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Post by judgymcjudgypants on Oct 15, 2018 17:04:53 GMT -5
Straight into the gutter. J
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Post by marathon on Oct 15, 2018 18:04:33 GMT -5
I’ve bit my knuckle multiple times reading of the angst of the aa’s who feel undervalued and overworked.
This is coming from a former aa in a different agency where I was expected to brief the case for the ALJ, including pertinent questions I needed for the disposition, which then in turn became the fact section of my draft. I also provided a recommended disposition, as that was also a requirement in my performance plan. All as a GS 11-12.
This upfront review allowed me to spot cases ripe for OTR so as not to waste a hearing slot. The work was front loaded so the back end went faster. Not only was I expected to do this, particularly on novel issues, I was also expected to work in concert with clerks for scheduling, not only to make sure my writing docket was manageable, but that we had adequate time to notice the case for hearing, hold the hearing and issue the decision within 90 days from the date the request for hearing was received. Yes. 90 days start to finish and we met that goal for the first 4 years I worked there.
I was expected to be an expert in the law that covered SIGNIFICANTLY more than the 5 step analysis that is performed at OHO. I had to know regs that changed annually and coverage policies that varied by state/location AND the horror, understand the intricacies of statistical sampling (like Pixie, I hate math). In short, I was asked to uphold the oath I swore when I became licensed:
“To discharge my duties as an attorney and counselor of the Supreme Court and all other courts with fidelity both to the Court and to my cause, and to the best of your knowledge and ability.” In other words: The agency was my client. And I consider it an ethical failing to not properly be educated on the law, and to advise. Or fail to advise when I see the court, or tribunal, going the wrong way. If the ALJ didn’t accept my advice? So be it. But I had discharged my duty.
In my most productive year with the agency, I wrote 750 decisions. I accumulated little OT or credit hours and took all of my annual leave.These were single decisions, not grouped as later became the trend. Although I had templates, they were not auto populated. I had to pick and choose the applicable sections to cobble it together based on the issues presented in the case, and then update my decision templates when the laws and policy changed. Lest you say I was writing on parchment, all of this came from 2006-2016.
I did this, and was grateful that in return I had no billable hours. I had guaranteed leave time I could take without begging the senior partner and wonder how I was going to be punished for it. Great health insurance. The ability to work from home 3 days a week. Were there days I was frustrated? Certainly. Burned out? Definitely. But I remembered that I was, in essence, a law clerk. And even on it’s worse day, that job, at that time, was the best job I’d ever had.
Might I suggest that those AAs that ponder that they are being asked to do far less, and in my experience with the agency, be held far less accountable for the work product they shelp, consider finding work in the private sector. Sure, the pay may be higher, but I dare you to find a better quality of life in it. If you do find that golden job, please take it. If you aren’t advising ALJs you write for, and/or you’re half assing your decisions “because you’re not paid to be a judge,” consider the fact you are failing in your ethical obligations. Maybe your ethical obligations don’t mean much to you. And if that is the case, you should no longer wonder why you had not been previously selected for the job.
I’ve yet to see a legal business model where the top (partner, judge, etc) was expected to be the one to do the most work. ALJs here are asked to far more than other agencies. (Im not complaining). A law clerk for any other court or tribunal would be shown the door immediately if they told the judge they needed to pin cite. And don’t even with the argument this isn’t real law. Tell that to the claimants and attorneys that appear before us.
Please forgive typos. Will try to go back and edit later.
[in my re-read I have the unmistakable tone of “you whippersnappers have it easy. I had to walk through 3 feet of snow to school, up hill, both ways. GET OFF MY LAWN!]
