NPRM: Proposed New Listings for Mental Impairments

David Traver

I received a nice telephone call from an ALJ asking me to please bring this report to your attention:

http://www.ssa.gov/oig/ADOBEPDF/A-07-08-28094.pdf

Please take a look at footnote 25.

My commentary is that it is clear that SSA's theory is to speed up the adjudication process.

If I were a low-producing ALJ (which I am not), I would be freaked out by this. The process could be operated in such a way to schedule hearings equitably across the board for all ALJs. The heavy hitters would get relief and the leakers would get pushed to put out some cases for a change. Leakers should be pushed out the door. This may be the shoe in the butt needed to get them on the way.

Would this dilute the APA powers of ALJs? Maybe so. Have a "significant number" of ALJs grossly abused those "APA powers" by sitting on their hands, not scheduling enough hearings, and then not issuing timely decisions. Of course that is true.

Perhaps the AALJ union will oppose the change. I hope not.

Will this put a fire under some ALJs and help others to get out from under an avalanche of cases? Done right, I think it could do both.

Insider (Ret) · Posted: Tue Aug 19, 2008 09:17 pm Post subject:

In re: the ALJ Union and footnote 25, I would bet you a bundle that Ron Bernoski is typing away furiously at this very moment, fire and brimstone wafting about his head, lightning bolts shooting from his quill (Ron always preferred a quill, as I recall...or was that Dumbledore?). Anyhow, the union will oppose this proposal, of that there's no doubt whatsoever. Still, it's a very sensible change, one that can be justified on technical/systems grounds, over and above the APA (which doesn't apply, remember) issues.

David Traver · Posted: Tue Aug 19, 2008 11:28 pm Post subject:

This exactly the kind of remedy that the AALJ Union should not oppose. Why? I seem to remember from my labor law classes years ago and my work as a personnel projects manager that:

deltajudge · Joined: 05 Nov 2007 Posts: 434

This is nothing new. It has been tried before in individual OHA field offices. When I was in the Memphis office, someone came up with the bright idea of scheduling cases and sending out the notices without contacting the representatives. All this resulted in was a lot of postponments. Centralized scheduling will be a disaster. First, the legal world does not revolve around ODAR. Lawyers who handle these cases practice in other forums, most if not all superior. Second, ALJs have their own lives separate from ODAR, and this comes into consideration. Third, scheduling is not the problem. It is the sorry ALJs who hear their cases and sit on them. We had a pretty good system in Knoxville. We were given a calender with a designated month 3 months in the future for local cases. I held my hearings locally on Tuesdays, Wednesdays, and Thursdays. If I had something planned I put "none" on those days. Beauty of it was, it was flexible. I had up to 20 days prior to those days to notify the scheduler of any changes. I see no problem with management going after ALJs who don't schedule a reasonable number cases, if they do, it will at get his/her attention.
8)

Guest · Posted: Wed Aug 20, 2008 07:13 pm Post subject:

deltajudge · Joined: 05 Nov 2007 Posts: 434

Guest, apply for a job in ODAR management. You would fit in great. Your response makes no sense. :roll:

Guest · Posted: Wed Aug 20, 2008 11:14 pm Post subject:

Makes perfect sense to me. In the real world, people who work have to fit their lives around their jobs, not the other way around.

I'm sure some judges work hard. But some need to have a fire lit under their butts, and some should just be fired outright. I speak from direct experience, I worked at an ODAR office not long ago. The judges think they have no bosses. Why should they get paid without any supervision over how much work they accomplish?

deltajudge · Joined: 05 Nov 2007 Posts: 434

Well guest, there a lot of good ALJs out there. I don't mind saying I was one of them for 30 years. I brought my cases in and got them out, they didn't hang around. You gone have bad apples, but using the shotgun approach allways fails. Go after the bad apples, you can't centralize scheduling.

