FROM THE PRESIDENT…€¦ · 2 2016 NETWORKING WEEKEND PCI, ˝e Postcard Inn, was the perfect setting for our 2016 Networking Weekend! When you walk into the place, you immediately

4TH QUARTER, 2016NADR NEWS

FROM THE PRESIDENT…When I started writing this article my mind immediately went to the Networking Weekend held in St. Petersburg, Florida this past October. What a great time! One of the sessions that struck me as particularly memorable was Taming the Digital

Chaos – presented by Debbie Foster with A�nity Consulting Group. She spoke about managing our electronic lives. Being serious and humorous at the same time, she identi�ed many of the errors that I personally make with all of the electronic interruptions in my daily work life. I learned some great tips and I am looking forward to our next networking event. I won’t spoil the announcement, but I will tell you that there are some great plans in the works for 2017! We historically host the Networking Weekend in October, so pencil it in for 2017.

As we are quickly wrapping up 2016, I am cautiously anticipating the changes that we will face in 2017 including a new President, a new Social Security Commissioner, and a host of new people in the legislative branches. With the future face of SSA unknown, I continue to encourage disability representatives within NADR to consider expanding their business models to include related business functions, such as representative payee services, Medicare �nancial planning, return to work assistance, etc. Additionally, we’ll have our own changing of the guard on the NADR Board of Directors in September. NADR has been lucky to have a core group of people who have consistently supported this organization for many years with their time and e�ort. While their institutional knowledge and experience are very much appreciated, I would love to see some fresh faces step up and get involved with the governance of NADR. From task force work, to serving on

a standing committee, or putting your hat in the ring for the Board, there are many opportunities to serve this great organization.

�e Association Management Team (Eva, Julie and RaeAnn) recently hosted a Generation X and Y conference call to collaborate with the next generation of NADR leaders on some upcoming e�orts to get young professionals more actively involved. �at’s what we need! What I would like to see is a member task force that would brainstorm and present new ideas, including expanding NADR’s umbrella of services. It is my opinion that expanding our services and our knowledge base would increase our political weight, organizational stability, and of course it would increase our membership numbers. If you are interested in being part of this group please let me know. We hope to get behind this initiative in a more substantial way in 2017.

In looking forward, please consider joining us in Reno, Nevada for the 2017 NADR Social Security Law Conference. I want you to know that the conference committee has been working diligently to create an exciting lineup of excellent speakers and pertinent topics for attendees. One thing that may be of interest to you is that our host hotel, Whitney Peak, is a non-gaming, non-smoking, property, which is unique in Reno. However, there are casinos, restaurants, shops, and the newly developed Reno Riverwalk District, all within the surrounding blocks. I believe Lake Tahoe is about an hour drive from Reno, with world-class snow skiing and other outdoor adventures to explore. If you can, plan to come early or stay after the conference to experience all that Reno and the surrounding area has to o�er. Either way, I can promise you that the 2017 conference will be a Game Changer!

(Continued on page 5)

NADRBoard of Directors

2016-2017

PresidentSteve Skinner, ADR

Redding, CA

Vice PresidentPhilip Litteral, ADR

Ashland, KY

SecretaryBarbara Manna

Pittsburgh, PA

TreasurerMichael Wener

Memphis, TN

Directors-at-Large

Chris BoggsLexington, KY

C. Greg CatesMemphis, TN

Mary Perry Rochester, NY

Randy PersadPortland, TX

Board of Directors2014-2015

PresidentRobert McDowellElizabethtown, KY

Vice PresidentSteve SkinnerRedding, CA

SecretaryPhilip LitteralAshland, KY

TreasurerMichael WenerMemphis, TN

Directors-at-LargeKaren StarrGrand Rapids, MI

Greg CatesMemphis, TN

Patty SextonWauna, WA

Barbara MannaPittsburgh, PA

NADR National Office

AdministratorsEva [email protected]

Julie [email protected]

NADRPO Box 96503Washington, DC 20090-6503Phone: (202) 822-2155Fax (972) 245-6701Web Site: www.nadr.org

NADR National OfficePO Box 96503 #30550

Washington, DC 20090-6503

Stay up-to-date with current newsregarding NADR and follow us onLinkedin, Facebook and Twitter

The NADR News is published by the National Association of Disability Representatives















Washington, DC 20090-6503

2

2016 NETWORKING WEEKEND

PCI, �e Postcard Inn, was the perfect setting for our 2016 Networking Weekend! When you walk into the place, you immediately sense the retro surfer vibe – it was like taking a step back in time. �e grounds were beautiful! Stretched between the lobby and the beach there was this amazing green space with ping pong tables, the coziest loungers, palm trees, garden lights, pool, and beach bar complete with a tiki hut. Most of our rooms were courtyard facing, so you could step out and see what was happening all around. Now that you understand the scenery, you’ll be able to better visualize how the weekend went down.

