Social Security Disability Advocate’s Handbook

Description

Challenge Vocational Testimony and Rectify ALJ Errors

This sophisticated handbook will help you (1) attack vocational testimony, and (2) use the Process Unification Rulings as powerful weapons for your claimants.

Topics include:

Problems with the DOT

• Learn more about the DOT in an afternoon than most VEs learn in graduate school and 25 years of practice.
• Use studies from the National Academy of Sciences to rip apart reliance on the DOT.
• Use Social Security Regulations to prove the DOT is a dead letter.
• Are SVP data in the DOT reliable?
• See how the Social Security Administration’s reliance on the DOT bases its adjudication system upon outdated vocational science.
• Why didn’t anybody weigh anything when analyzing strength demands of the jobs in the DOT?

How to attack other data sources used by vocational experts

• There is no published source of data that could reliably be used to answer the typical hypothetical question at a Social Security disability hearing. Learn why.
• Make the O*NET work for your client, live on your computer at the hearing.
• Learn how to let the air out of Vocational Expert’s “census data.”
• Use the Occupational Outlook Handbook to blast VE testimony in sample cross-examination testimony.
• Use the part-time job card to trump VE testimony about vocational sources.
• Track an attack on VE testimony from a pre-hearing memo to a District Court decision.

Vocational information and analysis at Step Four

• Stop losing cases at step-four because you don’t know what’s happening at the hearing.
• Was it really past-relevant work? Understand the Regulations and Rulings on-point.
• Does past-relevant work actually have to exist to be harmful to your client?
• Show how to protect your client from the DOT and other sources of vocational information in composite jobs cases.
• Use the handy Transferability of Skills worksheet.
• Benefit from reviewing comprehensive transferability of skills examples.

Vocational evidence at Step Five

• Trump the VE with the Medical-Vocational Guidelines.
• The Commissioner does not know what a significant number of jobs is, so prove your favorite number for the record.
• Use occupational-based arguments to prove your case.
• Is a “vocational advantage” really bestowed by transferable skills in your case?
• Watch out for Fast problems in your grid arguments.

Transferability of skills analysis

• Stop being baffled by transferability of skills questions.
• Make Specific Vocational Preparation work in your cross-examination.
• What mental abilities are needed for unskilled work?
• Use vocational information to disprove transferability of skills.
• Master the technical language of the Medical-Vocational Guidelines.
• Use the Rulings to prove your Grids case.
• Learn from sample cross-examination of VE testimony.

Practice Tips

Almost every page of the Handbook contains a valuable practice tip. Here are several examples:

Past relevant work

“A common error both ALJs and claimants’ representatives make is failing to appreciate that unless a claimant’s past work activity was Substantial Gainful Activity, it cannot be Past Relevant Work. It first is necessary to juxtapose all of a claimant’s work activity in the relevant past against the criteria of each of the Social Security Rulings listed under step one of this outline. Initially, determine whether….”

Application of circuit decisions

“Claimants’ representatives and agency adjudicators alike have been heard to say that nonacquiescence applies to all court cases for which the agency has not issued an AR. Acting under such an incorrect assumption, some adjudicators maintain they may not apply the holding in any circuit court decision which is not accompanied by an AR. Such statements evidence a fundamental misunderstanding of nonacquiescence and an erroneous interpretation of SSR 96-1p. Under nonacquiescence, SSA ….

Treating source medical opinions

“Often, ALJs decision writers and the Commissioner’s attorneys will write the treating doctor’s opinions are “not consistent” with the record. Pursuant to SSR 96-8p, the ALJ must give controlling weight to the treating source’s opinion if it is “not inconsistent” with other substantial evidence in the record. This is not merely a semantic issue. The “not inconsistent” standard presumes the opinion’s prominence and requires the ALJ to search the record for inconsistent evidence in order to give the treating source’s opinion less than controlling weight.”

Consultative exams

“It is a widespread practice among both DDS adjudicators and ALJs to arrange for consultative examinations of claimants for no apparent reason other than as an attempt to create “substantial evidence” to justify denying a claim for disability benefits. Claimants’ representatives should not acquiesce in such improper adversarial conduct. Instead….”

