Effective Hearing Tactics

Hon. Michael Sullivan 1500 Story Ave

Louisville KY 40206 (502)587-0228

PART I

Preparation (you and your client)

Pre-Hearing Briefs and Other Submissions

Past Work and Amended Onset Dates (Wages & SGA traps)

Effective Exhibits

Direct Examination of the Claimant

Cross-Examining Vocational Experts

PART II

Ethics in Marketing for the Digital Age

Michael Sullivan is a lawyer licensed in Kentucky. He is a graduate of the University of Louisville Speed Scientific School and the University of Louisville School of law. He has two engineering degrees, and Juris Doctorate. He has practiced law for over 20 years, and limits his practice to disability matters He handles primarily Social Security Disability claims & appeals, Workers Compensation claims, ERISA litigation involving long term disability claims, VA Service Connected disability claims (He is accredited by the VA), and Kentucky Retirement Systems disability claim. He has been a past chair of the Louisville Bar Associations Social Security Section, he has received several awards and was featured on the cover page of Kentuckys Top lawyers during 2012. He has presented at various local seminars, and he is a member of the Louisville Bar, the Kentucky Bar, the AJA, NOSSCR, NOVA, and is a PILMMA Mastermind.

Copyright 2012 Michael P Sullivan d/b/a Sullivan Law Office. All rights reserved. Full permission given to NBI to use and market for their routine business purposes. No claim made to original US Government Publications. No formal endorsement is given for any software programs mentioned in the materials.

Preparation Meet with your client 30 or more days out BEFORE the hearing. Review (or complete if not done) these forms FORM: HA-4632 (Medication List) FORM: HA4631 (Medical Update) FORM: HA-4633 (Work History) FORM: Background Questionnaire. Review the electronic ODAR ERE file download a PDF or TIFF (get the Cadocon converter and convert it!) Below you will find a standard PDF download from the SSA ERE server:

Here is a custom parsed page of the ERE file

I use custom software to parse the E-file and give me Exhibits and Page numbers at the top of every page. This permits exact cites of the proof in the record. You can use the Cadocon style converter which is commercially available to do this. Again, notice the top of the page- always an Exhibit and Page number every time, every page. (http://www.nooksoft.net/cadocon-screens) MORE ON THE FORMS: Why bother with the forms: (1) ODAR wants them; (2) you can tell the case story; (3) and these forms will force you to look at your case, and they become proof in the exhibits file.

WORK HISTORY (3369 form)

Post Onset Earnings

First: Look at the alleged onset date and compare it to the earning record, looking for any reported earnings after the AOD, be prepared to deal with this issue. Consider these problem earnings: Is it unemployment (SSA Memo, i.e. merely one factor in the case) Is it long term or short term disability (then it is not earnings!) Is it true earnings (earned income from a work effort), of so: Is it at a SGA level, and if so: Can an exception apply Can you work a closed period Do you need to just amend the onset date

Exertional Level of Past Relevant Work

Moving onto the clients actual past relevant work (i.e. work done in the last 15 years, and at a SGA level), look at this work quickly to ascertain exertional levels and any job skills. Ask yourself: Given what is wrong with my client, can I GRID out this person by age, or will job skills mess this up? To develop the work history, take a moment and look at work descriptions in the file (the ODAR ERE file) and take this time to do up a

The point here is to be aware of the potential problem earnings BEFORE the hearing and to develop and solution

nice Work form (HA-4633) to better and more fully describe the work. Cast your clients past work in a way that illuminates the claimants impairments. For example, if the claimant has carpel tunnel, and the past work required frequent use of the hands for gross manipulation, be sure to fully explain how the past work utilized the hands. If the claimant has a low back problem and the past work required frequent twisting or bending, be sure to clearly state that fact! If the past work required sorting or inspecting of objects, and the claimant has a visual impairment, be sure to indicate the size of the objects that were sorted and the criteria used to screen the objects. Your Goal: Make it obvious why this person cant do the past work by describing the past work so that the medical impairments run right into the workers job duties. Remember the definition of exertional levels so you can describe the true lifting and cast the past work into the highest exertional level based on how the client actually performed the work. Be sure to ask your clients questions like:

are you sure the most you lifted was 20 lbs, were there times it could have gone up to 25 lbs? Ok, tell me what object might have weighed 25 lbs so I can list it here since your other work history forms in the record do no state this.

Look closely at the definitions of work 20 CFR 404.1567(a)-(d). These definitions will help you narrow the occupational base, and provide a mechanism to cross examine a VE: Sedentary Work :

SSR 96-9p: The ability to perform the full range of sedentary work requires the ability to lift no more than 10 pounds at a time and occasionally to lift or carry articles like docket files, ledgers, and

small tools. Although a sedentary job is defined as one that involves sitting, a certain amount of

walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and

standing are required occasionally and other sedentary criteria are met. "Occasionally" means

occurring from very little up to one- third of the time, and would generally total no more than about 2

hours of an 8-hour workday. Sitting would generally total about 6 hours of an 8-hour workday.

