Washington, DC
May 13-16, 2009
Conference Program |
 JW Marriott Hotel on Pennsylvania Avenue
|
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For room reservations at the special NOSSCR rate of $279 (single/double), call 1-800-266-9432 and refer to group code NOSA.
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NOSSCR Conference Program
Printable Version [Microsoft Word]
Lawyers and the Legislature
David
Goch, Esq.
Most
advocates are well versed in “the law,” but not all understand the process by
which the statutes (and regulations) that govern our country are developed and
how they can effectively educate, and influence, the responsible
legislative/regulatory bodies. The session will provide a comprehensive
overview of the process of how legislation is proposed, developed, drafted,
introduced, and winds its way through the legislature (and ultimately signed
into law). In addition, the session will focus on effective communication skills for the
lawyer, including aspects of professionalism and ethics that lawyers are
otherwise governed by. Learn how to
fine-tune your communication skills to reduce the static, make yourself
understood, understand others more clearly, and to communicate effectively in a
limited time period.
Conference Registration
Workshops:
Choose one from the following.
A. Introduction to
Social Security Administrative Practice
Paul Eaglin, Esq.
Gil Laden, Esq.
These sessions are intended to introduce the
practitioner to the practice of Social Security disability representation. During the two sessions, the presenters will
survey the practice from inception of the claimant-representative relationship
to the administrative levels of representation. The sessions will not cover
federal court representation. Because
the topics that are vital at the administrative level are so numerous, the
presenters will be able to dwell at length only on selected aspects during the
course of representation from inception of the claim through protecting the
client’s interest after the initial claims level through the Appeals Council
action.
This workshop continues at
B. SSI Living Arrangements
Ann Biddle, Esq.
Barbara Samuels, Esq.
An SSI recipient’s “living arrangement” is a
major determinant of the amount of benefits to which he or she will be
entitled. What living arrangements does
the federal program recognize? What living arrangements do states providing
supplemental payments recognize? Can a
living arrangement be changed retroactively? Prospectively? Does a claimant have to move in order to
change a living arrangement? What issues
may arise when notifying SSA that a living arrangement has been changed? This session will focus on the arcane rules
of living arrangements and their byzantine application.
C. How to Analyze and Win DAA Cases (Maybe)
Timothy Cuddigan, Esq.
Warren Reimer, Esq.
Max Schott, Esq.
Individuals who have applied for disability
benefits and who continue to use or abuse alcohol or drugs which potentially
have a causal relationship with mental or physical conditions and which form
the bases of their conditions have an especially difficult row to hoe towards
reaching a favorable determination. Provisions of “The Contract with America
Advancement Act of 1996” explicitly eliminated benefits under the Social
Security Act for individuals for whom alcoholism or drug addiction is “a
contributing factor material to the Commissioner’s determination that the
individual is disabled.” Beginning with
the guidance offered by the agency in the Emergency Teletype it promulgated on
Workshops:
Choose one from the following.
A. Introduction to
Social Security Administrative Practice--Continued
Paul Eaglin, Esq.
Gil Laden, Esq.
This workshop is continued from
Ann Biddle, Esq.
Barbara Samuels, Esq.
In 2002, the U.S. Supreme Court in Barnhart v. Walton, held that
performance of substantial gainful activity (SGA) in the 12 months following
application and/or onset generally precludes a finding of disability. In this session we will focus on what Walton held, how SSA applies the
decision, and some arguments that can be made to overcome Walton’s adverse effects.
C. Tips from the Hall
- Learn from Losing, or How to Stop Worrying and Love Federal
Court Work
Vaughn Clauson, Esq.
Practitioners are often torn between the need and
desire to appeal decisions to the U.S. District Court, and the demands of a
volume practice at the administrative level.
While we might not see immediate (economic) payoff in terms of EAJA and
other fees that we might like, there are benefits in improving our practice at
the administrative level. Taking a case
to district court means we have already failed to advocate successfully for our
client at the ALJ level; the next step is to identify errors that can be
prevented when similar situations arise in the future.
- The Difference Between Res
Judicata and Administrative Finality
Mason Hogan, Esq.
