NATIONAL ASSOCIATION OF DISABILITY REPRESENTATIVES
CONTENTS
NADR NEWSLETTER FOURTH QUARTER 2023
IN THIS ISSUE 3
A NOTE FROM THE PRESIDENT
4
NADR NETWORKING WEEKEND IN NEW ORLEAN
5
SEPTEMBER PAC THANK YOU
6
NADR NEWSLETTER
A NOTE FROM THE PRESIDENT Speaking of today, I’ve been thinking a lot about how we can use tech, especially AI, to help us, by being a companion. Imagine if we could make our work faster, more efficient, and even save some bucks along the way. I’m excited to dive into this and see how we can bring some of these cutting-edge tools into our world. If you’ve got ideas or have seen something awesome, let me know!
Hello NADR Family, First and foremost, I would like to thank our immediate past president, Michael Wener, for all his work over the past two years making NADR a better organization. I would also like to thank all the board members who just completed their term, Karl Osterhout, Sherrell Rodgers, Carol Balderee, and Dr. Carletta Griffin each contributing countless hours serving on committees and completing special projects. And I would be remis if I did not welcome our newly elected board members Alicia Skinner-Hamond, Dave Wright, Shay Guess, and Kerie Stone. I look forward to serving with each of you.
As we move ahead, I want to keep things simple and true to our roots. Let’s learn from each other, support each other, and most importantly make each other stronger representatives. I’m here to listen, to share, and to work alongside each of you.
As I step into the role of President, I think about NADR’s beginnings back in 2000 and it’s awesome to see how far we’ve come. A group of 35 folks got together in St. Louis with a simple idea: let’s create a space for people like us, who are passionate about Social Security Disability Advocacy.
Thanks for trusting me with this role. Let’s roll up our sleeves and get to work! Enjoy the day, Christopher
Fast forward to today, and here we are. We’ve got our two annual get-togethers, a place for folks to learn, connect, destress, and our “Talklist” / social media platforms where we chat, share stories, and help each other out. It’s like being part of a big family every day.
NADR NEWS
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FOURTH QUARTER 2023
NETWORKING WEEKEND IN NOLA: LAISSEZ LE BON TEMP ROULER
And we sure did let the good times roll! As depicted below, our annual networking weekend was a big hit yet again. Thank you to all the folks who attended and participated. We feel that engaging with other members is the most special part of being a NADR member. The 7 Intelligences Workshop presented by Ginny Victory was an eye-opening tool to help you tap into your inner genius. Please listen to our follow up podcast with Ginny, even if you weren’t able to attend the session in New Orleans. If these pictures don’t entice you to join us in Atlanta for our annual conference, I don’t know what will!! I hope to see you in Atlanta! Eva Sirman, CAE NADR Association Manager
NADR NEWS
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FOURTH QUARTER 2023
NADR NEWS
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FOURTH QUARTER 2023
WHEN IT COMES TO VE TESTIMONY, FACTS REALLY DO MATTER JOHN METSKER, ESQ. We’re all familiar with this scenario: you represent a claimant over 50 years of age, with medium PRW. The state agency medical consultants put the claimant at light, and you submitted a medical source statement from the claimant’s long-time physician putting the claimant solidly at sedentary. You are now playing the ALJ lottery. If the ALJ wants to deny the claim, he will cite facts from the record that support the state agency RFC opinion, and cite facts from the record that contradict the treating source opinion. If the ALJ wants to allow the claim, he will do the reverse.
thoroughly questioning the VE on the source of their job numbers and their specific methodology for arriving at the specific job numbers that they testified to, you will most likely receive a series of incomprehensible or non-responsive answers. In this situation, try following up by asking the VE to “Please state all facts upon which you based the job number estimates that you testified to today.” Every time I have ever asked this question, the VE has been unable to identify even one fact supporting their testimony. Another time this comes up is when you have a client over 50, has difficulty standing and walking, and who is unable to perform their unskilled PRW. Under the grids, you win at sedentary and lose at light. The ALJ decides to “split the baby” and put the claimant at four hours of standing and walking per workday. We all know that light work typically (almost always) involves standing and walking at least six hours per workday. The VE, with some coaxing by the ALJ, testifies that there are hundreds of thousands of light jobs that only involve standing and walking four hours per day. In this scenario, begin by asking the VE if the Department of Labor and/or the Bureau of Labor Statistics publishes data on the standing and walking requirements of the occupations that they identified. Typically, the VE will respond with some version of “they probably do, but I don’t know what the data says.” Follow this up by asking the VE to “Please state all facts upon which you based your testimony that the occupations you identified do not involve standing and walking more than four hours per workday.” Again, it is a rare VE that will be able to identify even one single fact supporting their testimony. VEs are simply not used to dealing with facts. This is their Achilles’ heel.
