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Every other Friday, I publish links to notable posts from the Social Security disability blogs. I am widening the net a bit, and will now link not just to posts, but also to newspaper articles and other sites of interest to Social Security disability claimants and representatives. It is a timely decision, because with the July 4th holiday it has been a bit slow in the notable blog posts department.  

Photo: Bridget testing her balance

 

There is an excellent discussion of job traits versus transferable skills in Kramer v. Astrue, No. 1:10-cv-207-JAW (D. Me. March 25, 2011).

Here is the relevant excerpt (I have removed citations to the administrative record):

The administrative law judge found that the plaintiff’s past jobs as a firefighter and an emergency services dispatcher required the following skills: “[p]erform a variety of duties, deal with people, perform effectively under stress, and make judgments and decisions.” These were identified by the vocational expert in his testimony as the transferable skills he would consider in responding to the administrative law judge’s hypothetical questions. The plaintiff contends that these are not job skills in the world of Social Security, but rather traits, the existence of which has no effect  on the question of whether an applicant has transferable work skills.

In order to find that a claimant who cannot return to his past relevant work can perform other work of a skilled or, as in this case, semi-skilled nature, an administrative law judge must find that the claimant has skills developed in his past work that can be transferred to the specific other work identified as available for him.  20 C.F.R. § 404.1568(d); Social Security Ruling 83-10, reprinted in  West’s Social Security Reporting Service  Rulings 1983-1991, at 26;  see also Fines v. Apfel, 149 F.3d 893, 895 (8th Cir. 1998).  In the instant case, the vocational expert so testified, and the administrative law judge relied on his testimony.  The plaintiff’s challenge here, then, is not to the administrative law judge’s  findings, but rather to the vocational expert’s testimony.  

…               

The listed “skills” are: performing a variety of duties, dealing with people, performing effectively under stress, and making judgments and decisions. As the court noted in Ellington v. Secretary of Health & Human Servs., 738 F.2d 159, 161 (6th Cir. 1984), skills identified as “independence of judgment” and “responsibility for work product” “are too vague to constitute particular skills which are transferable.”   Such “skills” are not distinguishable “from those of a lawyer, a secretary or a nuclear physicist.”  Id.  In Draegert v. Barnhart, 311 F.3d 468 (2d Cir. 2002), the court, holding that “there is an inherent difference between aptitudes and skills” in Social Security parlance, id. at 474, found that the following abilities were not transferable skills:  to learn and apply rules and procedures, to use reason and judgment in dealing with all kinds of people, to think clearly and react quickly in an emergency, to keep physically fit, to make conclusions based on facts and one’s personal judgment, and to change easily and frequently from one activity to another.  Id. at 476-77.  Remand was ordered in both of these cases. 

For the case at hand, the identified “skills” do not differ significantly from those rejected in Ellington and Draegert, and I, therefore, reject them as a basis for the vocational expert’s identification of three semi-skilled jobs that the plaintiff could perform, given the RFC assigned by the administrative law judge. 

Judge Rich made the correct analysis. Bear this case in mind next time a vocational expert takes a liberty with the applicant's transferable skills. Don't let the VE testify about traits instead of transferable skills. Object to that testimony, and say that those traits are not "transferable skills," as that terms is defined by the Social Security Administration.

Here are ten posts from the first half of this year that are worth revisiting, or worth reading for the first time if you missed them when originally published:

The Social Security "Logical Bridge"

One Residual Functional Capacity, Two Outcomes

On-line Access to the Electronic Claim File

The 2010 Waterfall Chart

Statement from a Spouse

A Modest Proposal

Tell your Doctor to write down your symptoms

75-Day Hearing Notice Should be Nationwide

ALJ Disposition Rates – How Low is Too Low?

Who is your Administrative Law Judge?

Photo: Bridget with the Radio Flyer last Sunday

I recently read a blog post by North Carolina divorce lawyer Lee Rosen, entitled How a Two-Minute Call Changes Your Clients' Opinion of You. Mr. Rosen explains that in North Carolina, an absolute divorce or Qualified Domestic Relations Order requires substantial waiting period for the client, and during much of that time there is really nothing going on with the case. But some of his clients were miserable during that waiting period, because they did not know the status of their case and imagined the worst. So Mr. Rosen assigned a paralegal the task of calling every client each week regarding the status of the case. Often the call is simply "we are waiting for X." But that simple status phone call turned around his clients' attitudes.

