michael kelly · • while nosscr membership keeps us well-informed, most state bar advertising...

Michael Kelly

For Social Security Disability

NBTA Certification programs are accredited by the American Bar Association

The National Board of Trial Advocacy is a not-for-profit organization dedicated to protect consumers in their time of legal need.

508.384.6565 | www.nbtalawyers.org | [email protected]

Board Certification for Social Security Disability

WHY BOARD CERTIFIED?

• In the medical profession, many hospitals require doctors to be board certified in their specialty before granting privileges to them. Hospital administrators realize the value of independent screening of credentials and experience. Consumers are therefore afforded added confidence that the doctors treating their conditions are well and truly qualified. Because of its widespread acceptance, most people seeking medical assistance are unlikely to use doctors who are not board certified physicians.

• Prior to NBTA's founding in 1977, there was no national certification for attorneys; only State Bar organizations had legal specialization programs. Even now, the largest State Bar spe-cialization programs (California and Texas) do not offer board certification in Social Security Disability Law. The problem was (and remains) that lawyers admitted to their state bar were (and still are) free to accept cases in any area of the law.

• While NOSSCR membership keeps us well-informed, most State Bar advertising rules do not allow us to state or imply NOSSCR certifies us as specialists in our area of practice.

THE SUPREME COURT RECOGNIZES THE IMPORTANCE OF NBTA CERTIFICATION

• NBTA has developed a set of standards and procedures for periodic certification of lawyers with experience and competence in trial work. Those standards, which have been approved by a board of judges, scholars, and practitioners, are objective and demanding. Peel v. Attorney Disc. Comm’n, 496 U.S. 91, 95 (1990)

• NBTA certification has been described as a "highly-structured" and "arduous process that employs a wide range of assessment methods." Task Force on Lawyer Competence, Report With Findings and Recommendations to The Conference of Chief Justices, Publication No. NCSC-021, pp. 33-34 (May 26, 1982). Id

BOARD CERTIFICATION FROM NBTA

What You Get:

• Earning board certification allows you to hold yourself out as a specialist in the area of law in which you are certified.

• Use of NBTA logos in advertising.

• Rating services take into account board certification by NBTA in their selection process.





What It Takes

• Apply and pay the applicable fee

• Register and take the examination

• Check on NOSSCR membership discounts

• Questions? Contact Gwen Arcangelo at [email protected]

SOCIAL SECURITY DISABILITY LAW STANDARDS: OVERVIEW

• Furnish evidence of good standing in the state of their principal practice.

• Demonstrate substantial involvement in Social Security Disability Law.

• Demonstrate substantial participation in continuing legal education.

• Favorable Peer Review.

• Submit legal writing samples.

• Disclosure of Misconduct.

• Pass a written examination.

GOOD STANDING AND PERIOD OF PRACTICE

• Furnish evidence of good standing from the State Bar or Supreme Court of the State in which the attorney is admitted

• Practiced Social Security Disability law for the five years immediately preceding the application

SUBSTANTIAL INVOLVEMENT

• Must spend at least thirty percent (30%) of the applicant’s practice on Social Security Disability law in the three years prior to the application date

• Substantial involvement in the specialized practice

ۑ Appeared in no fewer than one hundred (100) Social Security Disability hearings, thirty (30) of which occurred in the three years prior to the application date

ۑ Filed no less than twenty (20) Appeals Council briefs, four (4) of which occurred in the three years prior to the application date

ۑ Filed no less than ten (10) briefs in United States District Court or the Circuit Court of Appeals, two (2) of which occurred in the three years prior to the application date

mailto:garcangelo%40nbtalawyers.org?subject=





CONTINUING LEGAL EDUCATION

• Must demonstrate substantial participation in continuing legal education related to Social Security law and practice in the three (3) years prior to the application date

ۑ Attending or electronic participations in thirty-six (36) hours of continuing legal education in Social Security law

ཚ Hello NOSSCR!