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Post by roggenbier on Oct 15, 2018 19:02:58 GMT -5
A MAN THINKS AN ALJ LISTENS TO HIS WRITERS. A MAN MIGHT HAVE BEEN IN WESTEROS AN ADVOCATE FOR MANY YEARS (IN BETWEEN DUTIES FOR THE TEMPLE OF BLACK AND WHITE), BUT HIS WRITER HAS THE LANGUAGE THAT WEAVES THE DECISION MAGIC. A MAN MIGHT BIND A WRITER WITH MANY INSTRUCTIONS AND LEAD WEIGHTS ABOUT WHAT CANNOT RISE TO NON SEVERE OR SINK TO SEVERE. THIS MAN HOPES THAT IN HIS ALJ FACE HE HAS LEARNED NOTHING BETTER THAN TO GIVE A GOOD RFC, WHICH REFLECTS THE DOT, AND LET HIS MAGICIAN WRITER DO THE REST. THE REST IS KISMET. NOW, A MAN MUST GO INTO THE STREETS WITH HIS CAT.
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Post by nylawyer on Oct 15, 2018 19:12:26 GMT -5
A MAN THINKS AN ALJ LISTENS TO HIS WRITERS. A MAN MIGHT HAVE BEEN IN WESTEROS AN ADVOCATE FOR MANY YEARS (IN BETWEEN DUTIES FOR THE TEMPLE OF BLACK AND WHITE), BUT HIS WRITER HAS THE LANGUAGE THAT WEAVES THE DECISION MAGIC. A MAN MIGHT BIND A WRITER WITH MANY INSTRUCTIONS AND LEAD WEIGHTS ABOUT WHAT CANNOT RISE TO NON SEVERE OR SINK TO SEVERE. THIS MAN HOPES THAT IN HIS ALJ FACE HE HAS LEARNED NOTHING BETTER THAN TO GIVE A GOOD RFC, WHICH REFLECTS THE DOT, AND LET HIS MAGICIAN WRITER DO THE REST. THE REST IS KISMET. NOW, A MAN MUST GO INTO THE STREETS WITH HIS CAT. OHO Braavos. Worst GOT episode ever. Worse even than the Dorne episodes
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Post by jimmyjiggles on Oct 15, 2018 22:54:29 GMT -5
I’ve bit my knuckle multiple times reading of the angst of the aa’s who feel undervalued and overworked. This is coming from a former aa in a different agency where I was expected to brief the case for the ALJ, including pertinent questions I needed for the disposition, which then in turn became the fact section of my draft. I also provided a recommended disposition, as that was also a requirement in my performance plan. All as a GS 11-12. This upfront review allowed me to spot cases ripe for OTR so as not to waste a hearing slot. The work was front loaded so the back end went faster. Not only was I expected to do this, particularly on novel issues, I was also expected to work in concert with clerks for scheduling, not only to make sure my writing docket was manageable, but that we had adequate time to notice the case for hearing, hold the hearing and issue the decision within 90 days from the date the request for hearing was received. Yes. 90 days start to finish and we met that goal for the first 4 years I worked there. I was expected to be an expert in the law that covered SIGNIFICANTLY more than the 5 step analysis that is performed at OHO. I had to know regs that changed annually and coverage policies that varied by state/location AND the horror, understand the intricacies of statistical sampling (like Pixie, I hate math). In short, I was asked to uphold the oath I swore when I became licensed: “To discharge my duties as an attorney and counselor of the Supreme Court and all other courts with fidelity both to the Court and to my cause, and to the best of your knowledge and ability.” In other words: The agency was my client. And I consider it an ethical failing to not properly be educated on the law, and to advise. Or fail to advise when I see the court, or tribunal, going the wrong way. If the ALJ didn’t accept my advice? So be it. But I had discharged my duty. In my most productive year with the agency, I wrote 750 decisions. I accumulated little OT or credit hours and took all of my annual leave.These were single decisions, not grouped as later became the trend. Although I had templates, they were not auto populated. I had to pick and choose the applicable sections to cobble it together based on the issues presented in the case, and then update my decision templates when the laws and policy changed. Lest you say I was writing on parchment, all of this came from 2006-2016. I did this, and was grateful that in return I had no billable hours. I had guaranteed leave time I could take without begging the senior partner and wonder how I was going to be punished for it. Great health insurance. The ability to work from home 3 days a week. Were there days I was frustrated? Certainly. Burned out? Definitely. But I remembered that I was, in essence, a law clerk. And even on it’s worse day, that job, at that time, was the best job I’d ever had. Might I suggest that those AAs that ponder that they are being asked to do far less, and in my experience with the agency, be held far less accountable for the work product they shelp, consider finding work in the private sector. Sure, the pay may be