The Social Security Administration often confuses
the concepts of administrative finality and res
judicata when declining to determine disability for a previously
adjudicated period of time, holding that the previous period of time cannot be
re-adjudicated due to the mere passage of time, but failing to appreciate that,
while the doctrine of administrative finality may prevent reopening, the
doctrine of res judicata does not bar
re-adjudication. This topic will be
explored in the context of a successful federal district court challenge to an
ALJ’s early dismissal of a claim on res
judicata grounds and the government’s subsequent Rule 12(b)(6) Motion to
Dismiss.
- Helping Clients Win Long Term Disability Claims at the
Initial Application
Troy Rosasco, Esq.
There was once a time when many of us told
clients to apply on their own for SSDI, and call us only if denied. Today, many of us help our clients with the initial
SSDI applications stage. Even more so
than with SSDI claimants, you should be helping your clients strategize and
prepare a bullet-proof application in the adversarial arena of ERISA long term
disability claims. This session will
explore ways to overcome and avoid the inherent traps and pitfalls used by long
term disability insurers to deny claims at the initial application level,
thereby preventing costly and time-consuming appeals for claimants.
- Remote DLIs—Why it Does Not Stand for Denied, Lose,
Impossible
Date Last Insured (DLI). When this is a date in
the future, it rarely has any impact on how you prepare or present your case to
the Social Security Administration.
However, when it has recently passed (i.e.,
Workshops:
Choose one from the following.
A. Fibromyalgia: The Client, The Symptoms and the Law
Niki Fisher, Esq.
Greg Humphrey, Esq.
This session will focus on representing
disability claimants who have fibromyalgia.
B. Subsequent Application Conundrums
Thomas Bush, Esq.
Kate Callery, Esq.
Louise Tarantino, Esq.
SSA policy permits subsequent applications while
appeals are pending. Filing a new
application may be straightforward enough, but it may not be so simple after
that. This session will cover the
circumstances under which an approval on a subsequent application will be
effectuated. It will also address the
ins and outs of what happens to the pending appeal if your client is
approved—or disapproved—on the subsequent application. Finally, it will cover SSA’s policies
concerning fees when prior and subsequent applications are involved.
C. Electronics at Your
Hearing
- The Electronic Records Express (ERE) Today, Online Access
Tomorrow
Sue Brown and John Heard will provide an update
of the Electronic Records Express, and will demonstrate the Online Access that
will soon be available to all representatives.
Come to learn how you can efficiently and effectively submit your
client’s medical records today, and to preview the direct access to your client’s
records you will have when the Online Access goes live later this year.
-
Getting
FIT for Your Hearings
The backlog of hearings is at a record
level. One way to provide better service
to your client, reduce the time it takes to receive a favorable decision, and
make sure you have all of the essential information on your case is to prepare
a Findings Integrated Template (FIT) proposed decision. This 30 minute session will discuss the new,
streamlined version of the FIT proposed decisions introduced in May 2008 as well
as the previously released, more complete version. Discussion will focus on using FIT to help
you prepare for the hearing and to expedite the decision.
Focus on Practice:
Focus on Practice: First Circuit
Focus on Practice: Second Circuit
Focus on Practice: Third Circuit
Focus on Practice: Fourth & DC Circuits
Focus on Practice: Eighth Circuit
Focus on Practice: Eleventh Circuit
Focus on Practice: Fifth Circuit
Focus on Practice: Sixth Circuit
Focus on Practice: Seventh Circuit
Focus on Practice: Ninth Circuit
Focus on Practice: Tenth Circuit
Conference Registration
Continental Breakfast
First Timers’ Meeting
If this is your first NOSSCR conference or if you
are a new member, you are cordially invited.
Welcoming Remarks
Gary Parvin, Esq.
NOSSCR President
Marty Ford, Esq., Chair
for the Consortium for Citizens with Disabilities (CCD)
Ms.
Ford will discuss CCD’s role in advocating on behalf of claimants and
beneficiaries with disabilities before the Social Security Administration. She also will discuss current regulatory and
legislative matters in which the CCD Social Security Task Force is involved.
