Beruflich Dokumente
Kultur Dokumente
PART I
Preparation (you and your client)
Pre-Hearing Briefs and Other Submissions
Past Work and Amended Onset Dates (Wages & SGA traps)
Effective Exhibits
Direct Examination of the Claimant
Cross-Examining Vocational Experts
PART II
Ethics in Marketing for the Digital Age
Michael Sullivan is a lawyer licensed in Kentucky. He is a graduate of the University of Louisville Speed
Scientific School and the University of Louisville School of law. He has two engineering degrees, and Juris
Doctorate. He has practiced law for over 20 years, and limits his practice to disability matters He
handles primarily Social Security Disability claims & appeals, Workers Compensation claims, ERISA
litigation involving long term disability claims, VA Service Connected disability claims (He is accredited by
the VA), and Kentucky Retirement Systems disability claim. He has been a past chair of the Louisville Bar
Associations Social Security Section, he has received several awards and was featured on the cover page
of Kentuckys Top lawyers during 2012. He has presented at various local seminars, and he is a member
of the Louisville Bar, the Kentucky Bar, the AJA, NOSSCR, NOVA, and is a PILMMA Mastermind.
Copyright 2012 Michael P Sullivan d/b/a Sullivan Law Office. All rights reserved. Full permission given to NBI to
use and market for their routine business purposes. No claim made to original US Government Publications. No
formal endorsement is given for any software programs mentioned in the materials.
Preparation
Meet with your client 30 or more days out BEFORE the hearing.
Review
FORM:
FORM:
FORM:
FORM:
I use custom software to parse the E-file and give me Exhibits and Page
numbers at the top of every page. This permits exact cites of the proof
in the record. You can use the Cadocon style converter which is
commercially available to do this. Again, notice the top of the pagealways an Exhibit and Page number every time, every page.
(http://www.nooksoft.net/cadocon-screens)
nice Work form (HA-4633) to better and more fully describe the work.
Cast your clients past work in a way that illuminates the claimants
impairments.
For example, if the claimant has carpel tunnel, and the past work
required frequent use of the hands for gross manipulation, be sure to
fully explain how the past work utilized the hands. If the claimant has a
low back problem and the past work required frequent twisting or
bending, be sure to clearly state that fact! If the past work required
sorting or inspecting of objects, and the claimant has a visual
impairment, be sure to indicate the size of the objects that were sorted
and the criteria used to screen the objects. Your Goal: Make it obvious
why this person cant do the past work by describing the past work so
that the medical impairments run right into the workers job duties.
Remember the definition of exertional levels so you can describe the
true lifting and cast the past work into the highest exertional level
based on how the client actually performed the work. Be sure to ask
your clients questions like:
are you sure the most you lifted was 20 lbs, were there times it
could have gone up to 25 lbs? Ok, tell me what object might
have weighed 25 lbs so I can list it here since your other work
history forms in the record do no state this.
Look closely at the definitions of work 20 CFR 404.1567(a)-(d). These
definitions will help you narrow the occupational base, and provide a
mechanism to cross examine a VE:
Sedentary Work :
SSR 96-9p: The ability to perform the full range of sedentary work requires the ability to lift no
more than 10 pounds at a time and occasionally to lift or carry articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one that involves sitting, a certain amount of
walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and
standing are required occasionally and other sedentary criteria are met. "Occasionally" means
occurring from very little up to one- third of the time, and would generally total no more than about 2
hours of an 8-hour workday. Sitting would generally total about 6 hours of an 8-hour workday.
Unskilled sedentary work also involves other activities, classified as "nonexertional," such as
capacities for seeing, manipulation, and understanding, remembering, and carrying out simple
instructions. See also SSR83-12, SSR 99-2p
Light Work
20 CFR 404.1567(b) Light work. Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be
very little, a job is in this category when it requires a good deal of walking or standing, or when it involves
sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable
of performing a full or wide range of light work, you must have the ability to do substantially all of these
activities
SSR 83-14
Medium Work
20CFR 404.1567 (c ) Medium work. Medium work involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work,
we determine that he or she can also do sedentary and light work
Heavy Work
20 CFR 404.1567(d) Heavy work. Heavy work involves lifting no more than 100 pounds at a time with
frequent lifting or carrying of objects weighing up to 50 pounds. If someone can do heavy work, we
determine that he or she can also do medium, light, and sedentary work.
c. Reaching, handling, fingering, and feeling require progressively finer usage of the
upper extremities to perform work-related activities. Reaching (extending the hands and arms in any
direction) and handling (seizing, holding, grasping, turning or otherwise working primarily with the
whole hand or hands) are activities required in almost all jobs. Significant limitations of reaching or
handling, therefore, may eliminate a large number of occupations a person could otherwise do.