Unskilled sedentary work also involves other activities, classified as "nonexertional," such as

capacities for seeing, manipulation, and understanding, remembering, and carrying out simple

instructions. See also SSR83-12, SSR 99-2p

The Regulations define the exertional levels as well:

Light Work

Medium Work

20 CFR 404.1567 (a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

20 CFR 404.1567(b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities

20CFR 404.1567 (c ) Medium work. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work

SSR 83-14 2. Light exertion combined with a nonexertional impairment. The major difference between sedentary and light work is that most light jobs -- particularly those at

the unskilled level of complexity -- require a person to be standing or walking most of

the workday. Another important difference is that the frequent lifting or carrying of

objects weighing up to 10 pounds (which is required for the full range of light work)

implies that the worker is able to do occasional bending of the stooping type, i.e., for no

more than one-third of the workday to bend the body downward and forward by bending

the spine at the waist. Unlike unskilled sedentary work, many unskilled light jobs do not

entail fine use of the fingers. Rather, they require gross use of the hands to grasp, hold,

and turn objects. Any limitation of these functional abilities must be considered very

carefully to determine its impact on the size of the remaining occupational base of a

person who is otherwise found functionally capable of light work.

Heavy Work

VERY HEAVY WORK Stooping- special impact on light and sedentary work

Handling- special impact on light and sedentary work

20 CFR 404.1567(d) Heavy work. Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. If someone can do heavy work, we determine that he or she can also do medium, light, and sedentary work.

20 CFR 404.1567(e) Very heavy work. Very heavy work involves lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. If someone can do very heavy work, we determine that he or she can also do heavy, medium, light and sedentary work

SSR 85-15 b. Stooping, kneeling, crouching, and crawling are progressively more strenuous forms of bending parts of the body, with crawling as a form of locomotion involving bending. Some stooping (bending the body downward and forward by bending the spine at the waist) is required to do almost any kind of work,, particularly when objects below the waist are involved. If a person can stoop occasionally (from very little up to one-third of the time) in order to lift objects, the sedentary and light occupational base is virtually intact. However, because of the lifting require for most medium, heavy, and very heavy jobs, a person must be able to stoop frequently (from one-third to two-thirds of the time); inability to do so would substantially affect the more strenuous portion of the occupational base. This is also true for crouching (bending the body downward and forward by bending both the legs and spine).

SSR 85-15 c. Reaching, handling, fingering, and feeling require progressively finer usage of the upper extremities to perform work-related activities. Reaching (extending the hands and arms in any direction) and handling (seizing, holding, grasping, turning or otherwise working primarily with the whole hand or hands) are activities required in almost all jobs. Significant limitations of reaching or handling, therefore, may eliminate a large number of occupations a person could otherwise do. Varying degrees of limitations would have different effects, and the assistance of a VS may be needed to determine the effects of the limitations. "Fingering" involves picking, pinching, or otherwise working primarily with the fingers. It is needed to perform most unskilled sedentary jobs and to perform certain skilled and semiskilled jobs at all levels of exertion. As a general rule, limitations of fine manual dexterity have greater adjudicative significance in terms of relative number of jobs in which the function is required as the person's exertional RFC decreases. Thus, loss of fine manual dexterity narrows the sedentary and light ranges of work much more than it does the medium, heavy, and very heavy ranges of work

Use these definitions wisely when describing past work so you can use the claimants impairments to preclude it. Other topics about work to clarify:

Be sure to clarify time spent on feet (at one time, all day )

Did client have option to alternate sit/stand at his/her will Did the job require prolonged sitting or standing at times Did the job require any sustained fingering and manipulations What type of bending was required, how far and how often Use of the hands, fine manipulations, how often, how long What visual acuity was required.

JOB SKILLS Clients always seem to play up the skills of their past work- it is human nature. Your job is to accurately assess those skills and debunk useless job titles that mislead. First check out the SSA definition of past work at 20 CFR 404.1565. Then check out the skill levels as defined in 20 CFR 404.1568. 20 CFR 404.1565

Text

404.1565 - Your work experience as a vocational factor.

(a) General. Work experience means skills and abilities you have acquired through work

you have done which show the type of work you may be expected to do. Work you have

already been able to do shows the kind of work that you may be expected to do. We

consider that your work experience applies when it was done within the last 15 years, lasted

long enough for you to learn to do it, and was substantial gainful activity. We do not usually

consider that work you did 15 years or more before the time we are deciding whether you

are disabled (or when the disability insured status requirement was last met, if earlier)

applies..

Watch out for job titles like supervisor versus what was really more of a lead worker (true job skills versus a glorified job title). Did your client really do things like:

Make out employee schedules, Hire or fire, Perform employee evaluations, Make bank deposits, Close out cash drawers Direct the work of others Fill out reports,

Handle customer complaints Sometimes a case that is otherwise a winner will fail because of transferable skills. Most local VEs are competent to assess job skills, but less than knowledgeable as to how these skills may LEGALLY transfer to other work and thereby ruin your case. Know the law on transferable skills: See 20 CFR 404.1568 and SSR 82-41.

See SSR 82-41, the seminal Ruling on job skills What is a SKILL- SSR 82-41 (2):

a. A skill is knowledge of a work activity which requires the exercise of significant judgment that goes beyond the carrying out of simple job duties and is acquired

through performance of an occupation which is above the unskilled level (requires

more than 30 days to learn). It is practical and familiar knowledge of the

principles and processes of an art, science or trade, combined with the ability to

apply them in practice in a proper and approved manner. This includes activities

like making precise measurements, reading blueprints, and setting up and

operating complex machinery. A skill gives a person a special advantage over

unskilled workers in the labor market.

Worker Trait versus Skill- SSR 82-41 (2)(d)

a. Worker traits to be relevant must have been used in connection with a work activity. Thus, in the regulations, the trait of alertness is connected with the work

activities of close attention to watching machine processes, inspecting, testing,

tending or guarding; and the traits of coordination and dexterity with the use of

hands or feet for the rapid performance of repetitive work tasks. It is the acquired

capacity to perform the work activities with facility (rather than the traits

themselves) that gives rise to potentially transferable skills.

