SSA authority to schedule Hearings

[mango]

If you have not seen it yet, SSA has posted the required notice of change in regulations in the FR. edocket.access.gpo.gov/2008/pdf/E8-26681.pdf Paste the above link into your browser and it will take you too it.

This is a significant change in how hearings are scheduled and is intended to address the problem with under producing ALJs. The SSA based their justification in part on an IG report that looked strictly at production numbers and made no assessment of quality/complexity of cases heard or decisions rendered. I believe this a flawed use of the IG report as it only addressed numbers and no other aspect of decision making.

I think the proposed change is the wrong approach to a supposed problem and has serious implications concerning judicial independence.

The posting allows for comments up until 9 Jan 09. I recommend all that have an interest in a position as a SSA ALJ take a look and comment.

Please take a look and provide your comments to the address indicated in the notice.

Mango.

[aljsouth]

It is being sold as a way to increase production. The actual reg says nothing about low producing judges. It is simple accretion of all authority in the center.

This is part of the SSA faith in computers. SSA has a plan to have all scheduling done in Baltimore using a computer program. They have obtained the software used in traffic court in Ft. Lauderdale; apparently because the work in traffic court in a relatively small city is almost identical to a nationwide program with multiple time zones, hundreds of sites counting remote sites, hundreds of judges and thousands of claimants, VE's, ME's, hearings reporters and guards.

SSA has been so successful in the past with major plans such as HPI and DSI that it is certain to be a success.

[mango]

It is very troubling when you read the notice in the FR as SSA scheduling is supposed to some how make judges hear or decide cases faster. It seems to me if there are judges that are not performing, SSA should look for tools that would help them or, if the judge is one who will not or cannot perform, take steps to remove him/her. If SSA lacks the tools to do that, they should go to Congress and ask for a change in the law.

It is also troubling that they only seem concerned with under performers. SSA says a judge should hear between 500 and 700 cases per year, yet their own IG inspector's reported noted that there were 25 plus judges hearing over 1,000 cases per year with the high of 2,500. I ask myself why they are not concerned about those extremes. It seems to me, they should be as concerned about those that are grossly over producing as those that are under producing. If 500-700 cases is truly a valid number, anyone grossly outside that number should be looked at.

SA is putting very little resources into training judges on how to use the new electronic system. This was apparent at school in Baltimore where we were never shown how to use an electronic file and all of the instruction was using paper files. Once we were in the field, we were not supposed to hear any paper cases. We did spend some time working with a disk in the computer lab, but it was a trial and error experience without benefit of instruction.

Coming from a background where training was key, I am still struggling to understand an agency that spends so little resources on training as ODAR does. ODAR is asking ALJs to go from paper files to electronic files fully recognizing that many judges do not have extensive computer skills. From what I have seen, ODAR is not or has not implemented a program to provide the basic computer training to the judges so the have the computer skills necessary to accomplish the task using the new methodology. I think a concerted effort to develop a methodology for using the e-files and a program of instruction that insures basic computer skills and tools to use the e-files would be time and money well spent. Keep in mind, many judges came in when the computer was not a key tool in managing and hearing cases. Computer skills was not a requirement to be an ALJ.

[okeydokey]

One the problems, real or perceived, is that ALJs did not have enough decisions because they would not schedule enough hearings. So, the answer is, for those who will not schedule enough hearings, SSA will do it for them.

I am not sure whether this is good or bad. It will likely piss off a good many ALJs, but it may well also result in more decisions.

[hooligan]

Nov 16, 2008 0:39:27 GMT -5 mango said:

SSA says a judge should hear between 500 and 700 cases per year, yet their own IG inspector's reported noted that there were 25 plus judges hearing over 1,000 cases per year with the high of 2,500.

You seem to have missed an important distinction. The Agency expects 500 to 700 DECISIONS. That number may vary considerably from the the number of cases heard each year. Some cases require multiple hearings. Some cases are decided without ever having a hearing. The variable is different for different judges.

The 2,500 number was way off the chart and should not be deemed something done in the normal course of business. The judge involved was the office Chief and apparently he was having all Dismissals and On-the-record recommendations from Senior Attorneys funneled to him for signature. He was manipulating the system to artificially inflate his numbers. He did not hold 2500 hearings. (Note: There are 250 work days, excluding vacation time, 2500 hearings would mean 10 a day, every day. No one can do that.)

The irony is that while Astrue and Cristaudo scold and say this is bad, the individual is apparently still in charge of the same office. All the tough talk is only lip service when the problem is numbers that are too high. I suspect that he has been counseled to tone it down, but keep up the good work.

[counselor95]

No one has offered an justification for any numbers -- there is nothing to back up the "500 to 700" expectation. The OIG report merely crunched numbers, something a 5th grader could do, and divided the number of backlogged cases by the number of ALJs at various disposition levels, i.e., 400 cases per year, 500 cases per year, etc.

If the ALJ does not even read the evidence, how can the claimant get due process? Using Hooligan's figure of 250 workdays, 500 dispositions would mean each case gets 4 hours -- including review prior to hearing, conducting the hearing, writing the instructions, and editing the draft decision. (Forget training, meetings, coffee breaks.) Some cases take 4 hours to review (or more). Yes, I know some cases are dismissed, but only after being set for hearing (which means the review has already taken place, unless the ALJ goes into the hearing blind). Sure, huge numbers can be done, if one takes only a quick pass through the file, makes snap. decisions 10 minutes into a hearing, and hardly reads the draft decisions. But, that is not fulfilling the responsibilities of an ALJ to afford due process and make legally accurate decisions. Let's not even mention that those ALJs with the highest numbers pay a high percentage -- it's quicker, easier, and won't be appealed. A cynic might say that is career advancement at the expense of the taxpayers.

ALJs who are conscientiously working 40 hours per week or more should not be harassed by management if their numbers do not reach some arbitrary figure. ALJs who are not, should be subject to being brought before the MSPB. Would anyone want a judge in traffic or criminal court to have a quota of cases to be heard, regardless of the individual complexities of the cases, if that judge were deciding your traffic citation -- or your guilt/innocence and ultimately your freedom? Obviously, social security decisions are just as important, particularly to the claimant.

[deltajudge]

8-)I endured many years of pressure to remove the backlog, even when it was nonexistent. I ignored it and did my job. Now, it is real. So all I can tell all you out there, do your job. If you are criticized, tell them to give you more cases to hear and decide. That will stop them in their tracks.

[mango]

Counselor95 makes a good point on the ig rpt. All that was done was a numbers crunch. Anyone working at a management level would know you cannot make decisions on such information alone. In fact the author of the report noted that there was no attempt to judge the quality or correctness of the decisions.

I have know idea where the 500-700 case goal came from. I know it takes a lot of time to properly review some cases. I had one attorney drop 300 plus pages of medical records off the Friday afternoon before the hearing on Tuesday. They were not duplicates and they were dealing with the claimant's medical issues. That was in addition to the 10-15 exhibits already in the file. It takes a lot of time to go through them.

YOu cannot just not read the file. There admittedly are some short cuts, but you still have to look at the file to determine which exhibits are irrelevant and which are relevant. I think more than just number crunching is necessary to come up with a goal and to decide if some one is not performing at an acceptable level.

Thus my comment earlier that people should comment on the proposed change. Those that are doing the work are in the best position to do so and that is not limited to just aljs.