Jennifer N. Brown, Esq. Arthur, ONeil, Mertz

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Jennifer N. Brown, Esq. Arthur, ONeil, Mertz
Michel

• 901 Ralston Avenue
• Defiance, OH 43512
• 419-782-9881
• jbrown_at_lawbuilding.com

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II. Prepare and Analyze Information Before the
Hearing

• How to Decide Whether to Accept or Decline
  Representation of the Client
• Medical and Other Essential Evidence You Must
  Gather
• Obtain Necessary Reports and Interrogatories
• Analyze Social Security File Documentation

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II. Prepare and Analyze Information Before the
Hearing

• How to File a Claim
• Prepare Clients to Effectively Testify
• Tips for Establishing the Claim
• Avoid Mistakes with Ready-to-use Forms and Letters

4
III. Succeed at the Administrative Law Judge
Hearing

• Great Advice for Working with the Local Hearing
  Office
• A Practical Hearing List Checklist Youll Use
  Over and Over
• How to Handle Expert Witnesses Yours and Your
  Opponents
• Follow the Rules for Submitting Evidence to the
  Letter

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III. Succeed at the Administrative Law Judge
Hearing

• Documenting and Presenting Medical and Vocational
  Evidence
• Difficulties to Expect and How to Handle Them
• Proven Tactics that Can Lead to a Favorable
  Ruling
• Guard Against Costly Errors When Calculating
  Benefits

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III. Succeed at the Administrative Law Judge
Hearing

• How Benefits Received Impact Other Recoveries
• Breakthrough Misconceptions About the Appeal
  Process

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Social Security Definition of Disability

• the inability to engage in any substantial
  gainful activity by reason on any medically
  determinable, physical, or mental impairment(s)
  which can be expected to result in death or which
  has lasted or can be expected to last for a
  continuous period of not less than 12 months

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Definition of Medically Determinable Impairment

• medically determinable impairment is an
  impairment that results from an anatomical,
  physiological, or psychological abnormalities
  which can be shown by medically acceptable,
  clinical, and laboratory diagnostic techniques.
  Physical or mental impairment must be established
  by medical evidence consisting of signs,
  symptoms, and laboratory find - not only by the
  individuals statement of symptoms

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Levels of Review by Social Security

• Application
• Reconsideration
• Administrative Law Judge Hearing
• Appeals Council
• Appeal to U.S. District Court

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How to Decide Whether to Accept or Decline
Representation of the Client

• Have they filed for SOS before? What happened to
  the claim?
• Is the claimant actively treating for the alleged
  disability?
• Will a medical doctor or psychologist/psychiatrist
  support their claim for disability?
• Do they already meet a SOS listing for
  impairment?

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How to Decide Whether to Accept or Decline
Representation of the Client

• Do they intend to go back work?
• Are there any other social agencies that will
  better address their current needs?
• Ability Center www.abilitycenter.org
• 2 locations serving counties of Defiance, Fulton,
  Henry, Lucas, Ottawa, Williams, and Wood
• 1935 East Second Street, Suite C, Defiance, OH
  43512 [phone] [phone] fax (419)
  782- 9231
• 5605 Monroe Street, Sylvania, OH 43560 (866)
  885-5733 (toll free)

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How to Decide Whether to Accept or Decline
Representation of the Client

• Ohio Rehabilitation Services Commission (RSC)
• 101 Clinton Street, Suite 1100, Defiance, OH
  43512 [phone] 1-800-686-6447 (419)
  782-0934 fax
• Northwest BSVI and BVR, 5533 Southwyck Blvd.,
  Suite 100, Toledo, OH 43614-1582 (419)
  866-5775, 1-800-352-4300

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How to Decide Whether to Accept or Decline
Representation of the Client

• Can they work if the employer provides an
  accommodation for their disability?
• When was the last time they were substantially
  gainfully employed?
• When is their last date insured?
• Do they have any other reliable witnesses that
  can be used to support their disability?
• Medical
• Co-workers
• Family
• Friends

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How to Decide Whether to Accept or Decline
Representation of the Client

• Do they appear honest in their claims for
  disabilities?
• What is their age? Over or under age 44?

