. The ALJ is supposed to provide very detailed decision writing instructions explaining why they ruled the way they did (with pinpoint citations to the evidence, evaluation of the symptoms, evaluations of the opinions, evaluation of the past relevant work, evaluation of whether DA&A is material, etc.).
Secondly, if all of the decision writers are reviewing cases and then briefing them, they are not going to have the additional time to help you exceed the disposition goal. You will have a much higher UNWR rate than you've ever seen and the disposition rate will most likely decline.
I'm afraid I have to disagree. The writer has much more time to review the file than the judge. The writer is supposed to spot things that the judge overlooked; the job title is "Attorney Advisor." And when I wrote decisions, that is exactly what I did. And I very very rarely received "detailed" instructions. Often I was lucky if the ALJ put down all the impairments. I just did my job. While we employ a team concept in getting decisions out the door, the situation really is more of the writer assisting the judge to produce a decision than the judge providing assistance to the writer.
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Post by nylawyer on Oct 13, 2018 10:01:51 GMT -5
I agree with arkstfan. Although I have met the mark (in a good office with great staff), I have to say that the main problem with productivity is that the process is set up for two reviews of the entire file, with the judge doing the first review. No rational system would have the highest paid person slog through all the file in the first instance. To truly boost productivity, the system should change so that an attorney reviews and summarizes all the evidence, the judge gets that summary in time to read it and look at the critical cited documents before the hearing, and then goes into the hearing armed to ask pointed questions based on all the evidence, without the need to eye every page. If we all had that (which is how I understand the NHCs operate), we could all exceed the disposition goal. I came in as a NODAR, from private practice. During training we met with TPTB and I said this is crazy, no one in private practice would do this, and it should change. The response I received was essentially "you're right" with no interest expressed in making any change. What's the expression- a camel is a horse built by a committee? I'd call our process a camel, but that would be a slur against the camel which is actually well designed for its particular environment (and not to get into what breeding and training has done to racehorses which can barely function as animals). Coming from the outside, nothing about this process makes sense. The idea of having the judges just decide the case while an assembly line of writers churn out the written decisions may sound good to an MBA consultant who designs business processes, but as a practical matter it means everybody is duplicating everyone else's work and man hours are wasted. And that's even before we consider the role of the AC. The decisions are too complex and detailed, the Supreme Court issues rulings that completely change the country using less words. The Article 3 courts (and their state equivalents- you know, the real courts) would never do this to themselves, they would not waste their time on all the excess verbiage. Here's the issue, here's what I find, and here's why, and don't remand (side note- my phone absolutely refused to acknowledge "remand" is a word and kept changing this to "demand") it back to me because I neglected to mention the claimant also has high cholesterol (or, even worse, that I neglected to mention that he DOESN'T). Nothing is expected of the claimants or their representatives. How about this- on repped cases require an actual brief arguing what the impairments are, what establishes them, and why they reduce capacity to a level that makes the person disabled. And then the decision addresses that brief- period. On unrepped cases, if the claimant isn't returning the paperwork sent to them that allows us to develop the case (such as what updated treatment they've gotten), then dismiss it, with allowance to show cause. Better than continuing to send out papers to an unresponsive address and then scheduling a hearing that we have no idea if the claimant will attend, and if they do show up we have to only then start ordering records. On a related note, the hearings should have never gotten to the point that they are years after the state determination was made. It makes it harder for the agency, but harder still for a claimant, who while waiting is going to be reluctant to even try to work, and who ends up losing their home, their marriage, and whatever else that can't endure this process. Fraud- discourage it. And not just wholesale fraud, I'm talking about for individual claimants. Make it so ALJs can get an investigator to spend a few hours either surveilling the individual who is so disabled they can only leave their homes for medical appointments, or looking through social media, or whatever else seems necessary. If one in one hundred of these investigations results in the ALJ not issuing an incorrect favorable decision, it is money well spent. Get local prosecutors to bring cases against the more egregious offenders. If it can be shown beyond a reasonable doubt that a claimant lied (not a mistake, not something resulting from mental illness) about something material at the hearing, the case is dismissed (because what is the point of having the hearing if the claimant is not going to tell the truth). "Are you working? No. Not even part time, or off the books? No. What about this note in your records saying you are getting paid to paint houses? Oh, yes, I'm doing that I didn't think you'd know about it. Get out." I could go on and on (yes, more than I did, I have thoughts about Step 3, Step 4, medical source statements, CE's, and lots of other topics), but you'll have to get me transferred to your local office to hear them.