From small group breakfasts in the restaurant, to beers over lunch at the bar, to sunbathing in beach cabanas, I think we successfully married “light” education with some much needed recharging for the attendees. �ursday evening, we kicked the event o� with a Meet n’ Greet at the Postcard Inn Canteen and Courtyard. We were thrilled to see so many new faces and quickly reconnected with our “NADR family”. �at night, we met up at “Level 11”, a rooftop lounge with a panoramic view of St. Pete Beach.

Friday morning we hosted breakfast and jumped right into a session led by Debbie Foster with A�nity Consulting Group called Tame the Digital Chaos: Time, Task and Email Management. We thought this was a very timely topic – aren’t we all inundated? Don’t we all struggle to keep it organized and under control? Debbie provided the group with some wonderful tips to help gain control of our work days and feel more productive in the end. Karl Osterhout also led an update and group discussion about the ACUS report on federal court appeals and how it impacts representatives. In terms of education, that was it! Beach time!! Friday night we hosted a group dinner in the tiki hut at sunset, Jimmy Bu�et style! �e winner of the costume contest was…drum roll please…Christopher McKee!! And honorable mention was Dave Chermol – ask him about his costume the next time you see him.

Paul DeRanek, Bob McDowell and Phil Litteral share a laugh over breakfast.

Attendees and guests met up at several locations at the hotel to relax, and chat about work, family and life.

�e Postcard Inn Beach Bar was another popular place to visit and recharge!

Debbie Foster with A�nity Consulting gave a thought-provoking presentation on ways to stay organized and e�cient! Now we know not to “boil the ocean”.


3

2016 NETWORKING WEEKEND (Continued from page 2)

Between networking conversations in the lobby, a group outing to the Escape Game, group lunches, sunset cruises and all that the Gulf Coast of Florida has to o�er, the setting was perfect for relaxation with a side of business. We even had a very competitive Cornhole Tournament in which Chris Boggs and Greg Cates took 1st Place among many serious contenders (and some not so serious).

We hope to see all of our usual suspects and those of you who have never attended an NADR networking event next year at our 5th Annual Networking Weekend! Stay tuned for more information!

Eva Sirman & Julie Phelps

Randy Persad presents the “Best Dressed” award at the Jimmy Bu�ett themed Bu�et to Chris McKee. Look at that sunset!

�e best NADR group sel�e ever! Credit to Carletta Gri�n, who took this on an evening cruise that several of us attended.

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4

WINNING CASES AT STEP 5: HAND-HELD ASSISTIVE DEVICE


As a representative, you should take advantage of the opportunities that may occur when the claimant requires the use of a held-held assistive device (cane, quad cane, walker, rolling walker). If there is medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed, you have a fabulous piece of evidence to LEVERAGE. SSA doesn’t seem to explicitly express that the medical documentation must be in the form of a prescription or written statement by a doctor or other acceptable medical source. �erefore, the argument exists that the medical documentation could be from a physical therapist or other non-acceptable medical professional. So, be creative. Perhaps even a statement contained in a handicapped parking permit signed by a physician might su�ce. In some states, a physician will certify that the applicant is a person with disabilities which limit or impair the ability to walk 200 feet without stopping and without the use of an assistive device. Of course, if the claim is before an ALJ No Pay, the more airtight the evidence, the better. In this case, a written statement/prescription signed by the treating doctor would be preferable.

�e need for a hand-held assistive device is a method of medical treatment when authorized by a medical professional. You want the claimant’s written statements and oral testimony to be consistent with the need and the use of the hand-held assistive device. �e claimant should be clearly instructed to be using their hand-held assistive device at the hearing. Warning! Don’t let them leave it at home. Just because they may be able to intermittently walk for a short distance doesn’t mean it’s to their advantage to have the judge see them do it.

Occasionally, you’ll see some push back from ALJ No Pay who will on his/her own determine that the hand-held assistive device is not needed for various reasons. Some ALJs will interpret a written statement concerning the need for a hand-held assistive device as a medical source statement and thereby subject to the ALJ’s discretion about credibility and controlling weight. Doctors don’t prescribe canes and walkers as a matter of issuing medical source statements; they prescribe canes and walkers as methods of treatment. Judges are not quali�ed medical professionals to determine that prescribed medical treatment is not reasonable or is not needed.

Sometimes the consulting examiners, those unbiased medical professionals who perform the quality consultative exams for the State Agency, may report that the individual was able to ambulate without a cane. So what? Again, your position is that the need for a cane is not a medical source statement; it is a method of treatment. If there is medical documentation that a cane is needed, it should not be negated by a vague statement by

a consulting source that the individual was able to ambulate a short distance in a small o�ce during a �ve to ten minute exam without falling down. For instance, an individual may require a prescribed knee brace for ambulation, but that doesn’t mean that the individual is totally unable to walk for a brief period of time without it or should do so.

Be prepared to take advantage of opportunities that will often be presented from the sloppiness of ALJ No Pays and their partners in crime, the vocational experts (VE). First, the disclaimer: nothing works every time but if this evidence is leveraged correctly, it should help to win some additional cases for you.

