2018 Legislative Newsletter

LEGISLATIVE NEWSLETTER

Board of Directors 2014-2015

President Robert McDowell Elizabethtown, KY

Vice President Steve Skinner Redding, CA

Secretary Philip Litteral Ashland, KY

Treasurer Michael Wener Memphis, TN

Directors-at-Large Karen Starr Grand Rapids, MI

Greg Cates Memphis, TN

Patty Sexton Wauna, WA

Barbara Manna Pittsburgh, PA

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NOTE FROM THE PRESIDENT A philip litteral

4 PERSPECTIVE NADR National

by KARLOffice OSTERHOUT PO Box 96503 #30550 Washington, DC 20090-6503 AMICUS CURIAE 5 NADR’S

by FREDERICK DALEY AND MEREDITH MARCUS

NADR National Office

Administrators Eva Sirman 202-822-2155 eva@nadr.org

Julie Phelps 202-822-2155 admin@nadr.org

NADR

PO Box 96503 Washington, DC 20090-6503 N 822-2155 ationa Phone: (202)

l Association of Disability Representatives

a Note from the President One of my heroes: “Nobody told me there’d be days like these. Strange days indeed!”

So NADR has “written” our first amicus brief. “Amicus” – an impartial adviser. And it just so happens that our first amicus brief is to the SCOTUS. Seriously? Somehow Kaufman, Marois, Whitaker, McDowell and Skinner – to name a few – failed to mention that little “other duty as assigned” when they told me about this Presidency gig!

After former Director-at-Large Fred Daley and his Senior Associate, Meredith Marcus lost a Sixth Circuit case, a DC law firm – Jenner and Block – offered to join them as co-counsels for a SCOTUS appeal – Biestek v.

Berryhill, and an unlikely chain of events brought us to this unprecedented precipice. A chance meeting between Daley and NADR brass in Atlanta (Eva Sirman and Barbara Manna); an email from Fred copied to Eva and me; a conference call between Fred/Meredith and our Executive Board; a frantic email to Karl Osterhout, (“if you can’t do this, we’re out”); several discussions

with some of my extremely intelligent attorney friends, a Jenner and Block referral for us to a DC-based pro bono law firm; a conference call involving three associates of Wilkinson Walsh and Eskovitz LLP, myself and Karl – Boom. We are on the path to amicus! A term I’d not heard just 3 weeks prior.

This will be the first Social Security disability issue case before the Supreme Court in decades. And most knowledgeable people I know fall into two camps: 1.

Excited, or 2. Terrified. As one trusted friend puts it -“be careful what you ask for.”

I will let Fred, Meredith and Karl explain the plaintiff’s case and our amicus brief. We have links to both herein.

You’ll also find here links to the amicus brief signed by NOSSCR and AARP. But a few points:

1. The case revolves around a hearing in the Sixth Circuit where a VE possessed written data to back

up her claims of job numbers, but refused to give said data to the claimant.

2. The case was proceeding to the SCOTUS, whether or not NADR agreed to submit amicus.

3. After discussions with Karl, it became clear that our goal should be to help keep the focus of the

case as narrow as possible. Maybe we could help prevent the sort of broad-brush catastrophe so

many feared.

4. When Jenner and Block found the pro bono firm for us (WW&E) we truly lucked out. I will be

forever in the debt of Chanakya Sethi, Rakesh Kilaru and Angela Cai. I’ve never seen someone get

up to speed and nail the issues quite like Chan.

5. Karl Osterhout was the backbone of this effort. Without his constant diligence and hard work, the

amicus project would have jumped the rails or veered out of control, and we would have missed

our opportunity to help keep the focus narrow.

6. I had to buy a new cell phone battery.

7. The NADR Amicus Brief is stunning! We should all be extremely proud of this effort, and thankful

to Fred and Meredith and Karl, in addition to our pro bono friends. I like our brief best of all three!

(But I admit to a mild bias).

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a note from the president CONTINUED I know times are busy and we are bombarded with New Rep Rules, Lucia interpretations, Executive Orders, EM’s, NPRM’s, on and on and on. But if you possibly can, take a minute to look over these briefs and get the gist of the positions being argued. Then sit back and savor the experience of belonging to an organization that

is dedicated to enhancing our entire industry and the claimants we serve! Of all the reasons to be proud of my NADR membership, this is one I didn’t see coming.

Most peculiar, Mama!

Philip B. Litteral

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PERSPECTIVE KARL OSTERHOUT, ESQ. It will come as no surprise to NADR members that I have taken great interest in issues related to vocational testimony in Social Security cases, if only because you have had to endure numerous presentations by me on this topic. My federal court referral partners have heard about it even more than that.

So, I was very pleased to have the opportunity to contribute regarding Biestek v. Berryhill, by strategizing with and assisting the law firm of Wilkinson Walsh + Eskovitz out of Washington DC, who generously agreed (pro bono!) to assist us in preparing the NADR amicus brief to the Supreme Court. In particular I am grateful to Chanakya (“Chan”) Sethi, Esq., the associate at WW+E with whom I worked most closely. It was truly amazing to see Chan go from knowing almost nothing about Social Security disability claims to being deeply knowledgeable about them during the 10 days between when I first met him and our first strategy meeting. I would be remiss if I failed to acknowledge that part of Chan’s “education” and background came from a series of interviews he asked me to arrange with various NADR members regarding the issues presented in this case, so appreciation is also owed to Dave Traver (and his colleague Bob Angermeier, who is not a NADR member), Mike Liner, Dave Chermol and Carl Groves. It was truly a pleasure to be involved in this project.