We all know this to be true. The ALJ must cite facts to accept or reject medical opinion evidence. All this changes when it comes to vocational opinion evidence. The ALJ is free to accept unfavorable vocational opinion testimony without ever addressing its factual basis. Why is it that facts matter when it comes to medical opinions, but not vocational opinions? Isn’t the evidentiary burden supposed to be the same under the regulations? In fact, it is. When it comes to the burden of proof, the regulations do not differentiate between medical opinions and vocational opinions. This may cause one to wonder, why is the evidentiary burden so high when it comes to medical opinion evidence, but so low when it comes to vocational opinion evidence? The answer is that SSA simply wished this imaginary “rule” into existence. At steps one through four of the sequential evaluation process, the evidentiary burden rests on the claimant to prove they are disabled. At step five (when vocational evidence is most important), the burden shifts to the Commissioner to prove that there are a significant number of jobs that the claimant can perform. Not surprisingly, SSA sets the burden quite high for claimants, but quite low for themselves. How did they get away with this evidentiary bait-and-switch? The answer is that we— claimants’ representatives—let them get away with it. This needs to change, the sooner the better.
Once you challenge the factual basis of a VE’s testimony, be sure to follow up by submitting post hearing objections pointing out that the VE’s opinion lacked any rational factual basis. By taking these simple steps you can build appealable issues into almost every case. This will lead to more remands from the Appeals Council or district courts, and ultimately greater income for your business.
Let’s look at some examples of how we can challenge the factual basis of unfavorable VE testimony. Take the situation where the VE gives wildly inflated job number estimates. After NADR NEWS
By: John Metsker, Esq. jmetsker@metskerlaw.com 6
FOURTH QUARTER 2023
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NADR NEWS
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FOURTH QUARTER 2023
Eleventh Circuit Social Security Cases 2023 Update
ELEVENTH CIRC UIT SOCIAL SECU RITY CASES 2023 UPDATE by Sarah H. Bohr
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Annotates 90 key Rulings, through SSR 21-1p and SSR 22-2p addressing fraud & similar fault New and improved synopses of key Social Security Rulings Includes Acquiescence Rulings by circuits Updated Chart of Rulings by Subject Areas Handy guide to have at hearings and to use when writing arguments!
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An excellent overview of disability benefits NEW section on Hearings & Appeals citing recent regulatory & HALLEX changes NEW sections on ME’s, res judicata, and fraud & similar fault Use the handy “Theory of the Case Checklist” to set forth a winning theory of your case!
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Updates regulations, Rulings, & HALLEX Updates Checklist of Issues to Raise & other Charts 40 winning Appeals Council letter briefs - 10 new briefs! Top 10 Remand Reasons Cited by the Appeals Council & the Courts Great resource for writing arguments to the ALJ, AC & federal court!
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Annotates over 100 new cases since the 2020 Update! Includes Supreme Court cases, published & unpublished 11th Circuit cases, & published district court cases Updated sections on attorney fees - EAJA and 406(b) Widely used by members of the federal judiciary in the 11th Circuit
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Winning Apeals Council Arguments - 10th Edition
10
FOURTH QUARTER 2023
FEE ISSUES
National Association of Disability Representatives
Lets Get Into It! NADR NEWS
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FOURTH QUARTER 2023
Your Trusted Referral Partner WORKING TOGETHER, WORKING FOR THE CLAIMANT
At OBL, we believe that seamless representation is the key to success – we offer our referral partners a number of services to ensure the claimant has a unified experience. Our firm can provide pre- and post-hearing support (including rebuttal vocational reports), as well as regular training for you and your staff. Our federal court reviews are designed to offer specific feedback for each case, and our team is here to help both you and your client navigate the process.
We use [OBL as a federal court referral source]. In fact, we send all of our ALJ denials to them to review for legal error. If there is legal error, they write out AC briefs for us. How awesome is that? If the claim gets remanded back, we get it back. It is a win-win for both of us. Karl also provides free training for us. I truly value this partnership. MINNESOTA REFERRAL PARTNER REVIEW
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Software & Web-Based Services
Information for Important Work Decisions 1. FACT CHECK the Vocational Expert 2. COMPARE VE DOT Occupations 3. EXPLORE / CONFIRM 4. SEARCH DOT with
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NADR NEWS
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FOURTH QUARTER 2023
Tap
BOARD OF DIRECTORS AUDIENCE INTERACTIONS
KEY ENGAGEMENT METRICS
125
2023 - 2024
236
Attendees Logged-On
1 , 3 16
Average Interaction Per Attendee
Live Stream Views
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TOP CONTENT INTERACTIONS
Schedule
President 3, 479 Christopher Mazzulli, ADR Agenda Baltimore, MDViews
Vice President 1, 838 2,0Kelly 6 2 Blad, ADR Cook, MN
342 EDPNA Requirements Over Breakfast: Course 2 & Course 3 200 "Get to the Point": Writing a Prehearing Memo that Gets the ALJ's Attention, Presented by Lindsay Osterhout
Treasurer Carl Groves
Session
Networking
Speakers
1Cliff ,Director 35Berkley, 1 At Large 1, 141 ADR Fullerton, CA
134 Keynote: The Current State of Disability Representation 117 Ethics: What Would You Do? Presented by Professor Robert R Is Success at the Appeals Counc 110 Possible? presented by Sarah Bo and Linda Cosme
160 Representative Roundtables: Exploring a Wide Range of Relevant Topics, Virtually and In-Person 159 Keynote: Slow Your Roll: Mindfulness for Fast Times, presented by Greg Graber
Secretary Alicia Skinner-Hammond
Director At Large J. Shay Guess
Ask A Question
Director At Large David Wright
Director At Large Kerie Stone
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.
NADR NEWS
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FOURTH QUARTER 2023