Judges seem to be in love with providing the VEs the exertional level at step 4 of the Sequential Evaluation Process without providing the required function-by-function assessment. At step 4 the residual functional capacity must not be expressed initially in terms of the exertional categories of “sedentary,” “light,” “medium,” “heavy,” and “very heavy” work because the �rst consideration at this step is whether the individual can do past relevant work as he/she actually performed it [POMS DI 24510.006(C)(2) and SSR 96-8p]. If needed, ask the ALJ to clarify the amount of sitting and standing/walking. If the ALJ’s hypothetical limits the individual to the light exertional level, you want the ALJ to clarify that it limits the individual to sitting 2 hours out of an 8-hour workday and standing 6 hours out of an 8-hour workday.

�is is important! If the ALJ’s hypothetical limits the individual to the sedentary exertional level, you want the ALJ to clarify that it limits the individual to sitting 6 hours out of an 8-hour workday. It’s been my experience that when it comes to de�ning the amount of sitting required to perform sedentary work, most of the judges will describe it as sitting 6 hours out of an 8-hour workday. However, according to SSA and the DOT that is not exactly how sedentary is de�ned.

Vocational experts often will testify that the need for a cane would preclude many of the jobs performed at the light exertional level. �is will happen more frequently when the individual needs the cane for standing, walking, balancing and transferring in and out of a seated position. You should be prepared to follow up adverse VE testimony with questions about the bilateral manipulative requirements of the jobs cited as de�ned by the DOT. �en pose an additional hypothetical; assume the individual needs to grasp a cane in their dominant hand while on their feet standing or walking leaving only one hand for job functions. Many times this will result in favorable VE testimony that will eliminate any jobs cited.

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FROM THE PRESIDENT… (Continued from page 1)

As we close out the year, I would like to acknowledge some of our greatest contributors: Art Kaufman, Scot Whitaker, Bob McDowell, Carletta Gri�n, Jeanne Morin, Lou Eno� and of course our NADR Board of Directors. �eir combined e�orts are what have made NADR a successful organization. We look

forward to adding your name to this list!

Cheers!Steve Skinner, NADR President

WINNING CASES AT STEP 5: HAND-HELD ASSISTIVE DEVICE (Continued from page 4)

Some VEs will even say that the need for a cane for standing, walking, balance and transferring in and out of a seated position would preclude sedentary jobs but most will testify otherwise. If the VE testi�es that the sedentary jobs cited can be performed with very little or no standing/walking, look closely to see if the testimony is consistent with the limitations in the ALJ’s hypothetical. Very little or no standing and/or walking, less than 2 hours, would be inconsistent with the judge’s hypothetical limiting the individual to sitting 6 hours out of an 8-hour workday. It is very important that you ask the VE the “magic question”; it is correct that in responding to the ALJ’s hypothetical questions you did not consider any factors or limitations beyond those identi�ed by the ALJ, correct?

Avoid a trap. When VEs hear sedentary, they typically think of the DOT de�nition of sedentary work which involves sitting most of the time, but may involve walking or standing for brief periods of time, and walking and standing are required only occasionally and all other sedentary criteria are met. Some VEs will use this de�nition to support jobs that can be done entirely from a seated position or nearly so. However, if the ALJ’s hypothetical has limited the individual to sitting 6 hours out of an 8-hour workday, any jobs which require a greater amount of sitting are inconsistent with the hypothetical. If that happens, you should have a very good post-hearing argument. Overall, we have had very good results from leveraging the medical evidence of a hand-held assistive device. When a

client tells us that they can’t be on their feet long and they are signi�cantly limited in walking or standing, we strongly encourage them to discuss this with their doctor and request a prescription for a cane.

Fellow NADR member Michael Liner, recently shared that he had found that when it comes to purchasing canes many doctors just tell their patients to go to the drug store to purchase it. Instead, he insists that his clients ask for a prescription for the speci�c purpose of getting their insurance to cover the cost. He has gotten excellent results from using this approach.

If the VE insists that the jobs cited could be performed despite the need for a hand-held assistive device, ask if this means that the hand-held assistive device is being allowed or “accommodated” by those employers while others don’t do so.

In closing, nothing works every time but if the claimant has medical documentation establishing the need for a hand-held assistive device it can be a huge advantage if leveraged properly.

Bob McDowellPast President of NADRMcDowell, Stromatt & Associates

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WHICH 2017 CONFERENCE SESSION WILL BE YOUR GAME CHANGER?

Play or Get Played: Dave Chermol’s Guide to Killer VE Cross-Examination features everything he preaches about on the Talklist including the all-important “magic question”. Learn what mistakes he sees representatives make and how to protect your client’s appeal rights.

New House Rules - Mental Listing Update: Karl Osterhout will discuss what you need to know about changes to the 12.00 listing and how to use the changes to win your cases!

Winning Claims at the Initial Level When the Deck is Stacked Against You: Increase your initial level winnings! Dissect multiple examples of ways to win cases at the initial level using speci�c techniques when completing SSA forms.

Best Practices - Medical Record Retrieval and Submission: Is your process for collecting medical records the most e�cient? Learn about tried and true records retrieval and review processes. �e discussion will also include speci�c information about HITECH which may allow representatives to get records at no charge, and the all evidence/�ve day rules.