higher, but I dare you to find a better quality of life in it. If you do find that golden job, please take it. If you aren’t advising ALJs you write for, and/or you’re half assing your decisions “because you’re not paid to be a judge,” consider the fact you are failing in your ethical obligations. Maybe your ethical obligations don’t mean much to you. And if that is the case, you should no longer wonder why you had not been previously selected for the job. I’ve yet to see a legal business model where the top (partner, judge, etc) was expected to be the one to do the most work. ALJs here are asked to far more than other agencies. (Im not complaining). A law clerk for any other court or tribunal would be shown the door immediately if they told the judge they needed to pin cite. And don’t even with the argument this isn’t real law. Tell that to the claimants and attorneys that appear before us. Please forgive typos. Will try to go back and edit later. [in my re-read I have the unmistakable tone of “you whippersnappers have it easy. I had to walk through 3 feet of snow to school, up hill, both ways. GET OFF MY LAWN!] Reading about you last job, honestly it sounds fun. You were engaged, integral to your coworkers, got to learn new areas of law, and perform mutilple other functions other than writing. While it sounds underpaid, it also sounds interesting and rewarding, though certainly at the rate/pace you describe some burnout is inevitable. Basically it’s the opposite of the OHO AA job. I think the reason some people complain about something as banal as instructions is because there is little more than instructions to the job. If OHO AAs worked with designated judges, reviewed cases before hearing, were involved in suggesting OTRs, issue spotting, need for VEs/MEs and then writing the case after the hearing, the job would just be more rewarding and you would feel a little more invested in your work.
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Grace
Full Member
Posts: 39
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Post by Grace on Oct 15, 2018 23:53:09 GMT -5
PREACH MARATHON!
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Post by captainobvious on Oct 16, 2018 6:27:22 GMT -5
ALJ's and AA's going back-and-forth and finger pointing is playing right into Management's hands. Management created the problem by demanding unrealistic expectations, despite ALJ's and AA's advice to the contrary. Here's what I consider to be the bottom-line:
This is what Paragraph A of HALLEX I-2-8-20 says ALJs need to be doing:
The administrative law judge (ALJ) adjudicating the case is responsible for providing an assisting decision writer (DW) with complete, clear, and policy compliant directions. Most importantly, the ALJ needs to include rationale supporting the findings that impact the ultimate conclusion. A DW must have enough information to specifically understand what an ALJ wants to include in the decision and why the ALJ wants that information included.
Paragraph B goes into more detail, and I'm paraphrasing the more salient points here: Cite to pertinent evidence/testimony; directions for every Step; B/C criteria; explanation re: how ALJ resolved any conflict in the record; state weight/persuasiveness of opinions; ensure RFC accounts for impairments and same RFC is given to VE; state occupations and numbers of jobs identified by VE.
Paragraph C goes into things ALJ's should avoid in instructions, again paraphrasing: e.g. referring AA to transcript for VE numbers; handwriting instructions.
I can tell you that about half of the judges in my office do the above. There is no HALLEX provision for AA's that I am aware of.
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Post by lurkerbelow on Oct 16, 2018 6:40:43 GMT -5
You folks are welcome to blame the AAs if you want. You may be right tbh I don't know.
I'll just keep on writing as best I possibly can, but again, I do not have for cause protection.
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Post by SPN Lifer on Oct 16, 2018 8:43:22 GMT -5
TBH = to be honest
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Post by arkstfan on Oct 16, 2018 9:29:50 GMT -5
It is true that AA's are expected to do fewer things now. The "trade-off" being an expectation of more decisions being issued.
The work is less diverse than it was 10 years ago. Used to be you often got little more than a smiley face or frowny face and you were expected to sort out what the impairments were, the appropriate listings, and you would have to troop down the hall because of an onset issue or eligibility issue or needing interrogatories to clean up some VE issue.