Varying degrees of limitations would have different effects, and the assistance of a VS may be needed
to determine the effects of the limitations. "Fingering" involves picking, pinching, or otherwise
working primarily with the fingers. It is needed to perform most unskilled sedentary jobs and to
perform certain skilled and semiskilled jobs at all levels of exertion. As a general rule, limitations of
fine manual dexterity have greater adjudicative significance in terms of relative number of jobs in
which the function is required as the person's exertional RFC decreases. Thus, loss of fine manual
dexterity narrows the sedentary and light ranges of work much more than it does the medium, heavy,
and very heavy ranges of work
JOB SKILLS
Clients always seem to play up the skills of their past work- it is human
nature. Your job is to accurately assess those skills and debunk useless
job titles that mislead. First check out the SSA definition of past work
at 20 CFR 404.1565. Then check out the skill levels as defined in 20
CFR 404.1568.
20 CFR 404.1565
Text
Watch out for job titles like supervisor versus what was really
more of a lead worker (true job skills versus a glorified job title). Did
your client really do things like:
Make out employee schedules,
Hire or fire,
Perform employee evaluations,
Make bank deposits,
Close out cash drawers
Direct the work of others
Fill out reports,
Handle customer complaints
Then:
Age 55 or older
+transferable skills
+ limited to sedentary work (light too?)
______________________________
Must be very little vocational adjustment
SSR 00-4P
Evidence That Conflicts With SSA Policy
SSA adjudicators may not rely on evidence provided by a VE, VS, or other reliable source of
occupational information if that evidence is based on underlying assumptions or definitions that
are inconsistent with our regulatory policies or definitions. For example:
Exertional Level
We classify jobs as sedentary, light, medium, heavy and very heavy (20 CFR 404.1567 and
416.967). These terms have the same meaning as they have in the exertional classifications
noted in the DOT.
Although there may be a reason for classifying the exertional demands of an occupation
(as generally performed) differently than the DOT (e.g., based on other reliable
occupational information), the regulatory definitions of exertional levels are controlling.
For example, if all available evidence (including VE testimony) establishes that the
exertional demands of an occupation meet the regulatory definition of "medium" work (20
CFR 404.1567 and 416.967), the adjudicator may not rely on VE testimony that the
occupation is "light" work.
Skill Level
A skill is knowledge of a work activity that requires the exercise of significant judgment
that goes beyond the carrying out of simple job duties and is acquired through performance
of an occupation that is above the unskilled level (requires more than 30 days to learn).
(See SSR 82-41.) Skills are acquired in PRW and may also be learned in recent education
that provides for direct entry into skilled work.
The DOT lists a specific vocational preparation (SVP) time for each described occupation.
Using the skill level definitions in 20 CFR 404.1568 and 416.968, unskilled work
corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled
work corresponds to an SVP of 5-9 in the DOT.
Although there may be a reason for classifying an occupation's skill level differently than
in the DOT, the regulatory definitions of skill levels are controlling. For example, VE or
VS evidence may not be relied upon to establish that unskilled work involves complex
duties that take many months to learn, because that is inconsistent with the regulatory
definition of unskilled work. See 20 CFR 404.1568 and 416.968.
Over 10 years
MEDICATIONS
Simple, just list them on the form. Send client a letter and tell them to
come in with the Rx medication bottles when you meet before the
hearing.
Why Bother:
TIP : Give the client a copy of the completed form with some extra
blank spaces to take home, and tell them to send it in with any Rx
medication changes that happen before the hearing.
TIP: If it is VA treatment, the meds will be generic- the VA usually has a
printout of only the Rx meds. Send client a letter and tell them go get
their own records before you meet (it is much quicker) and bring them
in- look for that sheet
TIP: Cancer meds have well known side effects. So do some narcotics.
Send in a PDR printout with the side effects in with the SSA form. Have
the client sign it and attest to the side effects. Also, have claimant note
these effects somewhere else ( anywhere). Finally, the best evidence of
this is in the medical records themselves. See if any medical records
actually document any of these side effects, or if they at least note
typical expected side-effects
Include:
Current treating providers over last 6-9 months;
Approximate date of last treatment;
Note any hospitals, E/Rs or tests, doing so separately, and note
the approximate dates of treatment.