The “big issue” in Biestek arose out of the ALJ’s failure to require the VE to produce studies she claimed to have personally done regarding the number of jobs she stated that the claimant could perform in light of the ALJ’s hypothetical assumption (and ultimate RFC finding). A claimant’s ability to test evidence contrary to their interest is an essential and fundamental right every Social Security claimant has, and the ALJ’s failure to require the VE to produce the evidence she undeniably relied upon for her testimony in this case is unconscionable. This is a right that was easy for me to get excited about fighting for.

As you know, vocational issues in Social Security cases can be very complex, particularly because they are so fact specific. It was my personal concern (and the concern of many others I spoke with) that we needed to be careful to avoid creating a situation where the Supreme Court held forth generally about vocational issues in Social Security cases, given that complexity.

So, the NADR amicus brief attempts to focus the issue very pointedly on the specific, narrow, and extremely rare fact situation in this case: (1) It is exceedingly rare that the issue of job numbers is legitimately “in play” in Social Security cases; (2) moreover, it is rarer still when a VE actually has performed a study of their own; and (3) it’s virtually unheard of that the VE’s study involves job numbers. (I personally believe that the VE in Biestek was lying, and did not really have a study.)

The NADR amicus emphasized these points and pointed the Court to the fact that the lower courts are continuing to work out the standards that should apply in the more familiar situations where, for instance, the ALJ fails to address objections to the vocational testimony or rebuttal evidence, fails to address the inconsistencies between the VE’s testimony and the DOT, fails to acknowledge or discuss the fact of the outdated DOT when evidence and/or arguments show that the jobs in question are no longer performed as they were when the DOT was last updated 30+ years ago, etc. etc. It is NADR’s position that it would be premature for the Court to use Biestek as a vehicle to address those far more complex and fact specific issues in a case that does not present them explicitly.

Again, it was truly a pleasure (if not a bit nervewracking) to be involved in this effort and, yes, I would do it all over again.

Karl Osterhout, Esq.

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NADR’S AMICUS CURIAE Fred Daley & Meredith Marcus In both the McKinnie v. Barnhart, 368 F.3d 907 (7th Cir. 2003) and Biestek v. Berryhill cases I represented the plaintiffs at the hearings and did not stipulate to the VEs as experts. The similarities in both cases are that the VEs in each claimed to have performed personal surveys supporting their eroded sedentary sit/stand option jobs. In both I demanded they submit the studies into evidence for me to verify this foundation evidence, they refused, the ALJs denied my motion.

In the Sixth Circuit case of Biestek, the vocational expert testified to eroded job numbers based on off task behavior and a sit/stand option. When I requested the vocational expert produce underlying data or analyses in support of her statements, she refused, citing the confidentiality of her files, and the ALJ declined to require her to produce such information, even in a redacted format.

Accordingly, the two cases created a clean vehicle for the Supreme Court to decide the issue of what constitutes substantial evidence at Step Five where the vocational expert’s “bottom line” has been questioned, and whether the underlying data supporting the vocational expert’s testimony should be available on demand. Meredith and I were contacted by Ishan Bhabha from the Appellate division of Jenner & Block in Washington D.C. offering to co-counsel in filing a Petition for a Writ of Certiorari to the U.S. Supreme Court on a pro bono basis.

The Supreme Court accepts 70 out of 7,500 cases.

Claimants in several Circuits have lost on this issue since McKinnie was issued. The Court granted writ to settle the issue once and for all. Ishan clerked for Judge Merritt Garland in the Federal Circuit and then for Justice Anthony Kennedy. He then worked for the Solicitor General which handles all Governmental litigation in the Supreme Court. Meredith and I have collaborated with the Jenner team of three appellate

division lawyers in both advising them about the background of Social Security proceedings, vocational expert testimony, research and reviewing content and contributing to the briefs. One thing that I was hoping for, and we got, was Ishan’s experience with Agency law as a clerk for an Appellate Judge in D.C. Federal Circuit and at the Supreme Court. As such he was able to cite supportive cases that transpose to Social Security hearings and administrative due process. We look forward to joining the Jenner team in D.C. for moot court preparation and oral argument, likely in early December 2018.

NADR’s Amicus Curiae brief is the fail-safe approach.

The narrow issue is that the VE has a survey that is the sole foundation supporting her opinion but instead of requiring production of the evidence, the ALJ accepts the opinion as substantial evidence at the step five shifting of the burden of proof based on VE’s say-so.

In our brief to the Supreme Court, we must address the Circuit Court’s Opinion and that casts a wider net. We expect that the Supreme Court, which hasn’t accepted a disability issue since 1987, will not decide a case solely on when a VE claims to have a survey but won’t produce it, accepting instead on credibility and professional experience.

As a caveat, in all of the cases where the Circuit Court affirmed the Commissioner, the representatives stipulated to the VE as an expert. Since the McKinnie decision in 2003 I have lectured on these vocational issues, and once again remind practitioners do not stipulate to the VEs as experts.

Of practical importance for ongoing cases, in the Commissioner’s Response to the Writ, it asserted that the issue was moot as the new vocational expert Handbook notes that “you should have available, at the NADR LEGISLATIVE NEWSLETTER

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NADR’S AMICUS CURIAE Daley & Marcus CONTINUED hearing, any vocational resource materials that you are likely to rely upon and should be able to thoroughly explain what resource materials you used and how you arrived at your opinions”. (VE Handbook p. 37, 2017).

This is useful for current cross-examination of vocational experts who chose to rely on their confidential reports or “professional experience”.

Frederick J. Daley, Jr. Esq Meredith E. Marcus, Esq

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