The Florida Bar Cannons of ethics demands you Zealously represent your clients, yet many of us do not fully either understand what it means or are confused to what it means.
It means presenting all legal arguments you need to help your client’s claim to prevail and that your loyalty is to your client, and even though you must be respectful to the other side you most make sure you advocate for your client.
Know, many in the room will say the Social Security hearings are non-advisory even though I am not sure what that means, it is clearly adversely at the Federal level.
Most important the Social Security Administration in more than one case have made the following arguments repeatedly.
The Commissioner contends that “The claimant forfeited any challenge to the ALJ’s finding that he/she was not disabled” by failing to raise before the ALJ and the Appeals Council
And many times this argument prevails, and it causes clients to lose claims unnecessary, you can respectfully raise your objection, and clearly prepare post hearing Briefs in which you bring it up and clearly to so before the Appeals Council.
Stipulating to the VE qualifications when you are not sure of them, just to not to rock the boat, is wrong and damaging to your client, after all you cannot say that his/her resume qualified him or her as an expert.
Also, many times the Social Security Administration has successfully argued in Federal Court, that by stipulating to the qualifications of the VE and not objecting to their findings, that the claimant is barred to do so in Appeal.
The above shows clearly that we must consider that by failing to assert yourself at the hearing level, you are hurting your client, opportunities to prevail at the Federal Court level.
The same is true by not objecting to the ALJ possible residual functional capacity which he or she ask to the VE by his or her hypothetical questions, here you should respectfully object that the ALJ has failed to establish what medical evidence is he or she relay on to reach said conclusion.
Yes, the ALJ may ignore you or even state that is the conclusion he or she have reached after careful review of the whole file, you should argue that this is insufficient, since one of the following should apply:
- That no medical evidence explains any physical or mental limitations, which could justify said findings
- That the residual functional capacity presented by the ALJ is contrary to the medical or mental records and findings in the claimant’s records (particularly when there is a medical or mental residual functional capacity form completed by the claimant’s treating doctor)
- That the residual functional capacity asks for factors not consider or define by the DOT such as (a) simple and routine (b) stand, sit option, (c) one, two, three steps, (d) limited contact with public, co-workers, supervisors.
This is extremely important since here the Appeals Council remands in what it calls VE and DOT NOT RECONCILED (e.g. sit-stand limitations, time, or task).
With this last one time of tasks first this is not addressed by the DOT, and by Social Security Ruling 83-12, the DOT does not define sedentary, medium, heavy work, Social Security Rulings do.
Also must medical records do not address the above and if the ALJ is going to create a residual functional capacity statement without stating which medical records he or she is relay on is an error the Appeals Council and Federal Court will take issue with.
Another different area which you must be careful with is the area of the translator not translating during the VE questioning and answering.
In the same situation my English speaking may inform that the Judge or the VE characterization of their past relevant work or jobs the VE finds, and I can present at the hearing a proper objection, which I cannot do if my client does not understand it, this is prejudicial to my client.
Now, what are the top reasons the Appeals Council and Federal Court remands case back which are the following not necessary in this order:
Treating Source – Opinion Rejected Without Adequate Articulation
Inadequate Rationale for Symptom Evaluation Finding
*RFC – Mental Limitations Inadequate Evaluated
Consultative Examiner – Inadequate Support/Rationale for Weight Given Opinion
Non-Examining Source – Inadequate Support/Rationale for Weight Given Opinion
Incomplete / Inaccurate Record – Record Inadequately Developed
*RFC – Exertional Limitations Inadequately Evaluated
*RFC – Other
VE and DOT Not Reconciled (e.g., sit/stand limitations, time off task, etc.)
Treating Source – Opinion Not identified or Discussed
FAILURE TO FOLLOW OR CONSIDER THE GRIDS FAILURE TO EXPLAIN WHY NOT GIVEN FULL CREDIT TO TREATING DOCTOR RECORDS OR TO EXPLAIN WHY GIVEN LESS
Of all these mentions only VE and DOT not reconciled are discuss and really decided, or the ALJ may decide to use another VE via written questionnaire to which you most request a hearing.
For all the other above-mentioned reasons you most document your file with the following:
- Brief, in which you discuss the treating source (doctor) findings, the MRI, CY-Scan, X-rays and Lab. Results. Why did the treating doctor feel complied to issue a Handicap Parking Permit, prescribe a cane, walker, etc.
- Objective to the use of a VE, objection to the qualifications of the VE, objection to the alleged Vocational Expert.
- Request for Subpoena, if the ALJ is going to relay on the non-examining source, I should be able to question it as to what medical records did it review, when and based on what did ne or she reached their conclusions
- Submitting case law as to the above reasons, please see the list attached to this presentation.
- Objection to the use of the non-examining, since it is clear their reports where used in the ALJ decision.
In addition, to tis is the fact that you may also prepare for the strong or weak points of your case, such as:
Strong:
- Age
- Lack of education
- Only unskilled jobs in past relevant work
- Medical records
Weak:
- Age
- Education
- Past relevant work
- Medical records or lack of
- Only one condition
- Lack of cooperation of treating doctor
- Client
This also requires that you properly prepare yourself to deal with this, after all you shaw something good, strong on this claim which you signed it up.
In conclusion, you must prepare for the upcoming hearing, review all pertained regulations, rulings, and case law file all necessary Briefs, Request for Subpoena, Objection to VE, Objection to Consideration of Non-Examining doctors’ reports, etc.
Also, make sure that your medical record is complete, that you have tried to get a Residual Functional Capacity questionnaire completed by the treating doctor if all possible.
It is good to have your clients review the medical records, most believe that they are perfect, and that the problem is Social Security or us not bring up issues not in the medical records and in particular what may be missing, remember that most of our clients do not review or read the medical records and much less ask there doctors to make any corrections or additions.
Meet with your client at least first two weeks prior to the hearing to go over the medical records what they say and what they do not. Go over the 5 steps, maybe client is working, maybe cancer in remission, maybe doctor change diagnosis, maybe doctor says client is stable with medication.
Also, meet them the day prior to the hearing or as close as possible, to calm their anxiety, for them to know what to expect at the hearing, the waiting room, not to bring to the hearing such as food, weapons, some places cell phones, etc.
Meet with your client at least 30 minutes prior to the hearing to answer their questions and concerns.
Finally, you are there to represent your client, not to make friends, not to present your personal views but, to do your best job to be prepared to aggressively represent your client.