As I come across them, I have been trying to upload to Scribd documents concerning Social Security policy over the years. Below are some documents showing Social Security policy on which Administrative Law Judge (ALJ) is assigned a case remanded by the Appeals Council or the federal courts. Should it be the same ALJ who heard the case the first time or a different one? This policy has changed over the years.
History of Remand Assignment Policy
Remanding to the same ALJ is a good practice in theory - that the ALJ will learn by his or her mistakes. However, in practice this is far from true. The best pressure that could be put upon ALJs to issue proper decisions can most likely come from their fellow ALJs who would have to clean up their colleagues' messes on remand.
ReplyDeleteThe remanded judge recieves specific instructions on where to focus his analysis. i.e. reevaluating credability of a witness or applying the "special technique" for DAA influnced cases. So its important to remand back to the same ALJ so they know specifically where the weak parts of thier analysis is.
ReplyDeleteMy general thought is, at least with the ALJs and their demeanors in my area and the way they typically deny cases, is that they are not willing to change their determination no matter what the AC or DC says. They continue to make the same mistakes and mischaracterizations of the record and instead of taking a new look at the case, they rehash their old denial and spice it up with better writing. Usually my strategy is to protect the record as best as I can and hope that I can get a second remand and rotate the carousel of non-progress to a different ALJ. I'm sure this is the exception, not the rule, but in my neck of the woods, this is what has to be done.
ReplyDeletein my experience...AC remands are decided by some process that combines throwing darts, lottery balls and blindfolds. Sure, there are some that make sense, but for the most part they appear random. Additionally, many are remanded for technical reasons that do not actually result in a different result (i.e. opinion evidence not evaluated, although that opinion provide a MORE restrictive RFC than indicated by the judge)
ReplyDeleteoops...I meant LESS
ReplyDeleteA high percentage of remands are the result of articulation errors -- i.e., poor writing. Once the attorney/paralegal who writes the decision and the ALJ who should be editing the decision issue a better work product, the decision is often affirmed upon further appeal because it was a correct (though inadequately explained) decision the first time.
ReplyDeleteThe problem aljs I encounter don't care to learn what their "mistakes" were and keep making the same ones. The really bad aljs basically ignore the remand order, even after a curt reversal, and issue the same decision again. Yet in the bizarro world of agency employees (aljs) who have "judicial independence," this disregard of a court order is not considered contempt of court.
ReplyDeleteAs to the comment that ALJs can pressure their fellow ALJs into doing the job right: dream on! If remands don't go back to the original ALJ, those that do sloppy work just foist even more work off on conscientious ALJs.
ReplyDeleteAnd, National Hearing Center ALJs get none of their remands. So they miss the opportunity to learn from their mistakes.