Tips for Effective Hearing Representation

Recently attended a lecture by seasoned SS attorneys Sarah Bohr and Charles Martin, who have handled AC and fed ct appeals for about 30 years each. Here are some tips that they provided for effectively representing a claimant at ALJ hearings:

1. Give theory of case - address the sequential evaluation process
- is claimant working?
- does claimant have medically determinable impairments that significantly affect functioning?
- does claimant's impairment meet listings?
- why can't claimant do PRW? what specific demands of EACH job can claimant not do? what limitations preclude PRW? what MDI causes limitations? what medical opinions demonstrate limitations? what medical signs or lab findings support limitations?
- why can claimant not perform other work? does any Grid rule direct finding of "disabled"? does any limitation preclude application of the Grids? which limitation? what evidence supports limitation?

2. Identify source of each critical element. Prepare an accurate and complete summary of evidence for the ALJ (in advance of hearing).

3. Claimant's testimony. This must be used with medical evidence to establish specific functional limitations, to establish limits of RFC. Don't elicit testimony about the pain scale (this is useless) or other subjective issues. Concrete and specific functional limitation evidence is what's needed.
- ask about effects of medical treatment
- address significant negative factors (e.g., medical noncompliance, daily activities that appear inconsistent with stated limitations, etc.)
- ask about the vocational impact of the claimant's symptoms
- get claimant to describe why he/she can't do PRW
- prove that a job isn't PRW (e.g., earnings insufficient, duration insufficient)
- prove PRW was composite job (ALJ must consider claimant's ability to handle most exertionally demanding part of such jobs)
- prove mental symptoms are disabling (see POMS DI 25020.010A.3b) - develop evidence regarding each of the PRTF elements; almost every case has mental impairment elements (if you don't mention them, you've missed them!)
- establish limits of ADL's (e.g., if claimant says he reads books, then clarify dates, type of book, frequency of reading, amount of time per reading session, problems with comprehension, etc.)
- examine the record and get claimant's testimony regarding gaps in medical treatments
- "operationalize" the claimant's pain (e.g., elicit testimony regarding the specific impact of pain on the claimant's ability to operate or function during the day)

4. Lack of literacy. Claimant must be able to both read AND write in English to be literate.
- prove deficits in adaptive functioning with school records

5. VE's. Do's and Don'ts"

- ALWAYS ask for DOT codes for ALL jobs!!
- NEVER question a VE who has NOT testifed adversely to your client!!
- Ask hypotheticals with specific functional limitations caused by claimant's symptoms!! (BTW, "moderate" limitations are severe by definition)
- Get the VE to say "no jobs"!! (always ask VE the impact of claimant's testimony)
- ALWAYS be prepared to ask your own hypo to the VE!! (they should include the claimant's serious limitations, supported by the evidence)

6. Transferable skills. Skills can ONLY be transferred to same or lower skill level (SVP level; and worker function rating - identified by middle three digits of DOT number for a job).
- SVP 3 skills usually do not give rise to transferable skills
- Age interferes with transferable skills
- Transferability can only be found if there's very little vocational adjustment for claimant's over age 55
- medical limitations can affect transferability of skills (e.g., poor vision might prevent ability to interpret blueprints, CTS might prevent word processing, a stroke might cause IQ loss, etc.)

7. Other jobs (Step 5). Challenge the VE's incidence of other jobs. They're often disproven numbers. Subjects to ask the VE about job incidence:
- can you identify every data source you consulted in arriving at job incidence?
- are you aware of any limitations that the publisher of this data has placed on the accuracy?
- what percentage of jobs are SVP 1 and 2? Show me ...
- can you provide me with notes you made in preparing for your testimony today? when did you make these notes? before or after you reviewed the file? before or after the claimant's testimony?
- isn't it impossible for you to remember every detail of every job you have observed, the conditions under which it was observed, and the purpose of the observation?
- what methodology did you use to get from the published data you consulted to the job incidence or numbers that you testified about today? what's the mathematical formula you used? can you show me your calculations? why use this formula and not any other ones?

Contributed by James W. Keeter, Esquire