National Association of Disability Representatives Conference in New Mexico

Last month, I joined colleagues at the annual conference of the National Association of Disability Representatives (NADR), which took place just a few miles north of Keller & Keller’s Albuquerque office. These conferences are always an excellent opportunity to communicate with other disability representatives about developments in Social Security law and changes in how Social Security administers the disability program. Our social security lawyer team can share our own experiences and hear strategies and insights from others.

The time away from the office can also be a good time for reflection and gave me a chance to think about some unique aspects of disability cases in New Mexico.

Tuberculars: Why Health Seekers Began To Relocate To New Mexico

New Mexico became a state largely because of population increases driven by migration of Americans who came to the state for its perceived health benefits. Advances in medicine have greatly reduced the public health threat posed by tuberculosis (in the United States anyway) but in the first half of the 20^th Century, the disease was far less effectively treated. Those with tuberculosis would move to the Southwest after hearing claims of the healing powers of New Mexico’s dry air and warm sun. You may recall seeing the movie Tombstone which featured Doc Holliday as a “lunger” who had moved to the Southwest with the intent to manage his tuberculosis as much as possible.

I was excited to travel to Truth or Consequences, NM after talking to clients who lived there and raved about its hot springs, which are likewise thought to be healthy and healing. (The name of the town actually used to be Hot Springs but changed its name to host the Truth or Consequences radio show in 1950). As a native of Indiana, I was interested to see an inn called Hoosier Hot Springs, which was apparently started by Hoosiers who moved west to enjoy the New Mexico environment.

While tuberculosis is no longer the major domestic health threat it once was, those with respiratory, skin, or other health problems still move to New Mexico in the hopes of alleviating their ailments. Whether someone like this or a New Mexico native is seeking disability, there can be major benefits to being represented by a firm with a local presence who understands the state, its residents, and economy.

The Vocational Analysis: How Social Security Cases Are Decided

One feature of the Social Security Disability adjudication system which may not be obvious is that it’s not all about the symptoms and limitations caused by someone’s medical impairments. These are important, of course, but the vocational analysis involved in the decision-making process is crucial to how cases are decided. The vocational analysis involves an evaluation of whether someone can perform their past work and/or other occupations. Generally, for someone to get Social Security Disability, the agency needs to conclude that the individual is incapable of performing a significant number of jobs that exist in the national economy. This can be unfair to New Mexico residents who may not have the same economic and employment opportunities which may be available elsewhere.

The recent NADR conference largely focused on the vocational portion of Social Security’s disability analysis. A new Social Security Ruling, SSR 24- 3p, has changed the way Social Security judges question the vocational experts who testify in every case.

This new SSR formally expands the sources a vocational expert can rely upon in offering testimony, eliminates responsibilities judges had to resolve conflicts between vocational expert testimony and the outdated Dictionary of Occupational Titles (DOT), and requires a more extensive explanation of a vocational expert’s methodology for providing testimony about available occupations and associated job numbers.

Social Security also recently issued Emergency Messages cautioning its adjudicators against denying Social Security Disability claimants based on a finding that they can perform outdated or obsolete jobs.

Despite Efforts To Modernize, There Are Still Hurdles To Receiving Benefits

Nonetheless, despite these efforts to modernize the vocational portion of the disability evaluation process, disability laws still allow Social Security to deny a claimant even when there may not be any local jobs that the claimant can perform. For example, Social Security’s favorite job to say someone can do when denying their claim is “document preparer.” A recent training video Social Security made for its vocational experts suggests that they testify about it. The experts take an old DOT job description from 1986 about someone preparing documents for microfilming (yes, microfilming), claim this is close enough to someone who currently sits and scans documents all day so they officially cite it, and say there are thousands of these jobs out there.

Someone in New Mexico may not live anywhere near a facility that would employ a fair number of sedentary workers. Even then, they may not have the computer and office skills required for this kind of job. They may not even speak the language that is spoken in the office. Judges may think they can ignore these factors.

With respect to the lack of local jobs, judges may think the law is on their side. The applicable regulation says: “We consider that work exists in the national economy when it exists in significant numbers either in the region where you live or in several other regions of the country.” Technically, Social Security can deny someone even when there are no jobs near them that they can do.

How Our Social Security Lawyers Challenge Unreliable Disability Testimony

However, we can still challenge this. Because the vocational “expert” is offering unreliable testimony anyway, they would likely struggle to identify regions of the country where an occupation like “document preparer” is supposedly performed. They would likely just say that the jobs are spread out all over the country. But we can continue to pull at the string and unravel this testimony. We can show that they have no foundation for their claim that these jobs are all over the country. We can force them to admit they can’t actually identify an employer who hires people to do this.

We understand that the disabled in New Mexico face distinct challenges due to the unique nature of the state, with its population, geography, and economy. Even when Social Security’s rules unfairly fail to account for this, we will fight for a fair outcome. At the recent NADR conference, the attendees were able to see the beauty and expanse of the New Mexico landscape, but without a local presence there, attorneys working with national law firms may not have the understanding of the state and its residents that Keller & Keller does. We look forward to continuing to serve those who live in the Land of Enchantment.