Key to transfer job skills: SSR 82-41 (4)(a)

a. Where transferability is at issue, it is most probable and meaningful among jobs in which: (1) the same or a lesser degree of skill is required, because

people are not expected to do more complex jobs than they have actually

performed (i.e, from a skilled to a semiskilled or another skilled job, or from one

semiskilled to another semiskilled job); (2) the same or similar tools and machines

are used; and (3) the same or similar raw materials, products, processes or

services are involved. A complete similarity of all these factors is not necessary.

There are degrees of transferability ranging from very close similarities to remote

and incidental similarities among jobs.

Special Rule: SSR 82-41(4)(c)

To find that an individual who is age 55 or over and is limited to sedentary work exertion has skills transferable to sedentary occupations, there must be very little, if any vocational adjustment required in terms of tools, work processes, work settings or the industry

Special Rule in the Regs: 20 CFR 404.1568(d) (age 55 or older.)

.If you are of advanced age and you have a severe impairment(s) that limits you to no more than sedentary work, we will find that you have skills that are transferable to skilled or semiskilled sedentary work only if the sedentary work is so similar to your previous work that you would need to make very little, if any, vocational adjustment in terms of tools, work processes, work settings, or the industry. (See ? 404.1567(a) and ? 201.00(f) of appendix 2.) If you are of advanced age but have not attained age 60, and you have a severe impairment(s) that limits you to no more than light work, we will apply the rules in paragraphs (d)(1) through (d)(3) of this section to decide if you have skills that are transferable to skilled or semiskilled light work (see ? 404.1567(b)). If you are closely approaching retirement age (age 60 or older) and you have a severe impairment(s) that limits you to no more than light work, we will find that you have skills that are transferable to skilled or semiskilled light work only if the light work is so similar to your previous work that you would need to make very little, if any, vocational adjustment in terms of tools, work processes, work settings, or the industry. (See ? 404.1567(b) and Rule 202.00(f) of appendix 2 to this subpart.)

Most common benefit of this Regulation If you are Age 55 or older

+transferable skills + limited to sedentary work (light too?) ______________________________

Then: Must be very little vocational adjustment

More on Vocational concerns and past work:

There will come a time when you are assessing the past work and describing it on the forms, when you realize that you will have problems with the VE at the hearing. Perhaps it is a job skills issue and transferability will become the central obstacle to winning. Perhaps it is the old work as actually performed versus work as described in the DOT and typically performed in the national economy issue (you must preclude both to meet your burden of proof). Sometimes the SSA issues Policy Statements. These t are articulated in their Rulings. Sometimes what the SSA has said for the world to rely upon will conflict with what you can expect from a VE. So, the issue is which controls, the VE at the hearing or the Ruling. To have a VE trump a national policy statement is a large task. A certain analysis must be made by the ALJ. Be prepared to use the law because this Ruling can help: See SSR 00-4p: (next page)

SSR 00-4P

Evidence That Conflicts With SSA Policy

SSA adjudicators may not rely on evidence provided by a VE, VS, or other reliable source of

occupational information if that evidence is based on underlying assumptions or definitions that

are inconsistent with our regulatory policies or definitions. For example:

Exertional Level

We classify jobs as sedentary, light, medium, heavy and very heavy (20 CFR 404.1567 and

416.967). These terms have the same meaning as they have in the exertional classifications

noted in the DOT.

Although there may be a reason for classifying the exertional demands of an occupation

(as generally performed) differently than the DOT (e.g., based on other reliable

occupational information), the regulatory definitions of exertional levels are controlling.

For example, if all available evidence (including VE testimony) establishes that the

exertional demands of an occupation meet the regulatory definition of "medium" work (20

CFR 404.1567 and 416.967), the adjudicator may not rely on VE testimony that the

occupation is "light" work.

Skill Level

A skill is knowledge of a work activity that requires the exercise of significant judgment

that goes beyond the carrying out of simple job duties and is acquired through performance

of an occupation that is above the unskilled level (requires more than 30 days to learn).

(See SSR 82-41.) Skills are acquired in PRW and may also be learned in recent education

that provides for direct entry into skilled work.

The DOT lists a specific vocational preparation (SVP) time for each described occupation.

Using the skill level definitions in 20 CFR 404.1568 and 416.968, unskilled work

corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled

work corresponds to an SVP of 5-9 in the DOT.

Although there may be a reason for classifying an occupation's skill level differently than

in the DOT, the regulatory definitions of skill levels are controlling. For example, VE or

VS evidence may not be relied upon to establish that unskilled work involves complex

duties that take many months to learn, because that is inconsistent with the regulatory

definition of unskilled work. See 20 CFR 404.1568 and 416.968.

Keys to skills per 20 CFR 404.1568:

Unskilled

Because the ALJ wants it done.

The data required to fill out the form will tell you the types of problems the claimant has and who treats them.

TIP : Give the client a copy of the completed form with some extra blank spaces to take home, and tell them to send it in with any Rx medication changes that happen before the hearing. TIP: If it is VA treatment, the meds will be generic- the VA usually has a printout of only the Rx meds. Send client a letter and tell them go get their own records before you meet (it is much quicker) and bring them in- look for that sheet TIP: Cancer meds have well known side effects. So do some narcotics. Send in a PDR printout with the side effects in with the SSA form. Have the client sign it and attest to the side effects. Also, have claimant note these effects somewhere else ( anywhere). Finally, the best evidence of this is in the medical records themselves. See if any medical records actually document any of these side effects, or if they at least note typical expected side-effects

RECENT MEDICAL TREATMENT I personally annotate the last page of the Background Questionnaire with this information. You can do the special form (HA-4631) or just annotate the BQ.