The Advocate’s
Perspective
Nancy
G. Shor, Executive Director of NOSSCR
Nancy G. Shor, Executive
Director of NOSSCR, will discuss key current issues and challenges facing
practitioners seeking to advocate effectively for their disabled clients. She will provide an administrative and
Congressional update.
12:00noon-1:30pm
Lunch
(on your own)
Workshops: Choose one
from the following.
A. Ethical Issues: Non-English Speakers, Individuals with Mental
Impairments, and Cyberspace
Suzanne
Fluhr, Esq.
Sanjuanita
Gonzalez, Esq.
This session will explore
ethical issues and responsibilities in representing non-English speakers and
mentally impaired individuals. We will
also consider issues arising when you hit “send” and realize that, oops, your
email about the merits of your client’s case just went to OGC instead of your
client.
B. Understanding and
Proving Pulmonary Disability: Increasing
Incidence Requires Deeper Understanding
Douglas Friedman, Esq.
Allan Goldstein, MD
Pulmonary impairments
involve far more than the Listings, which are so stringent that they apply to
relatively few cases that are appealed.
This session will begin with a detailed explanation of the physical
aspects of pulmonary impairments, followed by an evaluation of the Listings
with special consideration of conditions “equivalent” to a Listing. The session will then discuss increasingly
more prevalent pulmonary impairments, such as asthma, and resulting medical
conditions, such as sleep apnea. You
will learn the medical and legal aspects, for example, of proving how asthma
and sleep apnea can be expected to limit one’s ability to sustain work. The session will be presented in an informal
question and answer discussion between Dr. Goldstein and Mr. Friedman, and will
include simulated medical expert testimony by Dr. Goldstein.
C. Representing
Disabled Veterans for a Fee Before the Veterans Administration
Barton Stichman, Esq.
This session will focus
on the nuts and bolts of representing veterans before the VA on claims for
disability benefits. The discussion will
include an explanation of the rules governing how much an attorney or non-attorney
representative may charge as a fee, how to formally become accredited by the VA
to provide representation, the criteria for entitlement to disability
compensation, and the basic rules of practice and procedure at the 57 VA
regional offices, the Board of Veterans’ Appeals, and the U.S. Court of Appeals
for Veterans Claims.
Workshops:
Choose one from the following.
A. New Developments in Children’s SSI
Barry Eigen, Executive Program Policy Officer, Office of Disability
Programs, SSA
Thomas Yates, Esq.
Barry Eigen of the Social Security Administration and Thomas Yates of
Health and Disability Advocates will discuss recent changes in children’s SSI
including issuance of Social Security Rulings and developments in caselaw.
B. Pain, Fatigue, Functional Impairment, and the
Clinical Evaluation of Inflammatory Arthritis and Other Disorders Discussed in
Social Security’s New Listings on the Immune System
Edward Treadwell, MD, Professor of Medicine at
the
Michael Glancy
Lupus, inflammatory bowel disease, rheumatoid
arthritis, pain, fatigue and functional capacity; these are a few of the topics
that Professor Treadwell will discuss in this presentation on Social Security’s
new Immune System Listings. Dr.
Treadwell, who in addition to being a Professor of Medicine in the Department
of Rheumatology, is a practicing clinician in rheumatology who conducts a
clinic twice weekly and conducts research in his field. His latest research interests include Lupus
and undifferentiated connective tissue disorders. In his more than 30 years of practice, Dr.
Treadwell has treated thousands of patients and lectured widely on a variety of
subjects in the field of rheumatology.
He will guide us through an understanding of Social Security’s new
Immune System Listings and discuss his research and questionnaires that enable
him and other clinicians to gain more knowledge on how fatigue and pain caused
by these disorders impact function.
C. Why Not Use the Vocational Expert to Prove
Your Case?
Phillip
George, Esq.
Rebecca
Williams, Vocational Expert
Phillip
George, attorney, will present ways to turn the tables and make the VE a powerful
witness for the claimant. He will also discuss when hiring a vocational expert
to evaluate your client can be advantageous, and will note the limitations of
hiring your own vocational expert.