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Post by Thomas fka Lance on Oct 13, 2018 11:20:47 GMT -5
[/p] The decision writer is not supposed to have to review the entire file just to try to figure out why an ALJ decided the way they did. The ALJ is supposed to provide very detailed decision writing instructions explaining why they ruled the way they did (with pinpoint citations to the evidence, evaluation of the symptoms, evaluations of the opinions, evaluation of the past relevant work, evaluation of whether DA&A is material, etc.).
As a former attorney advisor prior to becoming an ALJ, I DO put that info into my instructions (such as inconsistent statements between testimony and the MER. I cite testimony, I note the Exhibit AND page number in the instructions and I highlight that cite in the record). So, all the writer has to do is copy and paste the info. from my instructions.
And yet .... I then have to add that discussion when the case comes back to me in EDIT and if I mention this to the writer, well, some of the responses are not fit for a public forum.
Bottom line, folks, we are public servants and highly educated professionals, and we are supposed to be a team. Improvements in instructions, and then attention to those instructions benefits not only each other but also the public we serve.
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Post by Pixie on Oct 13, 2018 11:36:21 GMT -5
While I don't give detailed instructions, I give the RFC I accept, word for word as given to the VE, the severe impairments, any non severe impairments and why they are non severe. I can eliminate many impairments as non severe based on the claimant's testimony ("No, I have never seen a doc for that"). If I don't accept a MSS, I tell why. I point out key evidence in the file, and why I accept or don't accept the claimant's testimony. Also I cover any work or earnings after onset in the claimant's testimony (Have you worked, even one day since you allege you became disabled?). I have the earnings record in front of me to resolve any discrepancies in the testimony, and there are usually a bunch of inconsistencies during the course of a day of hearings.
I do much of this during a thorough review of the file the day before the hearing. This is when I make extensive notes for me to refer to during the hearing and to refer the AA to when giving my instructions.
I usually make a decision after my initial questioning of the claimant, as I have already read all of the evidence and cleared up any questions I had after the review. While the attorney is questioning his client is when I start finalizing my instructions. Usually finished by the time they leave the hearing room.
Do I ever change my mind after the attorney questions his client? Sometimes. More often with the better attorneys than with the average or less than average attorneys, as the better attorneys know exactly what is needed to win the case. They normally will give me a brief heads up before they start as they know what I am looking for. My hearings are fairly short with the typical unfavorable hearing taking 45 minutes. All hearings are friendly and collegial. I put the claimant at ease right up front by being friendly to him. I have never had a complaint filed against me.
The favorable hearing where I know in advance how I am going to rule is maybe 15 minutes to clear up any work or earnings after onset, or any other questions I have after a review of the file. Often I will need the claimant's testimony to make the case, so I briefly question him as his attorney would, to establish his testimony in the record. It's just more efficient for me to do it as I know exactly what I need. If the attorney has gotten the evidence in as he should have (either in a favorable or unfavorable hearing), I thank him in front of his client, telling him he has done a good job of representing the claimant.
My pay/denial rate? about 50/50. I get out a steady 40 a month, which is all I can do with my HOCALJ duties consuming much of my time. Remands? Np longer get them. I have the top 12 reasons for remands taped to the back of my door. They are memorized. I don't get remands.
