I am currently attending the NOSSCR (National Organization of Social Security Claimants Representatives’) conference in San Francisco. I am going to write posts this week highlighting some of presentations I go to at the conference. Today I went to a presentation on “Judicial Review of a Social Security Disability Claim.” The presenters were:
- The Honorable Edmund Brennan, U.S. Magistrate (U.S. District Court, Eastern District, California)
- Bess Brewer, Esq. (Attorney in private practice)
- Michelle Beckwith, law clerk (U.S. Court of Appeals, 9th Circuit)
- Lucille Meiss, Esq. (Attorney with OGC/SSA , Region IX)
Each presenter gave excellent advice on how to be more successful in federal court. I will summarize their advice into ten tips.
- Develop a theory of the case at the earliest opportunity. Every adjudicator looking at a case from the first time it is filed wants to know why the claimant cannot work. When filling out the disability forms and specifically when answering questions about daily activities, your answers should relate to the theory of the case.
- Get all the records. Make the Administrative Law Judge’s job easier. If the case goes to federal court, you will want the record fully developed.
- Submit a brief to the ALJ. This is your chance to orient the ALJ to your theory of the case. You may not have to go to federal court at all if you win in front of the ALJ.
- Deal with adverse facts early on. If there are few treatment records because the claimant did not have medical insurance and could not go to the doctor, make this fact known to the ALJ in the record. By doing this, a federal judge will not have to guess why there are no treatment records and/or will not have to accept the ALJ’s reasoning that the lack of treatment records indicates that the claimant is not severely disabled.
- Obtain third party testimony. There is good case law about the weight that must be given to testimony from third parties (friends, relatives of the claimant). Witnesses should either come to the hearing or submit a letter describing their observations of the claimant. Third party testimony is especially helpful in cases dealing with mental impairments or for claimants who have pain.
- Try to enter into a voluntary stipulation with government counsel for remand. If you have a case which you think would benefit from remand, send a concise letter to the Office of General counsel describing why you think they should agree to a remand. (Note: although this was the advice given, it is not clear how often it works.)
- Know the court and the law clerk. To the extent possible try to find out a little about the federal judge who has been assigned to your case in district court. If he or she has decided Social Security Disability cases before, you do not need to give a detailed explanation of the sequential evaluation in your brief.
- Write a concise yet comprehensive brief. Use plain language, cite to the record, define terms. Although the law clerks and judges have access to the medical dictionaries and legal resources, it is helpful if you define a medical term in the same sentence in which you use it. If you cite to a DOT listing, it would be helpful to them if you create an appendix and submit the listing.
- Be credible. Follow the court rules, be forthcoming. Do not exaggerate.
- File a reply brief. Many law clerks will read the reply briefs first in order to find out what the real issues are in a case. You want to persuade the judge to decide in your favor; the reply brief gives you an opportunity to restate your position.