ۑ Teaching or participation in presenting CLE courses as a speaker, panelist, or workshop leader in Social Security law or ethics

ۑ Authorship of books or articles published in professional journals on Social Security Disability law

PEER REVIEW

• Submit a list of ten (10) to twelve (12) references

ۑ Cannot be present partners or relatives

ۑ References shall be substantially involved in the relevant field of Social Security Disability law and be familiar with the applicant’s practice in that field

ۑ The list must include:

ཚ At least four (4) administrative law judges before whom you have appeared in the past three years; and

ཚ Remaining names may be either peer practitioners, opposing counsel at the federal court level, district court judges, medical or vocational experts

• NBTA must receive responses from at least six (6) of the references

ۑ Three (3) of which must be the administrative law judges

• NBTA will solicit confidential statements from all persons listed as references and may solicit confidential statements of reference from other persons, familiar with the applicant’s practice, not specifically named by the applicant

LEGAL WRITING SAMPLES

• Submit six (6) legal writing samples which the applicant prepared and filed no more than three years before the date of application. These documents must relate to Social Security Disability law. The samples should contain concise and accurate writing, stating facts, applica-ble law, and analysis of how the law applies to the facts





• The samples should demonstrate an appropriate argumentative manner and be well con-structed (i.e. organized, grammatical, demonstrative of good syntax and usage). The quality of the legal document will be evaluated on those criteria and will determine whether the applicant is qualified for certification

• The six (6) legal writing samples must include the following:

ۑ Two (2) memoranda or detailed letters which the applicant prepared and filed with an administrative law judge in conjunction with a Social Security Disability hearing

ཚ May be either a pre-hearing memorandum, a request for an on-the-record-decision, or post-hearing memorandum

ۑ Two (2) Appeals Council briefs which the applicant prepared and filed

ۑ As part of the above submissions, the applicant must obtain a waiver from the claimant to prevent a violation of 42 U.S.C. §1306(a) and 5 U.S.C. § 552a

ۑ Two (2) briefs prepared and filed by the applicant in U.S. District Court or the Circuit Court of Appeals

DISCLOSURE OF MISCONDUCT

• To assist the evaluation of whether the applicant possesses an enhanced level of skill and expertise in Social Security Disability advocacy and has demonstrated integrity and dedica-tion to interest of clients, the applicant shall, to the extent known, disclose to NBTA as soon as permitted by law:

ۑ Any criminal charges against the applicant together with all details called for by the Dis-closure of Conduct Form

ۑ Any allegation of unethical or inappropriate professional conduct filed with any court, grievance committee, social security administration, or disciplinary board or body togeth-er with all details called for by the Disclosure of Conduct Form

ۑ The assertion of any claim of professional negligence or professional liability, whether or not suit has been filed, which is based in any part on alleged acts or omissions of the applicant or member or on the acts or omissions of any other attorney over whom the applicant or member had any responsibility together with all details called for by the Disclosure of Conduct Form.

• NBTA shall determine—in accordance with its standards and procedures—whether the con-duct is such that certification should be granted, denied, suspended or revoked, or whether action should be deferred pending receipt of additional information. The NBTA will take into consideration any findings made by other bodies concerning such conduct, but is not bound





by any such findings and will make its own independent assessment concerning how such conduct bears on whether an attorney is qualified to obtain or maintain certification

• The failure of an applicant to disclose such conduct is a material misrepresentation and may be cause for rejecting an application or refusing to grant certification, or for suspending or revoking a certificate

• The applicant shall have a continuing duty to disclose such matters to the board

THE EXAMINATION: OVERVIEW

• Offered twice a year on a Saturday

• The exam consists of two three-hour sessions—

ۑ The morning three-hour session involves 60 multiple choice questions. NBTA supplies an answer sheet for the multiple choice questions

ۑ The afternoon three-hour session involves a pre-hearing memorandum and essay ques-tions. This portion of the exam may be taken by laptop (supplied by the examinee) or by hand writing

• All exam materials are confidential and not available for review. Essay answers are graded anonymously and identified only by an assigned examinee number

• A passing score is 75%. Successful examinees are notified they passed. All failing exam-inations are granted an automatic appeal to the members of the Social Security Specialty Program Commission. Members of this Commission review the failing examinations and make a final determination

THE EXAMINATION: SUBJECT AREAS

• Professional Responsibility

ۑ Rules of Conduct; Fee Agreements; Supervising non-attorneys; and termination of representation

• Practice and Procedure

ۑ File development; hearing preparation; cross-examination of experts; time limits; CDR; TWP; UWA; and res judicata

• Evaluation of Medical/Vocational Issues

ۑ Medical records, tests, and opinion evidence; meets/equals listed impairments; DAA; residual functional capacity; Medical-Vocational Rules; transferable skills





• Eligibility

ۑ Applications; protective filing; income and resources (SSI); SGA; onset date; date last insured

