Case Size Data
We have received FY2016 data on the number of pages in the medical exhibits (F section) of our files. It will come as no surprise that the number of cases with more than 1000 pages of medical documentation jumped more than four and a half percentage points in one year – from 17% nationally in FY2015 to 21.6% in FY2016. The Dayton Hearing Office leads the country in the size of its medical exhibit files – 44% are over 1000 pages. These charts will be posted on our website.
When the Agency first set the goal of 500-700 annual dispositions in 2007, our files were considerably smaller than they are now. I do not have figures for the period FY2007 to FY2010, but I note that, in FY 2011, only 6% of the cases had more than 1000 pages in the medical documents section.
I call upon the leadership of the Agency to sit down with the AALJ to discuss reasonable goals and more resources so that judges may perform their duties in a humane and ethical manner.
Brooklyn Arbitration Award
Vice President Linda Stagno filed a grievance when management of the Brooklyn Hearing Office refused to offer ALJ offices, that housed the HOD and Group Supervisors, to new Judges who came into that office. Judge Lori Romeo ably presented the AALJ’s case at the arbitration hearing. The arbitrator recently issued his decision, holding that the Agency violated our CBA by refusing to make those offices available to the Judges. ALJs have first claim on ALJ offices. The award will be posted on our website.
Tenth Circuit Case
There has been much consternation over a recent 10th Circuit Opinion, Bandimere v SEC, ruling that SEC ALJs have been illegally hired (and, therefore, their decisions are illegal) as they are “inferior officers” who are subject to the Constitution’s Appointments Clause.
Please note that there is a split in the circuits. The DC Circuit has held that FDIC ALJs are not “inferior officers” (Landry v FDIC). Region 5 Vice President Bill Wenzel has compiled research on this issue that can be found on our website if you want to delve further into the matter.
I will keep you informed of any new developments.
I have attached the minutes of the AALJ-Agency FORUM meeting of December 6, 2016, for your review.
I have received many comments about the recent email that exhorted us not to postpone cases without cause.
Most judges do not lightly postpone a case; we do so only when we are required by Agency policy to grant a postponement or when we exercise our discretion to do so in order to provide the claimants with due process. More postponement have had to be granted over the past year because files are so poorly developed or MEs have not received all of the evidence, and a proper hearing cannot be conducted under the circumstances.
Rather than suggest that judges should be denying postponements, the Agency would do well to take a look at the state of the file and hearing preparation and correct those problems first. We cannot perform our jobs unless the Agency gives us the tools and resources.
Last week I sought volunteers for the Agency’s ALJ Dashboard pilot program. Within about two minutes of my email going out, judges inundated me with requests to participate. Thank you to everyone who volunteered. This eagerness to volunteer confirms my belief that our judges are the most dedicated group of people in this Agency.
Just in case you have any use or lose leave left, or have leave that you can spare, please consider donating leave to these judges who are facing serious medical problems:
Judge Bonny Barezky, Chicago Hearing Office; Timekeeper #56368: Laura Martinez, ODAR, 131 S. Dearborn Street, Suite 2500; Chicago, IL 60603; Phone 866-964-1719 ext. 33332; Fax: 312-263-7418
Judge Joseph Donovan, Chicago NHC; Timekeeper: Robert Schafer, 877-768-5681; ext. 19092; Fax: 312-660-9457.
Judge Leah Farrell, Newark Hearing Office; For the Form 3139: Recipient Leah Farrell. Telephone number (877) 405-9798, x27566. Component: ODAR. Work Location: Newark HO; Judge Farrell’s immediate supervisor for the purpose of this form is HOCALJ Beth Shillin, (877) 405-9798 x27524. Judge Shillin’s fax # is (973) 645-2608; Contact person and timekeeper is Cynthia Cummings-Finney, 877-405-9798 ext. 27505, fax # (973) 645-2608. The remarks section of the SSA-71 should state, “Annual leave donated to Leah Farrell”.
Have a productive and professional week.