8)

David Traver · Posted: Thu Aug 21, 2008 03:06 am Post subject:

Actually, a shotgun is the very best thing to use when hunting ducks.

deltajudge · Joined: 05 Nov 2007 Posts: 434

I forgot to mention, in Knoxville, we did have a lot of attorneys and representaves handling these cases. Their calenders were full with non-social security cases, plus having to work around the 8 ALJs in our office trying to schedule cases around them. It ain't simple. 8)

Guest · Posted: Thu Aug 21, 2008 03:52 pm Post subject:

I agree scheduling aint simple no matter what your perspective. I just had a couple hearings cancelled due to other ODAR's monoployzing hearing rooms with VTC hearings that my local ODAR didnt have a room for us.

But just because it aint simple doesnt mean it shouldn't be handled in a different manner than it currently is. All too often I have called ODAR for status on cases to be told that its assigned to a particular judge but they only gave the scheduler X number of dates this month for hearings. That X was always a small #.

Holding all ALJ's to perform at a certain level wont hurt the good ones who already exceed expectations but it may get the underperformers off their behinds or maybe even better move them out of the ALJ corp all together.

deltajudge · Joined: 05 Nov 2007 Posts: 434

I give. My 30 years experience with OHA comes to naught in the face of all y'all's brillliance and insight. This will go the way of all of OHA/ODAR's initiatives, such as the AO program and HPI. I had lunch yesterday with a former HOCALJ who found religion and quit and he has been traveling all over his region hearing raw or unpulled cases. I asked him what about your denials? He said nobody cares, they pull them when they can. They want the pay cases out. So don't give me any crap about sorry ALJs. ODAR doe's not care. They are going after the low producing ALJs for obvious reasons. Edib and televised hearings are not working out overall for techinical reasons, cases are not being pulled as fast as they were under the paper system, and the televised hearings have a lot of problems. You representatives who depend on SSA disability cases for your livelyhood, more power to you. 8)

Guest · Posted: Sun Aug 24, 2008 05:38 pm Post subject:

Deltajudge:

Sounds like you would like to stay with the status quo you came to know in yoru 30 years. Look where that has got SSA...

deltajudge · Joined: 05 Nov 2007 Posts: 434

8) Told you, I give. No convincing you, you obviously are a lot smarter and knowledgable than me. I don't stand a chance going up against an intellect like you, go get'm son.

David Traver · Posted: Sun Aug 24, 2008 08:10 pm Post subject:

Here is a place where Delta and I generally agree. SSA has tried and tried and tried to make the adjudication process "work." SSA can't get it.

It is obvious that the reason the adjudication process has not worked properly is because it is the wrong model for delivery of services to the disabled.

I've said it before and I'll say it again. When we takes our cars in to get an oil change, we do not want a hearing, we want oil. When we go to the hospital with a complex medical condition (or something simple like a broken arm) we don't seek adjudication, we seek medical care. When we set up and maintain a complex multi-nation satellite communication system, we do not seek adjudication, we seek and deploy the relevant technological systems.

The adjudication / insurance framework at SSA is a needless, useless, wasteful, self-perpetuating, self-serving system that promotes only the needs of those who work within it and work for it. It should be scrapped and replaced with a real medical and vocational rehabilitation model. For those who cannot be rehabilitated we should provide a just and fair financial safety net, without the precursor of needless and unproductive adjudication.

State DDS agencies should be closed, the ODAR adjudication system should be dismantled, and the entire mess not recreated with another bad version of an adjudication-based model.