�e Pre-Hearing Brief - Your Ace in the Hole: A look at a step by step winning format for hearing briefs that will e�ectively lay out the issues and your argument before the ALJ and give your client a better chance for approval.

Document Hacks - Little Known Ways to Utilize Adobe Software: �is presentation will show the quickest way to upload and download Agency �les and focus on the transfer process using the power of Adobe software to get what you want from the �les!

E�ective Representation at the Appeals Council Level: Providing you with tools for winning AC arguments and techniques for preparing for remands.

Short Term, Long Term and Social Security; �ree of a Kind: Learn the interrelationship between ERISA and Social Security disability claims, the processes and procedures of these claims and common de�nitions of “disability” in such cases which will ultimately allow you to better understand the issues involved when short-term or long-term disability claims apply to your client’s Social Security disability claim.

VA Bootcamp: Back by popular demand, Tim Klob will cover VA Disability issues for those members who handle VA claims or are interested in another revenue source. �is session will speci�cally focus on impairment ratings and how they apply to the overall claim.

In addition to the sessions listed, we will have speakers from SSA to update us on agency policy and goals as well as an update from our Legislative Team – perhaps more important this year than any other! New this year: Take advantage of

“Resource Roulette” as a breakout option! �is is an opportunity for you to meet other attendees from your region and visit various NADR Sponsors. Plan to network together and learn more about products and services that can provide business

options that allow you to better serve your clients. Walk away from this fast-paced session with several game-changing take-aways! Finally, EDPNA CEUs for 2017 will be covered on Wednesday, 3/8!

Plan to arrive early on 3/5 for an opportunity to meet other attendees and take part in some of the optional activities!

Go to www.nadr.org for more information and register before 2/1 to take advantage of the $100 early-bird discount!

See you in Reno!

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NEW MEMBER SPOTLIGHT – EVA CONNERWhat is your vocational background prior to representation? I am an attorney. Before I started working in the disability �eld, I worked in the �eld of civil litigation, with a focus in corporate defense and insurance defense.

How long have you been a representative? I have been an attorney for three years. I’ve only started doing Social Security Disability in the past year.

How did you get involved in representation? It’s a family business. My father is an attorney, and he only did Social Security Disability work for the last few decades of his career. My sister is a non-attorney representative. I am lucky enough to work with them, and they have been great teachers.

What made you decide to become an NADR member �e Talklist. My sister recommended joining NADR, and she forwarded me a couple of the Talklist digests to read. I joined the same day.

What do you hope to get out of your NADR membership? I will de�nitely keep using the Talklist as a resource. As someone who recently jumped into the �eld of Social Security Disability, the knowledge exchanged on the Talklist has been invaluable. I also hope to go to some of the conferences soon to meet other people in the �eld and to keep learning that way as well.

8

In my experience writing Social Security appeals for other lawyers and advocates for the past 20 years, I have reviewed hundreds of transcripts which often include cross-examination of medical and vocational experts. I am compiled this list of questions to ask these experts with the hopes of strengthening your cases before the ALJ and any subsequent appeals.

Medical Experts. Even if a medical expert (“ME”) has provided potentially damaging testimony in your case, you can often make some points with e�ective cross-examination. At a minimum, seek to get the ME to con�rm that the claimant’s symptoms are consistent with his or her medical condition and that an examining source will always have more information at hand than a non-examining source. Here is my list of questions to ask MEs:

1. ME quali�cations - Always ensure that the record has the current quali�cations of the ME and review and seek to verify any questionable credentials prior to the hearing. A colleague informed me of a Miami ME who claimed he was a professor at a university when, in fact, he only volunteered to teach a few classes for a friend who was the actual professor and he was never an employee or contractor for this university. So if warranted, question the ME about his/her quali�cations. For example, if an ME is not a psychologist or psychiatrist, s/he lacks the expertise to comment on the mental health aspects of a case or if the ME is an internist, s/he may not have the quali�cations to address your claimant’s cardiac impairment. If the ME is not a specialist or not the correct specialist for the claimant’s impairments and the claimant is seeing a specialist – Isn’t is true that a specialist be in a better position to evaluate the severity of this type of impairment?

2. Importance of personal examination - Is it accepted practice to diagnose a patient without examining the patient? Isn’t it true that since you have never examined the claimant, that a doctor who has examined him/her would be in a better position to determine his/her functional limitations?

3. Protocol for treatment notes – Do treatment notes include an exhaustive description of a physician’s observations and knowledge regarding a particular patient? Isn’t it true that doctors do not write everything in progress notes? For example, if the doctor is a hand specialist, he or she will focus on that and may not note that the client has back problems or other medical problems. Treatment notes are

not designed to record a doctor’s opinions regarding a claimant’s work- related functional abilities, are they?

4. Knowledge of the case - Is your testimony based on a page- by-page review of the entire record? Ask the ME about favorable evidence with which the ME may actually be unfamiliar or may have overlooked or failed to mention (such as MRI reports not mentioned or �ndings on examination not referenced). Has the treating physician provided treatment consistent with the standard of care for this impairment? If not, what other types of testing or treatment would you have recommended? Would further examinations be helpful or necessary to reach a fair and accurate assessment? [Note: �is could help provide a basis for a consultative examination].