Forum meeting 12/6/16
AALJ: Marilyn Zahm, Linda Stagno, Rita Eppler, Bill Clark, Mark Brown
Agency: John Allen, Terrie Gruber, Donna Calvert, Thomas Nanni, Christiana Doyle, Michael Aronin, Tiffaney Thomas, Deatra Adams, Reginald Jackson;
Jack Leiby and John Kuhn – 3:00
On phone: Nick LoBurgio; Dockie Garman; Patrick Nagel (11:35); Steve Nash (1:30)
1. QUOTA OF 45 CASES:
Jack Allen denied that any judge who is not scheduling 45 hearings per month would be disciplined (although he hedged for judges who schedule too few – a number which he did not identify). Marilyn noted that a judge who was scheduling an average of 39.5 cases per month had been given a directive that threatened discipline unless she scheduled 45 cases; Jack had no knowledge of this and said that he would look into it. Jack stated, “it’s not a quota” and that the judge in question would not be disciplined.
2. HALLEX WORK GROUP: D. Calvert
Donna stated that the Agency is committed to walking through each of the items on the list of changes to HALLEX proposed by AALJ and the HOCALJ Association. Donna wants to look over the proposed changes first, have Agency leadership briefed, and have an idea of the issues before the meeting with AALJ and AHOCALJ.
Marilyn replied that this is not her idea of a work group. Rather, we should meet together and discuss each item, not have managers making up their minds on the list before the discussion occurs. After the meeting, we all may need to go back to each group’s leadership before moving forward.
Donna declined to adopt the AALJ’s view of how the process would take place.
If that is the Agency’s position, then, MZ requested, going forward, AALJ should be consulted before changes are made to HALLEX. It just does not need to be changed as often as has been happening in the past few years; we need a moratorium on changes. Donna was not willing to agree to hold off on changes until they are discussed with AALJ.
AALJ asked where the changes to HALLEX are emanating from – who is responsible for coming up with these multiple changes to HALLEX? Action item: Donna agreed to provide a briefing. There is a Labor Management meeting next week. Marilyn suggested that the HOCALJ Association be present on the call to hear this briefing. Donna said that we could only listen to the process, not attack it.
We next discussed the fact that the judges are inundated with all kinds of information by way of Policy Net, information which takes time to read and absorb – time we do not have in our schedules. Very few judges bother to read this information as they simply do not have time. Donna believes that the Agency’s communication of information is problematic. Marilyn responded that any delivery system would require time for the information to be read by the judges – but many of these changes are unnecessary to begin with. Rita recommended that the Agency designate someone on the national level to be responsible for boiling down and transmitting information that is actually important for the judges.
Mark pointed out that when the Agency notifies us of changes, they do not include the prior version of HALLEX so that we can see what actually has been changed. Moreover, there is no archive compiled of prior HALLEX provisions so we cannot check on what has been changed. Action item: The Agency will look into the question of access to prior versions of HALLEX (when changes occur). Nancy Webb is working on a new platform for intra net issues and searches.
The parties agreed to have ongoing communication on HALLEX changes. Patrick Nagel joined the discussion about communicating all the HALLEX and Policy Net information recommendations in an easily readable, boiled-down fashion. PN agrees with this having merit.
Action item for PN: How would the archive be housed and communicated; technological limitations. MB will be the point person for AALJ.
3. TRANSITION ON HANDLING CASES WHEN NEW MENTAL LISTINGS COME INTO PLAY:
This is a massive problem. The Agency recommended that if case is in edit after January 10, 2017 (the drop-dead date for issuing decisions under the old Listings), the judge can get it back or let the writer make the appropriate changes and send an alert to the judge. Jack recommended letting the writer make the changes, or notify the judge that a supplemental hearing could be required. Marilyn stated that if the ALJs want to make the changes themselves, they should be permitted to do so. The Agency did not disagree.
(Note: we subsequently learned that there is a work-around regarding central print and that January 10th is not the final date for issuing decisions under the old Listings.)
