 Preparation Breeds Success December 2012 Michael P. Sullivan, Attorney

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Preparation Breeds Success December 2012 Michael P. Sullivan, Attorney Slide 2 Preparation (you and your client) Pre-Hearing Briefs Past Work, SGA, and Amended Onset Date Issues Effective Exhibits Direct Examination Cross Examination PART II: Ethics in Marketing in the Digital Age Slide 3 Meet with your client at least 30 days prior to the hearing Complete (do this early on in the wait for a hearing): o Form HA-4632 (Medication List) o Form HA-461 (Medical Update o Form HA-4633 o Background Questionnaire o Review the ODAR ERE File 30-60 days before the hearing BIG TIP: Get the Cadocon converter and convert the file Slide 4 Slide 5 NOTE THE PAGINATION TO HELP YOU CITE TO AN EXHIBIT Slide 6 I use custom software embedded in my database manager to parse the ERE file and generate Exhibit and Page numbers and post them at the top and bottom of every page in the PDF file. This makes is painfully easy to cite to Exhibit and Page numbers. AtlasWare has a converter Cadocon has a converter o :(http://www.nooksoft.net/cadocon-screens)http://www.nooksoft.net/cadocon-screens o TIP- download the SSA ERE file and then email it to your client. They love getting the file, but be advised it will likely generate a phone call. However, they can read their own medicals and yell at their doctor instead of you ! Slide 7 SSA cases are paper intensive. The forms are duplicative and can be mind numbing. Why bother with them? ODAR & the ALJ want them You can theme your case story in them Completing these forms forces you to assess your case They become proof in the case file Slide 8 FIRST, FIRST, FIRST- look at the Alleged onset date (AOD) and compare it to the earnings record. o Are there reported earnings AFTER the AOD? Are these earnings from genuine work activity? Unemployment Long term disability insurance proceeds Short term disability insurance proceeds Lump sum from a 401 K Severance pay Paid of accrued sick and vacation time If the earnings rise to SGA level work and you cannot defeat that issue, consider amending the onset date These are not true earnings Slide 9 If what shows up on the earnings record AFTER the AOD is truly earnings, then we first look to see if it is SGA: Substantial Gainful Activity. If it is really SGA, then look to see o Can an exception to the SGA rule apply? o Can we work a closed period and get the client paid for time off o Should we just amend the onset date and move on Look Out- do not amend your way into malpractice: make sure we still have 12 months of disability if we amend the onset date Slide 10 First: if the work was not SGA, it is NOT Past Relevant Work (No SGA, No PRW) If it is SGA level work, then it may well be Past Relevant Work and that work will be characterized by the SSA in terms of Skill and Exertion o Skills can be the kiss of death to SSA cases. Most people fluff up their job skills- your job is to prevent that. o Exertion can be difficult- Describe the past work in terms of maximal lifting and frequent lifting and occasional lifting, posturals, . TIP: dont forget to argue that any SGA level work more than 15 years prior to the alleged onset date may be PRW, but it is not always relevant Slide 11 When you have a chance to describe your clients past work- cast the past work in terms of the clients impairments. The goal is to describe the work in such a way so that the alleged impairment(s) preclude the past work: 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. Slide 12 When describing past work, be aware of how the SSA defines and categorizes work: DEFINITIONS COME FROM: 20 CFR 404.1567 et seq, BUT the Rulings are much more fun! SEDENTARY WORK : SSR 96-9p: o lift no more than 10 lbs occas. o Standing and walking no more than 2 hours TOTAL o Reqs capacity for seeing, manipulation, carrying our simple instructions o SSR 83-12 unskilled jobs are structured so that a person cannot ordinarily sit or stand at will o SSR 83-12 most unskilled sedentary jobs require good use of both hands Slide 13 20 CFR 404.1567(b): Light work may require lifting up to 20 lbs occasionally and 10 lbs frequently, and a good deal of walking or standing. TIP: light = usually over 2 hours on your feet, but note work can be light bc of the lifting. SSR 83-14: most unskilled light work requires a person to be standing or walking, lifting up to 10 lbs frequently, occasional bending and stooping, unskilled light work does not require fine use of fingers (mostly gross manipulation) Slide 14 Medium Work: 20 CFR 404.1567 lifting 50 lbs occasionally and 25 lbs frequently Heavy Work : 20 CFR 404.1567(d) up to 100 lbs occasionally, 50 lbs frequently Very Heavy Work: 20 CFR 404.1567(e): lifting over 100 lbs and frequent lifting up to 50 ls. Slide 15 The Rulings can make a VE miserable!!!!!! SSR 85-15 light and sedentary work and Stooping Stooping, kneeling, crouching, and crawling are progressively more strenuous forms of bending parts of the body, with crawling as a form of locomotion involving bending. Some stooping (bending the body downward and forward by bending the spine at the waist) is required to do almost any kind of work,, particularly when objects below the waist are involved. If a person can stoop occasionally (from very little up to one-third of the time) in order to lift objects, the sedentary and light occupational base is virtually intact. However, because of the lifting required for most medium, heavy, and very heavy jobs, a person must be able to stoop frequently (from one-third to two-thirds of the time); Slide 16