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Medical and Other Essential Evidence You Must
Gather

• Responsibilities
• Setting initial intake appointment
• Appointing a representative
• Signing Necessary Release Forms
• Medical Evidence
• Medical Records
• Medical Reports
• Clinical labs, x-rays, MRIs
• Updating with new evidence
• Witness Statements and Testimony

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Medical and Other Essential Evidence You Must
Gather

• Medical Information
• Names, Addresses, and phone numbers of all
  doctors and treating sources
• Dates seen by doctors and treating sources
• Medication List
• Names
• Who prescribing
• Dosage
• Medical Records in your possession

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Medical and Other Essential Evidence You Must
Gather

• Employment history for the last 15 years prior to
  becoming disabled
• Name of Employer
• Dates of Employment
• Position Title
• Job Responsibilities
• Average Hours of employment
• Rate of Pay (hourly or salary)
• Amount of time spent lifting, standing, bending

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Obtain Necessary Reports and Interrogatories

• Medical Reports Supporting Disability
• brief medical history
• diagnosis/diagnoses
• a list of deficiencies caused by the
  diagnosis/diagnoses
• laboratory findings (such as EEGs and MRIs)
• treatment prescribed in response and prognosis
  (including medication prescribed)

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Obtain Necessary Reports and Interrogatories

• Whether the disability has and/or will continue
  permanently even with treatment
• How the disability prevents from performing any
  job, and how the disability interferes activities
  of daily living such as lifting, standing,
  sitting, kneeling, squatting, reaching, use of
  hands, seeing, hearing, walking, climbing,
  bending, driving, sensitivity to light,
  sensitivity to heat, memory, concentration, and
  general coordination needed for employment

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Obtain Necessary Reports and Interrogatories

• Request Interrogatory Answers of Treating
  Physician
• List of diagnosed impairments
• Prognosis for next 12 or more months (ie. will
  the impairment be permanent?)
• Clinical findings and test results
• Patient symptoms
• Is the claimant in pain? If so, then answer
  nature, frequency, and severity of pain.

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Obtain Necessary Reports and Interrogatories

• Request Interrogatory Answers of Treating
  Physician (cont)
• Impairment consistent with pain level
• Is the claimant a malingerer
• How often does the pain severely interfere with
  attention and concentration
• To what degree limited in the ability to deal
  with the stress at work
• Side Effects of Medications

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Obtain Necessary Reports and Interrogatories

• Request Interrogatory Answers of Treating
  Physician (cont)
• How many city blocks can claimant walk without
  rest or severe pain
• How many hours/minutes can claimant sit and stand
  at one time
• After sitting/standing for period of time what
  must claimant do (ie. walk, stand, lie down etc.)

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Obtain Necessary Reports and Interrogatories

• Request Interrogatory Answers of Treating
  Physician (cont)
• Claimant require a job with sit/stand option
• Claimant have to lie down or rest at
  unpredictable intervals during work shift
• of times during average workday
• Length of period of rest before returning to work
• Any assistance needed to walk/stand (cane, wheel
  chair)

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Obtain Necessary Reports and Interrogatories

• Request Interrogatory Answers of Treating
  Physician (cont)
• Significant limitations in reaching, handling, or
  fingering
• How often impairments and treatment would require
  the claimant to be absent from work

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Obtain Necessary Reports and Interrogatories

• Request Interrogatory Answers of Treating
  Physician (cont)
• How much and how frequently can the claimant lift
  and carry in a competitive work situation
• 1-2 pounds, less than 10 lbs., less than 20 lbs.
• Never, occasional, frequently

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Obtain Necessary Reports and Interrogatories

• Affidavits of Co-Workers, Friends, and Family
  Members
• Affidavits are particularly important in the
  mental health impairments to meet the criteria of
  the SOS impairment listings

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Analyze Social Security File Documentation

• Visit local SOS office an look at file
• Analyze of the treating medical doctors which
  records and reports SOS has actually taken the
  time to secure.
• Make a list of items missing from SOS file and
  supplement the record.
• Copy any reports from treating doctors to insure
  consistency or reasons for changes in original
  recommendations to SOS.
• Review the Residual Function Capacity Examine
  Notes (RFC)

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Analyze Social Security File Documentation

• Residual Function Capacity Exam RFC Ways to
  bolster and/or attack
• When was the RFC conducted?
• Was the claimant actually examined or is it based
  only on a record review?
• Get claimants medical doctor to respond to areas
  that are in conflict with claimants actual
  physical limitations.

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Analyze Social Security File Documentation

• Have any medical examinations, psychological
  examinations, and/or radiological evidence been
  ordered by SOS? Does any need to be requested
  that SOS has not asked for already?
• Is this claimant without sufficient medical
  evidence such that the claimant should pay for a
  residual function capacity exam by a physical
  therapist?