Include:

Current treating providers over last 6-9 months; Approximate date of last treatment; Note any hospitals, E/Rs or tests, doing so separately, and note the approximate dates of treatment.

Why- this clues in your office who to write and what to write for, and the special tests and hospital records will come in separately. You will then electronically file these separately, and this makes it easier to cite to during the hearing. Consider

Your Honor, the MRI that demonstrates spinal cord compression at the T4 level is located in Exhibit 22F. In fact, that MRI is the only record in that Exhibit. Page 2 , about half way down, has the information about thoracic cord compression. Just so you know, that MRI is duplicated in Exhibit 14F, but you have to flip thru and one page is upside down

Versus Your Honor, the treating provider in Exhibit 14F gave us 67 pages of office notes, the MRI begins at page 43, continues to 44, and then skips on to page 56 for the last page of the MRI. We filed the records as we got them, and did not redact or modify anything. Watch out, you need to electronically flip page 44 because it is upside down.

I personally try to file the objective medical tests separately to make it easier to cite them and find them. Sometimes this makes sense,

sometimes not. Yes, it can duplicate evidence of record, but in my opinion, it is worth it. Also, clients like to know how many medical exhibits are in their file. Filing these separately increases the number of medical exhibits, and for some reason, clients like a large number of medical exhibits.

PRE-HEARING BRIEFS Most ALJs in Louisville Require you to have some type of short opening, citing to Exhibit and Page number. I usually file a paper report in compelling cases. Some people routinely file written pre-hearing memorandum. If you do, the key is keeping it short and to the point. Most ALJs know the law, so your objective is to point them to the compelling proof and tell them why this case is a winner. Do this in three pages of less. Topics to address in a brief:

Types of claims (T-2, T-16, DIB DWB, DAC,) Filing date Alleged onset date Any post-onset work (or amend the onset) Date Last Insured Claimants age (at filing, as of AOD, as of DLI) Claimants formal education Past work (exertion and skill) General schedule of medical impairments Citations to compelling proof in the record and finally

Why you should win:

-Great earnings record (client would work if he could) -Past work as really performed is precluded, no real skills at play -Case is obvious GRID pay because client is now older -With this new proof we clearly meet a listing -We have a RFC from treating source and no contradictory evidence -Mental CE neutralizes job skills and with that, we are a GRID pay -So much supporting objective evidence here, client will be credible

The only goal of this is to make it easy for the ALJ to pay the case. Cite to the record by exhibit and page number for compelling medical proof. If you have a legal issue that is in the way of winning, briefly cite the Reg or Ruling, and briefly argue why it should be resolved in your favor.

AMENDING THE ONSET DATE In every case, there is a date in which the claimant feels he or she became disabled. This is called the alleged onset date or the AOD. Sometimes the date is blatantly obvious. For example if your client got kicked in the head by a horse, or run over by a car- these are obvious traumatic events with very specific dates. It is easy to spot the AOD. Sometimes it is not so obvious:

Case I

People feel bad and sporadically miss a lot of work, and eventually take a medical leave intending to return in a few weeks. A few weeks becomes 6 months, and then they get a cancer diagnosis. So WHEN did they become disabled- at the onset of the gradual symptoms, the onset of the leave of absence, when work fired them, when they got the diagnosis,

Case II

People sometimes return to work off and on after they allege they became disabled, or they take a temp job for a few weeks. The point is that there are sporadic earnings that confuse this issue- at what point are the earnings not an issue to the true onset of disability:

Depending on your case, this onset date can become something of a moving target. The goal in amending the onset date is:

to change the onset date to conform with the proof in the case,

satisfy the ALJ from an evidentiary standpoint so s/he will easily issue a favorable decicion

AND

to secure a favorable decision for your client and not malpractice along the way.

Amending by Going with the Proof

Remember, by amending this date forward in time (very common), you are losing benefits for your client.

Your Honor, my client is alleging disability as of 5/20/10 when he was let go from work. This was really just a general lay off. Yes, my client had some arthritic problems at the time, but the cessation of work was not tied to any specific medical problem, and of the work force was let go. However, 5 months after he was laid off, he was struck by a car and his pelvis was shattered. This was 10/22/10. We feel the medical proof is compelling as of 10/22/10 and formally move to amend the onset date to 10/22/10. I have talked with my client and have his authority, and here is a writing to that effect.

This was an easy case, but it illustrates how to do it. Here are the

keys to avoid malpractice when amending: Tell your client benefits are calculated from the new date forward (this is key because of statutory Title II waiting periods) Tell your client that he is giving up some potential benefits by amending, and that he has an absolute right to go forward with the original onset date Tell your client that the Title II program has a 5 full month wait on cash benefits and 29 full months on Medicare. The clock ticks from the new onset date. Make sure they know this fact.

Tell your client that the SSI Program has financial income and asset limits and reporting requirements- honest and accurate reporting is on them1. Marriage or divorce can change eligibility overnight. Tell them local Jefferson County Medicaid is tied to SSI financial eligibility. Typically there is no local version of Medicaid until you receive at least $1.00 in SSI benefits for any given month. Have them acknowledge that they have discussed this with you to their own satisfaction Get this in writing to protect yourself. Do not rely on an oral

statement, even under oath at the hearing. Clients will not remember accurately. They will call you screaming when they do not get enough backpay, or when there is no backdated Medicaid coverage for their pancreatitis hospitalization when they drank themselves sick. Do you really want the only proof to be an SSA archive at the Megasite (think Raiders of the Lost Arc.) File the written amendment as an Exhibit.