I, of course, saw a parallel between that divorce client waiting for a final decree and a Social Security disability client waiting for a hearing. The disability Reconsideration process in Maine can take several months. The subsequent wait for a hearing can be 12 months or more. During most of this time, there is not much going on with a disability claim. So for several months, the client is simply waiting for a hearing. Not only that, but our clients are also unable to work due to disability, and often have stress over health and financial issues.

I realized after reading the post that I wanted to keep my clients better informed of the status of their claims during this period when they were waiting for a hearing. Even if there was nothing new to report, I wanted to give our clients more frequent updates regarding the status of their claims, and ensure each client knew exactly where they were in the disability claim process. So I hired a legal assistant, who among other tasks, contacts each client regularly to provide an update on the status of the claim, and to check in about the client's medical condition. Sometimes the client has a question for me; sometimes the status call is all that is needed. We also use this opportunity to ask if the client has any upcoming appointments with medical providers who could complete a medical source statement.

I wish I had done it earlier. Our clients appreciate the extra communication, and the practice runs more smoothly because we have very current updates on each and every client.


Notable posts from the Social Security disability blogs are linked here every other Friday:

Photo: Bridget taking one of her first walks, with a little support.

In the Boston region, we receive 75-day notice of hearings, but all evidence to be considered by the ALJ needs to be submitted 5 days ahead of the hearing. See 20 CFR 405.331(a).

The 5-day rule is permissive ("the administrative law judge may decline to accept the evidence"), and often is not enforced. But if you show up at the hearing with new evidence, you are taking a risk. Your claim-winning medical source statement may not be admitted into the record. There are exceptions to the rule, so if you have late evidence, have your story ready for the judge.

Sometimes a claims fall off the DSI/electronic-file track for some reason, and the disability claim file is an old-style paper file. For these cases, the "normal" rules apply, and there is not 5-day limit for new evidence. Regardless, it is a best practice to submit evidence into the record as soon as possible.

Recently the ABA Journal published a post by Jim McElhaney entitled Dirty Dozen: 12 Ways to Write a Really Bad Brief. The list contained this notable tip:

Tell no story. Every brief should tell the story of an injustice, a wrong that needs to be righted or avoided.

The story is central to the way we process facts. It is the basic system we use to teach, to understand, to instill moral precepts and to memorialize important events. Telling an engaging story in the statement of facts and the issues they raise gives meaning to an otherwise dry assemblage of information. How you do it depends on who you are writing the brief for.

Trial judges are folks in the trenches whose goal is to do elemental justice. Appellate judges want to right wrongs, too—within their job of weaving and repairing the fabric of the law.

Always keep in mind who is going to read your story.

This is particularly true in the context of a Social Security claim. With judges hearing so many claims, a compelling client story is more important than ever.

Every client has a story. Sometimes the story is obvious. Sometimes it takes some digging and some thought. But there is always a story worth telling.

Until I have a compelling story to tell, my hearing preparation is not complete.

The latest statistics for processing times for Social Security hearing offices around the country have been released by the SSA, and reprinted in the May 2011 NOSSCR newsletter. In Maine, the average wait for a hearing decision is now 381 days. This is a month longer than it was last year, and the hearing office has farmed out a small number of claims to other hearing offices to help manage its backlog.

Processing time runs from the date of the hearing request to the day a decision is issued. The 381 days is an average. Some disability claims are resolved more quickly, but a disability or SSI claim that requires a hearing and a written decision may take longer.

In New Hampshire, the Manchester hearing office has an average processing time of 343 days. This is an improvement of over two months since last year for that hearing office, which has been aggressive about reducing its wait time. Further, there is no Reconsideration level of review in New Hampshire; denied disability claims that are appealed go directly to the hearing level. So a claim from start to finish in New Hampshire is much quicker than in Maine.

When I receive a hearing notice for a Social Security disability claim, the first thing I want to know is the name of the administrative law judge (ALJ) who will hear the case and then decide the claim. It shouldn't matter which judge hears your case, since they all interpret the same regulations and would be looking at the same set of facts. But it really does matter.

Different judges approve claims at different rates. The current statistics for each ALJ are available on Social Security's website. When you look at the allowance/denial rates for the various ALJs, it is remarkable how different they can be. Each judge evaluates a disability claim in a unique way.

It is helpful to know before the disability hearing how a particular judge tends to look at a case. Also, each judge conducts the hearing in a particular way. 

I handle disability and SSI cases in Maine and New Hampshire, so I see the same judges again and again. I am able to prepare a case for hearing in a way tailored to the ALJ who will decide the claim.

You do not get to pick the judge that decides your case. However, you do get to pick the disability lawyer who handles your case. Consider obtaining the assistance of a Social Security disability lawyer who has extensive experience with the judges in your area.