4. ALJ HOMEPAGE (Nancy Webb)
The new ALJ Dashboard/Homepage will help ALJs manage their time by giving an overview of their complete docket on a single page. It will also have useful links (HALLEX, Listings, Rulings). The page will be ready for roll out on 1/16/2017. The Agency wants to pilot this with AALJ participation – they need about 20 judges, with a cross section of those who are tech savvy and those who are not; AALJ agreed to provide names. Nancy reported that this should be ideally suited for teleworkers. Participants will have to watch a VOD and provide feedback on the use of the tool. Nancy advised that there would be no real learning curve for use of the Dashboard.
5. PILOT ON NON-DISABILITY CASES
No information provided. Agency will get us a status up date.
6. PILOT ON ASSIGNING STAFF TO JUDGES:
Nick LoBurgio is heading up this pilot. The big issue, from the Agency’s point of view, is to ensure that judges are not considered supervisors of the clerks and writers assigned to work with them. Nick has drafted up a flow chart and plans to show it to Deputy Commissioner Gruber. Thereafter, the Agency will provide it to AALJ and NTEU for approval (AFGE is not involved in the pilot).
The new officers at NTEU asked for briefing. They went through the proposal from AALJ and had some ideas for modification. The Agency hopes to have a go ahead in next few weeks and then bargain before implementation. NTEU wants promotions to go along with this change. If it costs money, the Agency will have to figure out how to do it in light of the continuing resolution. AALJ and the Agency believes the new plan will enhance judges’ productivity and quality. If so, we will want to then roll it out to other hearing offices. Jack Allen noted that the plan is very personnel intensive and that is a real problem right now. The pilot will likely be small because of this. Marilyn noted that if the sample size were too small, it would not give us anything to work with. MZ recommended meeting with all parties at the same time. (Note: AALJ and NTEU Presidents met and agreed on an outline of duties for those involved in the pilot.)
(Jack Leiby and John Kuhn 3:00)
Marilyn noted that there are many instances of the Agency violating the MOU:
- The MOU states that judges are to enter actual departing times. However, WebTA is set up so that this is impossible – WebTA needs to be changed.
Action item: Jack Leiby said that he would get back to us to resolve this problem.
- RCALJ 2 (Morgan) recently advised HOCALJs that judges could not earn religious comp time after 6:00. Judges have a past practice of earning religious comp time by working after 6:00 pm. The WebTA MOU states that implementation of WebTA must be in accordance with the national CBA. Michelle Marcus was told by Morgan that this is guidance he has been given.
- Who approves leave slips when the HOCALJ is absent? Our primary concern is that it cannot be the HOD approving or denying. The Agency will get back with the answer.
- The Agency contends that it only takes an average of 5 minutes to boot up WebTA and they are not willing to change the MOU to expand the grace period, despite their own IT staff recognizing that it can take an average of at least 10 minutes to log on in some offices. (Note: if it takes longer than 5 minutes, the judge should put in the exact time he/she entered the office and note in remarks that it took longer than 5 minutes to boot up)/
- A judge was stuck on the elevator in the HO for 10 minutes while attempting to report for work. She was ordered not to add those 10 minutes to her arrival time in WebTA. Agency representatives said that this was incorrect and that they would rectify it.
- A judge was charged 15 minutes leave time for waiting for the computer to log off, despite the 5 minute grace period; this will be corrected.
When the ID card is pulled out of the computer, the computer is still connected until it is completely shut down – it takes more like 10 plus minutes to finish the log off. The next day, the judge can revise his/her time and attendance if takes longer than 5 minutes (there is an automatic 5 minute grace period and nothing need be entered in remarks for that period). It was recommend that the computer should be shut down before it is taken out of the docking station. Jack Leiby will share a link to advice on the WebTA.
- Notification to the HOCALJ of an intent to earn credit hours need only be provided once for the entire year.
8. Pre hearing conferences update: (Steve Nash)
Where a senior attorney conducts these conferences, the right to representation is explained and recorded. (When an SCT makes a call to a claimant prior to a hearing, this is not a pre-hearing conference).