Amending: Wages After Onset Date In some cases, there are reported wages under a clients SSN. In

general this is no big deal. UNLESS these reported earnings show up after the client states he became disabled. This raises all sorts of questions as to what the client did, for how long, for what employer,

1 I have had clients not be candid on the SSI app as to assets and resources They have held real estate in their

name yet lived elsewhere. In their minds, that real property was for their kids, and not really their asset. Even worse, some have had rental property!. No matter what you do at the hearing, is you have too many assets, there is no SSI. Some have inherited property along the way AFTER they became disabled. Some have gotten married AFTER they became disabled Just be VERY CAREFUL when amending if there is a SSI claim. You can amend your way out of SSI eligibility because of offending assets or income, and amend yourself and into a malpractice situation. Always ask your client about these things before you amend.

First: Is it really wages: Many times, after a claimant stops work, he or

she gets: STD, LTD, Unemployment, AFLAC, Sick Pay Vacation Pay, Work Comp TTD, 401K Payout, This shows up on a SSA earnings record and can look like reported earned income- i.e. WORK.

This is not always earned income and not necessarily evidence of

work activity. Get pay stubs, check stubs or any paper trail to show this is not earned income.

Second: Ok, you investigate and it is wages or some earned income. Start

to think about how you can get around these earnings:

Look at the SGA threshold (If it is not SGA then it may not be a huge deal. For 2012 it is $1010.00 per month, non-blind) The following monthly SGA chart will help:

Year Blind Non-blind

2005 $1,380 $830

2006 1,450 860

2007 1,500 900

2008 1,570 940

2009 1,640 980

2010 1,640 1,000

2011 1,640 1,000

2012 1,690 1,010

Ask- can we deduct certain Impairment Related Work Expenses to reduce the earned income, and thereby put us under the SGA threshold:

See SSR 84-26 If the earnings are still a SGA issue, lets still try to get around

them:

Is this an Unsuccessful Work Attempt See POMS DI 24005.001

SSR 84-26: The law provides that, effective on or after December 1, 1980, the cost

of certain items and services that an impaired person needs in order to work can be

deducted from earnings in determinations as to SGA even though such items and

services are also needed for normal daily activities. The cost of certain attendant

care services, medical devices, equipment, prostheses, and similar items and

services may be deducted. The costs of routine drugs and routine medical services

are not deductible unless the drugs or services are necessary to control the disabling

condition so as to enable the individual to work. The amount of IRWE that may be

deducted is subject to reasonable limits, and deductions for needed items and

services will be made only if the cost is paid by the impaired individual.

Work Effort of 3 Months or Less

The work must have ended or have been reduced to the non-SGA level within 3 months due to the

impairment or to the removal of special conditions related to the impairment that are essential to the

further performance of work. (Examples of special conditions are given in DI 24005.001C.1.) See DI 11010.145E.1.

b. Work Effort of Between 3 and 6 Months

If work lasted more than 3 months, it must have ended or have been reduced to the non-SGA level within

6 months (see DI 11010.145E.2.) due to the impairment or to the removal of special conditions (see DI

24005.001C.1.) related to the impairment that are essential to the further performance of work and:

There must have been frequent absences due to the impairment; or

The work must have been unsatisfactory due to the impairment; or

The work must have been done during a period of temporary remission of the impairment; or

The work must have been done under special conditions.

c. Work Effort of Over 6 Months

SGA-level work lasting more than 6 months cannot be a UWA regardless of why it ended or was

reduced to the non-SGA level.

(To illustrate how UWA time periods are figured, work from November 5, 1982, through a date no later

There is also a Ruling on Point- SSR 84-25:

SSR 84-25: TITLES II AND XVI: DETERMINATION OF SUBSTANTIAL

GAINFUL ACTIVITY IF SUBSTANTIAL WORK ACTIVITY IS

DISCONTINUED OR REDUCED -- UNSUCCESSFUL WORK ATTEMPT

UWA Criteria -- Duration and Conditions of Work

1. Work Effort of 3 Months or Less

The work must have ended or have been reduced to the non-SGA level within 3 months

due to the impairment or to the removal of special conditions related to the impairment

that are essential to the further performance of work. (Examples of "special conditions"

are given below.)

2. Work Effort of Between 3 and 6 Months

If work lasted more than 3 months, it must have ended or have been reduced to the non-

SGA level within 6 months due to the impairment or to the removal of special conditions

(see below) related to the impairment that are essential to the further performance of

work and:

a. There must have been frequent absences due to the impairment; or

b. The work must have been unsatisfactory due to the impairment; or

c. The work must have been done during a period of temporary remission of the

impairment; or

d. The work must have been done under special conditions.

Event That Must Precede a UWA

There must be a significant break in the continuity of a person's work before he or she can be

considered to have begun a work attempt that later proved unsuccessful. Such an interruption

would occur when, because of the impairment or the removal of special conditions related to the

impairment that are essential to the further performance of work, the work was discontinued or

was reduced (or limited) to the non-SGA level. Work is considered to be "discontinued" if the

person (1) was out of work for at least 30 consecutive days or (2) was forced to change to another

type of work or another employer. (On rare occasions a break lasting a few days less than 30 may

satisfy this requirement if the subsequent work episode was brief and clearly not successful

because of the impairment.)