Why- this clues in your office who to write and what to write for, and
the special tests and hospital records will come in separately. You will
then electronically file these separately, and this makes it easier to cite
to during the hearing. Consider
Your Honor, the MRI that demonstrates spinal cord compression
at the T4 level is located in Exhibit 22F. In fact, that MRI is the
only record in that Exhibit. Page 2 , about half way down, has the
information about thoracic cord compression. Just so you know,
that MRI is duplicated in Exhibit 14F, but you have to flip thru and
one page is upside down
Versus
PRE-HEARING BRIEFS
Most ALJs in Louisville Require you to have some type of short
opening, citing to Exhibit and Page number. I usually file a paper
report in compelling cases. Some people routinely file written prehearing memorandum. If you do, the key is keeping it short and to the
point.
Most ALJs know the law, so your objective is to point them to the
compelling proof and tell them why this case is a winner. Do this in
three pages of less.
Topics to address in a brief:
Types of claims (T-2, T-16, DIB DWB, DAC,)
Filing date
Alleged onset date
Any post-onset work (or amend the onset)
Date Last Insured
Claimants age (at filing, as of AOD, as of DLI)
Claimants formal education
Past work (exertion and skill)
General schedule of medical impairments
Citations to compelling proof in the record
and finally
The only goal of this is to make it easy for the ALJ to pay the case. Cite
to the record by exhibit and page number for compelling medical proof.
If you have a legal issue that is in the way of winning, briefly cite the
Reg or Ruling, and briefly argue why it should be resolved in your favor.
Case I
People feel bad and sporadically miss a lot of work, and
eventually take a medical leave intending to return in a few
weeks. A few weeks becomes 6 months, and then they get a
cancer diagnosis. So WHEN did they become disabled- at the
onset of the gradual symptoms, the onset of the leave of absence,
when work fired them, when they got the diagnosis,
Case II
People sometimes return to work off and on after they allege they
became disabled, or they take a temp job for a few weeks. The
point is that there are sporadic earnings that confuse this issue- at
what point are the earnings not an issue to the true onset of
disability:
This was an easy case, but it illustrates how to do it. Here are the
keys to avoid malpractice when amending:
Tell your client benefits are calculated from the new date forward
(this is key because of statutory Title II waiting periods)
Tell your client that he is giving up some potential benefits by
amending, and that he has an absolute right to go forward with
the original onset date
Tell your client that the Title II program has a 5 full month wait on
cash benefits and 29 full months on Medicare. The clock ticks
from the new onset date. Make sure they know this fact.
Tell your client that the SSI Program has financial income and
asset limits and reporting requirements- honest and accurate
reporting is on them1. Marriage or divorce can change eligibility
overnight. Tell them local Jefferson County Medicaid is tied to SSI
financial eligibility. Typically there is no local version of Medicaid
until you receive at least $1.00 in SSI benefits for any given
month.
Have them acknowledge that they have discussed this with you to
their own satisfaction
Get this in writing to protect yourself. Do not rely on an oral
statement, even under oath at the hearing. Clients will not remember
accurately. They will call you screaming when they do not get enough
backpay, or when there is no backdated Medicaid coverage for their
pancreatitis hospitalization when they drank themselves sick. Do you
really want the only proof to be an SSA archive at the Megasite (think
Raiders of the Lost Arc.) File the written amendment as an Exhibit.
I have had clients not be candid on the SSI app as to assets and resources They have held real estate in their
name yet lived elsewhere. In their minds, that real property was for their kids, and not really their asset. Even
worse, some have had rental property!. No matter what you do at the hearing, is you have too many assets, there
is no SSI. Some have inherited property along the way AFTER they became disabled. Some have gotten married
AFTER they became disabled Just be VERY CAREFUL when amending if there is a SSI claim. You can amend your
way out of SSI eligibility because of offending assets or income, and amend yourself and into a malpractice
situation. Always ask your client about these things before you amend.
First:
Is it really wages: Many times, after a claimant stops work, he or
she gets: STD, LTD, Unemployment, AFLAC, Sick Pay Vacation Pay,
Work Comp TTD, 401K Payout, This shows up on a SSA earnings
record and can look like reported earned income- i.e. WORK.
This is not always earned income and not necessarily evidence of
work activity. Get pay stubs, check stubs or any paper trail to show
this is not earned income.