• Present and Object to Evidence

ۑ All evidence rule; subpoenas; testimony; expert testimony and cross-examination; and post hearing evidence

• Post Hearing Appeals

ۑ Request for review; Appeals Council procedures; Federal Court; remands; and court fees

• For more detailed information about subject areas, see the NBTA website

ۑ http://nbta.dev2.ashdowntech.com/wp-content/uploads/2019/09/SOCIAL-SECURI-TY-DISABILITY-EXAM-INFORMATION-PACKET.pdf

THE EXAMINATION: FORMAT

• Multiple Choice Questions. These questions test a breadth of issues in the specialty area and require an applicant to select the option that represents the best answer. Applicants should expect detailed questions on the Social Security Act, Equal Access to Justice Act, Regulations, Rulings, Social Security Rules of Conduct, and the Model Rules of Ethics

• Expect questions on both programs—SSDI and SSI—including eligibility

• While Social Security has its own rules of conduct, you should expect questions under the ABA Model Rules of Professional Conduct

• Pre-Hearing Memorandum: Prepare a memorandum/brief based on information provided in the fact pattern which demonstrates your ability to analyze the facts, select the material from the immaterial facts, discern the points upon which the case turns, and identify and resolve the issues

• An organized, clearly written answer using complete sentences will almost always receive a higher score than a choppy, disorganized one. To pass the exam, you must be able to clearly express answers in a manner that would be persuasive to the decision-maker in a case

ۑ If necessary, set out any assumptions

ۑ Be definitive

• Cite the applicable Social Security Act section, Regulation, Ruling, or other interpretive instruction where applicable. When appropriate, cite Social Security conduct regulation, ABA Rules of Professional Conduct, ABA Model Code of Professional Responsibility, ethical rules in effect in your jurisdiction

http://nbta.dev2.ashdowntech.com/wp-content/uploads/2019/09/SOCIAL-SECURITY-DISABILITY-EXAM-INFORMATION-PACKET.pdf

http://nbta.dev2.ashdowntech.com/wp-content/uploads/2019/09/SOCIAL-SECURITY-DISABILITY-EXAM-INFORMATION-PACKET.pdf





• Essay Questions: Consist of a fact pattern followed by a series of questions (usually 2-4). Es-says require an applicant to recognize and analyze issues in the fact pattern and explain how those issues should be resolved. The fact patterns involve situations you would likely encoun-ter in your practice and include issues related to program eligibility, interaction with benefits other than Social Security Disability, onset of disability, hearing level strategic decisions, reopening prior applications, medical impairments, vocational issues, and related procedural and evidentiary matters

• Again, cite the applicable Social Security Act section, Regulation, Ruling, or other interpretive instruction where applicable. When appropriate, cite Social Security conduct regulation, ABA Rules of Professional Conduct, ABA Model Code of Professional Responsibility, ethical rules in effect in your jurisdiction

THE EXAMINATION: WHAT CAN I BRING WITH ME?

• Social Security Act and Regulations

ۑ West’s Federal Social Security Laws is an acceptable compilation of this information

• Either the ABA Model Code of Professional Responsibility, The Model Rules of Professional Conduct or the state ethics rules

• During the examination—the use of the internet is prohibited except for approved online reference materials:

ۑ ssa.gov/regulations

ۑ americanbar.org/groups/professional_responsibility/publications/model_rules_of_profes-sional_conduct/model_rules_of_professional_conduct_table_of_contents/

THE EXAMINATION: PREPARATION

• Study

• Practice

• REST

• Exam day

ۑ Time management

• NOSSCR is an excellent study source

ۑ Review old conference materials (you kept them, right?)

ۑ Focus on your weak areas

ۑ NOSSCR keeps you up to date on regulation and ruling changes

https://www.ssa.gov/regulations/

http://americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/

http://americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/





• Your State Bar Association or Federal Bar Association

ۑ Good source of ethics webinars

OTHER GENERAL TIPS

• Always look for ways to improve your skills

ۑ Attend Circuit level conferences

ۑ Work on your writing

ۑ Expand your practice to Federal Court

ۑ Talk with other attorneys and share your work

NEXT STEPS FOR YOU

• Apply

• Schedule to take the exam

• STUDY

ۑ Look at sample questions on the website

• Submit the qualifications materials

• Questions?

ۑ Talk to NBTA members in NOSSCR

ۑ Visit the website: nbtalawyers.org

michael kelly · • while nosscr membership keeps us well-informed, most state bar advertising...

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