So if we still cannot get around these earnings, consider, is it sheltered work (non-competitive)

Again go to POMS DI 24005.001 or SSR 84-25(4)

Special Category : Is it self-employed earnings See SSR 83.34 : SGA for Self-employed- Three part test

With respect to all three tests, it is essential that the evidence show not only what the

individual's activities have been since the alleged date of disability onset, but also how such

activities compare with those he or she performed before that date. A before-and-after

comparison in development should point up any discrepancies between allegations as to a

reduction in the individual's services and the apparent need of the business for services of

that type. For example, it would not be adequate to document an alleged decline in the

individual's activities after the alleged onset date without at the same time documenting

how this affected the business and the extent to which supplementation or replacement of

the individual's services was made by other individuals after the alleged date of onset.

Work in self-employment would not demonstrate the ability to engage in SGA if, after

working a short time (that is, no more than 6 months), the individual involuntarily

discontinued or reduced such work below the SGA level for reasons relating to his or her

impairment. Such an effort would be identified as an unsuccessful work attempt (UWA).

(Regulations sections 404.1575(a) and 416.975(a).)

5. Performance of Work Under Special Conditions

One situation under which SGA-level work may have ended, or may have been reduced to the

non-SGA level, as set out above, is the removal of special conditions related to the impairment that are essential to the further performance of work. That is a severely impaired person may have worked under conditions specially arranged to accommodate his or her impairment or

may have worked through an unusual job opportunity, such as in a sheltered workshop. Special

or unusual conditions may be evidenced in many ways. For example, the person:

Required and received special assistance from other employees in performing the job;

or

Was allowed to work irregular hours or take frequent rest periods; or

Was provided with special equipment or was assigned work especially suited to the

impairment; or

Was able to work only within a framework of specially arranged circumstances, such as

where other persons helped him or her prepare for or get to and from work; or

Was permitted to perform at a lower standard of productivity or efficiency than other

employees; or

Was granted the opportunity to work, despite his or her handicap, because of family

relationship, past association with the firm, or other altruistic reason.

The Three prong test:

KEYS FOR SELF EMPLOYENT TO BECOME SGA LEVEL WORK

Significant services and Substantial Income Comparability of Work

Worth of Work This is a long Ruling and complex. Read it several times to see if

you can negate a finding of SGA. See also POMS DI 10510.010 Third:

Policy Three Tests under General Evaluation Criteria

The general criteria for evaluating work activity of self-employed individuals for SGA purposes

consist of three tests. The FO will consider all three tests before it can be established that the

individual's work activity is not SGA. The three tests are not used if the countable income test

applies (see DI 10510.010C.). The following are just brief descriptions of each of the three tests.

For additional policy and procedures on applying these tests, see DI 10510.015 and DI

10510.020. See DI 10505.025D. if the individual is self-employed outside the USA.

1. Test One: Significant Services and Substantial Income

The individual's work activity is SGA if he or she renders services that are significant to the

operation of the business, and if he or she receives from it a substantial income; or

2. Test Two: Comparability of Work Activity

The individual's work activity is SGA if, in terms of all relevant factors such as hours, skills,

energy output, efficiency, duties, and responsibilities, it is comparable to that of unimpaired

individuals in the same community engaged in the same or similar businesses as their means of

livelihood; or

3. Test Three: Worth of Work Activity

The individual's work activity is SGA if, although not comparable to that of unimpaired

individuals, it is, nevertheless, clearly worth more than the amount shown in the SGA Earnings

Guidelines (see DI 10501.015) when considered in terms of its effect on the business, or when

compared to the salary an owner would pay to an employee for such duties in that business

setting.

If these earnings are true SGA, and it was performed long enough

to be a problem, and you simply cannot dance around it, ask: (1) Can I amend the onset date to moot the issue;, or (2) Go for a closed period

Warning: if you have real SGA that you cannot escape, and also

have less than 12 months of true disability without SGA, case is usually DOA. Consider a dismissal.

THE HEARING: CLAIMANT TESTIMONY (Avoiding mistakes)

If you have developed a good case, that is, you have good medical

proof, a good wage earner, no real post-onset work issues, someone over 50, and the equities are in your favor, do not lose the case over client credibility issues and poor direct testimony. As part of a direct exam, certain common pitfalls should be avoided:

Common Pitfalls Mumbling: It is axiomatic that the ALJ must hear you to help you. Chronic

MUMBLING will aggravate the ALJ. In some cases, it can suggest someone is being evasive. Dont lose credibility on this topic. Just speak up.

Show: MUMBLER TRAINING VIDEO HERE

Drivers License: Clients are typically less than forthcoming in certain areas. MY

guess is that is it human nature to avoid those things that embarrass us. In certain topics that have only tangential pertinence to the medical issues, clients get evasive and lose credibility on non-essential topics:

Example One: ALJs often ask how people get to a hearing. It can

have relevance to their medical issues. How many spinal patients have driven 90 minutes to their hearing without stopping?

Many times clients have lost their drivers licenses. They just do

not want to talk about it. They mumble, they forget and become evasive. There is not much to be gained here and you can lose credibility over something that has little or nothing to do with your case. How can you expect an ALJ to believe you on the more important issues if you are evasive on minor topics?

Show: Losing Credibility Drivers License Case Video Drugs and Alcohol Example Two: Use or abuse of alcohol, street drugs or

prescription drugs case become an issue. It is easily a relevant inquiry in most cases that involve a mental impairment or liver/pancreatic disease. Clients simply lie about their consumption. Sometimes they convince themselves that their own descriptions of their consumption are accurate.

However, there is usually a medical record or some Report of Contact to bust them about these lies. Send your clients medicals to them for their review (electronic file, just email it to them and protect yourself). Warn them before court about notations to substance use in their records. Losing credibility here sets your client on a downward spiral.

Show: Drugs and Alcohol Video Overselling with Props: In many cases, clients have occasion to use a cane, a walker, wrist

splints, Oxygen, The issue is whether you have a medical justification for the device. Even better, do you have a prescription for one?