5. Claimant’s symptoms - Does the claimant appear to have the symptoms that he/she is alleging? Are the claimant’s symptoms consistent with the claimant’s underlying medical condition? Does the record document the presence of the claimant’s impairments? Are the alleged limitations inconsistent with these medical conditions? If the claimant has an impairment like Chronic Fatigue Syndrome, lupus, or �bromyalgia, which are diagnosed by excluding other causes of symptoms, ask the ME to con�rm that in such cases, normal �ndings on examination are expected.

6. Treating physicians - Establish that the treating physician’s �ndings and opinions are not inconsistent despite di�erent terminology or focus. In cases where the ME is local, ask if the ME knows your claimant’s doctor. If so, you may be able to obtain an admission that the treating doctor is well respected in the community.

Vocational Experts. Unlike expert witnesses who normally testify in contested federal court proceedings, vocational experts (“VEs”) are not truly “experts” as there are no standards that they have to meet. As a result, it is important to seek to highlight the VE’s background and actual expertise in preliminary questioning. Advocates should always consider objecting on the record if the VE provides apparently faulty information. In cases where the VE testimony is unsupported, a good strategy is to obtain your own VE to evaluate the claimant to submit as rebuttal evidence. (�ese reports can be obtained for around $400.00). Here is my list of questions to ask MEs

TIPS FOR EFFECTIVELY CROSS-EXAMINING MEDICAL AND VOCATIONAL EXPERTS


9

TIPS FOR EFFECTIVELY CROSS-EXAMINING MEDICAL AND VOCATIONAL EXPERTS (Continued from page 8)

1. VE quali�cations - Always ensure that the record has the current quali�cations of the VE and review and seek to verify any questionable credentials prior to the hearing. A colleague informed me of a VE who lied on her CV regarding her certi�cation which had expired in 2008, and this VE had no other quali�cations other than testifying at other Social Security hearings as she had never worked as a VE in the �eld and her degree was not in any related area. So if warranted, question the VE about his/her quali�cations. Also, spend about �ve minutes maximum, if necessary, to get at the VE’s experience by asking what they studied in college and any trainings they have attended. Also ask questions about the VE’s experience with successful placement of clients in jobs to show their limited experience.

2. Past relevant work - VEs often use the term without considering the regulatory requirements, i.e., the work must have been performed “within the last 15 years, lasted long enough for you to learn to do it, and was substantial gainful activity.” 20 C.F.R. §§ 404.1565, 416.965. Do not assume that all past work is, in fact, “past relevant work.” �e job must have been performed long enough to learn the duties, so if the DOT lists a job as entailing a year or more to learn and the claimant only performed it for six months, it is not be past relevant work. Or if the job was not performed at SGA levels, it is not past relevant work.

3. Composite jobs - If the claimant has performed a “composite job,” always ask about the di�erent job numbers for the di�erent duties performed. A composite job in one which entails duties which are performed at di�erent exertional levels. See SSR 62-61 (“[c]omposite jobs have signi�cant elements of two or more occupations and, as such, have no counterpart in the DOT. Such situations will be evaluated according to the particular facts of each individual case”). POMS DI25005.020 discusses composite jobs and provides that:

• If you can accurately describe the main duties of PRW only by considering multiple DOT occupations, the claimant may have performed a composite job. • If you determine that PRW was a composite job, you must explain why. • When comparing the claimant’s RFC to a composite job as it was performed, �nd the claimant capable of performing the composite job only if he or she can perform all parts of the job.

• A composite job will not have a DOT counterpart, so do not evaluate it at the part of step 4 considering work “as generally performed in the national economy.” • At step 5 of sequential evaluation, a claimant may be able to use skills he or she gained from a composite job to adjust to other work.

4. DOT job numbers - Always ask the VE to provide the Dictionary of Occupational Titles (“DOT”) job numbers of both the claimant’s past work as well as any other jobs cited by the VE. Also get the VEs to admit that the existence of a DOT code number does not mean that the job currently exists. Know how to read the DOT, and its companion publication, the Selected Characteristics of Jobs (“SCO”) and be prepared to cross-examine from the DOT. It is not uncommon for the VE’s testimony to con�ict with the DOT. It is very important to always fact-check the VE’s DOT citations. For example, jobs cited as sedentary may actually be light and jobs cited as unskilled may actually be semi-skilled, etc. SSR 00-4p requires that the ALJ ask if the VE’s testimony is consistent with the DOT and, if not, resolve this con�ict in the decision. If the ALJ does not, be sure and ask the VE whether his/her testimony is consistent with the DOT. Remember that all VE cross-examination and objections MUST be done while the hearing record is still open, either during the hearing or in a post-hearing memorandum/brief.

5. Sit/stand option - If this is an issue, ask questions which break it down with “x” minutes sitting, followed by “x” minutes standing. What if instead of standing, the claimant had to walk for 2-5 minutes? Would that make a di�erence? (Usually VEs will testify if a person has to walk, they are leaving the work station and cannot perform the job).