The process has changed to clear obstacles to get decisions written faster but at the cost of slowing down the ALJs. Now some of the slow down of ALJs is beneficial, with much of your writing taking place hundreds of miles away more detailed instructions are required because the writer may see a decision from that ALJ once a month instead of doing all their work for the same 3 or 4 ALJs.
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Post by SPN Lifer on Oct 16, 2018 19:58:21 GMT -5
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Post by Pixie on Oct 16, 2018 22:57:11 GMT -5
Yes, this language was actually written by the Agency: "When writing or reviewing a draft decision, an ALJ will keep in mind that the primary audience for a decision is the claimant." Uh, like, when has that ever been the case? The primary audience for my decisions is the A/C followed by the District Court. If I write for the claimant, how is that going to avert a remand? Please, we in the hearing offices live in the real world. Those in Baltimore, where this was written, have not a clue. Guidance like this I don't need. Pixie
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Post by magisterludi on Oct 17, 2018 0:04:45 GMT -5
Who is the client?
Where does an attorney adviser's ethical responsibility lie?
The agency's position is the only attorneys who have the agency as clients are the OGC attorneys
In the decision making process, the AC represents the Commissioner's interests and the ALJ proposes decisions as the designee of the Commissioner
So, an attorney adviser in OCALJ - who is the client? OCALJ takes the position the ALJ is not the AA's client. Then it gets murky, but it appears the agency as employer's position is the AA's client is the first line supervisor and the agency as employer retains the capacity to tell AAs what to advise the ALJs and supervisors and peers, the time allotted and other variables.
For those who have been in OCALJ for a while, it goes back to the settlement agreement SSA (OGC/OIG/OCALJ) entered into with one of the attorney unions. OIG was seeking hundreds of thousands of dollars in civil monetary penalties from attorneys who did what their HOCALJ told them to do (using a generic VE interrogatory to support OTR FFs). In a nutshell, if a DW (so attorneys and paralegals) believes an ALJ is directing them to draft a decision with a material false or misleading statement - the next step is not to go to the ALJ. The DW goes to the supervisor and it is the supervisor's responsibility to resolve the matter. If the supervisor says draft as instructed - then the supervisor is on the hook. In effect, the AA's interests and the ALJ's interests are not simpatico.
Right - angels balancing on the head of a pin - but, at the end of the day the agency's position is the drafting quotas are part of the responsibility an attorney employee owes to their client. You may disagree - but them that got the gold makes the rules. Legally sufficient draft versus drafting quota - only one is tracked at RO and HQ
Please don't kill the messenger - this is the agency's position. My opinion and $4.38 will get you a cold brew at Starbucks The agency's response if you disagree and claim a different ethical responsibility is to advise you to find a job you can live with.....
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Post by captainobvious on Oct 17, 2018 6:01:43 GMT -5
Starbucks sells cold brew?!
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Post by maquereau on Oct 17, 2018 6:47:21 GMT -5
Nobody complains about good writers; nobody complains about good judges. The problem is that we ALL know folks in this agency who give crappy instructions and folks who put out crappy drafts. I assume that none of the people on this board fall into either category. So the problem is what to do about the folks who don't do a good job. I don't know if there is much we can do. We can complain to management, but that usually goes nowhere, and it's hard as heck to fire someone. What needs to change? Who can effectuate that change?
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Post by mercury on Oct 17, 2018 8:01:11 GMT -5
I don’t think I’ve had instructions in months that identified all of the opinions, let alone assigned weight or rationale, or did half of the other things in the above HALLEX. I’m well used to making it up as I go.
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Post by natethegreat on Oct 17, 2018 15:06:47 GMT -5
Nobody complains about good writers; nobody complains about good judges. The problem is that we ALL know folks in this agency who give crappy instructions and folks who put out crappy drafts. I assume that none of the people on this board fall into either category. So the problem is what to do about the folks who don't do a good job. I don't know if there is much we can do. We can complain to management, but that usually goes nowhere, and it's hard as heck to fire someone. What needs to change? Who can effectuate that change? Great insight and well articulated. I have for some time now assumed that current ALJs who take time to return to the board and current Agency attorneys who aspire to be ALJs all take their jobs very seriously.