If a client comes is with silly props and nothing in medical records

suggests a need for them, or when your client got them, then be prepared for some fallout. TIP: be able to point out where in the record it is noted that your client got the assistive device so you can nail down a date (tie the onset date to this medical record and timeline ?). Have the client go get a Rx for the device if necessary to prove it was medically warranted. TIP: For many clients with Oxygen, there is a medical equipment company that provided it or services it. Just get their records to show WHEN your client got the Oxygen..

Show: Props video

THE HEARING: VE Testimony This is the really a topic of hour long talks and half day seminars. Here are some quick thoughts: Get Job Brower Pro by SKILLTran to use at hearings (http://www.skilltran.com/jb_overview.htm) Get DOT numbers from the VE Check St Agency for postural limitations (use in a hypo) Check psyche CEs for narrative restrictions to put in a hypo Change the ALJs hypo slightly Set up your appeal:

Ask if any representative jobs from the VE allow a sit/stand option at the workers convenience

Ask how long a worker must remain in position to be productive

Ask how many unscheduled breaks can be tolerated in this type of work

Some screen shots from Job Browser

You can search by DOT number or job title. The next screen

shows a search for security monitor. Simply click on the job to get details:

You can use the tabs at the right to get to any data you need

about the job. You can quickly get to the SVP, the physical demands, the postural, Be aware that most VEs have screened this data before they testify and some use this program live at hearings.

I personally rarely cross examine a VE on solely specific DOT

criteria unless they identify only 1-2 jobs in the entire universe. Most VEs in this region are fairly solid on this point as they tend to identify the same jobs endlessly. I prefer to scour the record for obscure restrictions (check state agency assessments) and add them one by one. I also add elements from my clients testimony one by one to erode jobs.

I can use SSA Rulings for their national policy statements to assess

how the VEs testimony departs and ask them to explain why. Most VEs are weak on transferable skills and the three requirements of the Ruling to truly transfer job skills.

PART II Ethics in Marketing in the Digital Age

What do you know NOW? Take this Quiz: Answers to be given orally with a discussion, and all answers can be found by reading SCR 3.130 et seq. contained in the Appendix

The famous disclaimer THIS IS AN ADVERTISEMENT where to put, when to use it! SCR 3.130(7.25)

If we are dealing with the mediums of radio or recorded

telephone (just about anything but TV), does the disclaimer have to go at the beginning and the end of the advertisement?

No way, pick one or the other Yes, put it both places Neither, put it in the middle where people listen It is a trick question, recorded phone calls are exempt

If the proposed advertisement is a standard 30 second TV spot,

how long must the disclaimer be shown on the spot? Just show it briefly at the beginning Show it briefly at the end so people remember it is an ad Show it briefly at both beginning and end Show it the entire time, no exceptions Show it when the lawyer has his/her name/address up on screen Show it whenever a toll free number is displayed on screen

If it is a TV spot of 60 seconds, how long must the disclaimer be

shown? Since it is twice as long as a 30, the disclaimer must be up twice as long Treat it as the same as a 30 second spot With a 60 second spot, you must bookend the disclaimer, putting it at the beginning and end The disclaimer is understood to be part of a 60 second spot and need not be shown at all

If it is a TV spot of MORE than 60 seconds,? Enough of this- it does not matter- use the 30 second rule, it controls for all TV spots Spots this long take us into infomercial land and we need only flash it at the beginning because everybody knows we are selling something Spots greater 60 seconds are expensive and putting that disclaimer up would cheapen the advertisement, so it is not needed I quit here. Just put the disclaimer up the entire time regardless of how garish it may look

If it is a Web Page, must this disclaimer be displayed at the top, at the bottom, or just in the middle ( or all places)? Yes, put it at the top, and the bottom, and the middle. It is all geek stuff anyway and they can make that thing show up anywhere easily. The disclaimer is only at the top, always at the top, and on every Web Page at the top The disclaimer goes at the bottom stupid, that is where people scroll to and end up, so it is most effective there and must be put there, on every page None of the above, this is a stupid trick question like we got in high school or when we took the Bar. Show it once anywhere and be done with it. None of the above- Treat a Web Page as similar to written advertisement, and prominently display the disclaimer on every page without the need to scroll around to find it (and frustrate the general public) Web stuff is newer advertising, and the Web can handle video, voice, and even chat clients- so treat it as a hybrid of a radio spot, a TV spot and a written spot- so you must have that special disclaimer at the beginning and at the end of every page.

Can I embed a video message in a properly advertised Web Page Sure, no worries here just so long as the underlying Web Page is properly approved by the Bar Sure, but be sure to take the time, effort and expense to get the Video Message separately approved Sure, but put an extra disclaimer on the Web right under the video message

Sure but have the video spokesperson briefly say as part of the video the disclaimer and if you do this in conjunction with an approved Web Page, you are golden

WHAT CAN YOU PUT IN AN ADVERTISEMENT [SCR 3.130(7.02), SCR 3.130(7.15)

Question: Are any of the following prohibited to place in your advertisement?

That I speak a Foreign Language My Banking References That I take credit cards My specific fees for very specific services A range of fees for specific services without further explanation My hourly Rate, and only that My specific fee for a specific type of consultation Can I just blindly compare my fees to those of other lawyers My membership is a scientific society My date and place of birth Can I just simply compare myself to other lawyers in the community Can I say that I got million for client X, and I can probably do it for you, so call me now!