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How to File a Claim

• Contact local SOS office via the telephone for
  appointment date and time
• Information Needed When Setting Intake
  Appointment Over the Phone Name of claimant
• Claimant must be available to talk with over the
  phone or at least to give permission to speak
  with a representative
• Claimants Social Security Number
• Claimants Date of Birth
• Last Date Worked
• Disability Onset Date
• Brief Description of Disability

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How to File a Claim

• What To Bring to Intake Interview
• Original or certified copy of Birth Certificate
  (or proof of U.S. citizenship if foreign born)
• Military Discharge Papers
• W-2 forms or IRS 10-40 forms if self-employed
  from last year
• Last date worked
• Last pay stub
• Social Security Numbers of Claimant, Claimants
  Spouse, and children
• Dates of marriages/divorce, including social
  security numbers
• Checking or Savings account information
• Workers Compensation information
• Contact phone number
• Witnesses names and addresses

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Preparing Clients and Witnesses to Testify

• Have client turn in a list of potential witness
• Screen the witnesses by phone to determine who
  are potential witness for ALJ hearing
• Prepare Affidavits for those who cannot appear
  but their information is important
• Have a joint meeting with all witnesses if
  possible
• Go over list of impairments
• When the impairments began
• When the impairments prevented working

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Preparing Clients and Witnesses to Testify

• Employment History
• Types of Employment
• Job Responsibilities
• See if can get a co-worker to testify problems
  they observed at work
• Last Date Worked
• Typical Day Activities
• Effects of stress and pace of work
• Frequency and types of treatments
• Memory and concentration

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Preparing Clients and Witnesses to Testify

• Types of things claimant does at home
  activities for fun
• How often they go out into public and where do
  they go
• What claimant does at home regarding housework
• Is the claimant involved in any clubs or other
  outside activities

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Tips for Establishing a Claim

• Ask questions regarding general background of
  claimant
• Mental health problems often go untreated but
  without proper documentation SOS will not
  recognize the impairment
• See if a physician will back the claim that
  cannot work
• What assistance receiving from other agencies
  (ie. department of human services or workers
  compensation) because additional evidence
• Assist the claimant on filling out forms
  completely. Lack of evidence to SOS means the
  disability is denied.

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Avoid Mistakes with Example Forms and Letters

• Opening Notes
• Social Security Fee Contract (not currently
  receiving benefits)
• Social Security Fee Contract (currently receiving
  benefits, continuing benefits denial)
• Appointment of Representative - SSA -1696
• Medical Authorizations
• Example Request for Medical Records including
  statutory authority for free copy of records

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Avoid Mistakes with Example Forms and Letters

• Example Request for Medical Report by Treating
  Physician
• Example Submission of Medical Records to SOS
• Example Affidavit of Lay Witness
• Example Residual Function Capacity Exam
• Work Authorization
• School Authorization

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Avoid Mistakes with Example Forms and Letters

• Authorization to Disclose Information to Social
  Security Administration - SSA-827 (6)
• Request for Reconsideration - SSA-561-U2 (Need to
  file Disability Report - Appeal along with
  Request)
• Request for Hearing by Administrative Law Judge -
  HA-501-U5 (Need to file Disability Report -
  Appeal along with Request)
• Disability Report - Appeal - SSA-3441-BK (To be
  filed with Request for Reconsideration or Request
  for ALJ Hearing)

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Avoid Mistakes with Example Forms and Letters

• Medication Chart
• Physician/Hospital List
• Work History Witness List
• Education Form
• Social Security History

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Avoid Mistakes with Example Forms and Letters

• Witness Questionnaires
• Instructions to client
• Example letter and questionnaire for updates on
  medical conditions
• Referral Sources Ability Center and Ohio
  Rehabilitation Services Commission

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III. Succeed at the Administrative Law Judge
Hearing

• Who are you going to be in front of as the
  Administrative Law Judge
• What are the ALJs preferences for how the ALJ
  hearing is conducted
• Has the claimant updated the SOS regarding
  medical appointments and additional limitations
• Have the medical records been updated
• Review the file to make sure exhibit list shows
  all evidence which has been submitted.

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Great Advice for Working with the Local Hearing
Office

• Who is the Assistant to the Judge
• Can you E-mail the assistant and see if there has
  or can be a record review of the file
• Is this a case that can be briefed and the
  exhibits cited to the court
• Request to appear in person

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Practical Hearing Checklist

• Medical evidence submitted and updated
  periodically
• Does the SOS Exhibit list match what was
  submitted
• Meeting and Preparation of Witnesses claimant,
  doctor, friends, family, co-workers
• Review of SOS impairment listings
• If claimant does not meet a listing, then review
  the Residual Functional Capacity (RFC) of
  claimant.