Rebecca Williams, Vocational Expert, will present the minimum tools that
all Social Security claimants’ representatives should possess to understand the
vocational issues of the case and prepare the case for hearing. These same tools can be used to effectively
cross-examine the vocational expert.
They will also present a case study demonstrating how the VE can be the
claimant’s advocate during testimony.
President’s Cocktail
Reception
Continental Breakfast
Workshops: Choose one
from the following.
A. How to Ethically and Legally Charge a Fee in
a Social Security Case at the Administrative Level or in Court
Eric Buchanan, Esq.
It is a crime to charge your client a fee for
working on a Social Security case unless the fee is approved, or to charge your
client too much. Find out how much you
can charge your client, and the best ways to have your fees properly
approved. This session will include
discussion of a basic fee agreement under 42 U.S.C. § 406(a)(2), fee petitions
under 42 U.S.C. § 406 (a)(1) and court approval of fees under 42 U.S.C. § 406(b)
for work in federal court.
B. Addressing
Vocational Testimony at Step Five
Frederick Daley, Esq.
Heather Freeman, Esq.
This practice-tips format
session addresses vocational expert testimony at step five, in particular, the
representative’s duty at the hearing, and preserving step five issues for
appellate review in the different circuits.
It will also include professionally animated examples of hearing
situations.
C. Listings Update
Suzanne
Villalon-Hinojosa, Esq.
From 1968 (the first
publication of the Listings) to 1998, there were few changes to the Listings of
Impairments. But regular revisions since
then have substantially changed the Step 3 analysis. Few adjudicators and even fewer testifying
medical experts have appreciated trends and incorporated them into their
analyses. The advocate must be prepared
to confront this phenomenon and present persuasive and winning Step 3
arguments.
Workshops: Choose one
from the following.
A. Changes in the HIV
Listings
Bebe Anderson, Esq.
Sarah Patterson, Esq.
This session will provide a discussion of the
2008 Listings changes for Autoimmune Disorders, Section 14.00, with emphasis on
the criteria for evaluating claims by people with HIV and AIDS (14.08). Practical strategies based on the changes in
the regulations will be discussed, including the importance of developing
evidence on functional impairments and ways to use changes in treatment and
understanding of HIV to support applications.
Other autoimmune disorders will be briefly discussed.
B. The Beginner’s
Guide to EAJA Petitions
Frederick Daley, Esq.
Heather Freeman, Esq.
This presentation is oriented toward beginners or
individuals who are interested in federal court litigation but intimidated by
the process of seeking fees under the EAJA.
We will cover the basics including:
When and why to file an EAJA application; why you should file; how to
calculate the amount requested; how to respond to objections; and other issues.
C. Dealing with the
Medical Expert
Kirk
Roose, Esq.
The ME
does not have to be your enemy. This
session explores how to prepare the case so the medical expert who testifies at
the hearing will help you. What kinds of
evidence from treating physicians are helpful?
What areas should a pre-hearing brief cover? Should ME’s testify outside their areas of
expertise? Should you question the ME’s
qualifications? Should you ask the ME
about evidence or testing that is absent from the record? Should you clarify that the ME did not take
into account the claimant’s testimony at the hearing? How did the ME weigh the claimant’s
complaints to the treating sources? Did
the ME use the proper legal test for weighing the opinions of treating sources
and other evidence for considering failure to follow prescribed treatment and
for DA & A? Was the ME supposed to
know and apply the correct legal tests?
What medical literature, if any, corroborates how many hours per day
people can stand and walk, if they have obesity or knee damage?
11:00am-
Workshops: Choose one
from the following.
A. Effective Advocacy
before the Appeals Council
The
Honorable Barbara Jane Johnson, Administrative Appeals Judge
Practice
tips for representatives at the Appeals Council level, including identifying
critical issues, preparing a focused brief, and submitting relevant evidence.
B. Selected EAJA
Topics for the Advanced Practitioner
Charles Martin, Esq.
Steven Shea, Esq.
If you have been seeking
EAJA fees for years, you know the basics.
But odd little problems keep surfacing.
This presentation will focus on some unusual or difficult issues faced
by advanced practitioners, with a focus on those of interest to the
presenter(s).