6. “Low-stress” jobs - Often, there is support for a limitation related to stress but the ALJ has not explicitly incorporated it. In cases where a VE asserts that a variety of “low-stress” occupations could be performed, the VE should be pinned down carefully about how exactly such an occupation is being de�ned. Since stress is not an inherent characteristic of work but an individual’s response to a situation, it may well be that this particular claimant would have great di�culty performing the work identi�ed regardless of whether it is considered low in stress as a generic matter. See SSR 85-15. Ask the VE about a hypothetical individual who needs to avoid the speci�c sorts of situations suggested by the record at hand.

(Continued on page10)

7. Absenteeism - Always ask about permissible rates of absenteeism (number of days absent per month an employer will tolerate).

8. Prepare your own hypothetical questions – Always prepare your own hypothetical question which must be based on the evidence of record. Do not waste time asking for extreme scenarios that are obviously akin to total disability (e.g., can only sit/stand/walk a total of 2 hours and must lie down the rest of the time, etc.). It is much more helpful to seek to have the VE admit that much lesser limitations not asked by the ALJ would have an impact. Make sure you do not lump all limitations together in one question. Ask questions which break out key limitations from treating physicians and/or helpful limitations found by a consultative examiner and/or State agency medical consultant and ask the VE whether these limitations support a �nding of no disability. It is important to ultimately ask a question or questions to which the VE responds that there is no work that the claimant can perform. Always ask the VE if the claimant were credible, can s/he perform any work and to explain the basis for such an opinion. When a VE responds that there is no work, ask him/her which limitations were most crucial to such a �nding, so these limitations are clear from the record.

9. Numbers of jobs - It is important to cross the VE to determine where the data about job numbers really came from, along with the VE’s likely limited (if any) familiarity with the validity/reliability of the data and lack of direct knowledge to support the data. Many VEs rely on the Occupational Employment Quarterly or the Department of Labor/Bureau of Statistics materials combined with experience and surveys to come up with job numbers. In such cases, it becomes wholly unclear as to the source of the job numbers. �us, it is important to obtain a speci�c publication title/date for every material cited by the VE and fact check this testimony. If the VE is using computer software, such as Job Browser, try and get the VE to admit that s/he has no idea how the software works and that anyone could buy the program to provide the same data the VE testi�es to, so no expertise is required. Seek to get the VE to admit that the software is proprietary and is not open to public/scienti�c scrutiny, and that the data of which the alleged

job numbers are a subpart is just an aggregate total with no indication of how an individual occupation within the category contribute to the total. If VE the uses Job Browser software, determine which version they are using. �ere are two types of Job Browser. Job Browser (standard) does NOT contain job numbers. So if a VE cites this for job numbers, s/he is guessing or combining this with some other material. Job Browser PRO does contain job numbers which are usually very low and these �gures, combined with the margin of error, are a good line of questioning. For example, if the VE testi�es that there are only 200 of a particular type of job performed in Florida, with the margin of error, could that be less than 200? Could it be 0?

10. Post-hearing development - If warranted, obtain post-hearing statements/questionnaires from doctors corroborating limitations in hypothetical questions which support a �nding of no jobs. Also, if you discover after the hearing that the VE’s testimony was in con�ict with the DOT or was inaccurate for any other reason and did not bring this up in questioning during the hearing, be sure and point this out in a post-hearing memorandum/brief before the record is closed. In most courts, it is too late to wait to address such matters at the Appeals Council level and in federal court.

Sarah H. Bohr is an appellate attorney who has specialized in Social Security law for over 30 years and is a frequent speaker at national conferences including several NADR conferences. She previously worked for 20 years as a legal services attorney and is now a partner in Bohr & Harrington, LLC, a Jacksonville, Florida law �rm o�ering a national Social Security brief writing service. Sarah has written briefs for �ling in district courts all across the country as well as in most circuit courts of appeal and successfully argued Sims v. Apfel, 530 U.S. 103 (2000) before the Supreme Court. She is a published author with James Publishing of Bohr’s Social Security Issues Annotated ((800) 440-4780 or www.JamesPublishing.com) and four other publications ((904) 246-7603 or www.SarahBohrPublications.com ).

TIPS FOR EFFECTIVELY CROSS-EXAMINING MEDICAL AND VOCATIONAL EXPERTS (Continued from page 9)

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Tell us about your representative business? My company, Adams and Associates Disability, Inc., specializes in Social Security disability representation. Our mission statement is to be, “A Voice for the Disabled with Honesty, Integrity and Compassion”. At the present time we have a case a load of approximately 500 clients, which are served by 3 full-time and one part-time employee. I was a vocational expert for 19 years and now I have been a Social Security Disability Representative for 20 years. I’ve had the opportunity to experience Social Security from several angles and I seek to utilize that experience to provide my clients with quality representation. We seek to develop the claims, research them thoroughly and present them with a high level of preparedness and professionalism.

How long have you been a ADR? Since the inception of the designation in 2009.

