Hearing Preparation. Rigoberto Vindiola, Esq.

Transcription

1 Hearing Preparation Rigoberto Vindiola, Esq. FF

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3 Hearing Preparation Section FF Crash Course: Hearing Preparation Rigoberto Vindiola, Esq. This beginner-friendly method will show you how to navigate the Exhibit List of the claimant s Electronic Folder. Exhibit sections A. through F. (excluding C., to which you will likely not have access) are holdovers from the paper system. So, if you find yourself in the increasingly rare situation of representing a claimant with a paper file, then this method would still apply albeit it may be more cumbersome for you. Note that this method prioritizes certain information about the claim rather than the individual claimant herself so that you may have a better idea of what information you need about the claimant in order to win the claim. Also note that some claimants folders are incomplete, i.e. missing an exhibit one expects to find in every folder, or some exhibits produced by SSA may be incomplete, i.e. it may be missing a page or it just does not have the information one expects to find. So, if you follow these steps and find a dead end in your client s folder, then just know those cases are the exception but that is simply the nature of the beast. What follows is a step-by-step approach that will tell you (1) what information to find, (2) where to find it, and (3) why the information is important and why falls in its order of priority. There may also be a tip, trick, or comment associated with that piece of information. I. First things first: ALJ, Claim Type, Filing Date, Claimant s Age, AOD, and DLI 1. Administrative Law Judge (ALJ) a. Where? B. section. Look towards the bottom of the section for Notice of Hearing, which may have the ALJ s name at the signature line at the end of the notice, or Acknowledge Notice of Hearing 504, which should list the ALJ s name near the top right of the page. b. Why? Know your audience. Basically, who is your client up against? If you are not familiar with the ALJ s style and disposition, then at least you can look up the allowance rate and ask your colleagues what they know. c. Tip: There may be more than one Notice of Hearing, Acknowledge Notice of Hearing etc. Make sure to look at the most recent one, which is usually higher in number, i.e. further down the section. Exhibit folders may have items from recent prior claims, or the claim may have been transferred to a new ALJ, etc. 1033

4 Section FF National Social Security Disability Law Conference 2. Claim Type: Title II/RSDI (T2), Title XVI/SSI (T16), or both a. Where? Header of the Exhibit List index and D. section. The first items of the D. section should be the applications for T2 and T16, either or both. b. Why? To tell whether time is an issue. For example, if the claim is T2 then the date last insured (DLI) will determine by when the claimant must be found disabled, but if the claim is T16 then the claimant may be found disabled at just about any time before full retirement age. c. Tip: DO NOT rely on the index. You should always look at the D. section. The index may only say T2, but when you check the T2 application in the D. section you may notice the claimant indicated intent to file for T16 as well. Or the index may say T2 and T16 but there may be no T16 application in the D. section. Etc. 3. Filing Date a. Where? Header of the Exhibit List index and A. section. One of the first items in the A. section should be the Disability Determination Transmittal 831. There may be two if the claim is concurrent, one for each T2 and T16. The filing date is item 3 at the top, and the claim type is item 7 or 8 at the top right. b. Why? It generally determines how far back the claim can possibly be paid. And, again, time may be an issue depending, for example, on the DLI or alleged onset date (AOD), which we will look at shortly. c. Tip: DO NOT rely on the index. For example, the index may say 2/2/15 but the 831 says 1/31/15, or vice versa, and the difference can be a month s worth of past due benefits for your client. Look for the earliest documented filing date and make sure the ALJ acknowledges it. 4. Claimant s Age or Date of Birth (DOB) a. Where? D. section in the Application for Disability Insurance Benefits 16 or the Application for Supplemental Security Income Benefits It is usually on the first page: MY DATE OF BIRTH IS. b. Why? The claimant s age tells you which medical-vocational (grid) rules/guidelines may apply. 5. Alleged Onset Date (AOD) a. Where? Header of the Exhibit List index and D. section in the Application for Disability Insurance Benefits 16 or the Application for Supplemental Security Income Benefits It is also usually on the first page a couple lines below the DOB: I BECAME UNABLE TO WORK BECAUSE OF MY DISABLING CONDITION ON. b. Why? The onset date determines when benefits may begin. 1034