C. Hypothetically
Speaking--Vocational Expert Testimony in Social Security
Disability--(Part I)
Dale Thomas, MTS, Thomas
Vocational Consulting
The “bottom line” in a
disability case is whether or not the individual can earn SGA. The vocational issues are often the least
understood matters for the claimant’s representative. “Hypothetically Speaking” is an in-depth
presentation concerning how the Vocational Expert (VE) analyses the various
factors impacting the claimant’s ability to work. Topics discussed include the VE and
sequential evaluation process, commonly used vocational resources (e.g., DOT,
SOC, COJ, RHAJ, GOE, OOH, etc.), assessing RFC from a VE viewpoint (e.g., ‘‘function
by function,” GED, Data/People/Things, less than the full range of sedentary,
mental limitations, etc.), skills, transferability, diminishing the unskilled
occupational base, numbers of jobs and how they are determined, and how to ask hypotheticals.
“Hypothetically Speaking”
will teach you how to think like a VE and therefore how to ask hypotheticals
that get a “no jobs” response.
This workshop continues at
12:00noon-1:30pm
Lunch (on your own)
Workshops:
Choose one from the following.
A. Top Ten Tips on Perfecting the Record in a Social Security
Case
Sarah Bohr, Esq.
In her experience writing Social Security Appeals
Council letter briefs and federal court briefs for other lawyers for over
twelve years, Sarah Bohr has reviewed hundreds of transcripts and is in a
unique position to comment on the common errors made by advocates in their
administrative representation of their clients.
Had these issues been addressed at the hearing level, perhaps the
results in some of these cases may have differed. This session will highlight Ms. Bohr’s list
of top ten errors advocates make at hearings and offer suggestions for making a
better record.
B. Practical Aspects
of Litigation
Paul
Eaglin, Esq.
Eric
Schnaufer, Esq.
This is a
how-to workshop on the litigation of disability claims. Among other topics, the workshop will address
drafting a contract for representation in federal court, handling extra-record
evidence such as a finding of disability based on a subsequent application,
whether to consent to Magistrate Judge jurisdiction, objecting to a Magistrate
Judge’s report and recommendation, and negotiating settlement with the
Commissioner’s counsel.
C. Hypothetically
Speaking—Vocational Expert Testimony in Social Security
Disability—(Part II)
Dale Thomas, MTS, Thomas
Vocational Consulting
This workshop continues at
Workshops: Choose one from the following.
A. The Office of
Personnel Management Selection Process
Richard
Hermann, Esq.
The Office
of Personnel Management selection process for Administrative Law Judge
positions is difficult to understand.
This session will explain how the selection process works, what OPM is
seeking, and how candidates can strengthen their applications.
B. Ethical Considerations in Practice before the
ODAR
Sarah Humphreys, Director, Representative Conduct
and Civil Rights Division, OGC, SSA
Robert Rains, Professor of Law
In this interactive session, we will address some
of the recurring, difficult ethical issues confronting Social Security
practitioners. We will consider various
State Bar rulings, as well as applicable federal law and regulations, regarding
practitioners’ conduct in proceedings that are intended to be nonadversarial.
C.
Hypothetically Speaking—Vocational
Expert Testimony in Social Security
Disability—(Part III)
Dale Thomas, MTS, Thomas
Vocational Consulting
This workshop is continued from
Workshops:
Choose one from the following.
A. Post-Disposition Advice to Clients
Kevin Liebkemann, Esq.
What advice should you be giving clients once
their SSI and/or SSDI cases are won?
This workshop will discuss some best practices for maximizing medical benefits
for new SSI/SSDI beneficiaries, maximizing retroactive awards for SSI
beneficiaries, and other advice that advocates can provide to new SSI/SSDI
beneficiaries to help them avoid overpayments, connect with needed services,
and adapt to their changed circumstances.
B.
The Medicare Secondary Payer Act:
CMS Settlement Policies, Set-Aside Arrangements, New Section 111
Reporting Mandates, and MSP Reform Legislation
Kathleen Shannon Glancy, Esq.
Henry Patterson, Esq.