Pre-hearing conferences were piloted 5 offices and then expanded to about 20 HO.
One-third of the time, the claimant does not show up. These cases then are distributed to the judges, who may decide to add the case to end of a regular docket. If the right to rep already explained at a PHC, there is no need to give an additional continuance to obtain a representative.
Statistics from PHC program: 52% have a successful conference; 35% – no contact; 6% canceled because the claimant gets a rep; 5% do not take place but there is contact with the claimant; 2% misc. (OTR, incarcerated, back to work). At the HO level when the hearing is scheduled and the claimant has participated in the PHC program: the hearing takes place 54% of the time; 25% of the time, the hearing does not come off because of some reason relating to the claimant; 21% of the time the hearing does not come off and the reason is not claimant related.
With regard to those cases where there is no PHC participation, 32% of the time there is a successful hearing; 25% of the time, there hearing does not come off and the reason is related to the claimant.
9. eBB DEMAND TO BARGAIN
Everything is on hold regarding mandatory eBB for decision writing. OESSI not ready to implement decision writing in eBB as mandatory. The Agency is planning a 120-day pilot first to compare eBB and FIT, and is committed to talking and hearing our concerns before any implementation. Control group in one of the NCACs involving the decision writers only. (John Kuhn will check on whether this will involve judges searching out and editing these decisions in eBB.) Marilyn stated that if our judges are still involved, then our demand to bargain is still on the table.
10. HOCALJ AND DECISION WRITING INSTRUCTIONS
Bill Clark stated that HOCALJs are still interfering in decision instructions and decisions. Jack Allen agreed that the Agency did not want anyone to be told to change his or her instructions. It is legitimate, however, to raise issues and concerns with a judge. Bill gave examples occurring in Pittsburg and Dover. Jack agreed that this should not be happening routinely.
11. WORK HISTORY NOT INCLUDED IN RECORDS FROM DDS
DDS is no longer doing their job getting work history reports. AALJ stated that this is a big problem! The Agency need to go to the DDS and tell them to do their job. Action item: Dockie Garmon will check into this. The failure of the DDSs to do this impacts our productivity, as judges are required to get this information at the hearing which slows down the process, both as to the claimant’s testimony and that of the VE.
12. GUIDANCE ON PSYCHOTHERAPY NOTES
Marilyn stated that OGC’s rationale for denying us psychotherapy notes is not justified; we need to push back on OGC. If the notes are withheld, OGC should subpoena them and enforce the subpoena in Federal Court to get the records. Once the providers learn that they do not have to provide us with records if they keep the treatment notes separate, we will never get the records. Marilyn said that if the Agency is going to take the position that we do not have a right to see the treatment notes, then just issue a ruling that judges should take the word of the claimant and pay the case. This is not a HIPPA issue. Action item: Dockie Garmon will look into this.
Training of experts: MEs are permitted to attend hearings as observers on their own dime. While the Agency asserted that they could not train MEs as it would be improper and a potential conflict of interest, AALJ representatives noted that VHRs are trained by office staff. Rita mentioned that this was becoming a more significant problem now that more of the VEs/MEs are being provided by phone.
The Hearing Office does not always identify the specific ME on the contact sheet, but rather, puts the name of the contractor (i.e., Mednick) on the sheet. This is improper and causes delays in the hearing while the judge searches around for the name and number of the ME. Nick LoBurgio explained how it is done in his region – which is the right way – and the Agency was asked to roll out his procedure to the entire country.
14. CONTINUATION OF THE FORUM:
When asked if the FORUM meetings would continue (they were implemented pursuant to an Executive Order), Agency representatives stated that they could not speak on transition issues, but they are committed to continue to talk with us regularly about issues.
15. LOCKS ON OFFICE DOORS:
Judges need locks on their doors; they are the only ones in the Hearing Office who have to leave their offices for hours at a time (when in hearings), sometimes having to report to a separate floor. It is not practical to take all personal items (purses, etc.) with us when we go into the hearing rooms. All offices do not have locks and this issue needs to be addressed.