5 Hearing Preparation Section FF c. Comment: We look at the AOD after the filing date and the DOB because the AOD is a date that is alleged by the claimant, while the filing date and DOB are more concrete dates. Generally, you can amend the onset date much more easily than change a DOB or filing date. d. Tip: Sometimes a claimant will have amended the onset before the hearing, so be aware that there may be an exhibit to this effect and the amended onset date may not be reflected in the index. 6. Date Last Insured (DLI) a. Where? Header of the Exhibit List index and D. section in the Certified Earnings Records CERTERN. It is usually on the first page, near the middle of the page, on the right side, DIS DLI: XX/YY where XX is a two-digit month and YY is a two-digit year. b. Why? Generally, in T2 claims the DLI controls the past relevant work period, and it is the last day on which the claimant must be found disabled in order to be awarded T2 benefits. c. Tip: DO NOT rely on the index. The DLI in the index may have last been updated more than year prior to the hearing, but the CERTERN may be dated in the current year, which means it may reflect earnings documented in the interim and so it may have a later DLI. Look for the latest DLI and make sure the ALJ acknowledges it so that your client has the most time in which to prove entitlement to T2 benefits. d. Comment: Sometimes the CERTERN will not have the DLI in a T2 claim, or in a T16 claim the DLI may be in the remote past if the claimant ever was insured. And, sometimes the CERTERN will have have obvious errors in this section and say the DLI is in the distant future, e.g. September e. Trick: If your CERTERN does not have a DLI or it is just plain obviously outdated and you suspect there may be an updated DLI, you can ask the ALJ s assistant to generate an updated one for the Exhibit Folder. You can also ask the ALJ for an update in the hearing. The ALJ may be able to generate an up-to-date CERTERN right then and there so that you may confirm the DLI. II. Work History 1. Yearly Earnings a. Where? D. section in the Certified Earnings Records CERTERN. b. Why? To determine substantial gainful activity (SGA), past relevant work (PRW), and whether there are earnings reported after the AOD. c. Tip: If a given year has what appears to be less-than-sga earnings, you should probably make note of it anyway. Those less-than-sga earnings may be attached to SGA-level earnings in the prior or subsequent year and, therefore, may end up being attached to PRW. Also, the ALJ may want to hear about all earnings no matter how small. 1035

6 Section FF National Social Security Disability Law Conference d. Comment: The CERTERN may be outdated or incomplete. It may not go back far enough to cover the earliest years in the relevant period given a remote DLI, or it may not have been updated recently enough to include more recent earnings. Or, it could be simply missing a page. 2. Earnings By Employer a. Where? D. section in the Detailed Earnings Query DEQY. b. Why? To determine which employments may constitute PRW. c. Tip: DO NOT skip the DEQY just because the CERTERN indicates earnings that would amount to SGA when averaged over the twelve months of that year. You may find that what appears to be SGA-level earnings were actually made up of so many different employers that one, some, or all of those jobs would not actually be PRW. d. Comment: The DEQY includes the name and address of the entity from which the earnings were reported. The name of the entity may not be the name of employer the claimant remembers or the name on the building to which the claimant reported for work. For example, the DEQY may say John Q. Smith Holdings but it was actually a McDonald s franchise. e. Tip: Use Google or another search engine to search the name of the entity or even the address to help the claimant recall the work. f. Comment: Sometimes the DEQY does not have the entity s name and address and instead has only the employer identification number (EIN). g. Tip: Use Google or another search engine to search the EIN or federal EIN (FEIN) in order to try to determine the name of the entity employer, e.g or ein or fein. h. Trick: If your DEQY has only EINs and you are not able to identify them prior to the hearing, you can try to obtain an update using the methods described in the tip at I.6.e. 3. Work History a. Where? E. section in Work History Report 3369, and Work Activity Report. b. Why? To determine what jobs the claimant performed during the relevant period. c. Comment: We look at work history at this point in the review because PRW can tell you whether you can apply a grid rule or whether you will have to show listing-level or less-than-sedentary impairment. For example, if the claimant is over age 50, but her most recent PRW is unskilled and sedentary, then what you thought would be a grid case at this point may have suddenly turned into a listing case. d. Comment: There may be more than one Work History Report. It is usually part of the disability report completed with an initial application, but the claimant may receive another one even after completing the initial application s disability report. So, you may find one that is computer-generated and one that is handwritten, and they will very likely have different information. 1036