This program will discuss
CMS policies requiring reimbursement of Medicare conditional payments and
set-aside arrangements for payment of future medical expenses, CMS conditions
for approval and administration of Medicare set-aside arrangements, reporting
for settlements mandated for employers and workers’ compensation and liability
insurers by Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of
2007, and legislation supported by the ABA, AAJ, Workers’ Injury Law and
Advocacy Group (WILG), and American Insurance Association to reform present CMS
practices with respect to workers’ compensation settlements.
C. Privacy and the Freedom of Information Act at
Social Security: Preserving the Public’s
Trust in Our Programs
Jonathan Cantor, Executive Director for Privacy
& Disclosure, Office of General Counsel, SSA
This session will
focus on how the Freedom of Information Act and key Federal privacy laws impact
SSA and the SSA business processes. The
discussion will focus on the way these laws operate with special attention
focused on how they impact the representation and claims processes. The session
will include a brief introduction to the Freedom of Information Act and key
Federal privacy laws, as well as SSA’s regulations and policies that help
implement them. We will also discuss
SSA’s privacy practices and efforts we make to protect privacy and to prevent
accidental misuse and disclosure.
Continental Breakfast
Workshops:
Choose one from the following.
A. What’s Not On a
CD: How to Locate and Interpret Data Not
Found on CDs to Win Your Case
Peter Clifford
This session will include Title II and SSA data
base systems: what is available, and how to use it. Also discussed will be Social Security denial
codes, medical diagnostic codes, the Listings, using prior claims information
to request re-openings, and SSI vs. Title II.
B. Developments in the Case Law, 2008-2009
Carolyn Kubitschek, Esq.
This workshop will take a look at recent
developments in the case law during the last 12 months, focusing primarily on
decisions of the Supreme Court and courts of appeals, and secondarily on
important decisions of the district courts.
The session will identify trends in the case law, issues that have surfaced
repeatedly in different circuits, arguments that the government appears to be
raising systematically throughout the country, and the latest developments in
EAJA. The workshop will also include a
brief discussion of stare decisis,
including a mention of which decisions constitute binding precedent and which
do not.
C. The Collaboration Between Social Workers and
Attorneys: Helping Disabled Clients Receive
SSI/SSDI Benefits
Edwinna Meister, Esq.
This session will discuss a model used for such
claims: Using an aggressive approach at
initial and reconsideration filing levels that offer extensive assistance to
the clients in the SSI/SSDI process, and coupling that with case management by
social services agencies. These agencies are able to keep the clients
stabilized during the process. This yields much higher, and much quicker,
approvals at the early stages, so that clients can become more self-sufficient
in a more timely manner.
Workshops:
Choose one from the Following.
A. Top 25 Cases Every Representative Should Know
Eric Schnaufer, Esq.
Over the past three decades, courts have issued
hundreds of precedential Social Security disability decisions. This workshop highlights twenty-five Supreme
Court and Circuit Court cases every practitioner should know. E.g.,
Bustamante v. Massanari, 262 F.3d 949
(9th Cir. 2001) (DAA); Daniels v. Apfel,
154 F.3d 1129 (10th Cir. 1998) (age); Skinner
v. Secretary of Health & Human Services, 902 F.2d 447 (6th Cir. 1990)
(education).
B. Brief Writing
: Issue Analysis and Structure
Beth Dunlap, Esq.
Thomas Krause, Esq.
You “know” your client is disabled and the ALJ’s
decision is wrong; the problem is how to convince the district court. This session will focus on identifying your
strongest issues and structuring your argument to present the most persuasive
case you can.
C. Advocacy at Appeals Council—Making Winning
Arguments With or Without Citing the 20 C.F.R. Section, HALLEX, or SSRs
Alecia Elston, Esq.
Is there anyone who hasn’t received an
unfavorable ALJ decision and thought to themselves, “This is just plain wrong!”
This workshop will explore obvious error arguments to the Appeals
Council for remand. It will also address “gnashing your teeth” and passionate
arguments where remands, actual award of benefits, or reopening of Appeals
Council review denials are granted just
because it is the correct and fitting thing to do (right the wrong). Receiving an unfavorable ALJ decision does
not mean the claim is over—sometimes it means the fight has just begun. Several examples will be provided.