There is more than one way to skin a rabbit. Just my way of doing things; YMMV. Pixie
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Post by nylawyer on Oct 13, 2018 12:34:42 GMT -5
Finally, it's not "chicken deboner", its Poultry Boner, DOT Code # 525.687-066, SVP 2, Light job with 155,000 jobs Nationally. I have had claimants with that PRW! Does a chicken boner put bones back into a previously deboned chicken? Because that strikes me as being more than svp 2. (I'm skipping the more obvious jokes out of a sense of decorum). I actually thought I had someone with the chicken deboner position, I recall it being an SVP 1 job at a heavier exertional level.
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Post by nylawyer on Oct 13, 2018 13:26:52 GMT -5
You recalled incorrectly! I use the DOT and SkillTran, don't know what you use, A butcher
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Post by lurkerbelow on Oct 13, 2018 14:23:00 GMT -5
One view from the other side.
When I receive instructions, I scan for holes only. For example, if I have a FFS5 mental case where the claimant has MER including CIWA protocols and detoxes, and testifies that they had a pint of liquor in the past week and the judge doesn't mention it in the instructions, that case will be back on their desk pretty quickly as that issue is dispositive to the outcome.
Absent extreme issues like that, I accept any and all instructions, do what i can, tell you what I can't, draft, edit, submit, and repeat. Again, and again, and again. Oh, and I do not have for cause protection, so Agency compliance takes precedence.
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Post by plinytheelder on Oct 13, 2018 14:46:22 GMT -5
I may have to stop visiting this site. While feeling confirmed in quitting is nice last night I dreamed that I had been tasked with facilitating a discussion of the proper roles and responsibilities of ALJs and DWs. Dullest. Dream. Ever.
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Post by monday on Oct 14, 2018 14:34:10 GMT -5
If I'm denying a case based upon the previous DDS determinations and CEs performed, do I really need to break it down to an attorney how they should focus on the concept that DDS had it right and any MERs since the Recon denial doesn't change that fact? As I understand it, the most recent update in what ALJs are supposed to provide in their instructions says that they are supposed to cover what weight is given to each opinion in the record. I'm happy if I get something like "Good weight to CE, T/S opinion at Ex. 2F - little weight, internally inconsistent and not supported by MRI, some weight to DDS but T/S evidence shows greater lims.".
That level of detail or hitting all the opinions doesn't always happen. I can make up weights given to various opinions, but it takes longer for me to see if it makes sense compared to what else in the record and, if the ALJs are told they should do this, I would hope they would do it. It's normal to occasionally miss something, but I don't think that's always the issue.
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Post by neufenland on Oct 15, 2018 7:36:32 GMT -5
I wrote cases at VA for many years, and the attorney is the first one to get the file there. Unless a hearing has been held, in which case there will be a transcript and possibly hearing notes (although evidence may have been submitted since then). The majority of VA cases are done on the record, and I know that hearings are much more plentiful in SSA.
All that said, the attorney is responsible for coming to an initial decision and to prepare the draft. There are almost never instructions on how to adjudicate the case. The Judge may ask for a revision if he/she doesn’t agree, but the evidence review (including tabbing relevant stuff) and suggested disposition are from the AA. As noted, the Judge signs it, so the final result can certainly be changed. Each VLJ has a team of about six AAs who write just for that one Judge, so you get to know personalities and tendencies a little easier than what I imagine is the case at SSA. Also, since it’s a centrally localized place, if an AA is on the fence and wants to have insurance against a rewrite, he/she can just brief the VLJ and ask their thoughts.
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Post by plinytheelder on Oct 15, 2018 9:11:02 GMT -5
I did a stint at the BVA as well. The fact that my name was included on each opinion I wrote indicated a different view as to my role.
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Post by hopefalj on Oct 15, 2018 11:09:51 GMT -5
My thoughts on some of this as a prior AA turned ALJ with ODAR now OHO...