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Post by barkley on Oct 17, 2018 16:22:11 GMT -5
"For those who have been in OCALJ for a while, it goes back to the settlement agreement SSA (OGC/OIG/OCALJ) entered into with one of the attorney unions. OIG was seeking hundreds of thousands of dollars in civil monetary penalties from attorneys who did what their HOCALJ told them to do (using a generic VE interrogatory to support OTR FFs). In a nutshell, if a DW (so attorneys and paralegals) believes an ALJ is directing them to draft a decision with a material false or misleading statement - the next step is not to go to the ALJ. The DW goes to the supervisor and it is the supervisor's responsibility to resolve the matter. If the supervisor says draft as instructed - then the supervisor is on the hook. In effect, the AA's interests and the ALJ's interests are not simpatico."
The above is true in part. I was a decision writer for many years before becoming a judge. On the big things, like the improper reliance on canned VE testimony as above, the writer is stuck. That was a core piece of evidence and the DW would not be able to just ignore it.
However, at one time I had a judge who was crazy. He would put into the instructions untrue personal comments about the reps; he would also want to cite to unpublished decisions. I would leave all that out and just write a good, legally sufficient decision with the other parts of the instructions. My bad attitude was if the judge wanted garbage added to a good decision, he could add the garbage himself.
One last comment. It seems that the writers posting here are resentful with instructions that do not comply with Hallex. As an ALJ, I have less than 2.5 hours per case, which includes prep, hearing, instructions, editing, (and does not include training, staff meeting, answering questions, leave, email), in order to meet my 500 cases a year. My instructions hit the high points. If I did everything Hallex requires, I could almost just write the decision myself. I view my role is to evaluate the cl's demeanor at the hearing, come up with the correct RFC and give the writer an overview of the basis of my decision. It is the writer's job to thoroughly articulate the support for my rfc, as the DW can spend 4X the hours I can on an unfavorable decision, as well as checking the file for things I may have overlooked.
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Post by captainobvious on Oct 17, 2018 17:08:09 GMT -5
If it's not in the instructions, it's not going in the decision... Not with the expectation that DW's perform at 95%. And, today's OCEP didn't exactly help. The HALLEX is for the ALJ's, not the DW's. Have a problem with that? Change the HALLEX. Because, when someone is defending their removal action, Exhibit A is the HALLEX my friend.
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Post by lurkerbelow on Oct 17, 2018 17:08:38 GMT -5
One last comment. It seems that the writers posting here are resentful with instructions that do not comply with Hallex. As an ALJ, I have less than 2.5 hours per case, which includes prep, hearing, instructions, editing, (and does not include training, staff meeting, answering questions, leave, email), in order to meet my 500 cases a year. My instructions hit the high points. If I did everything Hallex requires, I could almost just write the decision myself. I view my role is to evaluate the cl's demeanor at the hearing, come up with the correct RFC and give the writer an overview of the basis of my decision. It is the writer's job to thoroughly articulate the support for my rfc, as the DW can spend 4X the hours I can on an unfavorable decision, as well as checking the file for things I may have overlooked. Again, AA here. I don't think I've mentioned those HALLEX sections once, and I never will. I have no problems with non-HALLEX compliant instructions. In fact, if you just tell me what you want me to do, it will not be an issue. We can work out the specifics. It is ALWAYS my preference to work with and not against a judge.* I'd like to ask both sides to please just...work with the other, all right? We're all in this together, we're all under harsh workloads, and we all have what feels like far too much to do. These are facts that none of us can escape from. So let's spend what little energy we have left over helping, not hurting each other. Dysfunctional relationships solve nothing. We are codependent on each other for survival. It is in both of groups' interests to help each other. *Fraud and other bad acts notwithstanding.
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