KBA ADVISORY OPINONS: SCR 3.130(7.06) If I want to fully avail myself of the protections of an Advertising

Commission Advisory Opinion on my proposed advertising, how early must I submit proposed advertising before I publish it for the public to see ?

30 days prior No need so long as it is submitted contemporaneously with the release of the spot to the airways 60 days prior 10 days prior, its the basic safe harbor rule on advertising in Kentucky

Ok, so I submitted the advertisement for an Advisory Opinion,

how long must I wait before I air it if I want the protection: 30 days for the Commission to respond No need to wait to air it so long as it is submitted contemporaneously with going live on TV, radio, 60 days for the Commission to respond 10 days after submission, the other half of the safe harbor rule Wait till they get back to you, its the Bar stupid, dont risk it

What is the fee, if any, for a basic submission of a 30 second TV spot to the Bars Attorney Advertising Commission?

There is no fee if you paid your Bar dues There is no fee if you have 50 or more pro bono hours for the prior year I dont know, $50.00 I dont know, $75.00 It is $175.00 If you pay a one-time fee equal to your Bar Dues, that covers all submissions for that year.

DIRECT CONTACT per SCR 3.130(7.09)

I want to write a group of ten people who were spectators that

were injured in a bizarre sports mishap 3 weeks ago. I want to offer my professional legal services. Two of the group are blood relatives to me, and one is a current client- the rest I do not know. I got their contact data from the current client, although one of them told my client that he hates all lawyers (since his divorce) and never wants to hear from one again. So, is there any harm with a quick letter to the group?????

Can I treat them all the same and send the group a form letter? Do I have to put the disclaimer THIS IS AN ADVERTISEMENT on my letter. I mean this is a letter from a professional, on my firm, letterhead, and it is not some garish TV or radio ad.

OK, if I put the disclaimer on my letter on it to be safe, can I make that disclaimer in a much smaller font so long as it is at the bottom of the page. I mean it is clearly there on the page for the entire world to see and I am meeting the intent of the rule. If I put the disclaimer prominently on the actual letter so it is hard to miss, is that enough. Do I have to put that disclaimer on the envelope too (and pretty much guarantee it will go to the trash) Must I wait a time certain before I do this? (HINT: Does the 30 day disaster rule as per SCR 3.130(7.60 apply)

a "Disaster" shall mean the type of emergency or disaster that draws persons to solicit clients.

This includes, but is not limited to, air crash, major fire, explosion, sea disaster, hazardous material contamination, flood, landslide, major rail or traffic accident, earthquake, or other circumstances resulting in substantial loss of life, substantial personal injury, or substantial property damage

My own disclaimer- yes there are some gray areas here and I

agree that they can be open to multiple interpretations. The state Bar is very proactive about protecting the public, and despite what some think, they are not engaged in censorship by any stretch of the imagination. This field is after all, really just a form of regulated, commercial speech.

The State Bar has a dedicated paralegal for attorney advertising

who is readily available to assist you. I have found her an invaluable and engaging resource. I personally suggest you err on the side of safety and submit your proposed advertisements. Do you really want to be that test case?

SCR 3.130(7.09) Question I: Can we ethically buy internet leads for cases in Kentucky????

KBA E-429 Participation in for-profit group marketing Opinion dated 6/17/08

Can a lawyer participate in for profit group marketing?

Can a lawyer pay costs for such participation?

If a lawyer does this, is s/he responsible for advertising compliance?

References: SCR: 3.130, Rule 5.4, KBA E-427, KBA E-428 Question II: Ethics aside, are there advertising hazards in buying email leads? (If we pass ethical muster, what is left to secure advertising approval?)

Where to look: SCR 3.130(7.02 SCR 3.130(7.05) SCR 3.130(7.06) SCR 3.130(7.09) SCR 3.130(7.15) SCR 3.013(7.25)

The Email Rule: See: SCR 3.130 (7.09)(3)

If you use an e-mail response, or anything close to an e-mail style

response, you must use the disclaimer THIS IS AN ADVERTISEMENT and it needs to be in an Subject line.

If you have a valid , approved E-mail DRIP style follow-up

advertising campaign- you must have an op-out. SCR 3.130(7.09)(2)

What can you tell a client (or the world at large): SCR 3.130(7.15)

Get your proposed email auto responses pre-approved by the BAR

THIS IS AN ADVERTISEMENT the actual Rule:

HOW CAN THEY DO THIS ANYWAY Start with SCR 3.130 which contains the Kentucky Rules on

professional conduct, which coincidentally, contains rules on attorney advertising. SCR 3.130(7.03) established the Attorney Advertising Commissions which has responsibility to implement the advertising rules. The Commission can promulgate regulations subject to approval by the Board of Governors.

So there is the basic authority. Please note a recent amendment

to AAC Regulation 11- Requirement for Complete Information. When submitting proposed advertising, You must submit enough information for the Commission to be able review the proposed advertisement. The seems axiomatic, but I suppose the Commission had issues with submissions. TV spots and such need to be on a DVD playable by a variety of common, popular media players. Radio spots need to be on a CD, playable by Windows or iTunes.

Multiple TV spots should be on one DVD, but not a single

continuous playing spot. Remember the rule of three copies- submit three copies to the Bar.

APPPENDICES : SCR 3.130(7.02 SCR 3.130(7.05) SCR 3.130(7.06) SCR 3.130(7.09) SCR 3.130(7.15) SCR 3.013(7.25) KBA e-429 Copy of Ky Ethics opinion- Qualified ethics approval Copy of KY Bar Opinion on IM Soln internet leads Copy of KY Bar on Internet Lead Engine Marketing Forms HA-4631 HA-4632 HA-4633 Background Quest.