Mr. Nutt and federal administrative law
judge Kendra S. Kleber, dated 2/21/14.

On Friday, February 21, 2014, I enjoyed the pleasure of attending one of the best Michigan State Bar Social Security Section trainings offered in a long time, offering many practice tips for the more than 100 Social Security Section members in attendance at the Kellogg Center in East Lansing. The skill with which an attorney cross-examines vocational expert (VE) called by an administrative law judge during a hearing can often determine the outcome of an administrative law case. Require the expert to specify the sources relied upon for any job numbers and request a copy of the specific publication/material relied upon for their testimony if a free source is not easily accessible.

To preserve the record for possible appeal, object on the record if the judge does not allow the review of the copy or if the VE cannot provide it. The Bureau of Labor Statistics is not specific, nor is an expert’s personal opinion or experience sufficient authority. If needed, ask for the record to be left open to review and respond to any specific expert materials submitted post-hearing. SkillTran, which is an application that includes Dictionary of Occupational Title numbers, or OccuBrowse, which includes job numbers, are useful tools during cross-examination. The claimant may also be invited to testify on whether the types of jobs noted by the expert could be performed and if not why not.

Judge Kendra S. Kleber encouraged advocates to complete a rapid legal assessment of each case at the initial consultation phase to determine whether an on-the-record favorable decision can be requested in an executive summary-type letter, based on compelling evidence of record. That is,
without waiving the right to a hearing. The on-the-record request letter is especially useful where the case meets the “critical case” test and/or if, for example, a treating practitioner letter is cited in a particular exhibit and page number. Call the ALJ to follow up if there is no response to the on-the-record request.

As noted in the cannons of ethics for attorneys with the State Bar of Michigan, each lawyer is expected to adhere to the highest ethical standards for attorneys, adhering to the rule of law while always working as a “zealous advocate” for the client. – JN