There is a 0% chance that I would go into a hearing without reviewing every page of the record and relying on a summary or otherwise from an attorney. If I'm doing the hearing, I'm supposed to know the file better than anyone else in the room, and arrogantly, I think I do just about every time. There are things that I would (and do) trust attorneys to do prior to one of my hearings, including reviewing 55+ cases to see if the grids might be applicable, seeing if special cases might meet a listing (specifically under listings 2.00, 3.00, 5.00, or 6.00 where it's mostly grinding through the numbers and labs), or whether PRW relied on by DDS actually is PRW given earnings, when it was last performed, etc. It's not that I don't think attorneys in our agency can do it, it's just that I'm OCD enough to want to know everything in the file that I can before I hear someone's case.
I also agree that if that's what an attorney is doing and making a recommendation, they're basically doing far more than they're getting paid to do. The judge could basically become Tom Smykowski from Office Space, taking instructions from the writer, getting testimony from the claimant and VE with hypos from the writer, and then sign the decision based on whichever of the writer's hypos they want to go with. It's like ALJs that have MEs on every case and go with the ME on 95-100% of the cases. I never understand exactly what the ALJ's role is in that situation other than to ask the ME what decision they should make.
From an AA's perspective, yes, there are judges that simply issue garbage instructions, rely on you to do everything, and don't offer a lot of guidance for a "unique" restriction in the RFC, assuming they identify the RFC at all. 90% of the judges in my former office didn't comply with even the basic, plain language definition of instructions as I alluded to in my earlier post. Impairments? Opinions? 16-3p factors? SGA? Why bother addressing that when I could get basically a Tweet as my set of instructions and go from there. Granted, I wrote under the old 4/8 rating system in an area that wasn't known to have large files in a state that didn't expand Medicaid, and so long as the decision was egregiously incorrect, I did enjoy basically writing my own decision with the borrowed RFC.
However, I've seen cases as an ALJ that have come back where the prior judge's instructions doesn't identify "paragraph B" criteria, simply state "see VE hypos for RFC," and only address the DDS or CE opinions without touching on anything else. To me, it's no wonder it then comes back 2x even if I believe I might have been able to figure it out as a writer. It's inexcusable that the basic 5 steps aren't addressed by ALJs, and if I were a writer, I wouldn't bother to fill in gaps or spend extra time searching for opinions in the records under DWPI.
As an ALJ, my instructions have gradually become less detailed as my notes have become less detailed, but I still include Steps 1, 2, 3, 3.5, 4, and 5 in the instructions with a 8-12 line paragraph at the top of the instructions that explains why I'm reaching the decision I did so that the writer doesn't have to try and guess. Every opinion I see in the records, whether inconsequential or not, is included and given weight. I do only give a brief explanation for the weight (inconsistent with ADLs above in my instructions, their own records don't support such extensive limitations, saw the claimant only twice and 3 years before the provider gave the opinion, etc.), and I expect the writer to be able to beef that up by citing evidence to support those conclusions.
Very often I find the writer has simply copied and pasted whatever my rational is into the decision as the opinion evaluation, which is horribly insufficient. I understand the desire to have more information written, but at a certain point, I'd be writing the decision myself. I was once like maquereau and spent hours editing decisions to make them legally sufficient, and I had over 100 AC affirmations before I got my first remand (yes, I did tweak my shoulder patting myself on the back). But once the push for 600 hearings was made, I gave that up. Mentally, it's the best decision I could have made and would recommend it to anyone else that struggles with this or might struggle should they get the call whenever calls are made again. I check for critical information, like impairments, the correct listings, the RFC, the opinions, and checking the VE testimony, and if it's all there, I assume everything else is, too. However, I still see butchering of all of these things in spite of the clarity of my instructions.
Perhaps if there were a matching program like doctors and hospitals for residencies for attorneys and judges, it might serve as a wake-up call for those that think they're doing well enough in either job to have them do better. Heck, it's possible I might be one of those that needs to be woken up.
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Post by happy on Oct 15, 2018 11:16:12 GMT -5
I am a former SSA decision writer, now an SSA judge. As a writer, I thought I knew what the judge job was. I was wrong.