Why did you choose to pursue an Accredited Disability Representative designation? ? I want to promote the integrity and competence of non-attorney disability representatives. I believe that this is critical if we are to survive as a profession and not lose our ability to represent claimants before the Administration. Becoming an ADR is a step in that direction.

How has the ADR designation bene�ted you? How has it impacted your professional growth? I have consistently communicated with the judges that I see on a regular basis that I am a member of NADR and I am an Accredited Disability Representative. I want the judges to know that I am dedicated and serious about representing my clients to the best of my ability. My goal is that my advocacy for my client rivals the best of attorneys. As a vocational expert over 19 year period of time I have observed hundreds of attorneys and non-attorney representatives and I have testi�ed in thousands of hearings. I have unfortunately witnessed many claimant’s not being served well because of lack of preparedness, lack of experience, lack of knowledge of the law and lack of training. In numerous cases I have seen the ALJ forced to

overlook the inexperience of the representative in order to ensure a fair hearing for the claimant. �is was troubling to me as a vocational expert and more troubling to me as a representative. �is is the impetus that drives my dedication to competence.

In what ways do you display/use your ADR designation? I do a brief for every claimant I take to hearing. At the end of that brief and at the end of every correspondence with SSA, I sign my name with the “ADR” designation and then spell it out under my name “Accredited Disability Representative”. I want the ALJ and the Administration to know that I belong to a professional organization dedicated to promoting the integrity of my profession and that I am regarded by my peers as having met the competency and ethical criteria for accreditation.

Tell us about one positive aspect of being an ADR that you would stress for members considering the designation? I want to win. I want to win the hearing for the sake of my client. I want to win the respect of the judges for the sake of my reputation, my future clients that will be heard before these ALJs, the reputation of NADR and the reputation of my chosen profession as a non-attorney Social Security Disability Representative. I want to support the integrity of our profession for both attorneys and non-attorney’s. However, considering that there may be some bias on my part, non-attorney’s especially need to strive to overcome the inherent concern many ALJs have about non-attorney reps due to their lack of a legal degree. Becoming an Accredited Disability Representative is a positive step toward this goal.

ADR SPOTLIGHT - RANDY ADAMS

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MEDICARE 101It’s time to change your clients’ expectations of the SSDI process. Currently, most of your clients expect that you’ll win their case and bene�ts will ensue. But, what happens after that? Once your clients have received 25 SSDI payments, they will automatically be enrolled in Medicare. Health insurance problems solved? Not so fast! While Original Medicare is arguably good coverage, it has limitations which can quickly bankrupt even the most �nancially stable client.

�e Guts without the Glory:

Original Medicare has 2 parts: Part A & Part B.

Part A (Hospital Insurance): Part A covers hospital services, including semi-private rooms, meals, general nursing, drugs as part of inpatient treatment, and other hospital services and supplies. �e 2017 Part A deductible for an inpatient hospital stay of 1-60 days is $1316. Part A is an entitlement for most people, which means the monthly premium is $0.

Part B (Medical Insurance): Part B covers services or supplies that are needed to diagnose or treat a medical condition. �ese services include, but are not limited to physician visits, labs, x-rays, ER visits, outpatient surgery, etc. �e 2017 Medicare Part B deductible is $183. Once the deductible has been paid, Medicare will cover 80% of the cost for medically necessary services, leaving your client with the remaining 20% of the bill. �ere is no annual or lifetime maximum out of pocket; which can be problematic (see the last sentence of the opening paragraph). �e Part B monthly premium for most of your clients will be $109-$134, with a maximum premium of $428.60 for your a�uent clients with a joint annual income over $428,000.

Medicare Supplement (aka MediGap plan): O�ered by private insurance companies for an additional premium, on top of the Medicare Part B premium. �ere are 11 di�erent Medicare Supplement options (Plans: A, B, C, D, F, High Deductible F, G, K, L, M, N). Plan F is the most popular and most comprehensive; all costs remaining, after Medicare pays �rst, are paid by the Medicare Supplement Plan F. As long as a doctor accepts Medicare, there are no physician network limitations with Medicare Supplements. Typically, depending on your state of residence, Medicare supplements are available only to people

age 65 and older, or they are cost prohibitive for people under the age of 65. In other words, they are infrequently purchased by SSDI recipients.

Part D: Prescription drug coverage. Part D includes a monthly premium, typically a deductible ($400 in 2017), and co-payments or co-insurance for each prescription medication. Part D is easily the most discussed and confused part of Medicare. From an insurance professional’s perspective, Part D is the simplest part of Medicare. If you visit Medicare.gov, you can enter your zip code, list of prescriptions and preferred pharmacy, then Medicare.gov will rank all the plans in your state by estimated annual cost for your drugs. �is analysis can then be broken down by retail or mail order pharmacy, per prescription cost, etc. Medicare.gov makes the process of selecting a stand-alone prescription plan pretty simple.