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Practical Hearing Checklist

• Review work history
• Prepare questions for vocational expert if SOS
  has listed a vocational expert
• Current treatment doctors, facilities, things
  client does at home
• Current medication list

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How to Handle Expert Witnesses Yours and
Opponents

• Your experts report should cite medical
  treatment, testing, and other records for support
  of the report.
• If your expert is testifying live, then your
  expert witnesses needs to know their own records
  thoroughly to answer any questions ALJ may have.
• If your expert is testifying live, then you
  should prepare the expert with the strong areas
  and problem areas of case.
• If the are inaccuracies in expert reports, then
  ask questions of claimant or witnesses to rebut
  assumptions made by SOS expert.

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Follow the Rules for Submitting Evidence

• ALJs enforce the rules for submitting evidence
  differently.
• Log the records on the cover letter
• Update the records as soon as possible after the
  exhibit list is mailed to the claimant notify a
  hearing is about to be scheduled.
• If there are late submissions, then as the ALJ to
  keep the record open.

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Documenting and Presenting Medical and Vocational
Evidence

• Some ALJs do not like openings and want to get
  right to the evidence. Others will allow an
  opening.
• Openings help provide context to the detailed
  testimony.
• Familiarize yourself with the exhibit list. It
  is not unusual for the ALJ to ask where they can
  find evidence to support the description of the
  claimants limitations.

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Documenting and Presenting Medical and Vocational
Evidence

• If there are particular medical appointments or
  records which help support the disability, then
  ask the claimant about a few of the appoints and
  refer to the treating the source by name (and SOS
  exhibit) to help the ALJ analyze things later.

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Documenting and Presenting Medical and Vocational
Evidence

• The vocational expert will file relevant job
  codes and descriptions usually the day of the
  hearing.
• Prior to the ALJ hearing ask to see the job codes
  that make up the past relevant work of the
  claimant.
• If the claimant is not capable of performing any
  past relevant work, then the burden shifts to SOS
  to show the claimant can perform other work.

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Documenting and Presenting Medical and Vocational
Evidence

• Always ask the vocational expert what the
  tolerable level of absenteeism is in the national
  economy.
• If claimant is actively treating, then there is
  likely to be missed days for appointments.
• Has the claimant submitted evidence from other
  employment records of problems for absenteeism?
  Discipline? Firing?
• Some claimants require sit/stand options and/or
  rest periods

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Documenting and Presenting Medical and Vocational
Evidence

• If concentration is an issue, then watch for jobs
  which have few breaks and high pace.
• If claimant has trouble with the public, other
  employees and/or supervisors, then what for jobs
  that have a lot of contact with others.

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Difficulties to Expect and How to Handle Them

• Follow up with calls to SOS to make sure the SOS
  office is moving the case along because the SOS
  loses files and paperwork.
• Some medical providers will be slow in sending
  medical records and updates.
• Always set follow reminders on anything that you
  are waiting for a reply or for which there is a
  deadline.

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Difficulties to Expect and How to Handle Them

• Claimants do not call when they get additional
  treatments. Set a follow up every 30 to 60 days
  to check with them if they have not updated
  recently.
• Keep a status log of activities of the file so
  you can efficiently tell what is pending on a
  case.
• The wait for SOS to make decisions on anything is
  long. Prepare and reinforce from the first
  meeting that the SOS process is very slow.
• Even after a hearing, it can take months, and up
  to a year, for a decision.

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Proven Tactics that Can Lead to a Favorable
Decision

• It is easier to get a SOS case through on the
  earlier steps of SOS.
• Review the record
• Submit updates
• Call the claims representative person if you are
  having problems and need more time to submit
  things
• HELP claimant fill out and return forms
• Send in supporting affidavits

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Proven Tactics that Can Lead to a Favorable
Decision

• Ask for a records review prior to the ALJ
  hearing.
• If you are at ALJ hearing, then see if you can
  point out to the ALJ the additional evidence that
  was not available at the time of the last
  decision.
• The claimant needs to be in some sort of
  treatment to support an on-going problem.
• Keep in mind SOS may review the case later so the
  claimant needs to be prepared that SOS may ask
  for a review.

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Guard Against Costly Errors in Calculating
Benefits

• Talk with the representatives if there is a
  question of how the benefits is going to be
  calculated.
• Social Security Disability Insurance
• SSI
• Widow/Widowers Benefits
• Children
• Examine the letter of calculations

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How Benefits Received Impact Other Recoveries

• Social security benefits are reduced by workers
  compensation benefits.
• Some employer disability plans require the
  payment back of back benefits if it covers the
  same period of time.

58
Breaking Through Misconceptions abut the Appeals
Process

• It is important to appeal to protect back
  benefits. Claimants are told they can always
  reapply. A reapplication without processing an
  appeal may result in lost back benefits.
• When appealing, make sure to focus on the new or
  contradictory information.
• ALJ has to follow the proper procedure in
  reviewing and deciding a case.
• See if there has been any denials within the last
  2 years that can be reopened.