Making a Record Using Pre-Hearing

and Post-Hearing Memoranda Social Security Practice in the Changing Landscape

East Lansing, Michigan

February 10, 2012 as revised February 15, 2012

©Eric Schnaufer

eric@schnaufer.com

www.schnaufer.com

Pre-Hearing Memorandum (I)

Submit when an ALJ requires

Otherwise submit when appropriate Beware of blanket office polices

Not the same as OTR Pre-Hearing memo can request OTR

OTR may include proposed decision and findings

No one size fits all

Many kinds of pre-hearing memos

Non-delegable task? Does your secretary/paralegal understand the

facts and the law?

Pre-Hearing Memorandum (II)

Step One Review earnings record

Review post-alleged-onset date income

Advance theory to defeat SGA, e.g., UWA

Provide supplemental evidence

Do not make unnecessary concession

Pre-Hearing Memorandum (III)

Step Two Is it even necessary to address step two?

Beware of proposing inventory of ―severe‖ impairments – concession Include disclaimer about exhaustiveness

inventory State that the combination of severe

and non-severe impairments must be considered Use as means to identify need for

further evidence, including opinions

Pre-Hearing Memorandum (IV)

Step Three Not necessary to make a step-thee

argument

Proper to state that the claimant should be found disabled at step three if his or her impairment(s) meet or equal a Listed impairment without making a detailed argument Explain precisely, when possible, why the

claimant satisfies a Listed impairment Do not make concession

Step Four (1): Claimant’s Burden

Claimant’s burden to prove an inability to

perform past relevant work

Burden of persuasion — yes

Burden of production — depends

Two types of step-four findings

as actually performed

as generally performed

But no as generally performed if ―composite‖ past

relevant work

Step Four (1I): As Generally

Performed Claimant may not have past relevant work

as generally performed!

Composite job – SSR 82-61 and POMS

September 2011 POMS

Two separate DOT occupations = composite

Composite = no as generally performed

If not composite, then which DOT

occupation? Don’t rely on the ALJ or VE

Step Four (1II): As Actually

Performed As actual means as actual

Start from an ideal of perfect information

and then focus on critical facts

Work History Report / Disability Report

Inaccurate

Incomplete

Uncorroborated

Detailed pre-hearing interview

Each job: SGA, recency, and long enough

Step Four (1V): As Actually

Performed (cont.) Part-time as actually performed past

relevant work (SSR 96-8p n.2)

Must have been SGA

Part-time work irrelevant as generally

performed

More than 40 hour per week as actually

performed

Was overtime required? See POMS

Use of DOT to fill in demands?

Step Four (V): Bad Things Happen

ALJ relies on claimant’s inaccurate

statements about PRW

ALJ relies on claimant’s failure to provide

accurate and complete information

ALJ makes erroneous step-four findings

Ignores composite-job rule

Relies on incorrect VE testimony

Does not recognize significance of specific

facts

Pre-Hearing Memorandum (V)

Step Four Issues Do not concede past relevant work when

there is any doubt

Watch fifteen-year guideline

Do not endorse inaccurate and incomplete statements

Explain why claimant could not do any past job — job by job

Provide supplemental information

Identify composite past relevant work

Identify as generally performed

Pre-Hearing Memorandum (VI)

Education Do not concede that grade level =

education

20 C.F.R. § 404.1564; Skinner (6th Cir.)

Submit school records

Obtain achievement testing

Defeat skill transferability Medical reasons against transferability

Make vocational assertions about skills

Submit vocational evidence of regarding skill transferability

Pre-Hearing Memorandum (VII)

Address Future Vocational Testimony Include statement about SSR 00-4p Incorrect vocational-expert testimony not

reliable

Requirement of notice about challenging incorrect vocational-expert testimony

Include statement about significance of not objecting to taking testimony from Agency vocational expert

Reserve right to object post-hearing to any vocational-expert testimony

Pre-Hearing Memorandum (VIII)

Theories of Disability Present multiple theories of disability Step Three, SSR 96-8p, SSR 85-15, Grid

Risk of putting all eggs in one basket

Medical Opinions Explain significance of individual opinions Tie an opinion to a theory of disability

Address adverse medical opinions

Pre-Hearing Memorandum (IX)

Statement about hearing presentation Claimant’s statements at hearing are not an

exhaustive presentation of symptoms, impairments, etc.

The failure to mention a subjective symptom, impairment, or fact at hearing is not a waiver of reliance on that symptom, impairment, or fact

Statement about non-physician adjudicator’s determinations No authority to rely upon adjudicator’s

determination

Pre-Hearing Memorandum (X)

ALJ Name Removal Policy May be difficult to customize for specific

ALJ

Name of ALJ Known What does this particular ALJ repeatedly

do wrong? Explain 20 C.F.R. § 404.1527(e)

Explain that ―total disability‖ means nothing

Attack muscle wasting/weakness/atrophy rationale

Post-Hearing Memorandum (I)

Right to Post-Hearing Memorandum? Not in a regulation

Not in the HALLEX

Claimant nonetheless has a right Hearing identifies issues

Hearing likely did not allow full presentation

Right to submit rebuttal evidence

Medical-expert testimony

Vocational-expert testimony

Ask ALJ for additional time

Post-Hearing Memorandum (II)

What happened at the hearing? Review your post-hearing checklist

Memo can be submitted with any additional evidence

Did the ALJ identify weaknesses in the claimant’s claim? Take the ALJ’s comments very seriously

What did the medical expert say?

What did the vocational expert say?

Post-Hearing Memorandum (III)

Post-Hearing Evidence 20 C.F.R. § 404.953; Flatford (6th Cir.)

HALLEX, § I-2-6-78 (Closing the Hearing)

General Agency policy Everything submitted prior to decision date

ALJ has discretion to close record

Agency withdrew proposal to close record

Due process right to rebuttal evidence

Duty to client to prove disability with evidence

Post-Hearing Memorandum (IV)

Step Four Did the vocational expert violate the

composite-job rule?

Did the vocational expert distinguish between past relevant work as actually performed and as generally performed?

Was the vocational expert’s testimony incorrect?

Do you need more evidence about the demands of past relevant work?

Consider obtaining rebuttal evidence

Post-Hearing Memorandum (V)

Step Five Identify and rebut incorrect vocational-

expert testimony

Review the specific DOT and SCO data

Submit DOT and SCO rebuttal data with arguments

Explain which hypothetical question the preponderance of the evidence supports

Summarize the vocational expert’s concessions as a result of cross

Submit rebuttal vocational evidence