Treating source re-examination

“When it is apparent that a treating source’s medical opinion is not well-supported, consider requesting a consultative examination by that treating source so that the medical opinion becomes well-supported. Similarly, if the treating source’s medical opinion is inconsistent with other substantial evidence of record, consider requesting a clarification from the treating source and/or other sources with which the treating source’s medical opinion is inconsistent.”

Credibility

“Claimants’ representatives and agency adjudicators alike often overlook or pay insufficient heed to the critical role played by a claimant’s testimony, allegations, and credibility. Otherwise meritorious claims routinely are unsuccessful due to this oversight or inattentiveness. Because symptoms, such as pain, sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, a claimant may be found disabled on nothing more than the strength of the claimant’s allegations—if the claimant’s symptom-related allegations are found to be credible.”

Failure to follow treatment

“Because SSR 96-7p expressly delineates factors which adjudicators must consider in evaluating a claimant’s failure to seek or follow treatment, claimants’ representatives are forewarned of those issues. They should therefore attempt to direct the testimony of the claimant and lay witnesses at each of the above-listed six factors. Because the ALJ must use this testimony to assess the claimant’s credibility, carefully prepared testimony directed at establishing how each of these factors actually enhances the claimant’s credibility may preempt the ALJ’s ability to find the claimant not credible based on the claimant’s failure to seek or follow treatment.”

“Can the ALJ do that?”

Probably not. Nearly every aspect of Social Security adjudication is governed by the Social Security Rulings.

Most ALJs are unaware of the extent to which their hands are tied. You can educate them with this authoritative toolbook. Dave Traver’s Handbook shows you how to turn the Rulings into powerful weapons for your claimants:

• Remind ALJs what the Rulings require with 93 “commands” to agency adjudicators excerpted from the Rulings.
• Rebut common but invalid reasons ALJs use to reject claimant’s allegations.
• Prevent the ALJ from rejecting a medical source statement based on the ALJ’s finding that the medical source was not aware of all the medical and other evidence in the file.
• Help the ALJ find that a treating physician’s medical opinion is entitled to “controlling weight.”
• Capitalize upon the provision in SSR 96-7p that the consistency of an individual’s statements is a strong indicator of the claimant’s credibility.
• Using SSR 96-8p, affirm that at Step 5 a claimant cannot be found “not disabled” on the grounds that the claimant cannot perform part-time work.
• Protect your claimants from DDS adjudicators’ and ALJs’ practices of arranging for unnecessary and/or inappropriate consultative examinations.
• Ensure a nearly automatic finding of disability by establishing specific limitations set out on the Mental RFC Assessment Form.
• Win market rate “bad faith” attorneys’ fees for nonacquiescence (SSR 96-1p).
• Use the “function by function” RFC assessment requirement in SSR 96-8p to develop Step 4 and Step 5 exertional and non-exertional RFC issues.
• Establish fibromyalgia and chronic fatigue syndrome as disabling impairments using SSR 96-3p, SSR 96-4p, and SSR 99-2p.
• Use the testimony of the agency’s Medical Expert to establish medical “equivalence.”
• Avoid greater weight being given to the opinion of the non-treating or examining physicians by giving a complete copy of the claimant’s file and obtaining a medical source opinion based on the complete record.
• Use interrogatories, instead of requesting subpoenas, to reduce the weight given to the opinions of non-examining state agency physicians and psychologists.

REVISION 16 HIGHLIGHTS

This 16th revision of Social Security Disability Advocate’s Handbook introduces co-author David Ferrari—who has represented more than 1,133 claimants at Social Security Administration disability hearings in 46 states and D.C. during his career—joining long-time author David Traver in updating the work to reflect the extensive changes made to streamline the Process Unification Rulings, and to Social Security disability rules and case law.