I probably give more thorough instructions than most judges. My instructions are typed, they address every step of the SEP, and they at least try to address every opinion. I normally include references to the record and often include pretty extensive notes of the hearing testimony. I try to give the writers an idea of my thought process so that they can produce a product that somewhat resembles what I would have written myself. It rarely happens. It doesn't matter what I indicated was the reason I found the claimant's allegations inconsistent with the evidence. They plug in canned language. It doesn't matter what I indicated was the reason I discounted an opinion. They plug in canned language. Not everyone -- there are good writers out there.
That being said, I would point out that, as a writer, I touched between 20 and 40 cases per month, depending on the assignments. That's a pretty reasonable expectation for a writer, to write 1 to 2 decisions per workday. I don't ARPR anymore (that's pre-scheduling review for you non-SSA folks). However, when I did -- and many judges do -- I touched about 60 cases per month for ARPR and reviewed in-depth another 50 or so prior to hearing. For those cases that didn't get instructions written immediately after hearing, I generally touched another 20 to 30 to review the post-hearing development and write instructions. Then, of course, I touched another 50 or so per month while editing, to make sure the writer didn't mischaracterize evidence, which does sometimes happen. So, on average, a judge that ARPRs may touch 180 to 200 cases in a month's time, versus the writer's 20 to 40. A judge who does not ARPR still touches at least 100 in a month.
I know that the Agency has tightened timeframes for drafting but the decision writers still have far more time than the judges to pull the details out of each record to support the judges' findings. If the judge missed something or made an error, let him/her know BEFORE you draft so that the issue can be resolved without you spinning your wheels.
Are there judges out there that aren't thorough or conscientious? I'm sure that there are just as many of those as there are writers who slap a summary of the medical evidence together without any analysis at all.
I can only speak for myself. I wish I could depend on every writer to do as good a job as some are doing. Judges should be able to count on the writers to be (respectful) advisers who catch anything we overlook. We are a team. We are all serving the public.
And yes, I disposed of 560 in FY18, along with additional responsibilities, including training.
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Post by neufenland on Oct 15, 2018 11:44:06 GMT -5
I did a stint at the BVA as well. The fact that my name was included on each opinion I wrote indicated a different view as to my role. Yup. The “Attorney for the Board” is noted in each opinion.
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Post by arkstfan on Oct 15, 2018 13:20:34 GMT -5
The agency has tried to solve the backlog by hiring more ALJs and giving them fewer resources. Hire more attorneys and have them brief the cases and I can cut my note taking time and hear more cases. Give it back to the attorney who briefed it to give them a crack at writing with some familiarity with the case and notes already taken on key evidence. Do that and you can often get a head start on ordering new records as well. This is hilarious. Have the attorney advisor review the entire file, brief the case for the ALJ, send it to the ALJ so they can simply say “award” or “deny,” and then send it back to the Attorney to write the decision. Might as well pay the attorney advisors at the ALJ level and let them decide the case. It is simple to review a case, listen to a claimant at a hearing, and then give a thumbs up or a thumbs down. Any chicken deboner can do that. But to actually explain why you ruled the way you did takes a lot more effort and skill. We are chicken deboners DUH. Got the decision to prove it. If you think it is simple to review a case and make a decision you are misguided. In your hilarious version you omit the hearing. Well shit we going to get rid of the hearings chicken deboners might find this easy work. The agency wants more volume they can't get it until there is a way to review cases faster. Now maybe if the ACA and Medicaid expansion were repealed we could back to those slim little files with nothing but CE's in them.
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Post by hamster on Oct 15, 2018 16:01:28 GMT -5
Does a chicken boner put bones back into a previously deboned chicken? Because that strikes me as being more than svp 2. (I'm skipping the more obvious jokes out of a sense of decorum). I actually thought I had someone with the chicken deboner position, I recall it being an SVP 1 job at a heavier exertional level. I believe that the "chicken deboner position" is in the Kama Sutra, but may be mistaken.
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