Second:
Ok, you investigate and it is wages or some earned income. Start
to think about how you can get around these earnings:
Look at the SGA threshold (If it is not SGA then it may not be a
huge deal. For 2012 it is $1010.00 per month, non-blind) The
following monthly SGA chart will help:
Year
2005
2006
2007
2008
2009
2010
2011
2012
Blind
$1,380
1,450
1,500
1,570
1,640
1,640
1,640
1,690
Non-blind
$830
860
900
940
980
1,000
1,000
1,010
If the earnings are still a SGA issue, lets still try to get around
them:
Is this an Unsuccessful Work Attempt
See POMS DI 24005.001
Work Effort of 3 Months or Less
The work must have ended or have been reduced to the non-SGA level within 3 months due to the
impairment or to the removal of special conditions related to the impairment that are essential to the
further performance of work. (Examples of special conditions are given in DI 24005.001C.1.) See DI
11010.145E.1.
b. Work Effort of Between 3 and 6 Months
If work lasted more than 3 months, it must have ended or have been reduced to the non-SGA level within
6 months (see DI 11010.145E.2.) due to the impairment or to the removal of special conditions (see DI
24005.001C.1.) related to the impairment that are essential to the further performance of work and:
Required and received special assistance from other employees in performing the job;
or
Was allowed to work irregular hours or take frequent rest periods; or
Was provided with special equipment or was assigned work especially suited to the
impairment; or
Was able to work only within a framework of specially arranged circumstances, such as
where other persons helped him or her prepare for or get to and from work; or
Was permitted to perform at a lower standard of productivity or efficiency than other
employees; or
Was granted the opportunity to work, despite his or her handicap, because of family
relationship, past association with the firm, or other altruistic reason.
If these earnings are true SGA, and it was performed long enough
to be a problem, and you simply cannot dance around it, ask: (1) Can I
amend the onset date to moot the issue;, or (2) Go for a closed period
Warning: if you have real SGA that you cannot escape, and also
have less than 12 months of true disability without SGA, case is usually
DOA. Consider a dismissal.
Common Pitfalls
Mumbling:
It is axiomatic that the ALJ must hear you to help you. Chronic
MUMBLING will aggravate the ALJ. In some cases, it can suggest
someone is being evasive. Dont lose credibility on this topic. Just
speak up.
Show: MUMBLER TRAINING VIDEO HERE
Drivers License:
You can search by DOT number or job title. The next screen
shows a search for security monitor.
You can use the tabs at the right to get to any data you need
about the job. You can quickly get to the SVP, the physical demands,
the postural, Be aware that most VEs have screened this data
before they testify and some use this program live at hearings.
I personally rarely cross examine a VE on solely specific DOT
criteria unless they identify only 1-2 jobs in the entire universe. Most
VEs in this region are fairly solid on this point as they tend to identify
the same jobs endlessly. I prefer to scour the record for obscure
restrictions (check state agency assessments) and add them one by
one. I also add elements from my clients testimony one by one to
erode jobs.
I can use SSA Rulings for their national policy statements to assess
how the VEs testimony departs and ask them to explain why. Most
VEs are weak on transferable skills and the three requirements of the
Ruling to truly transfer job skills.
Sure but have the video spokesperson briefly say as part of the video the
disclaimer and if you do this in conjunction with an approved Web Page,
you are golden
My own disclaimer- yes there are some gray areas here and I
agree that they can be open to multiple interpretations. The state Bar
is very proactive about protecting the public, and despite what some
think, they are not engaged in censorship by any stretch of the
imagination. This field is after all, really just a form of regulated,
commercial speech.
The State Bar has a dedicated paralegal for attorney advertising
who is readily available to assist you. I have found her an invaluable and
engaging resource. I personally suggest you err on the side of safety
and submit your proposed advertisements. Do you really want to be
that test case?
SCR 3.130(7.09)
Question I: Can we ethically buy internet leads for cases in Kentucky????
Question II: Ethics aside, are there advertising hazards in buying email
leads?
(If we pass ethical muster, what is left to secure advertising approval?)
Where to look:
SCR 3.130(7.02
SCR 3.130(7.05)
SCR 3.130(7.06)
SCR 3.130(7.09)
SCR 3.130(7.15)
SCR 3.013(7.25)
What can you tell a client (or the world at large): SCR 3.130(7.15)
APPPENDICES :
SCR 3.130(7.02
SCR 3.130(7.05)
SCR 3.130(7.06)
SCR 3.130(7.09)
SCR 3.130(7.15)
SCR 3.013(7.25)
KBA e-429
Copy of Ky Ethics opinion- Qualified ethics approval
Copy of KY Bar Opinion on IM Soln internet leads
Copy of KY Bar on Internet Lead Engine Marketing
Forms
HA-4631
HA-4632
HA-4633
Background Quest.