NEW AND UPDATED FORMS

•  §104.1a Form for Notice of 404.1512(a) Medical Records not Submitted Five Business
  Days Before the Hearing
•  §1510.2.3 Sample Vocational Report Regarding U.S. Publishing Data

NEW AND UPDATED TEXT

Chapter 1

• §101.1 Changes Keep Coming. Discussion regarding updates to and applicability of the
  Process Unification Rulings in light of rescinded SSRs. [NEW]
•  §104.1 Practice Tip. Discussion on regulations concerning submission of all evidence and
  time to submit evidence in support of claims.
•  §104.11 Commandments in SSR 16-3p [NEW]
•  §104.12 Commandments in SSR 17-2p [NEW]

Chapter 2

•  §206.3 Kisor v. Wilkie. Discussion of the possible impact of the Supreme Court’s
  decision concerning Federal Circuit interpretations of ambiguous language in regulations
  and the limitations the Kisor decision imposes on the Auer v. Robbins deference
  doctrine. [NEW]
• §208.7 Smith v. Berryhill and filings to the Appeals Council. Discussion on the impact of
  the Supreme Court’s decision concerning the timeliness of appeals. [NEW]
• §208.8 Lucia v. SEC and obtaining remands from the Appeals Council or Federal District
  Court. Discussion of the Lucia decision and resulting SSR 19-1p in which the SSA
  acquiesced that all cases decided by ALJs before July 16, 2018 and are pending before
  the Appeals Council are subject to a new hearing with a new ALJ. [NEW]
• §210.8 National or Regional Cost of Living. Discussion on cost of living calculations in
  applications for the EAJA fee. [NEW]
• §212.2 Culbertson v. Berryhill. Discussion of the impact of the Supreme Court’s decision
  concerning reasonable fees for representing SSA disability cases. [NEW]

Chapter 3

•  Recent SSRs [NEW]. Discussion on new SSRs of note.
• o §303.1 SSR 16-1p Titles II and XVI: Fraud and Similar Fault Redeterminations
  Under Sections 205(u) and 1631(e)(7) of the Social Security Act
• o §303.2 SSR 16-4p Titles II and XVI: Using Genetic Tests to Evaluate Disability
• o §303.3 SSR 17-1p Titles II and XVI: Reopening Based on Error on the Face of the
  Evidence – Effect of a Decision By the Supreme Court of the United States Finding
  a Law That We Applied to Be Unconstitutional
• o §303.4 SSR 17-3p Titles II and XVI: Evaluating Cases Involving Sickle Cell Disease
  (SCD)
• o §303.5 SSR 19-3p Titles II and XVI: Requesting Reconsideration or Hearing by an
  Administrative Law Judge
• o §303.6 SSR 19-4p Titles II and XVI: Evaluating Cases Involving Primary Headache
  Disorders

Chapter 5

• §500.2 Who is a Medical Source? Discussion on acceptable medical sources (AMS).
• §514 The Agency’s Duty to Develop the Record, Per SSR 17-4p. Discussion on
  regulation changes effective March 27, 2017 that reduced the Agency’s obligation to
  develop the record.
• §515 82 FR 15263, New Regulations. Exploration of the impact of 82 FR 15263 (which
  went into effect March 27, 2017) and its effect on SSRs. [NEW]

Chapter 6

• §§607-608.1. Discussion on rescinded SSR 96-4p.
  Chapter 9
•  §908.1 Few Cases Address SSR 17-2p. Exploration of cases that apply SSR 17-2p. [NEW]

Chapter 10

•  §1000 Purpose of SSR 16-3p Versus Rescinded SSR 96-7p. [NEW]
•  §Obesity. Discussion of rescinded SSR 02-1p and its replacement SSR 19-2p. [NEW]

Chapter 13

• §1302.1 Chavez v. Berryhill. Exploration of circuit court decision and interesting
  discussion on the unreliability of vocational expert testimony concerning analysis of job
  numbers using the equal distribution method. [NEW]

Chapter 14

• §1911 Biestek v. Berryhill. Discussion on Supreme Court decision that no categorical
  rule requires a vocational expert to provide copies of her paperwork used to present job
  numbers in order for her opinion to be substantial evidence that supports an
  unfavorable decision. [NEW]

AND MORE!