Part C: Medicare Advantage Plans: Medicare Bene�ts Parts A (Hospital) + Part B (Medical) + typically Part D (prescription) = Part C (Medicare Advantage). In this case, Medicare bene�ts are administered by private insurance companies but funded by the Federal Government (Medicare). Rather than Medicare paying 80% of each medical bill as they do with Original Medicare, Medicare pays a monthly sum to the insurance company that your client chooses. Plans are available to any Medicare bene�ciary, regardless of age, and are o�ered on a county by county basis. Most Medicare Advantage plans follow HMO or PPO physician network limitations. In addition to the Medicare premium, many Medicare Advantage plans are available a no additional monthly premium. Unlike a Medicare Supplement Plan F, Medicare Advantage plans usually require their members to pay co-payments and/or co-insurance for most medical services. In order to entice people to enroll in a company’s plan versus the competition’s plan, many insurance companies o�er Medicare Advantage plans with additional bene�ts not o�ered by Original Medicare. �ese bene�ts can include, but are not limited to: dental, hearing and vision coverage, a free gym membership, an over-the-counter bene�t, 24 hour nurse hotline, a transportation bene�t, etc. Medicare Advantage plan marketing usually focuses on the typical Medicare bene�ciary, people age 65+. So, SSDI recipients are often unaware that these options are available to them. As a result, their SSDI income is eaten alive by the co-payments

12 (Continued on page13)

MEDICARE 101 (Continued from page 12)

and co-insurance left over after Original Medicare pays their portion. By enrolling in a Medicare Advantage plan, your clients can dramatically reduce their medical and prescription expenses, and receive additional bene�ts. It’s a win-win!

You have the ability to help your clients (as well as their family and friends on Medicare) choose a Medicare Advantage plan. Not only are you providing your clients with an additional, and much needed service, but you are also adding signi�cant income to your bottom line. You are able to help your clients with their Medicare options, and then receive �rst year, and renewal commissions, paid to you

by the insurance carriers. �is can grow to be hundreds of thousands of dollars in additional revenue, while once again improving the quality of life for your clients.

Submitted by Mark Snihurowych

Mark Snihurowych is the President of Disability Health Advocates, which specializes in helping Social Security Disability �rms and advocacy groups get up and running in the Medicare arena. Disability Health Advocates continues to support NADR as a Corporate Sponsor.

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Warm leads? Yes, please!NADR’s Telephone Referral Service is a member benefit you do not want to miss! Potential clients call NADR’s toll free phone number, which is populated on our website and through the “Right to Representation” notices from SSA field offices and ODARs. The TRS system operates in a round-robin format, where potential clients input their area code and the call is then automatically routed to the next representative in the queue for that area code. You get the call directly, as well as an email with the caller’s phone number and time of call attempt!

The Details: • Your NADR membership offers you one area code for free (registration required). • Each additional area code is $40. • Area code purchases of 50 or more are eligible for a 25% off discount. • All purchases of 200 area codes or more are eligible for a 30% off discount. • You can purchase Nationwide Coverage for a discounted total of $8400! (all area codes in all fifty states and Puerto Rico) • Please email [email protected] for the discount code prior to registering.

Ready to get started? Go online at www.nadr.org. Be ready to choose one of these options upon registration: • Option A – Free Area Code Only • Option B – Free and Purchased Area Codes • Option C – Free and Nationwide Coverage

Take advantage of this membership benefit and enroll in NADR’s Telephone Referral Service today!

Note: TRS registration is open November 15th - January 5th. Late registrations will be accepted through January 31st with a 15% penalty. No changes or additions to registrations will be accepted after January 5th. No registrations will be accepted after January 31st

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VETERAN MEMBER SPOTLIGHT – CLIFF BERKLEY

What did you do before you became a representative? I graduated college in 2002 with a degree in Hotel and Business Management. �e plan for me was to work in the hotel industry. However, the summer after graduation I worked for my father who is an attorney and was exposed to disability law. From that moment, I have not looked back and it has been one of the best decisions I have ever made.

How long have you been representing clients? 14 years.

What do you enjoy most about this profession? I love having a direct impact on the life of a client. When I get to share the news of their Fully Favorable Decision, it is the highlight of my day.

How long have you been involved in NADR and how has it impacted your professional growth? I think this year will mark my seventh year with NADR. Without a doubt the EDPNA program has further legitimized my role as a Non Attorney Advocate and I have the e�orts of the Legislative Committee and Lobbying Team to thank.

What legislative issue or membership bene�t would you like to see NADR focus on/o�er in the next few years? I would like to see more attention brought to the representative fee issue. It has been a long time since we have received any type of increase in the fee that we are allowed to charge.

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For an affordable monthly price, you can manage potential/current cases, generate auto-populated SSA forms and custom documents, run reports, streamline your intake process and more. No long-term commitment required. Training and support are always free and members of NADR are eligible for a 3-month free trial. Contact us at 617-800-0089 or [email protected] to schedule a free demo.http://www.egenerationmarketing.com/cpc/eluminate

NADR News is published by NADR and is the property of the National Association of Disability Representatives. Copyright 2016, NADR. The articles appearing in the NADR News do not necessarily reflect the opinions of NADR. The accuracy and content of each article is the responsibility of the individual writer.

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