7 Hearing Preparation Section FF e. Tip: DO NOT rely on any Work History Report. Use it as a roadmap or starting point, but you should thoroughly examine your client before the hearing on the duties performed at each position at each employment that may be PRW. For example, the claimant may report that he was a filing clerk and only lifted 10 pounds, but he did not think to report that he also had to lift and carry boxes of files to the storage room every Friday, and that could make a job that was sedentary as reported a light or even medium job as performed. f. Comment: The claimant likely does not fully appreciate the purpose of the Work History Report. Maybe she only reported one job because it was the job she had for longest period of time, but she did not think to report the two shorter-term jobs she had immediately before but that were still in the relevant period. Likewise, a claimant may build up her past employment by labeling it a managerial or supervisorial position when in reality she may have just been the most knowledgeable worker but had no hiring or firing power and did not make schedules or determine wages. g. Comment: Not all claims have a Work Activity Report. Whereas a Work History Report generally refers to work prior to the AOD, the Work Activity Report generally refers to work after the AOD. So, if you have followed this method step-by-step to this point, and you noticed post-aod earnings, then you should not be surprised to see a Work Activity Report in the E. section. h. Tip: Remember that not all jobs or employers will be PRW. If you reviewed the CERTERN and DEQY, then you should have a good idea of which jobs will be at issue in the hearing. III. Background, RFCAs, Listing Numbers Considered, and DOT Codes 1. Background When Stopped Working a. Where? E. section in Disability Report Adult 3368, Section 4 Work Activity. Usually on the second or third page, 4.C. When did you stop working? b. Why? It may differ from what is indicated by the AOD, in the earnings reports, or the Work History/Activity Report, and you should be prepared in case the ALJ addresses it. 2. Background Why Stopped Working a. Where? E. section in Disability Report Adult 3368, Section 4 Work Activity. Usually on the second or third page, 4.C. after When...? b. Why? It may not be Because of my condition(s) as would be expected, and you should be prepared in case the ALJ addresses it. c. Tip: At this point, you may be thinking, When do we get to the medical records already? You should know what reason your client has stated for why he stopped working because you do not want to be caught off guard when the ALJ says to your client, It says here you stopped working because you didn t want to pay taxes and support an oppressive government. (Paraphrasing an actual claimant s statement.) 1037

8 Section FF National Social Security Disability Law Conference d. Comment: Claimant s will state all manner of reasons for why they stopped working. Just because such a statement is not what you hope to hear does not mean it cannot be helpful. It may make your client appear more honest and credible! It may also be that the claimant stopped working so long ago that the reason does not really make a difference no matter how unexpected it is. 3. Education Including Special Education and Job Training a. Where? E. section in Disability Report Adult 3368, Section 5 Education and Training Information. Usually the third or fourth page. b. Why? Education can be determinative of which or whether grid rules apply. Special education may be undeveloped in the claim and records of such may be missing. Job training, trade or vocational school can change your outlook on the claimant s ability to perform other work beyond what you determined from PRW. c. Tip: Remember what is important is the highest grade of school completed. Many times a claimant will list here the last grade attended. That is, the claimant indicates 11 th grade on the application, but when you ask them whether they finished 11 th grade or whether that is when they stopped going to school you may learn that they did not, in fact, finish 11 th grade. 4. Residual Functional Capacity Assessments (RFCAs) a. Where? A. section in Disability Determination Explanation DDE, in the RESIDUAL FUNCTIONAL CAPACITY section. Page numbers will vary widely. b. Why? The ALJ may, or likely will, base a hypothetical question on the RFCA of the state agency, and you need to know what you are up against when you start reviewing the medical records. c. Comment: There should be at least two DDEs in the Exhibit Folder, one for each of the initial and reconsideration determinations. They may be different RFCAs. There will also likely be a separate but possibly identical DDE for each of the T2 and T16 claims, i.e. the T2 and T16 DDEs at the initial level may contain the exact same information. 5. Listing Numbers Considered a. Where? A. section in Disability Determination Explanation DDE, at the end of the MEDICALLY DETERMINABLE IMPAIRMENTS AND SEVERITY section. Page numbers will vary widely. b. Why? If you know or think you may have a listing case then this can give you a starting point or even roadmap of which listings you should keep in mind when reviewing the medical records. c. Tip: DO NOT rely on the listings considered by the state agency. Your review should be more thorough than the state agency s and so you may see evidence of listings not considered in the DDE. 1038

9 Hearing Preparation Section FF 6. Dictionary of Occupational Titles (DOT) Codes a. Where? A. section in Disability Determination Explanation DDE, in the ASSESSMENT OF VOCATIONAL FACTORS section, which is usually in the last two or three pages. b. Why? You can preview what may be the DOT s description of your client s PRW and know what evidence you may need to show that your client cannot perform her PRW. c. Comment: The DDE may not describe the claimant s PRW in terms of the DOT. Additionally, these descriptions may be way off when compared to your analysis of your client s PRW. However, you can compare the state agency s RFCA with their DOT description of PRW and preview how close or how far your client may be from approval. d. Tip: Look at both the initial and reconsideration level DDEs. They can be much different or they can be have the same RFCAs and DOT codes. And now you can dive into the F. section with a much better idea of what to look for in terms of medical evidence in order to win your client s claim. 1039

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