ABBREVIATED TABLE OF CONTENTS

Chapter One Introduction
Chapter Two Standards of Review and Federal Court Remedies
Chapter Three Topical and Sequential Evaluation Outlines
Chapter Four SSR 96-1p: Application by the Social Security Administration (SSA) of Federal Circuit Court and District Court Decisions
Chapter Five SSR 96-2p: Giving Controlling Weight to Treating Source Medical Opinions
Chapter Six SSR 96-3p: Considering Allegations of Pain and Other Symptoms in Determining Whether a Medically Determinable Impairment Is Severe
Chapter Seven SSR 96-4p: Symptoms, Medically Determinable Physical and Mental Impairments, and Exertional and Nonexertional Limitations
Chapter Eight SSR 96-5p: Medical Source Opinions on Issues Reserved to the Commissioner
Chapter Nine SSR 96-6p: Consideration of Administrative Findings of Fact by State Agency Medical and Psychological Consultants and Other Program Physicians and Psychologists at the Administrative Law Judge and Appeals Council Levels of Administrative Review; Medical Equivalence
Chapter Ten SSR 96-7p: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual’s Statements
Chapter Eleven SSR 96-8p: Assessing Residual Functional Capacity in Initial Claims
Chapter Twelve SSR 96-9p: Determining Capability to Do Other Work — Implications of a Residual Functional Capacity for Less Than a Full Range of Sedentary Work
Chapter Thirteen The Role of Reliable Vocational Information at the Social Security Administration
Chapter Fourteen The Dictionary of Occupational Titles, Structure, History, Reliability, and Validity
Chapter Fifteen Other Sources of Vocational Data
Chapter Sixteen Vocational Information and Analysis at Step Four of the Sequential Evaluation Process
Chapter Seventeen Vocational Evidence at Step Five of the Sequential Evaluation Process
Chapter Eighteen Transferability of Skills Analysis
Chapter Nineteen Attacking Vocational Expert Testimony
Chapter Twenty Vocational Expert Testimony on the Number of Jobs Available at Step Five

ABOUT THE AUTHORS

Attorney David Traver earned bachelor and master degrees in vocational rehabilitation with an emphasis in vocational evaluation. Professional rehabilitation employment included supervising a large vocational evaluation department where he earned a national award for outstanding rehabilitation program of the year. He worked as a government personnel manager before attending law school at the University of Wisconsin. He began practicing disability law in 1992, and is licensed only in Wisconsin.

Traver is a sustaining member of the National Organization of Social Security Claimants’ Representatives [NOSSCR]. He was awarded the Eileen P. Sweeney Distinguished Service Award by NOSSCR in 2010.

In addition to representing hundreds of claimants at the Social Security Administration, Traver has represented claimants in more than 560 cases in United States District Courts. He has lectured extensively on topics in social security disability law since 2000.

In addition to representing hundreds of claimants at the Social Security Administration, Traver has represented claimants in more than 400 cases in United States District Courts.

Attorney David Ferrari earned a bachelor’s degree in history from the University of North Florida and a Juris Doctorate Cum Laude from Nova Southeastern University Law School in Florida. He is a member of the Massachusetts Bar and the Federal District Court of Massachusetts Bar. David began practicing Social Security Disability law in August 2005.

Ferrari served as the Chairman of the Federal Bar Association, (FBA) Social Security Law Section from 2015 to 2018. The FBA is a nonpartisan federal attorneys and judge’s bar association. Chairman Ferrari lobbied in Washington, D.C. for betterments to the SSA system. One continued effort is to have Automated External Defibrillators (AEDs) placed in all SSA OHOs.

Ferrari is a continuous sustaining member of the National Organization of Social Security Claimants’ Representatives, [NOSSCR] since 2009. He served as a moderator for a NOSSCR conference seminar on HITECH and as a volunteer lobbyist to Congress for NOSSCR’s political action committee.

In addition to representing over 1,141 claimants at Social Security Administration disability hearings in 46 states and D.C. from 2007 to present, Ferrari has written numerous winning pre-hearing OTRs and Appeals Council briefs. Further, he has coordinated several winning federal district court cases with other lawyers in the United States District Courts and has filed several of his own in the District of Massachusetts Court that are awaiting decisions. His first solo federal case concluded with a voluntary remand by SSA. His second District of Massachusetts case is Mercado v. Saul (May 26, 2020), which includes a Lucia remand.