Universal health care will take care of one leg of the reform. Fully funding and staffing the nation's existing vocational rehabilitation systems in the manner that they were first envisioned will take care of the second. All of this could be readily implemented within the framework of the Welfare to Work movement created in Wisconsin. It works here, it works in other countries such as Israel, let's use it and get rid of the incomprehensible maze of adjudication that bewilders, harasses, and kills the disabled, while making the rest of us rich.

deltajudge · Joined: 05 Nov 2007 Posts: 434

I'll say this and get off the subject. ALJs should try to schedule at least 40 hearings a month and 30 per week on travel cases. I fully realize it is impossible for productive ALJs in understaffed offices. Hence my earlier post about ALJs hearing raw on unpulled cases, and denials going on the back bench to be pulled, and pay cases going out. This is great for those claimants getting paid, but for those in the appeal process, a long wait for due process and justice. 8)

Bob R · Joined: 01 Sep 2004 Posts: 132

The idea of centeralized scheduling is IMHO just bad. For those of us who do some volume of work out a particluar ODAR it make a lot more sense to have the scheduler out that Odar set up hearings. I will have 4-6 hearing with one ALJ set up for a day. If one needs to be added,as just happened we can just put ot in at the end. Also some ALJ's do quick hearing so we can add extras very easily. I guess what I am trying to say is that the current system for alll its problems allows for some level of flexibility. I fear that will be gone with the propoed system.

Guest · Posted: Tue Aug 26, 2008 05:50 pm Post subject:

Bob R:

I find it curious that not once did you mention a client o claimant in your post. It was all about what works for you and the ALJ.

What happens to the claimant who gets assigned to the ALJ that sits on their hands all day and never holds hearings? How does flexible scheduling at your local ODAR help that situation? It seems we have strayed from the original issue in this post about dealing with the unproductive ALJs.

I understand there are good reasons, like you have pointed out, for keeping things flexible, but no one seems to be offering a better alternative to fix the problem of the ALJ's who aren't like the rest, and the claimants who are impacted by them.

Bob R · Joined: 01 Sep 2004 Posts: 132

If I am able to schedule hearing more efficiently it helps my clients at least as much as it helps me. The sooner I get the hearing sceduled the better for my clients. I would much rather have a hearing before an ALJ that is willing able to hear cases and make a decision than wait monthes to get even a favorable decision.

Insider (Ret) · Posted: Tue Aug 26, 2008 08:49 pm Post subject:

Don't mean to dampen and/or discourage the discussion, but Chas. Hall has pointed out that this regulatory proposal has been withdrawn.

Guest · Posted: Tue Aug 26, 2008 10:25 pm Post subject:

Isn't anyone bothered by Astrue's comment about "One judge, for example, has not produced a case in seven years"
Isn't the judge taking a paycheck under false pretenses? Anybody know who the judge is? Anybody care?

ODARITE · Guest

I have heard that the ALJ who has not heard a case in 7 years is one of the most productive ALJs in the office. I heard he/she was assaulted by a claimant during a hearing, suffers from PTSD, and reviews cases for OTRs rather than hold hearings. I heard this from another ALJ, supposedly in the know, during the ALJ conference in Baltimore last week. Someone else can confirm or deny.

MikeWalters · Joined: 13 May 2004 Posts: 1315 Location: Cincinnati OH

Being an outsider, I certainly can't confirm or deny anything, but unless the COSS was using the sloppiest of sloppy language, hasn't "produced a case" cannot possibly translate into "hasn't held a hearing." "Hasn't produced a case," by any meaning of the term that SSA uses, can only mean hasn't produced a decision. Issuing OTRs would not be consistent with the statement made by the COSS.

As to the slacker ALJ, whoever he or she may be, the COSS has been holding this particular ALJ up as a negative example for at least the past year. Whatever reasons there may be for the non-productive record, I strongly suspect that OIG is looking very carefully at those reasons.

deltajudge · Joined: 05 Nov 2007 Posts: 434

I'm sure Astrue will latch onto anything to denigrate ALJs. As I approached retirement, took myself out of rotation as to assignment of cases for hearing, but told my group supervisor to cull raw cases for possible ORs, so my last moments with OHA would be productive as we had a huge backlog due to HPI. Probably violated several rules of the APA, but at least I was doing something other than sitting on my butt. 8)